Allahabad High Court

HON'BLE NALIN KUMAR SRIVASTAVA, J.

1. Heard learned counsel for the applicant, learned AGA and perused the material available on record.

2. This application for anticipatory bail has been filed by applicant- Malkhan Singh @ Malkhan in connection with Case Crime No. 393 of 2021 under sections 328, 376D, 506 IPC, P.S. Dibai, District Bulandshahr.

3. The present accused applicant is alleged to commit gang rape with the lady victim of this case along with the main accused Anil on 8.4.2021 at 9:00 pm when she was going to get easy. FIR was lodged against both the accused persons but however she denied to have internally or externally medical examination.

4. It has been submitted by the learned counsel for the applicant that applicant is innocent and he has apprehension of arrest in the above-mentioned case, whereas there is no credible evidence against him. Allegations levelled against the applicant are false. It is further submitted that during investigation no evidence at all was collected by the I.O. against the present accused applicant and charge sheet was submitted only against the co-accused Anil. It is further submitted that on the basis of the deposition of P.W.1 the victim and P.W.2 husband of the victim the learned trial Court summoned the accused applicant to face the trial under Section 328, 376D and 506 I.P.C. It is also submitted that after some time prior to the incident humiliation was caused to the son of the victim by co-accuses Anil and since he is the relative of the co- accused Anil he was falsely implicated in this case whereas the animosity was between the victim and co-accused Anil. It is further submitted that since the internal or external medication examination of the victim has been denied there is no cogent medical report on record. It is also submitted that there are significant contradictions in the deposition of P.W.1 and P.W.2 made before the Court. It is also submitted that the present accused applicant has no criminal history to his credit and he is a government teacher. It is further submitted that after passing of the summoning order by the learned trial Court dated 5.8.2025 the said order was challenged by filing Application U/S 528 BNSS No. 34249 of 2025 against the summoning order dated 5.8.2025 and the same is still pending and no order whatsoever has been passed in that matter. In case applicant is granted anticipatory bail, he will not misuse the liberty of bail and would obey all conditions of bail.

5. Learned A.G.A. has opposed the prayer for anticipatory bail. It is submitted that the victim of this case has made categorical statements that the present 2 NABAIL No. 9195 of 2025 accused applicant was also sharing crime along with the main accused Anil and there are no material contradiction in the statements of P.W.1 and P.W.2 .

6. Although the charge sheet has been submitted in this matter but in Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1 , the Hon'ble Apex Court has settled the law on the subject finally by holding that the anticipatory bail need not be of limited duration invariably. In appropriate case, it can continue upto conclusion of trial.

7. It has been further held therein that anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial.

8. It has been further held by the Hon'ble Apex Court that while considering an application for grant of anticipatory bail, the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence including intimidating witnesses, llikelihood of fleeing justice, such as leaving the country, etc. It has further been held that Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion.

9. In Aman Preet Singh v. CBI, (2022) 13 SCC 764, the Hon'ble Apex Court has held that : "11. A reading of the aforesaid shows that it is the guiding principle for a Magistrate while exercising powers under Section 170CrPC which had been set out. The Magistrate or the Court empowered to take cognizance or try the accused has to accept the charge-sheet forthwith and proceed in accordance with the procedure laid down under Section 173CrPC. It has been rightly observed that in such a case the Magistrate or the Court is required to invariably issue a process of summons and not warrant of arrest. In case he seeks to exercise the discretion of issuing warrants of arrest, he is required to record the reasons as contemplated under Section 87 Cr.P.C that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him. In fact the observations in sub-para (iii) above by the High Court are in the nature of caution.

12. So far as the present case is concerned and the general principles under Section 170Cr.P.C, the most apposite observations are in sub-para (v) of the High Court judgment in the context of an accused in a non-bailable offence whose custody was not required during the period of investigation. In such a scenario, it is appropriate that the accused is released on bail as the circumstances of his having not been arrested during investigation or not being produced in custody are itself sufficient to entitle him to be released on bail. The rationale has been succinctly set out that if a person has been enlarged and free for many years and has not even been arrested during investigation, to suddenly direct his arrest and to be incarcerated merely because charge-sheet has been filed would be contrary to the governing principles for grant of bail. We could not agree more with this."

10. Hence, considering the settled principles of law regarding anticipatory bail, submissions of the learned counsel for the parties, nature of accusation, role of applicant and all attending facts and circumstances of the case, without expressing any opinion of the merits of the case, in my view, it is a fit case for anticipatory bail to the applicant till conclusion of trial in the matter.

11. The anticipatory bail application is allowed accordingly.

12. In the event of arrest of the applicant in the aforesaid case crime, he shall be released on anticipatory bail on his furnishing a personal bond of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the Court concerned with the following conditions :- 3 NABAIL No. 9195 of 2025 i. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence. ii. The applicant shall not pressurize/ intimidate the prosecution witness. iii. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected. iv. The applicant shall not leave India without prior permission of the Court and if he has passport, the same shall be deposited by her before the S.S.P./S.P. concerned.

13. In case of breach of any of the above conditions, the Investigating Officer shall be at liberty to file appropriate application for cancellation of anticipatory bail of the applicant in accordance with law. November 17, 2025 Fhd (Nalin Kumar Srivastava,J.)

