Satya Pal vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 4822 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 12
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 1502 of 2022
 

 
Applicant :- Satya Pal
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Anohter
 
Counsel for Applicant :- Shachindra Pratap Singh,Rishad Murtaza
 
Counsel for Opposite Party :- G.A.,Satish Chandra Sitapuri
 

 
Hon'ble Karunesh Singh Pawar,J.

The applicant has moved the present application under Section 438 of Cr.P.C. praying for grant of anticipatory bail in Case Crime No.F.I.R./Case Crime No.0310 of 2022, under Sections 376 and 313 I.P.C., Police Station-Sandila, District-Hardoi.

Heard learned counsel for the applicant and learned A.G.A. for the State as also Mr. S.C. Sitapuri, learned counsel for private respondent who has filed supplementary counter affidavit today in court, which is taken on record.

Vide order dated 13.9.2022, the applicant was granted interim protection by a coordinate Bench of this Court. Gist of the issue involved in the present matter is given in the said order, which is extracted below :

"Heard Sri Rishad Murtaza assisted by Sri S.P. Singh, learned counsel for applicant and learned A.G.A. 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-Satya Pal is apprehending his arrest in connection with F.I.R./Case Crime No.0310 of 2022, under Sections 376 and 313 I.P.C., Police Station-Sandila, District-Hardoi.

Learned counsel for accused-applicant submits that the accused-applicant is innocent and has been falsely implicated in the present case. It is submitted that the applicant did not commit rape. It is further submitted that there is no physical assault against the prosecutrix and the prosecutrix herself in her statement under Section 164 Cr.P.C. has stated that she was in love with the applicant and out of her consent, physical relation was made. It has been further submitted that similar controversy in the case of Sonu @ Subhash Kumar vs. State of U.P. and another (Criminal Appeal No.233 of 2021, arising out of SLP (Crl) No.112018 of 2019) decided by the Supreme Court on 1.3.2021 is supporting the case of the applicant. In Para 8, it has been observed by the Supreme Court that the relationship between the appellant and the second respondent was of consensual nature and on the basis of the three guidelines framed by the Supreme Court in Para 8 of the said judgment, the Special Leave Petition was allowed and the charge sheet was quashed. Para 8 of the said judgment is quoted hereinbelow:

"8. The contents of the FIR as well as the statement under Section 164 of CrPC leave no manner of doubt that, on the basis of the allegations as they stand, three important features emerge:

(i) The relationship between the appellant and the second respondent was of a consensual nature;

(ii) The parties were in the relationship for about a period of one and a half years; and

(iii) Subsequently, the appellant had expressed a disinclination to marry the second respondent which led to the registration of the FIR."

Learned counsel for the applicant has further relied upon a judgment of the Supreme Court in the case of Pramod Suryabhan Pawar vs. The State of Maharashtra and another (Criminal Appeal No.1165 of 2019, Arising out of SLP (Crl) No.2712 of 2019). It is lastly contended that applicant has no criminal history and there is no possibility of the accused-applicant of fleeing away from the judicial process or tampering with the witnesses and in case, the accused-applicant is granted anticipatory bail, the accused-applicant shall not misuse the liberty of bail.

Learned A.G.A. on the other hand, has submitted that the promise was made to marry but the same was not fulfilled by the applicant, therefore, it comes within the purview of rape. He has further submitted that pregnancy was terminated and the applicant is not entitled for any relief.

Looking into the facts and circumstances and the nature of the case and the judgment of the Supreme Court in the aforesaid cases, I am of the considered opinion that the matter requires consideration.

Issue notice to respondent no.2

Till the next date of listing or till filing of the report under Section 173(2) Cr.P.C., whichever is earlier, accused-applicant, namely, Satya Pal in the event of his arrest in connection with aforesaid case crime, shall forthwith be released on bail on furnishing a personal bond and two sureties in the like amount to the satisfaction of the Arresting officer/Investigating Officer/ S.H.O. concerned on the following conditions:-

(i) That the accused-applicant shall make himself available for interrogation by police authorities as and when required and will cooperate with the investigation;

(ii) That the accused-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;

(iii) That the accused-applicant shall not leave India without the previous permission of the Court; and

(iv) The applicant shall remain present, in person, before the Trial Court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under Section 313 Cr.P.C. If in the opinion of the Trial Court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the Trial Court to treat such default as abuse of liberty of bail and proceed against the applicant in accordance with law.

The papers regarding bail submitted to the police officer on behalf of the accused/applicant shall form part of the case diary and would be submitted to the court concerned along with same at the time of submission of report under Section 173(2) Cr.P.C.

Learned A.G.A. is granted two weeks' time for filing counter affidavit. Rejoinder affidavit, if any, be filed within a week thereafter.

List this case in week commencing 31.10.2022. "

It is submitted on behalf of the applicant that a perusal of the statement of the prosecutrix under section 164 CrPC depicts that she was in consensual relationship with the applicant and was also in love with the applicant. The prosecutrix is 38 years old and having one child. He submits that the applicant has no criminal antecedent. The investigating officer without finding any material has submitted charge sheet under section 313 I.P.C.. The medical does not support the prosecution case and there is no medical report which may show attraction of offence under section 313 I.P.C. The learned counsel has undertaken on behalf of the applicant that the applicant shall cooperate in the trial. He has cooperated in the investigation.

Learned A.G.A. and the complainant's counsel have opposed the prayer for anticipatory bail. Learned counsel for the complainant has laid great emphasis on the first information report that from the very beginning, the intention of the applicant was to commit offence of cheating the victim. However, on a query made by the court regarding statement of the prosecutrix under section 164 CrPC, he could not give any reply.

Without expressing any opinion on the merit of the case and considering the nature of accusation and the applicant having no criminal antecedents, the statement of the prosecutrix recorded under section 164 CrPc as also the case of Sonu, referred to in the above extracted order, the undertaking given on behalf of the applicant that he shall cooperate in the trial and gravity of offence, I am of the opinion that the applicant is entitled to be released on bail in this case in the light of judgment of Supreme Court in Sushila Aggarwal and others vs. State (NCT of Delhi) and another (2020)5 SCC 1, subject to his cooperation in the trial.

In view of the above as also keeping in view of the judgment in Sushila Aggarwal vs. State (NCT of Delhi) 2020 SCC OnLine 98, the accused applicant is directed to surrender before trial court if he is summoned to face trial for offence in question after filing of the charge sheet. The accused applicant shall be released on bail by the trial court on his furnishing a personal bond and two sureties each of the like amount to the satisfaction of the trial Court, with the following conditions.

(i) 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 tamper with the evidence;

(ii) The applicant shall not leave India without the previous permission of the court;

(iii)The applicant shall not pressurize/ intimidate the prosecution witness;

(iv)The applicant shall appear before the trial court on each date fixed unless personal presence is exempted;

(v) In case of breach of any of the above conditions the court below shall have the liberty to cancel the bail;

Any other reasonable restrictions/conditions which the trial court may deem fit and proper can be imposed.

It is made clear that the observations made in granting bail to the applicant shall not in any way affect the trial Judge in forming his independent opinion based on the testimony of the witnesses.

In view of the aforesaid, the anticipatory bail application is allowed.

Order Date :- 14.2.2023

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