High Court · 2022

Heard Mohd Saleem Kahn, learned counsel for the applicant and Sri S.N. Mishra, learned A.G.A. appearing for the State- respondent. By way of filing present anticipatory bail application under Section 438 Cr.P.C. applicant made a prayer to release him on bail in the event of arrest by the police in Case Crime No. 119 of 2022, under Sections 376, 452, 323 IPC, Police Station- Kotwali, District-Rampur, during the pendency of investigation. Notice on behalf of State-respondent has been received by learned AGA and the learned AGA submitted that he has already received the instructions in the matter and therefore, with the consent of both the parties, the present anticipatory bail application is being decided, finally. Learned counsel for the applicant submitted that from the lodged by the FIR which was perusal complainant/prosecutrix it appears that she was a consenting party and even as per the allegation made in the FIR when her marriage was settled with the applicant then physical relationship was made between the parties with their consent although the fact is that no such physical relationship was ever developed by the applicant with the prosecutrix. He further submitted that the marriage of the applicant with the prosecutrix was settled by his father in the month of October, 2019 and immediately thereafter, within one month, he went to Saudi Arabia in the month of November, 2019, this fact is evident from the immigration certificate issued by the Kingdom of Saudi Arabia which is annexed annexure No. 2 to the present application. He further submitted that while applicant was residing at Saudi Arabia, in the meantime, his father expired and due to service contract, applicant could not return back to India and he could return back only in the month of May, 2022 and when he returned back then this fact came into his knowledge that the prosecutrix is not such a girl with whom he may perform marriage, therefore, considering the conduct and family background of the prosecutrix, applicant denied to perform marriage with her and only due to this, in retaliation, prosecutrix lodged the FIR of the present case with totally false and frivolous allegations, therefore, the applicant may be released on anticipatory bail. Per contra, learned AGA opposed the prayer for anticipatory bail and submitted that from the perusal of the FIR, it is apparent that applicant made physical relationship with the prosecutrix although with her consent in the present case but allegation of the prosecutrix is that physical relationship between both the parties were developed under the pretext of marriage and as applicant himself refused to perform marriage, therefore, it cannot be said that no offence under Section 376 IPC is made out and the other argument advanced by learned counsel for the applicant cannot be appreciated as it appears that the same was taken as a defence. Learned AGA further submitted that as per his instructions, prosecutrix supported the version of the FIR in her statement recorded under Sections 161 and 164 Cr.P.C., therefore, from the perusal of the FIR and the statements of the prosecutrix which is recorded under Sections 161 and 164 Cr.P.C., an offence under Section 376 IPC is made out, therefore, anticipatory bail application of the applicant is devoid of merit and is liable to be dismissed. I have heard learned counsel for the parties and perused the record of the case. Admittedly, from the perusal of the FIR, physical relationship if developed, between applicant and the prosecutrix then it was developed with her consent although it appears, she was ready to develop the physical relationship with the applicant as her marriage was settled with the applicant but it is specific defence of the applicant that when applicant returned back from Saudi Arabia in May, 2022 then he refused to perform the marriage with the prosecutrix as the marriage was settled by his father and he was not ready to perform marriage now with the prosecutrix and therefore, when he refused to perform marriage with her then due to this reason, on the basis of totally false allegations, she lodged FIR of the present case. The defence taken by the applicant is not appeared to be highly improbable and from the perusal of the FIR and the statement which was produced by learned AGA of the prosecutrix under Sections 161 and 164 Cr.P.C., it appears that she herself consented to develop physical relationship with the applicant and the defence taken by the applicant appears to be probable, therefore, without expressing any opinion on the merits of the case, considering the age of prosecutrix and the defence taken by the applicant, I find that it is a fit case in which applicant may be released on therefore, the instant anticipatory bail anticipatory bail, application is allowed and in the event of arrest of the applicant-Ahad @ Mohammad Jawad Ali involved in the aforesaid case crime, he shall be released on bail, till submission of police report, under section 173 (2) Cr.P.C. before the competent court on his furnishing a personal bond of Rs. 25,000/- with two sureties each in the like amount to the satisfaction of the investigation officer with the following conditions:- (i) that the applicant shall make himself available for interrogation by a police officer as and when require and will co-operate with the investigation; (ii) that 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; (iii) that 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; (iv) that the applicant shall not leave India without the previous permission of the Court; In default of any of the conditions, the informant is at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicant. The present anticipatory bail application stands allowed. Order Date :- 23.6.2022 Ankita