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HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. – 67
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. – 12717 of 2021
Applicant :- Ekansh Singh
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Prakash Chandra Srivastava
Counsel for Opposite Party :- G.A.,Anuj Bajpai
Hon’ble Rahul Chaturvedi,J.
(1) Heard Sri Prakash Chandra Srivastava, learned counsel for the applicant, Sri Anuj Bajpai, learned counsel for the informant, learned AGA for the State and perused the material brought on record.
(2) The instant application is being moved by the applicant Virender invoking the powers of Section 438 Cr.P.C., apprehending his arrest in connection with Case Crime No.76 of 2021, under Sections 376, 354, 354Kha, 323, 504, 506 IPC, P.S.Lalganj, District Basti during the pendency of the trial.
(3) The instant anticipatory bail application is being filed by the applicant aggrieved by the order dated 02.06.2021 by which learned trial court has rejected their anticipatory bail application. Hence, the present anticipatory bail application.
(4) Learned counsel for the applicant has drawn the attention of the court to Clause-7 of Section 438 Cr.P.C. (U. P. Act No. 4 of 2021), which read thus :
“(7) If an application under this section has been made by any person to the High Court, no application by the same person shall be entertained by the Court of Sessions.”
After interpreting the aforesaid clause it is clear that the Legislature in its wisdom bestowed two avenues open for the accused. If the accused has chosen to come to the High Court straightway, then he would not be relegated back to exhaust his remedy before the Court of Sessions first.
(5) Prior notice of this bail application was served in the office of Government Advocate and as per Chapter XVIII, Rule 18 of the Allahabad High Court Rules and as per direction dated 20.11.2020 of this Court in Criminal Misc. Anticipatory Bail Application under Section 438 Cr.P.C. No. 8072 of 2020, Govind Mishra @ Chhotu Vs. State of U.P., hence, this anticipatory bail application is being heard. Grant of further time to the learned AGA as per Section 438 (3) Cr.P.C. (U.P.Amendment) is not required.
(6) It has been contended by the learned counsel for the applicant that the applicants have got no criminal antecedents and he has not undergone any imprisonment after conviction by any court of law in relation to any cognizable offence previously. An assurance was also advanced by learned counsel for the applicants on behalf of the applicant that he would render all requisite co-operation and assistance in the process of law and with the investigation agency and shall not create any hindrance to reach to its logical conclusion and shall not flee away from the course of justice.
(7) Learned counsel for the applicant has strenuously argued that the applicant have been made target just to besmirch his reputation and belittle him in the public estimate by the informant. Number of arguments were advanced by learned counsel for the applicants to demonstrate the falsity of the accusation made in the FIR against the applicant by the informant. Learned counsel for the applicant has also relied upon the judgements in the case of Arnesh Kumar Vs. State of Bihar and another reported in (2014) 8 SCC 273; Jogender Kumar Vs. State of U.P. and others reported in (1994) 4 SCC 260 and Sanaul Haque Vs. State of U.P. and another reported in (2008) Crl.L.J. 1998, to buttress his contention.
(8) In the case of Arnesh Kumar (supra) Hon’ble Apex Court has opined that the pith and core is that the police officer before arrest must put questions to himself, Why arrest?, Is it really required?, What purpose it will serve?, What object it will achieve? If it is only after these questions are addressed and one or other conditions, as enumerated above, are satisfied, the power of arrest needs to be exercised. Before the arrest the police office should have a reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to satisfy further that the arrest is necessary for one or more purposes envisaged in sub-clauses (a) to (e) to Clause-I of Section 438 Cr.P.C.
(9) In this backdrop of legal proposition, learned counsel for the applicant has submitted that almost at the same time two FIRs were lodged by victim Priyanka Yadav, the earlier FIR was lodged as case crime no. 59 of 2020 on 08.06.2020 against one Gaurav Kumar Bajpai and his family members and almost with the same allegation as in the present FIR was lodged by her. The Lucknow Bench of this Court has granted indulgence while entertaining the Crl. Misc. Anticipatory Bail Application No. 7061 of 2020 on 18.01.2021.
I have perused and compare both the contents of the FIR and surprisingly found that tenure and texture of both the cases are almost same. In both the FIRs allegation of rape has been levelled by the victim herself who is Constable in the police department. Since the matter relates to sexual assault under Section 376 IPC, the police is hotly chasing the applicant. The applicant having no criminal antecedent to his credit.
(10) Per contra, learned AGA has vehemently opposed the anticipatory bail application by mentioning that though the applicant has got no criminal antecedent but there is nothing on record to satisfy that the police personnel are after the applicant to arrest them. The alleged apprehension on behalf of applicant is imaginary and unfounded one. Learned AGA has also submitted that in view of the seriousness of the allegations made in the FIR, the applicant is not entitled for any relaxation from this Court.
(11) After considering the record of the case as available before the Court, in the light of rival submissions made at the Bar and keeping in view the nature and gravity of the accusation, antecedents of the applicant, his undertaking to make himself available to the authorities whenever required, the Court feels satisfied that it would be expedient to grant an order of anticipatory bail in favour of the applicant. Thus, the instant Anticipatory Bail Application stands ALLOWED.
(12) Without expressing any opinion upon ultimate merits of the case either ways which may be adversely affect the investigation and subsequent stage of the case, the Court directs that in the event of arrest of the applicant in aforesaid case crime, they shall be released on bail on furnishing a personal bond of Rs. 50,000/- with two sureties each in the line amount to the satisfaction of the Arresting Officer with the condition that :-
(I) The applicant shall make themselves available for the interrogation by the police as and when required. The Investigation Officer of the case would give 48 hours prior notice or telephonically inform the concerned accused-applicant to remain available to him for the purpose of interrogation and the accused-applicants are obliged to abide by such directions.
(II) The applicant shall not directly or indirectly make any inducement, threats or comments to any person acquainted with the facts of the case so as to dissuade him from disclosing the correct facts to the court or to the police officer.
(III) The Investigating Officer of the case would make all necessary endeavour to gear up the investigation in utmost transparent and professional way and would try to conclude the same within a maximum period of 90 days. During this period the accused-applicant would not leave the State of Uttar Pradesh without informing the Investigating Officer of the case and sharing his contact number.
(IV) In the event the applicant is having their passports, they will have to surrender the same before the concerned SP/SSP of the District till the submission of report under Section 173(2) Cr.P.C.
(13) In the event, the applicant breach or attempt to breath any of the aforesaid conditions or wilfully violate above conditions or abstains himself from the investigation, it would be open for the Investigating Officer or the concerned authority to apply before the court of Sessions for cancellation of bail and the Court of Sessions has every liberty and freedom to revoke the anticipatory bail after recording the reasons for the same.
Order Date :- 19.7.2021