Mahendra Kumar And 3 Others vs State Of U.P And Another
2021 Latest Caselaw 3033 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 73
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 4520 of 2021
 

 
Applicant :- Mahendra Kumar And 3 Others
 
Opposite Party :- State Of U.P And Another
 
Counsel for Applicant :- Ravindra Prakash Srivastava
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Siddharth,J.

Heard learned counsel for the applicants and learned A.G.A. for the State.

The instant anticipatory bail application has been filed on behalf of the applicants,Mahendra Kumar Kannaujiya, Ramesh, Kamluddin and Smt. Sunita Devi, with a prayer to release him on bail in Case Crime No. 326 of 2020, under Section- 363, 366 I.P.C and Section 16/17 POCSO Act, Police Station- Dudhara, District-Sant Kabir Nagar, during pendency of trial.

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 U/S 438 Cr.P.C. No. 8072 of 2020, Govind Mishra @ Chhotu Versus State of U.P., hence, this anticipatory bail application is being heard. Grant of further time to the learned A.G.A as per Section 438 (3) Cr.P.C. (U.P. Amendment) is not required.

There is allegation in the FIR that theapplicant no. 1 along withapplicant nos. 2 and 3, namely,Ramesh and Kamaluddin, have enticed and abducted the minor daughter of the informant, applicant no. 4. Theapplicant nos. 1 to 3, have taken away jewelleryworth 7 lakhs and Rs. 1.5 lakhs in cash. The informant has apprehension that after taking the jewellery and money from his daughter, they may cause someuntoward incident with his daughter. Counsel for theapplicants has submittedthat the applicant no. 1 and applicant no. 4 both are major and they have married at Mumbai as per Hindu Marriage Rites and Customs. Adeclaration of marriage on notarial document has been brought onrecord. Pan card and Aadhar card of the girl show her date of birth as 01.02.2000.Counsel for the applicants has submittedthat the applicant no. 1 is willing to produce the applicant no. 4 before the Court, if directed.

Learned A.G.A. has opposed the prayer for anticipatory bail of the applicants. He has submitted that in view of seriousness of the allegations made against the applicants, they are not entitled to grant of anticipatory bail. The apprehension of the applicants is not founded on any material on record. Only on the basis of imaginary fear, anticipatory bail cannot be granted.

In view of the facts and circumstances of the case, it is directed that applicant nos. 1 to 3 will produce the girl, Smt. Sunita,applicant no. 4, before the C.J.M., concerned, within a period of three weeks. The C.J.M. concerned will get her medical examination conducted for the purpose of age determination by the C.M.O. concerned and record her statement under Section 164 Cr.P.C. The applicants shall be enlarged on anticipatory bail for the period of three weeks initially and on compliance of this order, it shall be extended. On failure to comply this order, anticipatory bail granted to the applicants shall stand cancelled and the police shall be free to arrest the applicants.

In the event of arrest, the applicants shall be released on anticipatory bail till cognizance is taken by the Court on the police report, if any, under section 173 (2) Cr.P.C. before the competent Court on furnishing a personal bond of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the Station House Officer of the police station/ concerned Court with the following conditions:-

(i) The applicants shall make themselves available for interrogation by the police officer as and when required;

(ii) The applicants shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade from disclosing such facts to the Court or to any police officer;

(iii) The applicants shall not leave India without the previous permission of the Court and if they have passport, the same shall be deposited by them before the S.S.P./S.P. concerned.

(iv) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.

(v) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

In default of any of the conditions, the Investigating Officer/Govt. Advocate is at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicants.

The Investigating Officer is directed to conclude the investigation, if pending, of the present case in accordance with law, expeditiously, independently without being prejudiced by any observations made by this Court while considering and deciding the present anticipatory bail application of the applicants.

The applicants are directed to produce a copy of this order downloaded from the official website of this Court before the S.S.P./S.P. concerned within ten days from today, if investigation is in progress, who shall ensure the compliance of present order.

In case the victim is found to be major, she would be free to live with the applicant no. 1. In case she is found to be minor, then as per the judgment dated 27.01.2021 of this Court in Matters Under Article 227 No. 4804 of 2020 (Pradeep Tomar and Another vs. State of U.P. and Another), it shall be open for the daughter of the informant to acknowledge the marriage or claim it to be void. Once she attains the age of majority, it would be open for her to go wherever she likes and stay with the applicant no. 2 or with whomsoever she wants to live after she attains the age of majority. However, if she is found to be minor, she will not be allowed to live with the applicant no. 2 and will live with her parents. In case, if any threat to her security is caused from her parents during her minority, C.J.M., Sant Kabir Nagar will pass appropriate order after ascertaining the correct facts.

In case theapplicant no. 4, Smt. Sunita, expresses her willingness to live with the applicant no. 2 in her statement recorded u/s 164 Cr.P.C., then the applicants, in case of their arrest, shall be released on anticipatory bail. Let the applicants involved in the aforesaid crime be released on anticipatory bail on furnishing a personal bond with two sureties each in the like amount to the satisfaction of the trial court concerned with the following conditions:-

1. The applicants shall not leave the country during the currency of trial without prior permission from the concerned trial Court.

2. The applicants shall surrender their passports, if any, to the concerned Court forthwith. Their passports will remain in custody of the concerned Court.

3. That the applicants shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;

4. The applicants shall file an undertaking to the effect that they shall not seek any adjournment on the dates fixed for evidence and the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law to ensure presence of the applicants.

5. In case, the applicants misuse the liberty of bail, the Court concerned may take appropriate action in accordance with law and judgment of Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98.

6. The applicants 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. If in the opinion of the trial court, default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of their bail and proceed against them in accordance with law.

7. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.

8. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

Order Date :- 26.2.2021 /Rohit