The Allahabad High Court recently comprising of a single Judge bench of Justice Saurabh Shyam Shamshery refused anticipatory bail to a POCSO accused of raping a minor girl and her mother, stating that if a person has been declared an absconder/claimed offender under Section 82 Cr.PC, he is not entitled to anticipatory bail relief.(Yogendra Kumar Mishra v. State of U.P. and Another)
Facts of the case
In the present case, the accused had been booked under sections 376 and 328 IPC, 3/4 POCSO and 67 IT Act for allegedly raping a minor girl and her mother, who is the complainant in the case.
The defence had argued that the accused and the complainant were in a consensual relationship, despite the fact that the accused is a married man and the complainant is separated from her husband. The defence had also argued that the complainant is a teacher in a school where the accused works as a class IV employee. When the informant had asked him to marry her, he refused and the present case was thus lodged out of spite.
The accused’s anticipatory bail was rejected by the Sessions Court, and thus, he had approached the High Court.
Contention of the Parties
The accused argued in court that the informant is a teacher in a school where the applicant works as a Class-IV employee, and when the informant asked him to marry him, he refused because he is married, so she filed a FIR against him on false allegations.
The Advocate appearing for Opposite Party No. 2, have vehemently opposed the aforesaid submissions. They submitted that First Informant as well as her minor daughter have made a categorical statement against applicant in their statements recorded under Section 164 Cr.P.C. that they were raped on multiple times taking benefit of their separation and trust imposed by First Informant and her daughter with applicant.
They also submitted that the applicant is not cooperating with investigation process, therefore, not only non non-bailable warrant was issued but now proceedings under Sections 82 and 83 Cr.P.C. have also been initiated against the applicant, therefore, no case for anticipatory bail is made out.
Courts Observation and Judgment
The Court at the very outset relied upon the judgment of the Supreme Court in the Prem Shankar Prasad case (supra), wherein the Apex Court, relying on the judgment passed in the State of Madhya Pradesh v. Pradeep Sharma case (supra) had reiterated that if anyone has been declared an absconder/ proclaimed offender under Section 82 Cr.P.C., he/she is not entitled to relief of anticipatory bail.
The Court went into the merits of the case and observed that the applicant inspired the confidence of the complainant and her minor daughter and when they posed complete faith in him, he violated their trust. The averments made in the statements recorded under 164 CrPC also show that the applicant not only raped the complainant, but also her daughter and that he threatened them with a video recording that he has of them, saying that he would make that video viral.
The Court thus held that if the case is decided on merits, the averments made by the complainant and her daughter are very serious allegations, and in view of the same and the decisions of the Apex Court in the aforementioned cases, no case of anticipatory bail is made out.
The bench rejecting the application observed, "In view of above discussion the applicant is not entitled for anticipatory bail on the ground that applicant was not only declared proclaimed offender under Section 82 Cr.P.C. but proclamation of attachment of property was also issued under Section 83 Cr.P.C. and, therefore, as held in Prem Shankar Prasad (supra) applicant is not entitled for anticipatory bail. Even otherwise, on merit also, considering the specific averments made under Section 164 Cr.P.C. by First Informant as well as her minor daughter, there are very serious allegations against the applicant and, therefore, no case for anticipatory bail is made out on merit also.
The application is accordingly rejected. However, two weeks time is granted to applicant to surrender before Trial Court and to move an application for bail. In case such an application is filed by applicant, Trial Court is directed to decide the same expeditiously considering the judgment passed by Supreme Court in Satender Kumar Antil vs. Central Bureau of Investigation and another, (2021) 10 SCC 773."
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