Amit Kumar Solanki vs State Of U.P.And 2 Others
2022 Latest Caselaw 20408 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 20346 of 2021
 

 
Applicant :- Amit Kumar Solanki
 
Opposite Party :- State Of U.P.And 2 Others
 
Counsel for Applicant :- Mohit Singh,Ravi Kumar Singh
 
Counsel for Opposite Party :- G.A.,Fatma Khatoon,Pramod Kumar Sahani,Sanjeev Kumar,Shivbaboo
 

 
Hon'ble Suresh Kumar Gupta,J.

Earlier the following order was passed by this Court on 13.5.2022:-

"Learned counsel for the applicant submits that due to inadvertence "till the conclusion of the trial" has not been mentioned in the prayer clause of the application.

Learned counsel for the applicant is permitted to make necessary correction in the prayer clause of the application.

Heard Sri V.P. Srivastava, learned Senior Counsel assisted by Sri Mohit Singh, Sri Ravi Kumar Singh, learned for the applicant, Sri Shiv Babu, learned counsel for the first informant and Sri Pankaj Kumar Tripathi, learned A.G.A. for the State and perused the material on record.

The present bail application has been filed on behalf of applicant Amit Kumar Solanki under Section 438 of the Code of Criminal Procedure, with a prayer to release him on anticipatory bail in Case Crime No. 401 of 2021, for offence punishable under Sections 376, 506 of the Indian Penal Code, registered at Police Station- Brahampuri, District- Meerut, till the conclusion of the trial, after rejecting the anticipatory bail application of the applicant by Additional Sessions Judge, Court No. 17, vide order dated 06.12.2021.

Brief facts of the case are that the first information report dated 24.08.2021 has been lodged by the victim against the applicant and one Kamini Jha stating therein that prior 10 months of the lodging of the first information report, they have exchanged their mobile numbers, the victim became friends with the applicant and after that the applicant started talking to the victim as his girlfriend and told her that he would marry her. On 22.04.2021 at about 11:30 A.M. applicant came to the victim's house and made physical relationship with her. From 22.04.2021 to 26.05.2021, victim's father was suffering from Covid-19 disease and in the meantime, the applicant neglected the victim and refused to marry the victim. On 29.07.2021 at 08:20 P.M. applicant came to the victim's house and said that he is ready for marriage. Two days later, when the victim called the applicant, the applicant started torturing the victim and said that if she called, he would commit suicide. On 23.08.2021 one Kamini Jha called the victim and threatened her and stated that applicant is married person. Kamini Jha is a friend of the applicant and a media person. Applicant made physical relation with the victim on the pretext of false promise of marriage.

After lodging of the first information report, the statement of the victim was recorded under Section 161 of Cr.P.C. on 01.09.2021; medical examination was conducted on 07.09.2021; the statement of the victim was recorded under Section 164 Cr.P.C. on 29.10.2021.

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 admitted case fact the victim and applicant were friendship but the applicant has not committed any offence as alleged by the victim. It is next submitted that victim has lodged an F.I.R. on 17.05.2018 against one Abhishek Roy, Assistant Manager of DSM company under Section 354-B, 509 of I.P.C., and wherein she stated that on the pretext of false promise of marriage one Abhishek took photographs of her and tried to made physical relations with the victim. It is further argued that one first information report as Case Crime No. 379 of 2018 has been lodged against the victim on 03.08.2018 under Section 506 of I.P.C. and Section 66(A) of the Information Technology Act, P.S. Gokul Puri, District- North East, Delhi by a police constable stating therein that he is a Head Constable in Delhi Police and the victim used to call on the mobile number of the complainant and her son Sudarshan @ Ankur and threatened that she would implicate him and his son in a false criminal case. After that the complainant contacted the father of the victim, he told that his daughter does not listen to him and harassed such people by calling them.

It is further submitted that the applicant is no more required for custodial interrogation. The applicant has no criminal history and he has not undergone any imprisonment after conviction by any court of law in relation to any cognizable offence previously. It is further contended that the applicant is ready to participate in the investigation.

Learned A.G.A. as well as learned counsel for the first informant have opposed the prayer for anticipatory bail of the applicant.

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.

Learned A.G.A. as well as learned counsel for the first informant may file their counter affidavits within two weeks.

Rejoinder affidavit, if any, may be filed within one week thereafter.

Put up this case as fresh for final hearing on 13.06.2022.

In case of arrest, the applicant, Amit Kumar Solanki 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."

