Allahabad High Court
Arif vs State Of U.P. on 17 October, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:165465 Court No. - 72 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 7065 of 2024 Applicant :- Arif Opposite Party :- State of U.P. Counsel for Applicant :- Shams Uz Zaman Counsel for Opposite Party :- G.A.,Rohit Nandan Pandey Hon'ble Rajeev Misra,J.
1. Heard Mr. Shams Uz Zaman, the learned counsel for applicant, the learned A.G.A. for State and Mr. Rohit Nandan Pandey, the learned counsel representing first informant/opposite party-2.
2. Perused the record.
3. This application for anticipatory bail has been filed by applicant-Arif seeking anticipatory bail in Case Crime No. 175 of 2023 under Section 377 I.P.C., Police Station-Jewar, District-Gautam Buddh Nagar, during the pendency of trial.
3. It is apposite to mention here that Section 377 I.P.C. was subsequently added against applicant. In respect of case Crime No. 175 of 2023 under Sections 376, 506 I.P.C. Police Station-Jewar, District-Gautam Buddh Nagar, applicant approached this Court by means of Criminal Misc. Bail Application No. 40767 of 2023 (Arif Vs. State of U.P.), which was allowed by this Court vide order dated 30.10.2023. For ready reference the order dated 30.10.2023 is reproduced herein below:
"1. Heard Mr. Mohd Yasad, Advocate holding brief of Mr.Shams Uz Zaman, the learned counsel for applicant, the learned A.G.A. for State and Mr. Rohit Nandan Pandey, the learned counsel representing first informant.
2. Perused the record.
3. Instant application for bail has been filed by applicant-Arif seeking his enlargement on bail in Case Crime No. 175 of 2023 under Sections 376, 506 I.P.C., Police Station- Jewar, District-Gautam Buddh Nagar, during the pendency of trial.
4. Record shows that an F.I.R. was lodged on 28.06.2023 by first informant/prosecutrix Reshma and was registered as Case Crime No. 175 of 2023 under Sections 376, 377, 506 I.P.C., Police Station- Jewar, District-Gautam Buddh Nagar. In the aforesaid F.I.R. applicant Arif has been nominated as solitary named accused.
5. The gravamen of the allegations made in the F.I.R is to the effect that named accused extended a false promise of marriage to the prosecutrix. On the said false promise of marriage, applicant doslodged the modesty of the prosecutrix repeatedly.
6. After aforementioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. Thereafter, the statement of the prosecutrix was recorded under Section 161 Cr.P.C. The same is on record at page 26 of the paper book. In the aforesaid statement, the prosecutrix has not alleged any sentence that false promise of marriage was extended by the applicant. Moreover, from perusal of the said statement it appears that prosecutrix is a willing and consenting party inasmuch as she herself accompanied the applicant. Thereafter, the prosecutrix was requested for her internal medical examination. The Doctor who examined the prosecutrix did not find any sign on the body of the prosecutrix so as to denote commission of deliberate or forceful sexual assault. Certain samples were taken from the body of the prosecutrix for pathological examination. However, the results of the same are in negative. Ultimately, the statement of the prosecutrix was recorded under Section 164 Cr.P.C. wherein the prosecutrix has rejoined her earlier statement under Section 161 Cr.P.C. with better details.
7. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of named accused Arif is fully established in the crime in question. Accordingly, Investigating Officer submitted the charge-sheet dated 20.07.2023, whereby applicant has been charge-sheeted under Sections 376, 506 I.P.C.
8. Learned counsel for applicant contends that though the applicant is a named as well as charge-sheeted accused yet he is liable to be enlarged on bail. The prosecutrix is major. She is a willing and consenting party. The allegations made in the F.I.R. that modesty of the prosecutrix was dislodged by extending false promise of marriage is conspicuous by its absence in the statements of the prosecutrix recorded under Section 161/164 Cr.P.C. He therefore submits that applicant is liable to be enlarged on bail.
9. Even otherwise applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in custody since 29.06.2023. As such he has undergone almost four months of incarceration. Police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted, therefore the entire evidence sought to relied upon by the prosecution against applicant stands crystallised. Upto this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. The medical evidence does not support the charge-sheet. On the above premise, the learned counsel for applicant submits that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.
10. Per contra, the learned A.G.A. for State and the learned counsel representing first informant have vehemently opposed the prayer for bail. They submit that since the applicant is a named accused, therefore, he does not deserve any indulgence by this Court. Applicant is guilty of dislodging the modesty of the prosecutrix by extending false promise of marriage. Prosecutrix in her statements under Sections 161/164 has fully supported the F.I.R. On the above premise, they submit that no sympathy be shown by this Court in favour of applicant. However, they could not dislodge the factual and legal submissions urged by learned counsel for applicant with reference to the record at this stage.
11. Having heard the learned counsel for applicant, the learned A.G.A., the learned counsel representing first informant, upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant coupled with the fact that the prosecutrix is major, she is a willing and consenting party, though in the F.I.R., it has been it has been alleged that her modesty was dislodged by the applicant repeatedly by extending false promise of marriage, however no such allegation has occurred in the statements of prosecutrix recorded under Sections 161/164 Cr.P.C, the clean antecedents of applicant, period of incarceration undergone, the police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant, therefore, the entire evidence sought to relied upon by the prosecution against applicant stands crystallised, yet in spite of above, the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, therefore, irrespective of the objections raised by the learned A.G.A. and the learned counsel for first informant in opposition to the present application for bail but without expressing any opinion on the merits of the case, applicant has made out a case for bail.
