Rajesh Kamaliya vs State Of U.P. And 3 Others
2023 Latest Caselaw 21929 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:163944
 
Court No. - 72
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 7580 of 2023
 
Applicant :- Rajesh Kamaliya
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Durgesh Kumar Singh,Anil Kumar Rai
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Krishan Pahal,J.

1. List has been revised.

2. Learned A.G.A. has informed that the notice has been served to the informant on 23.05.2023.

3. Heard Sri Durgesh Kumar Singh, learned counsel for the applicant and Sri V.K.S. Parmar, learned A.G.A. for the State as well as perused the record.

4. The present anticipatory bail application has been filed on behalf of the applicant in Complaint Case No.03 of 2016, registered under Sections 363, 366, 376, 504 IPC and Section 3/4 POCSO Act at Police Station- Puranderpur, District Maharajganj with a prayer to enlarge him on anticipatory bail.

5. As per prosecution story, the co-accused person Abdul Rehman @ Sajid is stated to have taken away the 14 years old minor daughter of the informant in the month of May, 2014 and is stated to have told her that she shall be paid Rs.2,000 per month for the job she was to be given. The said person did not let the victim talk to her parents despite several efforts by them. On 11.09.2014, the said daughter of the informant is stated to have been introduced to the informant at a railway station, whereby she is stated to have started crying on seeing the informant and the victim is stated to have informed her father that the named accused person Abdul Rehman @ Sajid is stated to have raped her and is stated to have even subjected her to gang rape by other three unknown persons. Later on, in exchange of undetailed money, he is stated to have given her to the applicant and other co-accused person Sunil Kamaliya, who are stated to have taken her as a domestic help and are even stated to have sexually assaulted her. At the time of recovery, she is stated to have been found pregnant which was terminated forcibly by the other co-accused person Abdul Rehman @ Sajid.

6. Learned counsel for the applicant has stated that the applicant has been falsely implicated in the present case. The FIR was instituted by the informant on 14.10.2014. The investigation was taken up and the matter was closed by the police, as such the protest petition was filed by the informant and the applicant and other co-accused persons were summoned vide order dated 18.05.2016. The said order was challenged by the applicant and co-accused persons by filing a revision before this Court and the said revision was allowed vide order dated 16.04.2018 by this Court passed in Criminal Revision No.2732 of 2016, as such the matter was reheard by the Magistrate concerned and the applicant and co-accused persons have been summoned vide order dated 31.10.2018 on a fresh order of the Magistrate concerned. Pursuant to it, coercive measures have been taken up and bailable warrants have been issued against the applicant and other co-accused persons.

7. Learned counsel for the applicant has further stated that the applicant had no knowledge of the said summoning order and the co-accused persons has preferred a criminal revision against the said order dated 31.10.2018 and the order of no coercive measures to be taken against him has been passed. The said criminal revision is still pending before this Court. Learned counsel has further stated that there is no evidence against him.There is a report of the Police Station Dhudli, District Maharajganj, which indicates that the applicant was having enmity with ex-MLA Amar Mani Tripathi and out of vengeance, the present FIR has been instituted. Even the injury report does not indicate any offence against the applicant. The statement of the victim recorded under Section 164 Cr.P.C. corroborates the prosecution story, but it has been taken after legal consultation at the behest of said Amar Mani Tripathi, as such the applicant, out of fear, has left his place where he used to run business to Bihar.

8. Learned counsel for the applicant has further stated that the present FIR has ruined his image in the society. Several other submissions have been made on behalf of the applicant to demonstrate the falsity of the allegations made against him. The circumstances which, as per counsel, led to the false implication of the applicant have also been touched upon at length. There are no criminal antecedents of the applicant. The applicant has apprehension of his arrest. Learned counsel for the applicant undertakes that he has co-operated in the investigation and is ready to do so in trial also failing which the State can move appropriate application for cancellation of anticipatory bail.

9. Per contra, learned A.G.A. has vehemently opposed the anticipatory bail application on the ground that the matter pertains to the year 2014 and the applicant has not surrendered before the court to date i.e. a period of about nine years has passed, although he could not indicate any criminal antecedents of the applicant.

10. On due consideration to the arguments advanced by learned counsel for the applicant as well as learned A.G.A., taking into consideration the fact that the closure report was filed earlier on by the police and even the summoning order was set aside by this Court and the applicant and other accused persons have been summoned vide order dated 31.10.2018 afresh, and considering the nature of accusations and antecedents of the applicant, the applicant is liable to be enlarged on anticipatory bail in view of the judgment of Supreme Court in the case of "Sushila Aggarwal Vs. State (NCT of Delhi), (2020) 5 SCC 1". The future contingencies regarding the anticipatory bail being granted to applicant shall also be taken care of as per the aforesaid judgment of the Apex Court.

11. In view of the above, the anticipatory bail application of the applicant is allowed. Let the accused-applicant- Rajesh Kamaliya be released forthwith in the aforesaid complaint case (supra) on anticipatory bail till the conclusion of trial on furnishing a personal and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-

(i). that the applicant shall make himself available for interrogation by a police officer as and when required;

(ii). 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 or tamper with the evidence;

(iii). that the applicant shall not leave India without the previous permission of the court;

(iv). that in case charge-sheet is submitted the applicant shall not tamper with the evidence during the trial;

(v). that the applicant shall not pressurize/ intimidate the prosecution witness;

(vi). that the applicant shall appear before the trial court on each date fixed unless personal presence is exempted;

(vii). that in case of breach of any of the above conditions the court concerned shall have the liberty to cancel the bail.

12. It is made clear that observations made hereinabove are exclusively for deciding the instant anticipatory bail application and shall not affect the trial.

Order Date :- 16.8.2023

Ravi Kant

(Krishan Pahal, J.)