Allahabad High Court
Punit Kumar Pal vs State Of U.P And 2 Others on 23 November, 2022
Author: Suresh Kumar Gupta
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Reserved on: 16.11.2022 Delivered on: 23.11.2022 Court No. - 72 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 3164 of 2021 Applicant :- Punit Kumar Pal Opposite Party :- State Of U.P And 2 Others Counsel for Applicant :- Mohit Singh Counsel for Opposite Party :- G.A.,Parvat Singh,Rajiv Sisodia,Ram Mohan Hon'ble Suresh Kumar Gupta,J.
1. Heard learned counsel for the applicant, the learned Additional Government Advocate for the State as well as the counsel for the first informant and perused the record.
2. This anticipatory bail application under section 438 Cr.P.C. has been moved seeking anticipatory bail in Case Crime No. 631 of 2020, under sections- 376 IPC & 3(2)(v) of SC/ST Act, Police Station- Syohara, District- Bijnor.
3. During course of hearing, learned AGA as well as learned counsel for the first informant raised objection that the present anticipatory bail application is not maintainable as it is clearly hit by Section 13 of SC and ST (Prevention of Atrocities) Act, 1989.
4. The counsel for the applicant submitted that although though there is statutory bar against filing of anticipatory bail application for an offence allegedly committed under the SC/ST Act, but as per the judgement of the Apex Court in Prathvi Raj Chauhan vs. Union of India and others (2020) 4 SCC 727, it was held that the anticipatory bail application would be maintainable where the prima facie, no offence under the SC/ST Act is made out. Thus, on perusal of the entire allegations, no offence under SC/ST Act is made out against the applicant. It is further submitted that on perusal of the FIR, it appears that the victim was not molested in public place. Earlier the applicant being a member of SC/ST was granted interim protection by this Court vide order dated 10.02.2021. Thereafter, several dates have been fixed.
5. Considering the aforesaid, the present anticipatory bail application is maintainable.
6. The counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the case due to ulterior motive. The FIR of the alleged incident has been lodged against the applicant and his father U/s 354 IPC and Section 3(1)(da), 3(1)(dha) of SC/ST Act on 12.12.2020 in which the alleged date of incident is mentioned from 01.10.2020 and 03.10.2020. As per allegations in the FIR, the applicant outraged the modesty of the first informant inside his Pal Honda Motorcycle Agency. No time is mentioned in the FIR and as such the FIR is delayed by about one month and 12 days with due deliberation without any plausible explanation. So no reliance can be placed on the FIR.
7. The counsel for the applicant submits that during course of investigation on the basis of statements of the victim recorded U/s 161 & 164 CrPC, the case was converted U/s 376 IPC & 3(2)(v) of SC/ST Act in which the first informant changed the earlier version. The applicant has no previous criminal history. The applicant is a student pursuing B-tech. In fact, the first informant embezzled a sum of Rs. 3 lakhs while working in the Agency owned by the father of the applicant. When the pressure was mounted on to her to give the aforesaid amount, the false and frivolous FIR was alleged against the applicant and his father. With regard to the said embezzlement committed by the opposite party no.3/the first informant on 02.12.2020, the father of the applicant filed an application U/s 156(3) CrPC against her on 07.12.2020 which is annexed as Annexure-5 to the affidavit filed in support of application. Thus, in order to harass as a counterblast, this FIR was lodged on 12.12.2020.
8. It is further submitted that the first informant and her sister Anju are habitual in lodging such type of FIRs in order to extract the money from the innocent persons. An FIR registered as case crime no. 41/2019, U/s 354 IPC was lodged by the first informant against one Sarvendra Prasad and others, in which charge-sheet was submitted on 20.3.2019. Another FIR registered as case crime no. 623/2018 U/s 354Kha/511/323/504/506 IPC was lodged by the sister of the first informant against one Neeraj and others, in which charge-sheet was submitted on 4.1.2019 and an FIR registered as case crime no. 227/2019 U/s 406/323 IPC was also lodged by the sister of the opposite party no.3 against her brother Shispal, in which charge-sheet was submitted on 1.8.2019. Another false case was lodged by the first informant against one Pawan Sharma registered as case crime No. 385/2016, U/s 376/506 IPC and 3(1)(12) of SC/ST Act in which the trial court acquitted the said Pawan Sharma vide order dated 22.01.2019, the same is annexed as Annexure-11 to the affidavit filed in support of application. In this regard, the counsel for the applicant has relied on the judgement of this Court in the case of Nikki Devi vs. State of U.P. and Another passed in Application U/s 482 No. 20438 of 2022, in which this Court exercising the inherent jurisdiction directed to the CBI to conduct the inquiry.
