Allahabad High Court
Mukesh Giri vs State Of U.P.And 3 Others on 3 October, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:161993 Court No. - 73 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 6153 of 2024 Applicant :- Mukesh Giri Opposite Party :- State Of U.P.And 3 Others Counsel for Applicant :- Sudhanshu Kumar,Swapnil Kumar,Uttar Kumar Goswami,Vijay Pratap Counsel for Opposite Party :- Deepak Rana,G.A.,Noor Saba Begum Hon'ble Vikram D. Chauhan,J.
1. Learned Advocate General and Sri Ajit Kumar Singh, learned Additional Advocate General have appeared on behalf of the State and have filed communication dated 01.10.2024 of Special Secretary, Government of Uttar Pradesh informing disengagement of erring advocate. The communication dated 01.10.2024 is taken on record.
2. In view of the communication dated 01.10.2024 filed by the State, this Court is not proceeding in respect of matter of suppression of material facts.
2-A. Learned Advocate General and learned Additional Advocate General seek for and are granted leave at this stage.
3. Heard Sri Swapnil Kumar and Sri Sudhanshu Kumar, learned counsels for the applicant, Sri Deepak Rana, learned counsel for the informant, as well as, Sri Sanjay Kumar Singh, learned AGA and perused the material available on record.
4. The present Anticipatory Bail Application has been filed with the prayer to grant anticipatory bail to the applicant - Mukesh Giri in Case Crime No. 343 of 2024 under Sections 354, 354C, 504, 506 I.P.C. and Section 7/8 of POCSO Act, Police Station - Moradnagar, District - Ghaziabad.
5. The present case arises out of first information report dated 23.05.2024 lodged on 21:14 hours at Police Station - Moradnagar, Commissionerate Ghaziabad under Sections 354, 354C, 504 and 506 IPC and Section 7/8 of POCSO Act, with allegation that informant along with her daughter went to take bath in the river and when they went in the changing room, adjacent to the temple, for changing their clothes, they were subsequently informed that applicant has installed a camera for recording the activities of females in changing room and on the aforesaid basis, it is alleged that the camera in the changing room was for recording the activities of the females while changing their clothes. On the aforesaid basis the first information report was lodged. A recovery memo was prepared, which is at page-17-A of the counter affidavit filed by State on 21.08.2024.
6. The recovery memo is dated 02.06.2024 and as per recovery memo, it is found that the applicant was recording the activities of females while they were changing clothes and CP-Plus NVR and Samsung Mobile Phone was recovered. Although, learned counsel for applicant tried to challenge the recovery memo, however, at this stage, learned counsel for applicant submits that in view of other arguments raised by him, he does not intend to challenge the recovery memo at this stage.
7. Learned counsel for applicant submits that in the first information report, there is no allegation against applicant of using any criminal force or assault on the informant or her daughter. It is further submitted by learned counsel for applicant that statement of informant and her daughter was recorded by investigating officer under Section 161 Cr.P.C. where similar allegations have been made as has been stated in the first information report and there is no allegation of any assault or using criminal force.
8. Learned counsel for the applicant submits that although there are allegations of threat against applicant, however, the exact threat extended has neither been stated in the FIR nor in the statement recorded under Section 161 Cr.P.C. It is further submitted by learned counsel for applicant by referring to statement of informant recorded under Section 161 Cr.P.C. that primarily the prosecution case rests on recovery of video footages of changing room from Samsung mobile phone and NVR installed in the premises of the temple.
9. Learned counsel for the applicant submits that as per prosecution case the aforesaid recovered videos were containing the recordings of females while changing clothes in the changing room after taking bath in the river. He submits that it is not the case of prosecution that applicant has viraled the aforesaid video recordings to public at large on social media. It is further submitted by learned counsel for the applicant that assuming the prosecution case to be correct, then at the best, offence under Section 354C IPC would be made out against applicant, which being the first offence is bailable.
10. Learned counsel for the applicant submits that no offence under Sections 354 IPC and Section 7/8 of POCSO Act would be made out against applicant taking prosecution case as a whole. It is further submitted by learned counsel for applicant that criminal history of applicant has been explained in paras-4 and 5 of supplementary affidavit. Learned counsel for the applicant submits that said offences against applicant are about five years old and applicant recently has not been involved in any criminal activities and do not pertains to offences of similar nature.
