Allahabad High Court
Ankur Rastogi @ Shakti vs State Of U.P. Thru. Prin. Secy. Home Lko. on 24 March, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 16 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 557 of 2023 Applicant :- Ankur Rastogi @ Shakti Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. Counsel for Applicant :- Siddhartha Sinha,Arun Sinha Counsel for Opposite Party :- G.A.,Anita Singh,Gajendra Nath Singh,Nagendra Bahadur Singh,Nagendra Bahadur Singh Hon'ble Subhash Vidyarthi J.
1. Heard Sri. Arun Sinha and Sri. Siddhartha Sinha Advocates, the learned counsel for the applicant, Sri. Vipul Gupta, the learned A.G.A. appearing on behalf of the State, and Sri. Nagendra Bahadur Singh, the learned counsel appearing on behalf of the informant and perused the records.
2. The instant application has been filed seeking release of the applicant on bail in Case Crime No.149 of 2022, under Sections 376, 323, 504, 506, 385 I.P.C. and Section 67-A of Information Technology Act, 2008, registered at Police Station Hussainganj, District Lucknow.
3. The aforesaid case has been registered on the basis of a first information report lodged on 17.08.2022 by the informant, who has mentioned her year of birth to be 1992, and who has described herself as ''Jyoti Gupta D/o. Sudhish Gupta'. The informant has stated that she came in contact with the applicant through facebook and started talking to him. Upon the applicant's asking, she went to see him in Surabhi Hotel Lakhimpur Kheri, where the applicant had got a room booked in her name. The applicant persuaded the informant to go to the room and under a false promise to marry her the applicant made physical relations with her and made objectionable videos and photographs of the informant. The F.I.R. further alleges that the applicant repetitively called the informant in the same hotel, made physical relations with her and upon her objection he used to threaten her that he would spread her videos and make them viral and that he has posted objectionable material on a whatsapp group and has also sent some photographs to her relatives and family members. The first information report further alleges that the informant has hypothecated gold jewelleries worth Rs. 8 lacs at different places at Lakhimpur Kheri and Kanpur and has paid the amount to the applicant and she has given Rs. 3 lacs to him after taking out the same from the house of her in-laws without telling them.
4. In the affidavit filed in support of the application for bail, it has been stated that the applicant is innocent, he has been falsely implicated in the present case and he has no criminal history.
5. The police has already submitted a charge-sheet on 29.11.2022 wherein it has been stated that from the material collected during investigation it appeared that although the informant has alleged that the applicant had forwarded her obscene videos to the mobile phone of one Paras Gupta, Paras Gupta told that the photos and videos show the face of the informant only and not of the other person involved in the obscene activity. The Investigating Officer has further recorded that although the informant had alleged that the video had been forwarded in a local group as also to her relatives, she could not mention the name of a single person, on whose mobile any video has been forwarded by the applicant. The informant had mentioned two names, but upon being contacted on phone, both of them stated that no person had sent any message on their mobile regarding the informant. The Investigating Officer has recorded that no obscene photograph or video has been found in the mobile phone of any person, other than Paras Gupta.
6. Although the victim did not disclose in the first information report that she is a married lady and she described herself as daughter of Sudhish Gupta, it was for the first time that while making her statement under Section 161 Cr.P.C. that she disclosed that she got married to one Raja Babu Gupta in the year 2010. She stated that in the year 2017 she developed friendship with the applicant through Facebook and she started meeting him. Meanwhile, some disputes developed between the informant and her husband and she stopped talking to her husband, whereupon the applicant asked her to leave her husband and to marry him. After stating this, the informant reiterated the first information report averments.
