Sarvesh Kumar Anticipatory Bail vs State Of U.P. And Another
2022 Latest Caselaw 11387 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 15
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 4187 of 2020
 

 
Applicant :- Sarvesh Kumar Anticipatory Bail
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Amrendra Singh,Anil Kumar
 
Counsel for Opposite Party :- G.A.,Arun Kumar Singh,Ratnesh Trivedi
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Shri Anil Kumar, learned counsel for the applicant, Sri Arun Kumar Singh, learned counsel for the first informant and Sri Shri Prakash, learned A.G.A. for the State and perused the material on record.

The instant Anticipatory Bail Application has been filed with a prayer to grant an anticipatory bail to the applicant, namely, Sarvesh Kumar in Case Crime No. 810 of 2019, under Sections 376, 312, 506 I.P.C., Police Station - Gola, District - Lakhimpur Kheri, till the conclusion of trial, the applicant has directly approached before this Court.

Learned counsel for the applicant submits that the applicant has granted interim bail in the present case on 26.06.2020 during the Covid- 19 period and the present anticipatory bail application has been entertained directly before this court.

Brief facts of the case are that the present F.I.R. has been lodged on 10.12.2019, under Sections 376, 312, 506 of I.P.C. against the applicant by the victim stating that the applicant made physical relations with the victim, on the pretext of false promise of marriage, and as a result, the victim became pregnant and on 19.08.2019, against the wishes of the prosecutrix, some medicine was given to her, as a result, fetus was aborted and the applicant refused to enter into the marriage with her.

Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. It is further submitted that on 04.12.2019, marriage of the applicant was settled with some other girl and engagement ceremony was solemnized with her. It is further submitted that thereafter, on 10.12.2019, the present F.I.R. has been lodged by the victim, the age of the victim was 29 years. It is further submitted there is an admitted fact that the victim having relationships with the applicant. Learned counsel for the applicant further submits that there is no date and time has been mentioned in the F.I.R. with regard to starting of the relationship.

He further submits that custodial interrogation is not required in the present case. He lastly submitted that the applicants have no criminal antecedent to his credit and he has not convicted by any court in cognizable offence.

Learned counsel for the applicant further submitted that it is a case, squarely covered by the law laid down by the Hon'ble Supreme Court in the case of Deepak Gulati Vs. State of Haryana reported in (2013) 7 SCC 675, para Nos. 18 & 19 of the aforesaid judgment are reproduces as under:

18. Section 114-A of the Indian Evidence Act, 1872 (hereinafter referred to as the 'Act 1872') provides, that if the prosecutrix deposes that she did not give her consent, then the Court shall presume that she did not in fact, give such consent. The facts of the instant case do not warrant that the provisions of Section 114-A of the Act 1872 be pressed into service. Hence, the sole question involved herein is whether her consent had been obtained on the false promise of marriage. Thus, the provisions of Sections 417, 375 and 376 IPC have to be taken into consideration, alongwith the provisions of Section 90 of the Act 1872. Section 90 of the Act 1872 provides, that any consent given under a misconception of fact, would not be considered as valid consent, so far as the provisions of Section 375 IPC are concerned, and thus, such a physical relationship would tantamount to committing rape.

19. This Court considered the issue involved herein at length in the case of Uday v. State of Karnataka, [Uday v. State of Karnataka, (2003) 4 SCC 46 : 2003 SCC (Cri) 775 : AIR 2003 SC 1639; Deelip Singh @ Dilip Kumar v. State of Bihar, [Deelip Singh @ Dilip Kumar v. State of Bihar, (2005) 1 SCC 88: 2005 SCC (Cri) 253 : AIR 2005 SC 203], Yedla Srinivasa Rao v. State of A.P., [(2006) 11 SCC 615 : (2007) 1 SCC (Cri) 557] and Pradeep Kumar Verma v. State of Bihar & Anr., [Pradeep Kumar Verma v. State of Bihar & Anr., (2007) 7 SCC 413 : (2007) 3 SCC (Cri) 407 ; AIR 2007 SC 3059], and came to the conclusion that in the event that the accused's promise is not false and has not been made with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act(s) would not amount to rape. Thus, the same would only hold that where the prosecutrix, under a misconception of fact to the extent that the accused is likely to marry her, submits to the lust of the accused, such a fraudulent act cannot be said to be consensual, so far as the offence of the accused is concerned.

Learned A.G.A. has opposed the prayer for anticipatory bail of the applicant but he has not refuted the fact that the applicant has no criminal antecedent to his credit.

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 Vs. 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.

It is settled position of law that the anticipatory bail being an extraordinary privilege should be granted only in exceptional cases. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied, where the Court is prima facie of the view that the applicant has falsely roped in the crime and would not misuse his liberty.

Considering the facts and circumstances of the case and the law laid down by the Hon'ble Apex Court in the case of Sushila Aggarwal Vs. State (NCT of Delhi)-2020 SCC Online SC 98, ground for grant of ad interim anticipatory bail is made out.

In case of arrest, the applicant, Sarvesh Kumar is directed to be enlarged on interim anticipatory bail in above case crime number till the conclusion of trial, on his furnishing personal bond of Rs. 25,000/- and two sureties each of like amount before the Station House Officer of Police Station/Court concerned with the following conditions:-

(i) The applicant shall make himself available for interrogation by the police officer as and when required, if investigation is in progress;

(ii) The applicant 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 such person from disclosing such facts to the Court or to any police officer;

(iii) The applicant shall not leave the country without the previous permission of the Court and if he has passport, the same shall be deposited by them before the S.S.P./S.P. concerned/Court concerned;

(iv) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant along-with a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked;

(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.

The Investigating Officer will continue with the investigation, if it is in progress and will not be affected by this order.

With the aforesaid directions, the present Anticipatory Bail Application is allowed.

Order Date :- 29.8.2022

Ishan