11. It is further submitted by learned counsel for the applicant that once the offence under Section 354 IPC and Section 7/8 of POCSO Act is not made out against applicant, then Section 354C IPC being bailable in nature, applicant cannot be arrested for non-bailable offences under Section 354 IPC and Section 7/8 of POCSO Act. It is submitted that offence under Sections 504 & 506 IPC is also not made out against applicant.
12. Sri Sanjay Singh, learned A.G.A. has opposed the anticipatory bail application and submits that from the mobile phone and NVR recovered by the police, videos of females changing clothes were found and the same was sent to the Forensic Science Laboratory, where the same has been confirmed. He submits that offence in the present case is very serious in nature as the applicant is involved in recording of videos of females while changing clothes. It is further submitted by learned A.G.A. that applicant is having Rs. 1 lac bounty as the applicant has not cooperated in the investigation and till date he is evading the arrest.
13. Learned A.G.A. has submitted that during investigation Section 509 IPC and Section 66E of Information Technology Act has also been added against applicant, however, he does not dispute the fact that the offence in added sections are bailable in nature.
14. Sri Deepak Rana, learned counsel for the informant has adopted the argument of learned A.G.A. and submits that video recording of the informant and her daughter were found by the police in the NVR and in the Samsung Mobile Phone recovered during investigation. It is submitted by learned counsel for the informant that recovery of the aforesaid videos is indicative of the fact that applicant is involved in recording females while changing clothes in the changing room outside the temple.
15. Learned counsel for applicant in rejoinder has stated that applicant had not appeared before the Investigating Officer as the applicant was being prosecuted for non-bailable offences, which applicant has not committed even as per the prosecution case and as such in order to protect his liberty the applicant was pursuing his legal remedies before the competent courts. He submits that one of legal remedy is the present anticipatory bail application preferred by the applicant before this Court and once the applicant is seeking anticipatory bail from this Court, the non appearance before the Investigating Officer by itself cannot non-suit the applicant.
16. The accusations arise out of dispute between individuals. Learned AGA has not raised concern that any prejudice would be caused to free, fair and full investigation in the event the applicant is granted anticipatory bail. No material, facts, circumstances or concern been shown by learned AGA for the State that the accused may tamper with the evidence or witnesses or accused is of such character that his mere presence at large would intimidate the witnesses or that accused will use his liberty to subvert justice or tamper with the evidence.
17. Learned AGA for the State has pointed out the criminal antecedents of the applicant. No material or circumstance has been brought to the notice of this Court with regard to tampering of evidence or intimidating of witness in previous criminal cases.
18. In Ash Mohammad Vs. Shiv Raj Singh, (2012) 9 SCC 446, the Apex Court in para 30 has observed:- "We may hasten to add that when we state that the accused is a history-sheeter we may not be understood to have said that a history-sheeter is never entitled to bail. But, it is a significant factor to be taken note of regard being had to the nature of crime in respect of which he has been booked."
19. In the case of Prabhakar Tewari Vs. State of U.P. and another, 2020 (11) SCC 648, the Hon'ble Supreme Court has observed that pendency of several criminal cases against an accused may itself cannot be a basis for refusal of bail.
20. The State has also not placed any material that applicant in past attempted to evade the process of law. If the accused is otherwise found to be entitled to bail, he cannot be denied bail only on the ground of criminal history, no exceptional circumstances on the basis of criminal antecedents have been shown to deny bail to accused, hence, the Court does not feel it proper to deny bail to the applicant just on the ground that he had criminal antecedent.
21. In the present case, it is to be seen that first information report was lodged on 23.05.2024 by informant under Sections 354, 354C, 504, 506 IPC and Sections 7/8 of POCSO Act, in respect of an incident of 21.05.2024. The prosecution case, as per first information report is that on 21.05.2024 at about 3:30 PM, informant along with her daughter went for taking bath in the river and while they were changing clothes in the changing room just adjacent to the temple, where the applicant is a priest, it was subsequently informed that applicant was video recording the females while changing clothes in the changing room.
22. It is to be seen that during investigation, the police has recovered the NVR and Samsung Mobile Phone, which as per the prosecution, belonging to applicant. In the counter affidavit filed by the Commissioner of Police, Ghaziabad, he has given detail of materials recovered from the Samsung Mobile Phone and NVR. Further, learned counsel for the applicant has proceeded on the presumption that the prosecution case stands as has been stated in the first information report and in the case dairy. The submission which requires to be decided by the Court is whether the offence under Section 354 IPC and Section 7/8 of POCSO Act is made out or not against the applicant.
