Pushpendra vs State Of U.P. And Another
2023 Latest Caselaw 10403 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 85
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 3914 of 2023
 

 
Applicant :- Pushpendra
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- S.S. Rajput
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Siddharth,J.

Heard learned counsel for the applicant and learned AGA for the State.

The instant anticipatory bail application has been filed on behalf of the applicant, Pushpendra, with a prayer to release him on bail in Case Crime No. 124 of 2017, under Sections- 363, 366 IPC and Section 7/8 POCSO Act, Police Station- Gangiri, District- Aligarh.

This anticipatory bail application has been moved on behalf of the applicant from enlarging him on anticipatory bail. Earlier, the applicant and the daughter of the informant Smt. Rubi, approached this Court by way of Writ Petition No. 24680/2017 wherein the following order was passed.

"Heard learned counsel for the petitioners and learned AGA for the State and perused the impugned F.I.R. as well as material brought on record.

Learned A.G.A. has accepted notice on behalf of respondent nos. 1 to 3.

Issue notice to respondent no. 4. Steps to be taken within two weeks. In case, steps are not taken the order granting interim protection to the petitioners shall stand automatically vacated.

Each of the respondents is granted four weeks time to file counter affidavit.

Rejoinder affidavit, if any, may also be filed within two weeks thereafter.

List thereafter.

Learned counsel for the petitioners submits that victim herself is petitioner no.1 and accused is petitioner no.2; petitioner no. 1 and 2 are major and they have also solemnized marriage and they are living happily as husband and wife. Much reliance has been placed on the averments made in para 17 and 18 of the writ petition. Learned counsel for the petitioners has further placed reliance upon a judgment of the Apex Court rendered in Criminal Appeal No. 1142 of 2013 - Sachin Pawar Vs. State of U.P., decided on 02.08.2013.

The Court has been informed that petitioner no. 1 and 2 are present before this Court. Petitioner no.1 and 2 have identified each other and both in turn have been identified by their counsel on the basis of documents produced in his chamber. With the consent of the parties, the Court now proceeds to examine petitioner no. 1.

On being asked from petitioner no. 1 as to what is her name, she informs the Court that her name is "Ruby"; on being further asked as to what is her date of birth, she informs that her date of birth as per Aadhar Card is "1.1.1999" and apparently, she appears to be major. She has further informed the Court she has solemnized marriage with petitioner no.2 Pushpendra of her own sweet will without any fear threat or coercion and she is living with him happily.

Apart from the Aadhar Card, there is no age proof of petitioner no.1 on record as on date although the girl has stated that she has studied up to Class V. Learned counsel for the petitioners has informed that this is the second writ petition. The first writ petition has been disposed of finally vide order dated 6.7.2017. Contention of the learned counsel for the petitioners is to the effect that he has not complied with the said order dated 6.7.2017 as the concerned police officer has given an assurance that the matter will be settled. However, the girl was recovered, she was medically examined in which her age comes to 17 years and her statement under Section 164 Cr.P.C. was also recorded, contents of which are self-explicit and which shows that girl has gone from her house of her own sweet will with petitioner no.2 Pushpendra. It is also admitted on record that after the girl was recovered she was given in the supurdugi of her mother. On being asked from the girl that "woh yahan par aaj kiske sath ayee hain" she replies that "woh yahan se apne pati Pushpendra ke sath jana chahti hai". On being further asked from the girl that "kya dobara woh apne maa ke yahan jana chahegi" she replies that "mujhe dobara apne maa ke yahan nahi jana hai".

In view of the statement made by the girl before this Court,prima facie, a case for grant of indulgence is made out.

Until further orders of this Court, petitioners shall not be arrested in pursuance of the FIR registered as Case Crime No.0124 of 2017 u/s 363, 366 IPC P.S.Gangiri District Aligarh.

It is directed that respondent no.4 who is the father of the girl will bring all documents on record with the counter affidavit with regard to age of petitioner no.1 Rubi particularly school leaving certificate, if any, as she has stated that she has studied up to Class V from Sushila Devi Inter College Gangiri District Aligarh and, record from that school regarding age of petitioner no.1 will also be produced before this Court on the next date of listing.

The petitioners are also given liberty that in case any threat is extended to them or they have any apprehension with regard to their security, they may immediately file an application before the SSP/SP concerned along with the certified copy of the order and in case such an application is filed before the SSP/SP concerned, he will look into the matter personally and will ensure the safety of the petitioners.

Let a copy of the order be forwarded to the concerned SSP/SP through the office of the Government Advocate who after receipt of the order shall ensure the safety of the petitioners and also shall ensure that the family members of the victim do not cause any harm or injury to the petitioners and shall ensure fair investigation of the matter without any whims, caprice or personal notion of morality."

In view of the above, it appears that the victim was consenting party and she had stated before the Division Bench of this court that she wants to live with the applicant.

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

After considering the rival submissions this court finds that there is a case registered/about to be registered against the applicant. It cannot be definitely said when the police may apprehend him. After the lodging of FIR the arrest can be made by the police at will. There is no definite period fixed for the police to arrest an accused against whom an FIR has been lodged. The courts have repeatedly held that arrest should be the last option for the police and it should be restricted to those exceptional cases where arresting the accused is imperative or his custodial interrogation is required. Irrational and indiscriminate arrests are gross violation of human rights. In the case of Joginder Kumar v. State of Uttar Pradesh AIR 1994 SC 1349 the Apex Court has referred to the third report of National Police Commission wherein it is mentioned that arrests by the police in India is one of the chief source of corruption in the police. The report suggested that, by and large, nearly 60 percent of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2 percent of expenditure of the jails. Personal liberty is a very precious fundamental rights and it should be curtailed only when it becomes imperative. According to the peculiar facts and circumstances of the peculiar case the arrest of an accused should be made.

Hence without expressing any opinion on the merits of the case and considering the nature of accusations and antecedents of applicant, he is directed to be enlarged on anticipatory bail as per the Constitution Bench judgment of the Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98. The future contingencies regarding anticipatory bail being granted to applicant shall also be taken care of as per the aforesaid judgment of the Apex Court.

In the event of arrest, the applicant shall be released on anticipatory bail. Let the applicant involved in the aforesaid crime be released on anticipatory bail till the conclusion of trial 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 the country during the pendency of trial without prior permission from the concerned trial Court.

2. The applicant shall surrender his passport, if any, to the concerned Court forthwith. His passport will remain in custody of the concerned 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 him 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 misuses 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 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 his bail and proceed against him in accordance with law.

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

Order Date :- 10.4.2023

Abhishek