9. It is further submitted that on same allegation, one complaint U/s 156(3) CrPC was moved by the first informant against the applicant and his father on 10.12.2020 and the same was rejected as not pressed by the applicant vide order dated 06.01.2021 passed by the learned Magistrate. It is also submitted that during pendency of the instant application, one FIR was also lodged by the first informant against her real brothers and other family members on 14.09.2022 registered as case crime no. 508/2022, U/s 354Kha/376/511/323/504/506 IPC in which the alleged date of incident is mentioned as 31.8.2022. It is further submitted that the sister of the first informant also lodged several FIRs against some persons.
10. It is further submitted that during course of investigation, the applicant fully cooperated with the investigating officer and was never arrested. The applicant has already got interim anticipatory bail by coordinate bench of this Court vide order dated 10.2.2021. After filing of charge-sheet, charges against the applicant and his father were also framed on 07.01.2022. He appeared before the court below, but the first informant anyhow wants to lodge the applicant in jail. The father of the applicant has already been granted bail by the court concerned.
11. The counsel for the applicant further submits that since there is an apprehension of arrest of the applicant, he seeks anticipatory bail till conclusion of trial. He has relied upon the judgements of the Apex Court in the cases of Aman Preet Singh vs. C.B.I. through Director, AIR 2021 Supreme Court 4154 and Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98. The applicant is ready to cooperate in the trial. He undertakes that he shall immediately appear before the trial court and participate in the trial, failing which the anticipatory bail granted to him shall automatically be cancelled.
12. Learned A.G.A., the counsel for the first informant and the victim (in person) have opposed the prayer for bail and submitted that the father of the applicant is a muscleman.The first informant is an advocate and before lodging of the FIR, she submitted an application to DIG on 11.12.2020 in which allegation of rape was alleged against the applicant. But in collusion with the police authorities, the applicant made pressure on the first informant for changing the facts of the aforesaid application. It is further submitted that sufficient evidence was collected by the investigating officer and the learned Special Judge (SC/ST Act) took cognizance on 15.3.2021 against the applicant and the accusation against him is well established. There is no reason for false implication of the applicant. The prima facie allegation of rape is made out against the applicant which is serious in nature. Thus, the application is liable to be rejected.
13. 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.
14. The Hon'ble Supreme Court in the case of Aman Preet Singh (Supra), the Court has observed as under:
"10. Insofar as the present case is concerned and the general principles under Section 170 Cr.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 is itself sufficient to entitle him to be released on bail.
11. 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."
15. In Aman Preet Singh (supra), the Court has clearly held that if a person, who is an accused in a non-bailable/cognizable offence, was not taken into custody during the period of investigation, in such a case, it is appropriate that he may be released on bail as the circumstances of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail.
16. Considering the facts and circumstances of the case as well as submissions advanced by learned counsel for the parties, I am of the opinion that it is a fit case for grant of bail to the applicant.
17. Accordingly, the anticipatory bail application is hereby allowed.
18. In the event of arrest, the applicant- Punit Kumar Pal involved in the aforesaid case crime shall be released on anticipatory bail till conclusion of trial on furnishing a personal bond and, two sureties each in the like amount to the satisfaction of the trial Court concerned with the following conditions:
(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in Court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law;
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code. The applicant shall cooperate in the investigation;
(iii) In case, the applicant misuses the liberty of bail and in order to secure their presence proclamation under Section 82 Cr.P.C. is issued and the applicants fails to appear before the Court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against them in accordance with law, under Section 174-A of the Indian Penal Code; and
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.
Order Date :- 23.11.2022 Shravan