Allahabad High Court
Applicant A (Minor) Thru. His … vs State Of U.P. Thru. Prin. Secy. Home … on 12 January, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. – 2024:AHC-LKO:3542
Court No. – 15
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. – 32 of 2024
Applicant :- Applicant A (Minor) Thru. His Mother/Natural Guardian B
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And 3 Others
Counsel for Applicant :- Shishir Pradhan,Faiqa Khan,Gyanendra Pratap Singh Chuahan,Kunwer Dhananjay Singh,Uday Kumar Singh
Counsel for Opposite Party :- G.A.,S.K. Tripathi
Hon’ble Mohd. Faiz Alam Khan,J.
1. Learned A.G.A. informs that he has procured complete instructions in the matter including up-to-date case diary. Thus, there appears sufficient material available before this Court on the basis of which this anticipatory bail application may be finally adjudicated.
2. During the course of deliberations learned counsel for the applicant submits that the applicant before this Court has still not been declared as minor, however, his age is less than 18 years, thus, he be permitted to mention the name of the applicant in the memo of the anticipatory bail application.
3. Learned A.G.A. would have no objection to the request made by learned counsel for the applicant.
4. The request of learned counsel for the applicant is allowed.
5. Requisite amendment/correction be made in the memo of the anticipatory bail application during the course of the day.
6. Heard Shri Shishir Pradhan, learned counsel for the applicant, Shri S.K. Tripathi, learned counsel appearing for the complainant/informant as well as learned A.G.A. for the State and perused the record.
7. The instant application has been moved by the applicant- Arvind @ Amit Kumar Rawat in F.I.R./Case Crime No. 0262 of 2023, under Section 354 I.P.C. and 7/8 POCSO Act, Police Station Krishna Nagar, District Lucknow, with the prayer to enlarge him on anticipatory bail, as he is apprehending arrest in the above-mentioned case.
8. Learned counsel for the accused-applicant while pressing the anticipatory bail application submits that the applicant has been falsely implicated in this case and he has not committed any offence as claimed by the prosecution.
9. It is further submitted that F.I.R. of the instant case has been lodged by the grandfather of the victim on 03.07.2023 at 22:04 hours (10:04 pm.) pertaining to an incident which had occurred early in the morning at 3:00 am. alleging that the applicant had entered into the house of the informant and had molested his minor grand-daughter, aged about 12 years.
10. It is vehemently submitted that the informant has not alleged correct facts in the F.I.R. and the allegations which have been levelled in the first information report and stated by the victim in her statements recorded under Section 161 and 164 Cr.P.C. may not be presumed to be truthful in absence of any medical evidence, as no injury, etc. is shown to have been sustained by the prosecutrix.
11. It is further submitted that with regard to the same incident, an F.I.R. has also been lodged by the mother of the applicant against the father and uncle of the victim of the instant case alleging that the applicant had gone for a walk in the morning at about 4:00 am. and when he could not return till 6:00 am. on 03.07.2023, it was known that he has been abducted by the accused persons and was taken to Bombay. The F.I.R. with regard to this incident was lodged on 03.07.2023 at 11:23 pm.
12. It is further submitted that as the offences against the applicant were punishable with up to seven years of imprisonment, he was granted benefit of Section 41-A of the Cr.P.C. and was not arrested during the course of investigation and he has cooperated thoroughly. However, now the charge sheet has been submitted, he is having reasonable apprehension that when he will appear before the trial court for the purpose of obtaining regular bail, he may be arrested and during the pendency of his regular bail application he may be confined in prison. It is also submitted that applicant is not having any criminal history.
14. Learned A.G.A. as well as Shri S.K. Tripathi, learned counsel appearing for the complainant/informant vehemently opposes the prayer of anticipatory bail of the applicant on the ground that applicant is an accused of committing heinous offence, moreover, the defence which has been taken by the applicant, may not be believed in the facts and circumstances of the case. The applicant is a juvenile and may not approach this Court under Section 438 Cr.P.C.
15. It is also submitted that now when the charge sheet has been submitted, applicant may not be having any apprehension of being arrested and, thus, basic ingredient of Section 438 Cr.P.C. i.e. having an apprehension of being arrested, is lacking in this case. Thus, the instant anticipatory bail application be dismissed.