In compliance of the above order, counter affidavit and rejoinder affidavit has been exchanged between the parties.

Heard Sri V.P. Srivastava, learned Senior Advocate assisted by Sri Mohit Singh, learned counsel for the applicant, learned counsel for the first informant and learned A.G.A."

The present anticipatory bail application under Section 438 Cr.P.C. has been filed for grant of anticipatory bail as the accused-applicant is apprehending his arrest in connection with Case Crime No. 401 of 2021, for offence punishable under Sections 376, 506 of the Indian Penal Code, registered at Police Station- Brahampuri, District- Meerut

Learned counsel for applicant has submitted that the applicant has been falsely implicated in this case and he has not committed any offence as alleged by the prosecution. He further submitted that both the applicant and victim are major. In her statement recorded under Section 164 Cr.P.C.,the victim has stated that applicant stated her that he is unmarried and he will perform marriage with her and the applicant made physical relationship with the victim.Thus, the victim has made physical relationship with the applicant with her own free will and thus, she is consenting party. In support of his submission learned counsel for the applicant placed reliance upon a judgment of Hon'ble Supreme Court in the case of Ansaar Mohammad Vs. State of Rajasthan and Another ( S.L.P. (Cri) No. 5326 of 2022) in which it has been held that :-

"In view of the said fact, the complainant has willingly been staying with the appellant and had the relationship. Therefore, now if the relationship is not working out, the same cannot be a ground or lodging an FIR for the offence under Section 376(2)(n) IPC."

He further submitted that victim herself refused for medical examination. There is no iota of evidence against the applicant for forceful sexual assault. He further submitted that from the counter affidavit, it is clear that the applicant is unmarried and therefore, the allegation against the applicant that he is married person is totally false. Further submission is that the applicant fully cooperated with the investigation, therefore no need of custodial interrogation of the applicant, hence, the applicant may be enlarged on anticipatory bail till conclusion of trial and he is ready to cooperate with the trial. If the applicant is granted anticipatory bail, he will never misuse the same. In support of his submission, learned counsel for the applicants has relied upon the judgement of Hon'ble Apex Court in the case of Aman Preet Singh vs. C.B.I. through Director, AIR 2021 Supreme Court 4154.

Learned Additional Government Advocate and learned counsel for the first informant has vehemently opposed the prayer for anticipatory bail to the applicant and submitted that allegation against the applicant is serious in nature. Thus, the anticipatory bail application of the applicant is liable to be rejected.

I have considered the rival submissions advanced by learned counsel for the parties and perused the entire material available on record.

The Hon'ble Supreme Court in the case of Aman Preet Singh (Supra), the Court has observed as under:

"10. Insofar as the present case is concerned and the general principles under Section 170 Cr.P.C., the most apposite observations are in sub-para (v) of the High Court judgment in the context of an accused in a non-bailable offence whose custody was not required during the period of investigation. In such a scenario, it is appropriate that the accused is released on bail as the circumstances of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail.

11. The rationale has been succinctly set out that if a person has been enlarged and free for many years and has not even been arrested during investigation, to suddenly direct his arrest and to be incarcerated merely because charge sheet has been filed would be contrary to the governing principles for grant of bail. We could not agree more with this."

In Aman Preet Singh (supra), the Court has clearly held that if a person, who is an accused in a non-bailable/cognizable offence, was not taken into custody during the period of investigation, in such a case, it is appropriate that he may be released on bail as the circumstances of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail.

Considering the facts and circumstances of the case as well as submissions advanced by learned counsel for the parties, I am of the opinion that it is a fit case for grant of bail to the applicant.

Accordingly, the anticipatory bail application is hereby allowed.

Let the applicant- Amit Kumar Solanki be released on bail by the trial Court till conclusion of trial on furnishing a personal bond and, two sureties each in the like amount to the satisfaction of the trial Court concerned with the following conditions:

(i) The applicant shall file an undertaking to the effect that the applicant shall not seek any adjournment on the dates fixed for evidence when 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;

(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through counsel. In case of absence, without sufficient cause, the trial court may proceed against the applicant under Section 229-A of the Indian Penal Code. The applicant shall cooperate in the investigation;

(iii) In case, the applicant misuses the liberty of bail and in order to secure his/her presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the Court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against the applicant in accordance with law, under Section 174-A of the Indian Penal Code; and

(iv) 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. 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.

Order Date :- 9.12.2022

Anuj Singh