High Court
Case Details
Neutral Citation No. - 2023:AHC:131666 Court No. - 73 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 4168 of 2023 Applicant :- Sunil Kumar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Rayoof Ali Counsel for Opposite Party :- G.A.
Legal Reasoning
Hon'ble Nalin Kumar Srivastava,J. 1. Present Anticipatory Bail Application has been filed with the prayer to grant anticipatory bail to the applicant -Sunil Kumar in Case Crime No.67 of 2022, under Sections 354-Ka, 504, 506, 376D IPC and 5/6 Protection of Children From Sexual Offences Act, Police Station - Mahuli, District - Sant Kabir Nagar. 2. Heard learned counsel for the applicant as well as learned A.G.A. for the State and perused the material available on record. Despite sufficient service of notice, none appears on behalf of opposite party nos. 2 to 4. 3. It is alleged in the F.I.R. that the accused applicant in the night of 23.02.2022, hold the minor daughter of the informant in the field and tried to outrage her modesty. Thereafter, an F.I.R. was lodged under Sections 354Ka, 504, 506 I.P.C. and 7/8 POCSO Act on 12.03.2022 and investigation started. After investigation, now the charge sheet has been filed under Sections 354-Ka, 504, 506, 376D IPC and 5/6 Protection of Children From Sexual Offences Act. 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. Investigation is going on in the matter. In case applicant is granted anticipatory bail, he shall not misuse the liberty of bail and would obey all conditions of bail. 5. It is further submitted that the prosecutrix in her statement under Section 164 Cr.P.C. has herself stated that the families of the parties are on inimical terms and litigations are pending between both the families. It is further stated by her that a criminal case was lodged by the applicant's side against her family members and subsequently, on legal advice, an F.I.R. was lodged in this case. It is further submitted that no injury has been found on the body of the victim in her medical examination. It is further submitted that the accused applicant has been cooperative to the I.O. of the case during the course of investigation and as a matter of fact, earlier, his anticipatory bail application was allowed by the court of Sessions Judge, Sant Kabir Nagar vide order dated 12.05.2022 but the same was challenged before this Court in Criminal Misc. Bail Cancellation Application No.550 of 2022 on the ground that since it was a case under the POCSO Act, the Sessions Judge, Sant Kabir Nagar was not competent to hear and decide the anticipatory bail application of the applicant and on this very ground, anticipatory bail cancellation application was allowed by this Court vide order dated 14.03.2023. It is next submitted that when the anticipatory bail application was moved subsequently before the Special Judge, POCSO Act, Sant Kabir Nagar, the same was rejected by the said court vide order dated 31.03.2023. It is further submitted that the accused applicant has no criminal history to his credit. It is further submitted that earlier, on the basis of allegations of similar nature, an F.I.R. was lodged by the mother of the minor victim of this case against one accused Rahul as Case Crime No.43 of 2023, under Sections 363, 366 I.P.C., P.S. Mahuli, District Sant Kabir Nagar wherein the said Rahul was granted anticipatory bail by the court. 6. Learned A.G.A. opposed the prayer but he could not dispute this fact that the prosectrix in her statement under Section 164 Cr.P.C. has herself admitted that on the basis of legal advice, the present F.I.R. has been lodged in this case. 7. In Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1, the Hon'ble Apex Court has held 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. 8. In Siddharth Vs. State of Uttar Pradesh & Another, (2022) 1 Supreme Court Cases 676, the Hon'ble Apex Court has held that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation, then there is no compulsion on the officer to arrest the accused. 9. 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 filing of police report under Section 173(2) Cr.P.C. in the matter. 10. The application is allowed. 11. In the event of arrest of the applicant, 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 Station House Officer of the police station concerned with the following conditions:- (i) The applicant shall make himself available for interrogation by a police officer as and when required. (ii) 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/her from disclosing such facts to the Court or to any police office. (iii) The applicant shall not leave India without the previous permission of the Court and if he has passport, the same shall be deposited by him before the S.S.P./S.P. Concerned. 12. In case of default of any of the conditions, the Investigating Officer shall be at liberty to file appropriate application for cancellation of interim protection granted to the applicant. Order Date :- 4.7.2023 Shivangi Digitally signed by :- SHIVANGI YADAV High Court of Judicature at Allahabad