Allahabad High Court
Shivam Kumar Alias Ashutosh Kumar vs State Of U.P. Thru. The Prin. Secy. ... on 28 April, 2023
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 12
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 334 of 2023
Applicant :- Shivam Kumar Alias Ashutosh Kumar
Opposite Party :- State Of U.P. Thru. The Prin. Secy. Home Deptt. Civil Sectt. Lko. And Others
Counsel for Applicant :- Brijesh Kumar Yadav,Bhupendra Veer Singh
Counsel for Opposite Party :- G.A.,Piyush Sri
Hon'ble Karunesh Singh Pawar,J.
The present bail application under Section 438 Cr.PC. has been filed seeking anticipatory bail in case crime No. 332 of 2022 under sections 376-D, 354(Gha), 341, 506 I.P.C. and sections 5/6 of the Protection of Children from Sexual Offences Act and sections 67-b/74 of the Information Technology (Amendment) Act, 2008, P.S. Wazirganj, district Lucknow.
Heard learned counsel for the applicant and learned A.G.A. for the State.
This Court vide order dated has passed the following order:-
"The present bail application under Section 438 Cr.P.C. has been filed seeking anticipatory bail in case crime No.332 of 2022 under sections 376-D, 354(Gha), 341, 506 I.P.C. and sections 5/6 of the Protection of Children from Sexual Offences Act and sections 67-b/74 of the Information Technology (Amendment) Act, 2008, P.S. Wazirganj, district Lucknow.
Heard learned counsel for the applicant and learned Additional Government Advocate for the State as also learned counsel for the complainant.
As per allegations in the first information report, while the respondent No.2 was fourteen years of age and was studying in Class-XI in Ram Sewak Yadav Smarak Inter College, Lakhpeda Bagh, Barabanki, the applicant who was three years senior to her told that she can take help in her study in case she feels any difficulty. Consequently, the respondent No.2 contacted the applicant to learn English and started hobnobbing with him. It is further alleged that the applicant and the respondent No.2 came to visit Lucknow. She was brought in a flat, situated in River Bank Colony where two persons were already present. The accused persons gave some cold-drink and burger to her and after taking the cold drink, the applicant and his two companions committed rape on her one by one. On coming in sense, it is alleged that the victim told the accused that she would tell about the incident to her family members. She was shown a video of her rape, extending threat that if she disclose the incident to any one, they will circulate her video on social media. The respondent No.2 is alleged to have been dropped at her home by the accused. It is then alleged that the accused applicant has committed rape several times.
It is also alleged that victim was sent by her family members to the house of maternal grandfather. The applicant having failed to contact the victim, started circulating her photographs on social media, making fake I.D. on Instagram. Being disturbed, the victim came to Lucknow at her maternal uncle's house. It is lastly alleged that on 23.11.2022 at about 1.30 p.m., when she was sitting in bus, the applicant followed her. On getting down from the bus, near Collectorate crossing, the applicant tried to forcibly take her away in a car. On a noise being raised, the applicant fled away.
Learned counsel for the applicant submits that the applicant is not a previous convict. He has no previous antecedent. The applicant is innocent. As a matter of fact, the applicant and respondent No.2 were studying in the same school. The applicant being a meritorious student and after being impressed with his academic excellence, the respondent No.2 developed good relationship with the applicant. The incident narrated in the first information report is five years old. The first information report has been lodged after a delay of five years without there being any explanation. No physical relationship has been developed between respondent No.2 and the applicant. No photograph of the respondent No.2 has been circulated on social media nor any video has been uploaded on Instagram as alleged in the first information report. Sweeping allegation of committing rape five years ago has been levelled. No specific date, time and place of the incident has been given in the first information report regarding the allegation that she has been subjected to rape for various occasions. No detail of fake ID and photograph of respondent No.2 which allegedly has been circulated on the social media has been recovered by the investigating officer.
At the time of incident, i.e. in the year 2017, the applicant was minor and aged about 15 years. Presently, the applicant is studying in B.Sc. Second Year. There is no witness to the incident. The applicant has been falsely implicated due to ulterior motive.
Learned Addl. Government Advocate and learned counsel for the complainant Mr. Piyush Srivastava who has filed vakalatnama on her behalf today in court which is taken on record opposed the bail prayer.
Learned counsel for the complainant submits that the applicant has a criminal history of one case which is registered as first information report No.13 of 1997 under sections 504, 506 I.P.C., against the applicant for threatening the prosecutrix.
Upon a query being made by the court, learned A.G.A. could not show that any photograph or video which has been made viral on the Internet has been obtained by the investigating officer. Learned counsel for the complainant also could not show that he has taken any photograph from the Internet on the basis of which the first information report has been lodged.
Learned A.G.A. has produced the case diary before this court. A perusal of the statement of the prosecutrix under sections 161 and 164 CrPC shows that while making statement under section 164 CrPC, massive improvement has been made by the prosecutrix.
Learned counsel for the applicant undertakes that the applicant shall cooperate in the investigation.
Learned Addl. Government Advocate and learned counsel for the complainant pray for and are granted fifteen days' time to file objections.
List on 20.3.2023 for final disposal.
In the meantime, learned counsel for the applicant shall also explain the criminal history as pointed out by learned counsel for the complainant and learned A.G.A.
Considering the above aspects of the matter, perusal of the record, the fact that there is delay of five years in lodging the first information report, the applicant is a student of B.Sc. there is improvement in the version of the prosecutrix while recording statement of the prosecutrix under section 161 CrPC, as also the judgment in Sushila Aggarwal and others versus State (NCT of Delhi) and another (2020)5 SCC 1 and without entering into the merit of the case, it would be appropriate to grant interim protection to the applicant under Section 438 Cr.P.C.
Till the next date of listing, it is provided that in the event of arrest, the applicant shall be released on bail on his furnishing a personal bond and two sureties of the like amount to the satisfaction of the arresting officer/I.O./S.H.O. concerned.
The applicant shall cooperate in the investigation and he will not influence the witnesses. The accused-applicant will remain present as and when the arresting officer /I.O./ S.H.O. concerned call (s) for investigation/interrogation. The applicant shall not leave India without previous permission of the Court."
Learned counsel for the applicant submits that charge sheet is yet to be filed. The applicant has cooperated in the investigation. He has not misused the liberty granted by the Court. The applicant is a student and has been falsely implicated.
Learned A.G.A. has opposed the prayer made by learned counsel for the applicant submitting that the investigation is going on.
Without expressing any opinion on the merits of the case and considering the nature of accusation and having no criminal antecedents, coupled with the undertaking given by the applicant that he will cooperate in the investigation as also the fact that the improvement made by the prosecutrix while giving statement under Section 164 Cr.P.C.; he has no criminal antecedents and he is not a previous convict, it would be expedient in the interest of justice that the liberty of the applicant may be protected till filing of police report u/s 173(2) Cr.P.C in view of dictum of Apex Court in re: Sushila Aggarwal Vs. State (NCT of Delhi)-2020 SCC online SC 98.
In view of the above, it is provided that in the event of arrest, the applicant shall be released on anticipatory bail in the aforesaid Case Crime number on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the arresting officer/investigating officer/S.H.O. concerned with the following conditions:-
(1) The applicant shall cooperate in the investigation and he will not influence the witnesses.
(2) The accused-applicant will remain present as and when the arresting officer/1.O./S.H.O. concerned call (s) for investigation/interrogation.
(3) The applicant shall not leave India without previous permission of the Court.
(4) In case of default, it would be open for the investigating agency to move application for vacation of this interim protection.
The application is disposed of.
Order Date :- 28.4.2023/R.C.
