Allahabad High Court
Deepu vs State Of U.P. Thru. Prin. Secy. Home Lko. … on 8 January, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. – 2024:AHC-LKO:1577
Court No. – 15
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. – 2998 of 2023
Applicant :- Deepu
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another
Counsel for Applicant :- Sanjay Singh Chauhan
Counsel for Opposite Party :- G.A.,Pradeep Kumar Singh
Hon’ble Mohd. Faiz Alam Khan,J.
1. Counter affidavit, filed on behalf of the State, as well as supplementary affidavit, filed on behalf of the applicant, is taken on record.
2. Heard Mr. Sanjay Singh Chauhan, learned counsel for the applicant, learned A.G.A. for the State, as well as Mr. Pradeep Kumar Singh, learned counsel appearing for the opposite party no. 2/informant/complainant, and perused the record.
3. This application has been moved by the accused/applicant- Deepu for grant of anticipatory bail in FIR/Case Crime No.0396 of 2023, under Sections 354, 504, 506 and 376 IPC lodged at Police Station Manpur, District Sitapur.
4. Learned counsel for the applicant submits that it is a case of false implication. The instant case is nothing but a counter-blast of an application which was moved by the applicant against the then village-pradhan of the village on 16.10.2023 pertaining to certain irregularities committed by him with regard to construction of a road and, annoyed of the same, the present pradhan of the village has managed the instant prosecution against the applicant. Elaborating further, it is submitted that the FIR of this case has been lodged by the prosecutrix/victim herself by moving a written application before the Station House Officer concerned wherein the only allegation against the applicant is with regard to molestation and outraging of modesty and there was no whisper about the commission of rape and, even in statement of the victim recorded under Section 161 CrPC the allegations were only with regard to molestation. However, when the statement of the victim was recorded under Section 164 CrPC, after 2-3 days of recording of her statement under Section 161 CrPC, she improved the version of the incident by alleging that she was also subjected to rape.
5. It is vehemently submitted that the allegation of rape has been carved out on account of the fact that soon after lodging of the FIR the applicant was arrested and produced before the remand Magistrate and the remand Magistrate having regard to the fact that at that point of time the charged offences against the applicant was punishable with upto 7 years imprisonment refused to give remand on the ground that the charged offences are punishable upto 7 years imprisonment and the investigating officer has not stated any ground which may justify the arrest of the applicant. It is further vehemently submitted that it is evident from record that the allegation of commission of rape has been carved out in order to keep the applicant in jail as his remand under Section 354 IPC was refused by the concerned Magistrate. It is further submitted that criminal history of the applicant, which is pertaining to cases of personal nature, has been explained in paragraph-3 of the supplementary affidavit and the same is not related to the informant. The police, in connivance with the pradhan of the village as well as informant, is trying hard to apprehend the applicant without there being any cogent evidence/material against him. It is further submitted that the prosecutrix/victim has refused to undergo any medical examination and considering all these, the facility of anticipatory bail may be extended to the applicant.
6. On the other hand, learned A.G.A. opposes the prayer of the applicant and states that the applicant had earlier approached this Court by filing Criminal Misc. Writ Petition No.9073 of 2023, which was dismissed on 29.11.2023 and, this fact has not been disclosed by the applicant in the bail application.
7. Learned counsel for the opposite party no. 2/informant/complainant also opposes the prayer of the applicant on the ground that the applicant has committed a heinous offence.
8. Having heard learned counsel for the parties and having perused the record, it is reflected that the FIR of this case has been lodged by none other than the victim by moving a written application wherein there was no whisper about the commission of rape and the allegations were levelled only of molestation and outraging of modesty. Admittedly, there is no medical report with regard to any injury sustained by the prosecutrix and with regard to allegation of rape she has refused to undergo any medical examination. It is also reflected that in the statement of the prosecutrix recorded under Section 161 CrPC there was no whisper about the commission of rape and, it was only in her statement recorded under Section 164 CrPC on 03.11.2023 for the very first time the allegation of rape was introduced. In this regard, learned counsel for the applicant has highlighted that before recording of statement of the prosecutrix/victim under Section 164 CrPC, the applicant was arrested and produced before the remand Magistrate and remand of the applicant was refused on the ground that the charged offences against the applicant are punishable with upto 7 years imprisonment and no cogent reason has been recorded by the investigating officer in making arrest of the applicant.
9. Thus, in the considered opinion of this Court, having regard to the law laid down by the Hon’ble Supreme Court reported in (2020)5 SCC 1 (Sushila Aggarwal v. State (NCT of Delhi), (2011) 1 SCC 694 (Siddharam Satlingappa Mhetre v. State of Maharashtra) and 2021(6) SCC 64 MANU/SC/0360/2021 (Nathu Singh Vs State of U.P. and Others), protection from arrest may be granted to the applicant, subject to his cooperation during the course of investigation/trial.
10. The application for anticipatory bail moved by applicant – Deepu is, accordingly, allowed and it is provided that in the event of arrest of the applicant, involved in the above-mentioned crime, by SHO of the concerned police station, investigating officer or under any process of the Court concerned, 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 SHO/investigating officer/trial Court concerned, subject to the following conditions:
(i). 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.
(ii). In case of filing of charge-sheet against the applicant, he 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.
(iii). 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.
11. 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 bail and shall proceed against him in accordance with law.
12. 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 :- 8.1.2024
MVS/-