7. The Investigating Officer recorded the statement of Paras Gupta, the only person who claims to have possession of obscene photographs and videos, allegedly forwarded by the applicant. Paras Gupta stated that the family of Raja Babu Gupta used to lives in the vicinity of his godown (shop) and Raja Babu Gupta used to sit with Paras Gupta off and on and a friendship developed between them and the witness started visiting his house. He further stated that at times Raja Babu Gupta borrowed his mobile phone for talking to his wife. In November, 2020 the informant had asked for Rs. 3 lacs from Paras Gupta and he gave the money to her. Paras Gupta further stated that in May, 2021, a person called him from an unknown number and identified himself as a hacker and he asked the witness to stop communicating with the informant and that he complied with the command and stopped talking her. Thereafter, the applicant started communicating with the Paras Gupta from different numbers and started asking him to stop talking to the informant, whereupon he told these things to her. The informant told the witness that the applicant had made physical relations with her under a false promise of marrying her and that she has given him money after hypothecating some jewellery. After this incident, the informant started talking to Paras Gupta amd on 06.01.2022 ten videos were sent to him through WhatsApp, regarding which he has told to the investigating officer that only the face of the informant is visible therein and the applicant's face is not visible.
8. The state has filed a counter affidavit stating that the informant was called for medico-legal examination, but she declined to undergo the same.
9. In her statement recorded under section 164, CrPC the informant stated that she is aged about 31 years. She came in contact with the applicant through Facebook in the year 2017 and she used to talk to him. The applicant was married and yet he told that he would marry the informant. In the year 2019 she met the applicant and the applicant forcibly made physical relations with her and thereafter she stated that believing the applicant's promise to marry her, she made physical relations with him. The informant further stated that the applicant sends her obscene videos to everyone. She further stated that she got married to Raja Babu Gupta about 11 years ago. The applicant has sent her obscene videos to her family members and her family members have broken all relations with her.
10. The informant has also filed a counter affidavit annexing therewith some documents, purportedly issued under the signature and seal of Dr. Ranjeet Kumar Singh, Cyber Forensic Expert, Sherlock Institute of Forensic Science India, but no averment has been made in the counter affidavit regarding those documents and nothing has been stated whether Sherlock Institute of Forensic Science India has any statutory backing and whether it had any legitimate access to the case-diary and other material collected by the investigating officer and nothing has been stated whether these documents are a part of the case diary.
11. What prima facie appears from the material available on record before this court at this stage is that the informant is 31 years old married lady; that she concealed her marital status while lodging the F.I.R. and described herself as daughter of Sudhish Gupta only. The informant got married in the year 2010 with one Raja Babu Gupta. The applicant also is a married person. As per the case set up by the informant, she came in contact with the applicant through Facebook in the year 2017 and started talking to him. In the year 2019 the informant went to see the applicant in a hotel at Lakhimpur. Although the informant has alleged that the applicant had booked a room in her name, during investigation the investigating officer has recorded the statement of the Hotel Manager and other staff members, all of whom have stated that it was the informant herself who had booked the room. A copy of the extract of hotel booking register is also available on record, which shows that the room was booked in the name of the informant. Although an allegation has been levelled by the informant that the applicant has blackmailed her and has extracted money from her, it has been stated in paras 26 and 27 of the affidavit filed in support of the bail application that the father of the informant had taken Rs. 4.5 lacs from the applicant and in reply to the aforesaid statement it has been stated in para 4 m of the counter affidavit that "at one occasion demand was made by the applicant and the deponent has sent Rs.3.5 lakh wrapped in a paper to the accused through her father, to which the applicant said the same to be less, to which the deponent asked her father to bring back the same. This particular instance is now being falsely represented by the accused to be amount given as loan to the father of the deponent by means of fabricated photograph made from the CCTV of the shop of the applicant".
12. Thus, the informant has tried to project that as against a demand of Rs. 4.5 lacs, she had paid a sum of Rs.3.5 lakhs to the applicant and when the applicant objected that the money was less, she asked the applicant to refund the amount and the applicant did so. Besides noting the aforesaid averments, no observation is being made.
