High Court
Case Details
Court No. - 72 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 7762 of 2022 Applicant :- Robin James Opposite Party :- State of U.P. Counsel for Applicant :- R.S. Pandey,Rajshree Malviya Counsel for Opposite Party :- G. A. Hon'ble Suresh Kumar Gupta,J.
Legal Reasoning
Rejoinder affidavit filed today by the learned counsel for the applicant is taken on record. Earlier the counter affidavit was filed on 3.11.2022 and affidavit of compliance was filed on 15.11.2022. Heard Sri R.S. Pandey, learned counsel for the applicant, Sri Pankaj Kumar Tripathi, learned A.G.A. for the State and perused the record. The instant anticipatory bail application has been filed on behalf of the applicant-Robin James with a prayer to release on bail in Case Crime No. 316 of 2021, under Sections 306 IPC, Police Station- Phase III, District- Gautam Budh Nagar. It is contended on behalf of the applicant that the applicant is innocent and has been falsely implicated in the present case. He further submitted that F.I.R. of the alleged incident has been lodged on 19.4.2021 at 22:57 with the allegation that the informant's daughter, namely, Saifali Kuzur went out from the house at 2:00 p.m. on 19.4.2021 and when she did not return at home then the informant made a call to her phone but her phone was switched off. Thereafter, he contacted to her boy-friend Sushant at his mobile, who told him that he will check oyo hotel near town house at Sector 121 NOIDA. Then informant has come at oyo hotel where Sushant met and and know the fact that his daughter Saifali committed suicide by jumping from the hotel due to torture of applicant about 4:50 p.m. Therefore, F.I.R. of the present case was lodged against the applicant under Section 306 I.P.C. Learned counsel for the applicant further submitted that earlier the applicant was boy-friend of the deceased prior to year, 2019 but their relation had already been broken and the applicant has fully cut off his relation with the deceased since 2.2.2019. The applicant has no concern with the deceased since 2.2.2019. Learned counsel for the applicant further submitted that no conversation took place between the deceased and the applicant about 3 years. There was also no call record of the applicant with the deceased at the time when the deceased was staying at the hotel. There is also no mens rea to the applicant for instigating the deceased for committing suicide. Thus, the applicant has falsely been implicated in the present case due to enmity. It has also been submitted that the Investigating Officer has not collected any credible and cogent evidence against the applicant to show that the applicant has instigated the deceased for committing suicide. The whatsapp message containing the role of the applicant, which is stated to be sent by the mobile of the deceased to her father, is forged and fabricated, as the message has neither been sent by the mobile of the deceased nor received by the father of the deceased. So, it is also doubtful that whether before committing suicide the whatsapp message was sent by the deceased to her father's mobile. To clarify this fact, the Investigating Officer has recorded the statement of the elder sister of deceased, namely, Kaddu in which she has stated that she has unlocked the mobile of her sister by using pattern lock and after taking the screen shot of the message, she has handed over the hard copy of the same to the police. She has also given the mobile phone to the police. He further submitted that if the message in question was sent by the deceased on 19.4.2021 before the incident, in such a situation screen-shot shall depict 'Today' but 'date' could not be appear thus, the message is older than two days, therefore, no reliance can be placed on the whatsapp - message. He further submitted that mobile of the deceased, which was kept in 'malkhana' is now missing, therefore, now there is nothing on record to show the credibility of the whatsapp chat made by the deceased. In fact, conspiracy has been done to falsely implicate the applicant by fabricated the alleged message. He also submitted that during the course of the investigation, the Investigating Officer has not collected the CCTV footage of the alleged hotel and he has also not recorded the statement of hotel staff. He further submitted that even the statement of the boy-friend the decease, namely, Shushant, has also not been recorded by Investigating Officer on the same day. While as per allegation is the F.I.R. the boyfriend of the deceased was present on the hotel but when the statement of Sushant was recorded by the Investigating Officer then he stated that he was not present on hotel at the time of alleged incident. Thus, there is no evidence in support of the prosecution version, therefore, all the prosecution story is totally false and concocted. Further submission is that the applicant shall fully cooperate with the investigation. Therefore the applicant may be enlarged on anticipatory bail and he is ready to cooperate with the trial. If the applicant is granted anticipatory bail, he will never misuse the same. Learned A.G.A. opposed the prayer for anticipatory bail and submitted that before committing suicide the whatsapp message was sent by the deceased. It has also submitted that on the perusal of the whatsapp message it appears that due to continuous harassment and threat made by the erstwhile boy- friend i.e. the present applicant, the deceased committed suicide. Thus, prima facie offence is made out against the applicant and the allegation against the applicant is serious in nature. Therefore, the applicant is not liable to be enlarged on anticipatory bail. It may be stated that in case of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, it has been held by Hon'ble Supreme Court that while deciding anticipatory bail, Court must consider nature and gravity of accusation, antecedent of accused, possibility of accused to flee from justice and that Court must evaluate entire available material against the accused carefully and that the exact role of the accused has also to be taken into consideration. In the instant case, 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 on merit of the case, a case for granting anticipatory bail is made out. In the event of arrest of the applicant Robin James shall be released on anticipatory bail till the submission of police report, if any, under section 173 (2) Cr.P.C. before the competent Court on furnishing a personal bond with two sureties each in the like amount to the satisfaction of the Station House Officer of the police station concerned with the following conditions:- (i) the applicant shall make himself/herself 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 them 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 the applicant has passport the same shall be deposited by the applicant before the S.S.P./S.P. concerned. In default of any of the conditions, the Investigating Officer is at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicant. The Investigating Officer is directed to conclude the investigation of the present case in accordance with law expeditiously preferably within a period of three months from the date of production of a certified copy of this order independently without being prejudice by any observation made by this Court while considering and deciding the present anticipatory bail application of the applicant. The applicant is directed to produce a certified copy of this order, before the S.S.P./S.P. concerned within ten days from today, who shall ensure the compliance of present order. In this matter, there is serious lapses on behalf of the first Investigating Officer- Lokesh Kumar and therefore, it is desirable to conduct administrative enquiry against Investigating Officer -Lokesh Kumar for failing to due discharge his duty.
Decision
The anticipatory bail application is, accordingly, disposed of. Order Date :- 15.12.2022 Anuj Singh Digitally signed by ANUJ PRATAP SINGH Date: 2022.12.19 18:36:08 IST Reason: Location: High Court of Judicature at Allahabad