16. Having heard learned counsel for the parties and having perused the record, so far as the first objection raised on behalf of the State as well as by the informant/complainant with regard to the maintainability of an application for anticipatory bail, by a juvenile is concerned, a Division Bench of this Court vide order dated 24.05.2023 passed in leading Criminal Misc. Anticipatory Bail Application U/s 438 Cr.P.C. No. 8361 of 2020 has categorically opined that an anticipatory bail application moved on behalf of juvenile is maintainable under Section 438 Cr.P.C. Thus, the said question is now no more res integra in view of the above-mentioned decision of a Division Bench of this Court.
17. So far as the second objection, which has been taken by the State as well as by learned counsel for the informant/complainant with regard to the fact that now the applicant is not having any apprehension of being arrested as the charge sheet has been submitted, I am not inclined to accept the same as at the stage of investigation the investigating officer, in case the offences are punishable with up to seven years of imprisonment is having a discretion having regard to the material collected during the course of investigation to extend the benefit of Section 41-A of the Cr.P.C., but when the charge sheet has been submitted, the apprehension of being arrested by the Court under any process of the court, become more graver, as after taking of cognizance the process will invariably be issued against the applicant, which in this case has already been issued and an apprehension, having regard to the offences charged against the applicant, would be in the mind of the applicant that when he will appear before the trial court by moving a regular bail application under Section 437/439 Cr.P.C., disposal of the same may take sometime and in the meantime, he may be detained in prison as he will submit himself to the custody of the Court.
18. It is settled that an application under Section 439 Cr.P.C. for regular bail could only be moved when an accused person will subject him to the custody of the Court or he has already been arrested. Therefore, in the considered opinion of this Court, the apprehension of the applicant being arrested may not be said to be without any basis.
19. Coming to the merits of the case, there are cross F.I.R. with regard to the same incident. Charge sheet in this case has been submitted and it is stated at the bar and in the F.I.R. lodged on behalf of the applicant’s side, a ‘final report/closure report’ has been submitted by the investigating officer. However, the applicant’s side would not be remediless in this scenario also as they may explore other options but since the charge sheet has been submitted and the charged offences against the applicant are punishable with up to seven years of imprisonment and he has not been arrested by the investigating officer during the course of investigation, in the considered opinion of this Court, having regard to the law laid down by the Hon’ble Supeme Court in Siddharam Satlingappa Mhetre v. State of Maharashtra : (2011) 1 SCC 694, Sushila Aggarwal v. State (NCT of Delhi) (2020) 5 SCC 1, Nathu Singh Vs State of U.P. and Others, 2021(6) SCC 64, MANU/SC/0360/2021 and in Aman Preet Singh Vs. C.B.I. through Director : 2021 SCC OnLine SC 941, facility of anticipatory bail may safely be extended to the applicant.
20. Thus, the instant anticipatory bail application moved by the applicant- Arvind @ Amit Kumar Rawat is allowed and it is provided that in the event of arrest of the applicant, involved in the above noted case under any process of the court or on his surrender/appearance before the trial court within 20 days from today i.e. on or before 31.01.2024, whichever is earlier, he shall be released forthwith on anticipatory bail on his furnishing a personal bond of Rs. 50,000/- with two sureties in the like amount to the satisfaction of the Station House Officer of the Police Station concerned/Investigating Officer/Trial Court subject to the following conditions:
1. The applicant if not arrested earlier, shall surrender before the trial court within 20 days from today i.e. on or before 31.01.2024 and will cooperate in the trial.
2. The applicant shall remain present before the juvenile court or any other authority if his presence would be required for the purpose of determining his juvenility.
3. The applicant shall Cooperate in the investigation and will make himself available as and when required by the Investigating officer of the case, even for the recovery of any fact, in case of further investigation.
4. The applicant shall not make any attempt to influence the prosecution witnesses and will also not commit any crime during his release on anticipatory bail.
5. The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and specially when the prosecution witnesses are present in court.
6. 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.
21. If in the opinion of the trial court default of any of the condition placed above 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 shall proceed against him in accordance with law.
22. It is clarified that all the observations contained in this order are only for disposal of this anticipatory bail application and shall not affect the trial proceedings in any manner.
Order Date :- 12.1.2024
Praveen