13. Apart from the statement of Paras Gupta, who has merely stated that the obscene videos were sent on his mobile and who has not specifically stated that the videos and photos were sent by the applicant and who has stated that the face of the applicant is not visible in any of the videos or photos, there is absolutely no material at this stage to establish that any obscene photo or video of the informant had been forwarded by the applicant to her family members, relatives or other persons.
14. Learned counsel for the informant has submitted that the court should refrain from granting bail to the applicant till examination of the informant by the trial court, as in several cases the Hon'ble Supreme Court has cancelled bail orders passed before the statement of the prosecutrix was recorded by the trial court. However, when the court requested the learned counsel to place before the Court any such judgment in which such a law is laid down by Hon'ble the Supreme Court, he said that as there are numerous judgements, he did not feel it necessary to provide a copy of the same to the court.
15. When the Court had dictated the order till this stage and it became apparent that the Court is proceeding to allow the bail application, Sri Nagendra Bahadur Singh, the learned counsel for the informant stated that hundreds and thousands of ladies commit suicide because of such orders and this order will result in one more lady committing suicide. Such a statement has apparently been made by Sri. Singh with the object of putting psychological pressure on the court. It appears that Sri. Singh is ignorant of the fact that a judge is under oath to "perform his duties to the best of his ability, without fear or favour, affection or ill will" and a judge would not refrain from passing any order unfavourable to a party under fear that the party who would be dissatisfied by the order may commit suicide. It is highly unbecoming of an Advocate to go to such an extent in an endeavour to obtain favourable orders from the court and the court strongly deprecates the conduct of Sri Nagendra Bahadur Singh Advocate, in trying to pressurize the court by making such a statement.
16. In the case of Dataram Singh v. State of U.P., (2018) 3 SCC 22, the Hon'ble Supreme Court has held that: -
"5. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in Nikesh Tarachand Shah v. Union of India: 2017 (13) SCALE 609 going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab: (1980) 2 SCC 565 in which it is observed that it was held way back in Nagendra v. King-Emperor: AIR 1924 Cal 476 that bail is not to be withheld as a punishment. Reference was also made to Emperor v. Hutchinson: AIR 1931 All 356 wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days.
6. However, we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory."
(Emphasis supplied)
17. When the facts which prima facie appear at this stage are scrutinized in light of the aforesaid law, it appears that the applicant and the informant both are married persons. The informant is married since the year 2010 and it is not her case that her marriage has been dissolved, therefore, the informant could not have married again and her allegation that she made physical relations with the applicant under a promise made by him that he would marry her, prima facie, appears to be unbelievable, as a Hindu lady cannot marry any person during subsistence of her marriage. The informant had gone with the applicant to a hotel at Lakhmpur Kheri on several occasions and the room was booked in her name and her identity proof was used for booking the room. There is no material to prima facie support the allegation of obscene photos and videos of the informant having been forwarded by the applicant.
18. Keeping into consideration the aforesaid facts and without recording any finding which may affect the merits of the case, I am of the view that the aforesaid facts are sufficient for making out a case for enlargement of the applicant on bail.
19. The bail application is hereby allowed.
20. Let the applicant Ankur Rastogi @ Shakti be released on bail in Case Crime No.149 of 2022, under Sections 376, 323, 504, 506, 385 I.P.C. and Section 67-A of Information Technology Act, 2008, registered at Police Station Hussainganj, District Lucknow on furnishing a personal bond and two sureties to the satisfaction of the trial Court, subject to the following conditions:-
i. the applicant shall not tamper with the prosecution evidence;
ii. the applicant shall not pressurize the prosecution witnesses;
iii. the applicant shall appear on each and every date fixed by the trial court, unless his personal appearance is exempted;
iv. the applicant shall not go out of the Country without obtaining prior permission of the Court.
21. In case of breach of any of the above conditions, the prosecution shall be at liberty to move an application for cancellation of bail before this Court.
(Subhash Vidyarthi, J.) Order Date :- 24.3.2023 A.Nigam