Allahabad High Court
Afroj Alias Afroj Alam vs State Of U.P. Thru. Prin. Secy. ... on 10 January, 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. - 46 of 2023
Applicant :- Afroj Alias Afroj Alam
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko.
Counsel for Applicant :- Desh Raj Chaurasiya,Priyanka Singh
Counsel for Opposite Party :- G.A.
Hon'ble Karunesh Singh Pawar,J.
The present bail application under Section 438 Cr.PC. has been filed seeking anticipatory bail in case crime/F.I.R No. 216/2022, under Sections 376/313/506 I.P.C. P.S. Kotwali Patti, District Pratapgarh.
Heard learned counsel for the applicant, learned A.G.A. for the State as well as Shri Ram Suphal, learned Advocate, who has filed vakalatnama for respondent no. 2 which is taken on record.
As per the prosecution case, a single act of the applicant having made physical relationship with the first informant under a false promise to marry has been lodged coupled with the another allegation that he took the prosecutrix and forcibly got her aborted.
Learned counsel for the applicant submits that the allegations made in the F.I.R. are doubtful as there is no independent witness of the said incident and the concocted story of the prosecution in the F.I.R. negated by the ultrasound report of the prosecutrix which shows that she on her own went to conduct ultrasound. The ultrasound report is of 30.05.2022 on that date the fetus was more than 25 weeks old which falsifies the prosecution story that on 02.06.2022, the fetus was four months old. It also falsifies the allegation that the applicant forcibly took her to hospital as the sonography report shows that the prosecutrix had herself gone to the ultrasound centre.
It is further submitted on behalf of the applicant that as many as three independent witnesses who are living in Jaipur have given their affidavits to the investigating officer wherein it has been mentioned that the applicant at the time of incident was living in Jaipur and was doing business. The applicant has no criminal antecedents and he undertakes to cooperate in the investigation.
Learned A.G.A. has opposed the application submitting that process under Section 82 Cr.P.C. have been initiated against the applicant, hence, the anticipatory bail is liable to be rejected.
Learned counsel for the applicant rebutting the objection has relied on the judgment of the Coordinate Bench of this Court passed in Criminal Misc. Anticipatory Bail Application U/S 482 Cr.P.C. No. 4645/2022 "Manish Yadav Vs. State of U.P". The operative part of the order is extracted below:-
14. The law is trite on the point that, if any person has filed any anticipatory bail application before the learned court below seeking anticipatory bail showing his reasonable apprehension of arrest in a case where the allegations of the prosecution prima facie do not corroborate with the material available on record and his / her anticipatory bail application is rejected, he / she has got a right to approach the High Court for such anticipatory bail and if in the interregnum period any proclamation u/s 82 & 83 Cr.P.C. is issued, it may be considered as a circumventive exercise being taken by the Investigating Officer. No one can be restrained from taking legal recourse strictly in accordance with law and such legal right may not be prevented even if any process is adopted by any authority which is not permissible under the law.
It is further submitted on behalf of the applicant that in this case also, the anticipatory bail application of the applicant was rejected on 16.12.2022 by that time, no such notice under Section 82 Cr.P.C. was issued. It is only after rejection of the anticipatory bail application by the learned Sessions Judge, the notice under 82 Cr.P.C. was issued on 17.12.2022 and thus, it is submitted that it is a circumventing exercise by the investigating officer only in order to restrain the applicant for taking legal recourse.
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, so also considering the ultrasound report, 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.
Order Date :- 10.1.2023
R.C.
