Allahabad High Court
Komal Singh vs State Of U.P. And 3 Others on 1 February, 2024
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:17340
Court No. - 74
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 13354 of 2023
Applicant :- Komal Singh
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Akhilesh Kumar Singh
Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
1. List revised.
2. Heard Sri Akhilesh Kumar Singh, learned counsel for the applicant, Sri Ajay Singh, learned A.G.A-I for the State and perused the material brought on record.
3. The present anticipatory bail application under Section 438 Cr.P.C. has been filed by the applicant Komal Singh with the prayer to release the applicant on anticipatory bail against the summoning order dated 8.5.2023 in Application No.22-B under Section 319 Cr.P.C. in S.T. No.05 of 2017 (State Vs. Pramod) pending in the court of Addl. District and Sessions Judge/Special Judge (POCSO Act), Court No.2, Amroha in Case Crime No.131 of 2016 u/s 376 IPC and 3/4 POCSO Act, P.S. Rajabpur, District Amroha and further to grant interim bail to the applicant in aforesaid case.
4.The facts of the case are that a FIR was lodged on 16.6.2016 under Section 354 IPC by Ram Chandra against Pramod with the allegation that on 13.6.2016 at about 10.30 a.m. his daughter aged about 17 years had gone to the house of Charan Singh, his neighbour where Pramod was present since before and with an ill intention he caught hold her daughter and enraged her modesty. Km. Deepa, the daughter of Charan Singh who was present raised a shout on which Pramod opened the door of backside and ran away. He was seen by Rekha, the wife of the informant and other persons who was chased but could not be apprehended. During investigation Section 354 IPC was deleted and Section 376-D IPC and Section 3/4 POCSO Act was added. The investigation concluded and a charge sheet dated 26.8.2016 was submitted against Pramod under Section 376 IPC and 3/4 POCSO Act. The trial court took cognizance upon the same and summoned Pramod. In the trial five witnesses were examined and after examination of the victim as P.W.4, an application under Section 319 Cr.P.C. was moved by the prosecution which was allowed vide order dated 8.5.2023 and the applicant Komal Singh was summoned for offence under Section 376-D IPC and 5/6 POCSO Act. The trial court subsequently on his non-appearance issued bailable warrant against him vide order dated 7.8.2023 which continued and then again despite his non-appearance issued non-bailable warrant and process under Section 82 Cr.P.C. vide order dated 22.8.2023. Subsequently again due to his non-appearance, process under Section 83 Cr.P.C. was issued vide order dated 18.10.2023 which is continuing till date.
5. Learned counsel for the applicant argued that the applicant has no criminal history, para 36 of the affidavit in support of anticipatory bail application has been placed before the Court. It is argued that implication in the present case is without any credible evidence. It is argued while placing para 32 of the affidavit that without giving any opportunity, the trial court issued bailable warrant, non-bailable warrant, proceeding under Section 82 Cr.P.C. and proceeding under Section 83 Cr.P.C against the applicant. It is argued that the present application under Section 438 Cr.P.C. is maintainable in view of the order dated 3.5.2023 passed by coordinate Bench of this Court in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No.4560 of 2023 (Udit Arya Vs. State of U.P.) in which in para 15, it has been held that neither the proceedings under Section 82 Cr.P.C. nor Section 438 Cr.P.C. impose any restriction of filing of anticipatory bail application by a proclaimed offender. The said para reads as under:-
"Neither the proceedings under Section 82 Cr.P.C. nor Section 438 Cr.P.C. impose any restriction in the filing of anticipatory bail application by the proclaimed offender. Even in the Lavesh (supra) while laying down the law, the Supreme Court has used word "normally"."
6. It is argued that as such although bailable warrant, non-bailable warrant, proceeding under Section 82 Cr.P.C. and proceeding under Section 83 Cr.P.C have been issued against the applicant but present anticipatory bail application is maintainable, looking to the facts and circumstances of the case, the applicant be granted anticipatory bail.
7. Per contra learned counsel for the State opposed the prayer for anticipatory bail and argued that the applicant has been summoned by the trial court on an application under Section 319 Cr.P.C. moved by the prosecution which was allowed. The applicant failed to appear before the trial court and then the trial court issued bailable warrant against him and then again despite his non-appearance issued non-bailable warrant against him and then proceeding under Section 82 Cr.P.C. and 83 Cr.P.C have been issued against the applicant as he failed to appear. The applicant has been declared a proclaimed offender since the applicant has failed to abide by the orders of the trial court and has continued to abscond. The present anticipatory bail application deserves to be rejected.
8. After having heard learned counsels for the parties and perusing the records, it is evident that the applicant was not named in the FIR. He has been summoned on the basis of statement of the victim recorded as P.W.4 before the trial court. The applicant has been summoned under Section 319 Cr.P.C. to face trial. He failed to appear before the trial court on the summons issued against him. The trial court then issued bailable warrant and then again on non-appearance issued non-bailable warrant and process under Section 82 Cr.P.C. He even then did not appear and thus proceeding under Section 83 Cr.P.C. have been drawn against the applicant. There is nothing on record to show that the applicant has assailed the order declaring him as a proclaimed offender. The Apex Court in the case of State of Haryana vs. Dharamraj : 2023 SCC Online SC 1085, in para 17 held that the applicant as was a proclaimed offender, his anticipatory bail application should not have been entertained, which reads as under (relevant portion of paragraph 17 of the said judgment):
"17. The respondent, without first successfully assailing the order declaring him as a proclaimed offender, could not have proceeded to seek anticipatory bail. Looking to the factual prism, we are clear that the respondent's application under Section 438, CrPC should not have been entertained, as he was a proclaimed offender................."
9. The order of coordinate Bench of this Court which is being relied upon by learned counsel for the applicant although holds that there is no restriction of filing of anticipatory bail application but interference in the same is the discretion of the Court. There is a difference in restricting filing of a petition and the discretion of a Court to entertain it. In the case of Dharamraj (supra) there is a clear finding of the Apex Court that an application under Section 438 Cr.P.C. of a proclaimed offender should not have been entertained. In view of the same, the judgement of a coordinate Bench in the case of Udit Arya (supra) cannot be of any help to the applicant who is a proclaimed offender.
10. In view of the facts and circumstances of the case as stated above, the fact that the applicant is a proclaimed offender and the dictum of the Apex Court, no ground for interference is made out, the present anticipatory bail application is rejected.
(Samit Gopal, J.)
Order Date :- 1.2.2024
Gaurav Kuls
