Allahabad High Court
Kaushal Nishad vs State Of U.P. And Another on 23 May, 2023
Bench: Krishan Pahal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:113548
Court No. - 83
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 321 of 2023
Applicant :- Kaushal Nishad
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Sanjeev Kumar Singh
Counsel for Opposite Party :- G.A.
Hon'ble Krishan Pahal,J.
1. Heard Sri Sanjeev Kumar Singh, learned counsel for the applicant as well as Sri V.K.S. Parmar, learned A.G.A. for the State and also perused the record.
2. The present anticipatory bail application has been filed on behalf of the applicant in S.S.T. No.266 of 2022 arising out of Case Crime No.71 of 2020, under Section 376 of IPC and Sections 3/4 of POCSO Act, Police Station Chaurichaura, District Gorakhpur, with a prayer to enlarge him on anticipatory bail.
3. Admittedly, the applicant was granted anticipatory bail till the submission of report u/s 173(2) Cr.P.C. by coordinate Bench of this Court vide order dated 27.03.2023. The final report (charge-sheet) has now been submitted in the added Section 376 IPC and Sections 3/4 of POCSO Act.
4. Learned counsel for the applicant has stated that the applicant is maliciously being prosecuted in the present case due to ulterior motive and has apprehension of his arrest. He has nothing to do with the said offence as alleged by the prosecution. Learned counsel has further stated that the applicant has not misused the liberty granted earlier to him. The victim is a consenting party as is evident from her statement recorded u/s 164 Cr.P.C. whereby she has categorically stated that she was pregnant at the time of recording of her statement and wanted to live with the applicant only and she had even allayed fear from her parents.
5. Learned counsel for the applicant has also placed much reliance on the judgments of the Apex Court passed in case of Bhadresh Bipinbhai Sheth vs. State of Gujarat & Another reported in 2016 (1) SCC (Cri) 240 and Manoj Suresh Jadhav & Ors. vs. The State of Maharashtra, reported in 2018 SCC OnLine SC 3428, wherein the applicant therein was enlarged on anticipatory bail in the added sections U/S 438 Cr.P.C. after being enlarged on regular bail U/S 439 Cr.P.C. He has also placed reliance on the judgment of this Court passed in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No.9742 of 2021, wherein the accused was enlarged on anticipatory bail after being granted regular bail. It is further submitted that the applicant has no criminal antecedents. In case, the anticipatory bail application of the applicant is allowed, he will not misuse the liberty and shall cooperate with trial.
6. On the other hand, learned A.G.A. has vehemently opposed the prayer for grant of anticipatory bail but unable to dispute the submissions raised by the learned counsel for the applicant and also the fact that the applicant has no criminal history.
7. Considering the arguments advanced by the learned counsel for the parties and in view of the law laid down by the Apex Court in the case of "Sushila Aggarwal Vs. State (NCT of Delhi)-2020 SCC online SC 98", the applicant is entitled to be granted anticipatory bail in this case.
8. Without expressing any opinion upon ultimate merits of the case either ways which may adversely affect the trial of the case, the anticipatory bail application of the applicant is allowed.
9. In the event of arrest of the applicant, Kaushal Nishad involved in the aforesaid case crime number, shall be released on anticipatory bail till the conclusion of trial on furnishing a personal bond with two sureties each in the like amount to the satisfaction of the Presiding Officer/Court Concerned, with the conditions that:-
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 previous permission of the court;
iv. that 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;
10. In case of breach of any of the above conditions, the court concerned shall have the liberty to cancel the bail granted to the applicant.
11. It is made clear that observations made in granting anticipatory bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.
(Justice Krishan Pahal)
Order Date :- 23.5.2023
Siddhant