23. It is not in dispute between the parties that the offence under Section 354C IPC is bailable as the applicant is the first offender in respect of the offence under Section 354C IPC. Section 354C IPC is quoted herein below:
"Any man who watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image shall be punished on first conviction with imprisonment of either description for a term which shall not be less than one year, but which may extend to three years, and shall also be liable to fine, and be punished on a second or subsequent conviction, with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine.
24. Sections 7 and 8 of the POCSO Act is quoted herein below:
"7. Sexual Assault_Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.
8. Punishment for Sexual Assault_Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine."
25. It is to be seen that Section 8 of POCSO Act prescribes punishment up to 5 years for offence of sexual assault on minor. The definition of sexual assault is prescribed under Section 7 of POCSO Act, the conduct of the applicant cannot be said to be covered as the applicant has not touched the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast, or does any other act with sexual intent which involves physical contact without penetration.
26. Both learned counsel for the informant and learned A.G.A. could not show that provisions of Section 7/8 of POCSO Act would be attracted in the facts and circumstances of the present case, where there is no allegation of sexual assault.
27. The second argument of learned counsel for the applicant is that the offence under Section 354 IPC would not be made out against applicant. In this respect Section 354 IPC is quoted herein below:
"354. Assault or criminal force to woman with intent to outrage her modesty.-Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will there by outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine."
28. Section 354 IPC requires that assault or use of criminal force to any women intending to outrage or knowing it to be likely that he will thereby outrage her modesty.
29. It is the admitted case between the parties that there is no use of any assault or criminal force to any women (informant or her daughter). As per prosecution case itself there are only threat being extended by the applicant. The offence under Section 354 IPC could not be attracted in facts and circumstances of present case.
30. The offence under Section 354C IPC is a bailable offence as per admitted case of both the parties. Since Section 354C IPC is bailable offence, in the event of applicant being arrested, he is required to be released immediately on bail as a right. When offence is bailable, the accused has right under law to be enlarged on bail. Insofar as Section 506 IPC is concerned, the same pertains to offence of criminal intimidation. The criminal intimidation has been defined under Section 503 IPC, which is quoted herein below:
"503. Criminal intimidation.--Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
31. According to the aforesaid Section 503 IPC, whoever threatens another with any injury to his person, reputation or property or to the person or reputation of any one in whom that person is interested with intent to cause alarm to that person or to cause that person to do any act which he is legally bound to to or omit to do any act which that person is legally entitled to do, as the means of avoiding of execution of such threat, commits criminal intimidation.
32. In the present case, prosecution has not brought before the Court the details of threat has been extended, only the vague and general allegations have been made that the applicant has threatened with life. It was always open for the prosecution to have found during investigation the particulars of the threat extended by the applicant, which in the present case is missing and even the learned A.G.A. and learned counsel for the informant could not point out the same from the statement of the victim and her daughter under Section 161 Cr.P.C. or 164 Cr.P.C. It is to be seen that even otherwise the aforesaid offence under Section 506 IPC is punishable up to 7 years. In the present case, the allegation against applicant is that the applicant has threatened for life to the informant and her daughter. It has not been brought on record whether the aforesaid threat was with the intent to cause alarm to the informant or her daughter or to do any act which they are not legally bound to do or omit to do any act which the person is legally entitled to do. The allegations of threat are vague in nature. It is further to be seen that the offence under Section 504 IPC is bailable in nature as per Criminal Procedure Code.
33. It is further to be noted that in para-15 of the affidavit filed in support of the anticipatory bail application, applicant has stated that as to why applicant has been falsely implicated in the case. Para-15 of the aforesaid affidavit is quoted herein below:
"That it is further submitted that prior to one month back from the date of alleged incident, on 23.04.2024, the applicant along with other persons have made complaint to the Hon'ble Chief Minister portal wherein it has been mentioned that one person namely Punit, who is so called brother of first informant have created nuisance in the temple premises and one lady i.e. first informant also accompany him and when applicant being mahant of the temple objected first informant lady then she threaten applicant to falsely implicate in false case just to send him jail and thereupon, on 28.04.2024, a G.D. entry was made regarding the challan under section 107/116 Cr.P.C. of Punit but no action was taken against the first informant accompanying Punit. For more details and kind perusal of this Hon'ble Court a true copy of complaint dated 23.04.2024 alongwith G.D. entry dated 28.04.2024 are being collectively filed herewith and marked as Annexure No.5 to this affidavit."
