Allahabad High Court
Allha Jilahi vs State Of U.P. And 3 Others on 30 October, 2023
Bench: Shekhar Kumar Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:206635
Court No. - 71
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 11166 of 2023
Applicant :- Allha Jilahi
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Sachin Malik
Counsel for Opposite Party :- G.A.,Anjali Singh Tomer,Mohd. Naushad,Noor Ahmed
Hon'ble Shekhar Kumar Yadav,J.
1. Heard Sri Sachin Malik, learned counsel for the applicant and Sri Noor Ahmad, learned counsel for the informant as well as perused the material available on record.
2. This anticipatory bail application (under section 438 Cr.P.C.) has been moved seeking bail in Case Crime No.361 of 2023, under Sections 363, 366, 376, 109 I.P.C. and Sections 3/4, 5/6, 16/17 POCSO Act, P.S.- Kairana, District- Shamli.
3. Learned counsel for the applicant submitted that applicant is a lady and she has been falsely implicated in the present case. The applicant is not named in the FIR and her name came into light in the statement of the victim recorded under Section 164 Cr.P.C.. He submitted that as per statements of the victim recorded under Sections 161 & 164 Cr.P.C. there is no allegation of rape against the applicant, allegation of rape is only against Kadir to whom the victim has solemnized her marriage. The victim has stated in her statement recorded under Section 164 Cr.P.C. that her age is 17 years and she went with co-accused Kadir at different places. No medical examination of the victim was conducted. Learned counsel for the applicant further submitted that there is contradiction in the statements of the victim recorded under Section 161 and 164 Cr.P.C. He submitted that the applicant is a lady, therefore, no offences under Sections 363, 366, 376, 109 I.P.C. and Sections 3/4, 5/6, 16/17 POCSO Act is not made out against the applicant. The applicant is having no previous criminal history as has been mentioned in paragraph 32 of the affidavit. Learned counsel for the applicant further submits that applicant has apprehension of imminent arrest and in case, applicant is released on anticipatory bail, she will not misuse the liberty and would co-operate with the trial.
4. Learned counsel for the informant as well as A.G.A. have opposed the prayer for anticipatory bail of the applicant. He has submitted that in view of the seriousness of the allegations made against the applicant, she is not entitled to grant of anticipatory bail. The apprehension of the applicant is not founded on any material on record. Only on the basis of imaginary fear, anticipatory bail cannot be granted.
5. Hence without expressing any opinion on the merits of the case and considering the nature of accusations and antecedents of applicant, she is directed to be enlarged on anticipatory bail as per the Constitution Bench judgment of the Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98. The future contingencies regarding anticipatory bail being granted to applicant shall also be taken care of as per the aforesaid judgment of the Apex Court.
6. In the event of arrest, the applicant shall be released on anticipatory bail. Let the applicant- Allha Jilahi, involved in the aforesaid crime be released on anticipatory bail on furnishing a personal bond of Rs.50,000/- with two sureties each in the like amount to the satisfaction of the trial court concerned 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 her from disclosing such facts to the Court or to any police officer.
(ii) The applicant shall not leave the country during the currency of trial without prior permission from the concerned trial Court.
(iii) The applicant shall surrender her passport, if any, to the concerned Court forthwith. Her passport will remain in custody of the concerned Court.
(iv) The applicant shall file an undertaking to the effect that she shall not seek any adjournment on the dates fixed for evidence and the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law to ensure presence of the applicant.
(v) In case, the applicant misuses the liberty of bail, the Court concerned may take appropriate action in accordance with law and judgment of Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98.
(vi) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of her bail and proceed against her in accordance with law.
7. In default or misuse of any of the conditions, the Public Prosecutor/ Investigating Officer/ first informant-complainant is at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicant.
8. With the aforesaid observations/ directions, the application stands allowed.
Order Date :- 30.10.2023
Krishna*
