Allahabad High Court
Gulshan vs State Of U.P And Another on 20 December, 2022
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 72
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 13121 of 2022
Applicant :- Gulshan
Opposite Party :- State Of U.P And Another
Counsel for Applicant :- Abhishe Pandey,Praveen Singh
Counsel for Opposite Party :- G.A.
Hon'ble Suresh Kumar Gupta,J.
Heard learned counsel for the applicant, learned A.G.A. appearing for the State and perused the record.
The present anticipatory bail application under Section 438 Cr.P.C. has been filed for grant of anticipatory bail as the accused-applicant- Gulshan is apprehending his arrest in connection with Case Crime No. 0187 of 2019, under Sections 498-A, 323, 328, 313, 377, 376 & 506 IPC and Section 3/4 of the Dowry Prohibition Act, Police Station Bhopa, District Muzaffarnagar.
It is contended on behalf of the applicant that the applicant is innocent and has been falsely implicated in the present case. The applicant is the brother-in-law of the first informant. Further submission is that Bhabhi of the applicant has lodged false and frivolous FIR against the applicant and his other family members. Further submission is that the allegation against the applicant is for committing rape with his bhabhi. It is further submitted that it is a matrimonial dispute between the first informant and Rahul, who is real brother of the applicant. It is further submitted that no specific date and time has been mentioned in the FIR, statement recorded under Sections 161 Cr.P.c. and 164 Cr.P.C. by the prosecutrix regarding the rape committed by the applicant. It is further submitted that at the time of incident no alarm was raised by the prosecutrix. Neither any FIR nor any proceedings were initiated by the first informant against the applicant regarding the incident. Just only to enhance the gravity of offence, this false and frivolous FIR has been lodged against the applicant with due deliberation and legal consultation. It is further submitted that at the time of alleged offence, the applicant was unmarried. It is furthers submitted that co-accused Rahul, who is the husband of the first informant, has already been granted anticipatory bail by this Court vide order dated 2.11.2022 passed in Criminal Misc. Anticipatory Bail Application No. 4285 of 2022. During course of investigation the applicant fully cooperate in the investigation. There is apprehension of the applicant to arrest, therefore, he seeks anticipatory bail. Hence, the applicant may be enlarged on anticipatory bail and he is ready to cooperate with the trial. If the applicant is granted anticipatory bail, he will never misuse the same. Learned counsel for the applicant has placed reliance on a judgement of the Supreme Court in the case of Sushila Aggarwal and others v. State (NCT of Delhi) and another, reported in (2020) 5 SCC 1.
Learned A.G.A. vehemently opposed the prayer for bail.
It may be stated that in case of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, it has been held by Hon'ble Supreme Court that while deciding anticipatory bail, Court must consider nature and gravity of accusation, antecedent of accused, possibility of accused to flee from justice and that Court must evaluate entire available material against the accused carefully and that the exact role of the accused has also to be taken into consideration.
In the instant case, considering the settled principles of law regarding anticipatory bail, submissions of the learned counsel for the parties, nature of accusation, role of applicants and all attending facts and circumstances of the case, without expressing any opinion on merit of the case, a case for anticipatory bail is made out.
In the event of arrest the applicant (Gulshan) shall be released on anticipatory bail till conclusion of the trial in the aforesaid case crime for the aforesaid offences 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 applicant shall not leave India during the currency of trial without prior permission from the concerned trial Court.
2. The applicant shall surrender his passport, if any, to the concerned trial Court forthwith. His passport will remain in custody of the concerned trial Court.
3. That 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 them from disclosing such facts to the Court or to any police officer;
4. The applicant shall file an undertaking to the effect that he 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 applicant.
5. In case, the applicant misuse the liberty of bail, the Trial Court concerned may take appropriate action in accordance with law and judgment of Apex Court in the case of Sushila Aggarwal and others v. State (NCT of Delhi) and another, (2020) 5 SCC 1.
6. 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.
(vii) The applicant is directed to immediately participate in the trial otherwise, benefit of this order shall not be made available to him.
The anticipatory bail application is allowed.
Order Date :- 20.12.2022
Virendra