12. Accordingly, present application for bail is allowed.
13. Let the applicant-Arif involved in aforesaid case crime number be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
(i) Applicant will not tamper with prosecution evidence.
(ii) Applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) Applicant will not indulge in any unlawful activities.
(iv) Applicant will not misuse the liberty of bail in any manner whatsoever.
14. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of applicant and send him to prison.
Order Date :- 30.10.2023 "
4. Present application for anticipatory bail came up for orders on 01.10.2024 and this Court passed the following order:
"1. Heard learned counsel for the applicant, learned counsel for informant as well as learned AGA and perused the material available on record.
2. The present Anticipatory Bail Application has been filed with the prayer to grant anticipatory bail to the applicant - Arif in Case Crime No. 175 of 2023, under Section 377 I.P.C., Police Station - Jewar, District - Gautam Budh Nagar.
3. It is submitted by learned counsel for the applicant that previously applicant was enlarged on bail by order dated 30.10.2023 passed in Criminal Misc. Bail Application No.40767 of 2023. Subsequently after further investigation, applicant has been summoned under Section 377 IPC and the present matter is in respect of newly added Section 377 IPC. It is submitted that informant has also filed a bail cancellation application, which is pending consideration before this Court. It is submitted that since in the present case, applicant has already been enlarged on bail, he is also entitled to be released on anticipatory bail in newly added section. It is further submitted by learned counsel for the applicant that the applicant is innocent and has no concern with the present matter. Allegations levelled against the applicant are false. It is further argued that applicant's case is squarely covered under Section 438 Cr.P.C. No prima facie case is made out against the applicant. If the applicant is enlarged on anticipatory bail, he will not misuse the liberty and cooperate with the investigation. The applicant has apprehension of his arrest by the police any time.
4. Learned A.G.A. and learned counsel for informant opposed the prayer. Learned counsel for informant submits that informant has preferred bail cancellation application before this Court and the same is pending consideration. It is further submitted that the matter may be connected with the aforesaid bail application. It is further submitted that non bailable warrant has been issued against applicant.
5. It is to be seen in the present case that since issue with regard to cancellation of previous bail is pending consideration before this Court, any finding recorded in this order while disposing of finally, would materially effect the bail cancellation application of the informant, as such, at this stage, it would be appropriate that present anticipatory bail application be connected with the aforesaid bail cancellation application.
6. Connect with Bail Cancellation Application No.326 of 2024.
7. Learned AGA and learned counsel for informant may file counter affidavit within two weeks.
8. As an interim protection, till the next date fixed for final hearing on this application, the applicant is granted interim anticipatory bail in the aforesaid case crime number. In the event of arrest of the applicant, he shall be released on interim anticipatory bail on his furnishing a personal bond of Rs.25,000/- with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-
(i) The applicant shall make himself available for interrogation by a police office 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 concerned.
(iv) In the event, the applicant changes residential address, the applicant shall inform the court concerned/Investigating Officer about new residential address in writing.
9. 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 :- 1.10.2024 "
5. Subsequent to above order dated 01.10.2024, no counter affidavit has been filed by the learned A.G.A. and the learned counsel representing first informant.
6. Learned counsel for applicant contends since the applicant has already been enlarged on under the principle sections, therefore, no good or justifiable ground exists to deny anticipatory bail in respect of added Section 377 I.P.C. On the above premise, he therefore contends that this application for anticipatory bail is liable to be allowed.
7.Even otherwise, applicant is man of clean antecedents having no criminal history to his credit except the present one. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such circumstance has emerged on record necessitating the custodial arrest of applicant during the pendency of trial.
8. Per contra, the learned A.G.A. for State and the learned counsel representing opposite party-2 have vehemently opposed the present application. However, they could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.
9. Having heard the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing opposite party-2, upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant and coupled with the fact that since applicant has already been enlarged on bail under the principle sections mentioned in the F.I.R., Section 377 was subsequently added, no such incriminating circumstance has emerged on record so as to deny anticipatory bail to the applicant for an offence under Section 377 I.P.C., the police report in terms of Section 173 (2) Cr.P.C has already been submitted against applicant therefore the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized, yet inspite of above, the learned A.G.A. as well as the learned counsel representing first informant could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, therefore irrespective of the objections raised by learned A.G.A. in opposition to present application for anticipatory bail but without expressing any opinion on the merits of the case, applicant has made out a case for bail.
9. Accordingly, present application for anticipatory bail is allowed.
10. In view of above, in the event of arrest, applicant- Arif shall be released in Case Crime No. 175 of 2023 under Section 377 I.P.C., Police Station-Jewar, District-Gautam Buddh Nagar on his furnishing a personal bond of Rs.25,000/- 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 not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade from disclosing such facts to the Court or to any police officer;
(ii) 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.
11.In default of any of the conditions, the Investigating Officer/Govt. Advocate is at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicants.
Order Date :- 17.10.2024 YK