34. In response of the aforesaid, counter affidavit has been filed on behalf of informant. In para-10 of the counter affidavit informant has not denied the aforesaid facts. Para-10 of the counter affidavit is quoted herein below:
"That the contents of paragraph nos. 14 and 15 of the affidavit being matter of record, need no reply."
35. Even the State in para-22 of the counter affidavit filed by the Commissioner of Police, Ghaziabad, has not denied the aforesaid facts alleged in para-15 of the affidavit filed in support of the anticipatory bail application. Para-22 of the counter affidavit is quoted herein below:
"That the contents of the paragraph-15 of the affidavit filed in support of anticipatory bail application are matter of record, however, there is no mention of the complainant of the FIR in question, accompanying the person against whom report under Section 107/116 Cr.P.C. was send on 28.04.2024. And as such, the accused/petitioner is concocting a story to save himself."
36. Since the applicant has specifically alleged the false implication that there was a dispute of the applicant with the brother of the informant and threat was extended to the applicant, it is very strange that this fact has not been denied by the State or the informant.
37. It is settled principle of law that a person who is accused of committing criminal offence is required to prosecuted in respect of the act committed by him. Over-implication of an accused refers to situations where an individual is unduly or excessively implicated in a crime or wrongdoing. Such over implication may be based on external influence or false accusations. It is crucial for the justice delivery system to balance the need to hold perpetrators accountable with protecting the rights of the accused. Prosecuting a person for a higher offence than the offence committed by accused would be violative of Article 21 of the Constitution. It is important that the rule of law prevail and the prosecution of an accused is based on objective assessment of the material and circumstances.
38. It is to be seen that although there is allegations against applicant that the applicant has not participated in the investigation, however, in view of the above mentioned discussion, it is to be seen that applicant was being prosecuted by the State by imposition of non-bailable offence. Although the applicant, prima facie, seems to be liable only for bailable offences under Section 354C and 504 IPC, as such, if the applicant has not participated in the investigation in order to protect his liberty, applicant cannot be denied anticipatory bail by this Court.
39. In view of the above mentioned discussions, the applicant is only liable to be prosecuted under Section 354C IPC, which is bailable in nature. Merely imposition of sections in investigation without the material being available violates the right of an individual under Article 21 of the Constitution of India.
40. It is settled principle of law that the object of bail is to secure the attendance of the accused. No material particulars or circumstances suggestive of the applicant fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like have been shown by learned AGA for the State.
41. In view of the aforesaid facts and circumstances of the case, applicant is entitled to be granted anticipatory bail.
42. In view of the above, the applicant is granted anticipatory bail in respect of offence described in para-4 of the present order. In the event of arrest of applicant, he shall be released on 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 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.
(vi) In the event, the applicant changes residential address, the applicant shall inform the court concerned/Investigating Officer about new residential address in writing.
(v) The applicant shall cooperate with the investigation and make himself/herself available for interrogation whenever required.
(vi) The applicant shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police.
(xi) The applicant shall maintain law and order.
(vii) The applicant shall at the time of execution of the bond, furnish his address and mobile number to investigating officer, and the court concerned.
(viii) The applicant shall regularly remain present during the trial, and cooperate with the Court to complete the trial for the above offences.
(xi) Non presence of the applicant or his counsel before the court concerned shall be construed as violation of the present order and the court concerned would be at liberty to take coercive measures in accordance with law.
43. In the present case, it is found from the record that although counsel for the applicant has restricted the argument that investigation has not been carried on as required under law and the allegations are serious in nature, therefore, this Court deems it proper that in the present case investigation be monitored by Commissioner of Police, Ghaziabad on day to day basis and same be completed in a time bound manner.
44. The applicant is hereby directed to remain present before the Investigating Officer on or before 16.10.2024 for recording of his statement without delay.
45. The Investigating Officer shall record the statement of applicant and proceed with the case subject to the monitoring being made by Commissioner of Police, Ghaziabad. After the final report is submitted, the court concerned is directed to proceed with the case, in accordance with law in a time bound manner without giving any unnecessary adjournment to either of the parties.
46. It is made clear that any observation made in the present order is only for deciding the present anticipatory bail application and the court concerned and authorities shall not be influenced with any observation made herein above while proceeding with the investigation or the trial, if any.
47. In case of default of any of the conditions, the Investigating Officer shall be at liberty to file appropriate application for cancellation of protection granted to the applicant.
48. With the directions made above, the anticipatory bail application stands allowed.
Order Date :- 3.10.2024 S.Prakash