Dr.Varun Agarwal vs State Of U.P. Thru. Addl. Chief ...
2023 Latest Caselaw 14342 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Neutral Citation No. - 2023:AHC-LKO:31850
 

 
Court No. - 12
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 656 of 2022
 

 
Applicant :- Dr.Varun Agarwal
 
Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Home Deptt. Lko.
 
Counsel for Applicant :- Sajeet Singh
 
Counsel for Opposite Party :- G.A.,Nadeem Murtaza,Sudhanshu S. Tripathi, Ankit Tripathi
 

 
Hon'ble Karunesh Singh Pawar,J.

1.The applicant has moved the present application under Section 438 of Cr.P.C. praying for grant of anticipatory bail in F.I.R./Case Crime No.245 of 2020, under Sections 120B, 328, 376, 379, 419, 420, 467, 468, 471, 506 IPC & Section 67 of Information Technology (Amendment) Act, Police Station Vibhuti Khand, District Lucknow

2.Heard learned counsel for the applicant, Mr. Ankit Tripathi, Advocate holding brief of Mr. Nadeem Murtaza, learned counsel for the complainant, and learned A.G.A. for the State.

3.Vide order dated 5.5.2022, 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 I.B. Singh, learned Senior Counsel assisted by Sri Sajeet Singh, learned counsel for the applicant and learned A.G.A. for the State as well as perused the record.

The present anticipatory bail application has been filed on behalf of the applicant in F.I.R./Case Crime No.245 of 2020, under Sections 120B, 328, 376, 379, 419, 420, 467, 468, 471, 506 IPC & Section 67 of Information Technology (Amendment) Act, Police Station Vibhuti Khand, District Lucknow, with a prayer to enlarge him on anticipatory bail.

As per the prosecution story, since 16.8.2020 after misusing the social media, the applicant and his brother Tarun Agarwal had administered noxious substance to the victim and are stated to have raped her. It is also alleged that the applicant and his brother made indecent videos of her thereby blackmailed her only to usurp her movable and immovable properties. Two cars i.e. one Skoda and another Ford Figo were transferred in the name of the applicant along with one plot bearing No.2/412, Vibhav Khand, Gomti Nagar, Lucknow and also the amount of Rs.5 lakh and Rs.2 lakh were also transferred to them by the victim/Informant.

Sri I.B. Singh, learned Senior Counsel for the applicant has stated that the victim herein is used to lodge fake complaints and FIR against various other persons and out of that she has deliberately lodged an FIR only to add color in a civil dispute. He has placed reliance on an agreement entered into between the applicant and the victim on 31.8.2020 wherein they had agreed to form a Trust and transfer her ancestral property. He has also placed reliance on the agreement to sale dated 1.11.2020 entered into between mother of the applicant and the victim/Informant herein. Learned Senior Counsel has further stated that he has not committed any offence as alleged in the FIR. He is a reputed practicing doctor of Lucknow city. He has also relied upon a case registered being Case Crime No.826 of 2017 which has been filed by the victim/Informant herein u/s 323, 504, 506, 341, 325, 354-A and 354-D IPC against one Shashank Saxena. He has also placed much reliance upon the FIR bearing FIR No.0095 of 2019 which has also been lodged by the victim/Informant herein u/s 323, 294, 336, 354, 354-C and 504 IPC. The Informant is habitual in lodging FIRs levelling similar kind of allegations against innocent persons. He has also stated that the first Informant had married with one muslim boy in the year 2012 and an FIR was also lodged against the father of that boy by her. He has also informed the Court that the police after investigation has filed the charge-sheet against the applicant and exonerated the other co-accused persons and, therefore, the FIR is false on this count also. Learned Senior Counsel for the applicant undertakes that the applicant cooperated in the investigation and he shall further cooperate with the trial failing which the State can move appropriate application for vacation of the interim protection.The applicant is a reputed medical practitioner of the locality. There is no likelihood of him absconding or tampering with evidence.

Per contra, Sri Surendra Singh, learned A.G.A. has vehemently opposed the prayer for grant of anticipatory bail on the ground that there are serious allegations against the applicant. The applicant along with his brother have committed rape with the victim/Informant and had usurped her movable and immovable properties. However, he could not dispute the fact that there are no criminal antecedents of the applicant.

Matter requires consideration.

On due consideration to the arguments advanced by the learned counsel for the applicant as well as the learned A.G.A. appearing for the State and also considering the nature of accusations and antecedents of the applicant, the applicant, as an interim measure, is liable to be enlarged on anticipatory bail in view of the Constitution Bench judgment of Supreme Court in the case of "Sushila Aggarwal Vs. State (NCT of Delhi)-2020 SCC online SC 98". 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.

In the event of arrest, the accused-applicant Dr.Varun Agarwal, shall be released forthwith in the aforesaid case crime (supra) on interim anticipatory bail on furnishing a personal bond of Rs.50,000/- with two sureties each in the like amount to the satisfaction of the Court concerned on the following conditions:-

(i) the applicant shall make himself available for interrogation as and when required;

(ii) 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; and

(iii) the applicant shall not leave India without the previous permission of the Court.

Learned A.G.A. prays for and is granted two weeks' time to file counter affidavit.

One week time, thereafter, is granted to the learned counsel for the applicant to file rejoinder affidavit.

List this application on 12.9.2022 in the additional cause list. "

4.It is submitted on behalf of the applicant that after filing of the charge sheet, charges have been framed before the Sessions Judge vide order dated 20.2.2023, in which number of sections in which the first information report was lodged have been dropped and charges have been framed only under sections 376, 379, 506 I.P.C. and section 67 of the Information Technology (Amendment) Act. It is submitted that no video has been recovered or collected by the investigating officer in support of the allegations of the first information report.

It is next submitted that the applicant has cooperated in the investigation. Charge sheet has been filed. He undertakes on behalf of the applicant that the applicant shall cooperate in the trial.

5.Learned A.G.A. and learned counsel for the complainant have opposed the prayer made by the applicant's counsel, however, could not dispute the fact that no video has been recovered by the investigating officer.

6.Without expressing any opinion on the merits of the case, the fact that an agreement was entered between the applicant and the victim on 31.8.2020, number of criminal cases have been lodged by the victim against other persons which has been mentioned in the above extracted order, and considering the nature of accusation and the applicant having no criminal antecedents, 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 in the event of arrest/surrender before the concerned court, the applicant is entitled to be enlarged on anticipatory 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.

7.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 Dr. Varun Agarwal is directed to surrender before trial court if he is summoned to face trial for offence in question after filing of the charge sheet. In the event of arrest/surrender before the concerned court, the accused applicant shall be enlarged on anticipatory 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.

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

Order Date :- 8.5.2023

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