HON'BLE NALIN KUMAR SRIVASTAVA, J.

1. Heard learned counsel for the applicant, learned AGA and perused the material available on record.

2. This application for anticipatory bail has been filed by applicant- Malkhan Singh @ Malkhan in connection with Case Crime No. 393 of 2021 under sections 328, 376D, 506 IPC, P.S. Dibai, District Bulandshahr.

3. The present accused applicant is alleged to commit gang rape with the lady victim of this case along with the main accused Anil on 8.4.2021 at 9:00 pm when she was going to get easy. FIR was lodged against both the accused persons but however she denied to have internally or externally medical examination.

4. It has been submitted by the learned counsel for the applicant that applicant is innocent and he has apprehension of arrest in the above-mentioned case, whereas there is no credible evidence against him. Allegations levelled against the applicant are false. It is further submitted that during investigation no evidence at all was collected by the I.O. against the present accused applicant and charge sheet was submitted only against the co-accused Anil. It is further submitted that on the basis of the deposition of P.W.1 the victim and P.W.2 husband of the victim the learned trial Court summoned the accused applicant to face the trial under Section 328, 376D and 506 I.P.C. It is also submitted that after some time prior to the incident humiliation was caused to the son of the victim by co-accuses Anil and since he is the relative of the co- accused Anil he was falsely implicated in this case whereas the animosity was between the victim and co-accused Anil. It is further submitted that since the internal or external medication examination of the victim has been denied there is no cogent medical report on record. It is also submitted that there are significant contradictions in the deposition of P.W.1 and P.W.2 made before the Court. It is also submitted that the present accused applicant has no criminal history to his credit and he is a government teacher. It is further submitted that after passing of the summoning order by the learned trial Court dated 5.8.2025 the said order was challenged by filing Application U/S 528 BNSS No. 34249 of 2025 against the summoning order dated 5.8.2025 and the same is still pending and no order whatsoever has been passed in that matter. In case applicant is granted anticipatory bail, he will not misuse the liberty of bail and would obey all conditions of bail.

5. Learned A.G.A. has opposed the prayer for anticipatory bail. It is submitted that the victim of this case has made categorical statements that the present 2 NABAIL No. 9195 of 2025 accused applicant was also sharing crime along with the main accused Anil and there are no material contradiction in the statements of P.W.1 and P.W.2 .

6. Although the charge sheet has been submitted in this matter but in Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1 , the Hon'ble Apex Court has settled the law on the subject finally by holding that the anticipatory bail need not be of limited duration invariably. In appropriate case, it can continue upto conclusion of trial.

7. It has been further held therein that anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial.

8. It has been further held by the Hon'ble Apex Court that while considering an application for grant of anticipatory bail, the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence including intimidating witnesses, llikelihood of fleeing justice, such as leaving the country, etc. It has further been held that Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion.

9. In Aman Preet Singh v. CBI, (2022) 13 SCC 764, the Hon'ble Apex Court has held that : "11. A reading of the aforesaid shows that it is the guiding principle for a Magistrate while exercising powers under Section 170CrPC which had been set out. The Magistrate or the Court empowered to take cognizance or try the accused has to accept the charge-sheet forthwith and proceed in accordance with the procedure laid down under Section 173CrPC. It has been rightly observed that in such a case the Magistrate or the Court is required to invariably issue a process of summons and not warrant of arrest. In case he seeks to exercise the discretion of issuing warrants of arrest, he is required to record the reasons as contemplated under Section 87 Cr.P.C that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him. In fact the observations in sub-para (iii) above by the High Court are in the nature of caution.

12. So far as the present case is concerned and the general principles under Section 170Cr.P.C, the most apposite observations are in sub-para (v) of the High Court judgment in the context of an accused in a non-bailable offence whose custody was not required during the period of investigation. In such a scenario, it is appropriate that the accused is released on bail as the circumstances of his having not been arrested during investigation or not being produced in custody are itself sufficient to entitle him to be released on bail. The rationale has been succinctly set out that if a person has been enlarged and free for many years and has not even been arrested during investigation, to suddenly direct his arrest and to be incarcerated merely because charge-sheet has been filed would be contrary to the governing principles for grant of bail. We could not agree more with this."

10. Hence, considering the settled principles of law regarding anticipatory bail, submissions of the learned counsel for the parties, nature of accusation, role of applicant and all attending facts and circumstances of the case, without expressing any opinion of the merits of the case, in my view, it is a fit case for anticipatory bail to the applicant till conclusion of trial in the matter.

11. The anticipatory bail application is allowed accordingly.

12. In the event of arrest of the applicant in the aforesaid case crime, he shall be released on anticipatory bail on his furnishing a personal bond of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the Court concerned with the following conditions :- 3 NABAIL No. 9195 of 2025 i. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence. ii. The applicant shall not pressurize/ intimidate the prosecution witness. iii. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected. iv. The applicant shall not leave India without prior permission of the Court and if he has passport, the same shall be deposited by her before the S.S.P./S.P. concerned.

13. In case of breach of any of the above conditions, the Investigating Officer shall be at liberty to file appropriate application for cancellation of anticipatory bail of the applicant in accordance with law. November 17, 2025 Fhd (Nalin Kumar Srivastava,J.)