Allahabad High Court
Saleem vs State Of U.P. And Another on 8 May, 2024
Author: Shekhar Kumar Yadav
Bench: Shekhar Kumar Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:82959
Court No. - 74
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 3806 of 2024
Applicant :- Saleem
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Chitranshu Srivastav,Imran Ullah,Tabish Yusufi,Vineet Vikram
Counsel for Opposite Party :- G.A.,Himanshu Singh
Hon'ble Shekhar Kumar Yadav,J.
1. Supplementary affidavit filed on behalf of the applicant today in the Court, the same is taken on record.
2. Heard Sri Chitranshu Srivastav, learned counsel for the applicant, Sri Ashutosh Kumar along with Sri Himanshu Singh, learned counsel for the informant/victim and learned Additional Government Advocate for the State as well as perused the record.
3. This anticipatory bail application (under section 438 Cr.P.C.) has been moved seeking bail in Case Crime No.0551 of 2017, under Sections 376-D, 354-B, 452, 504, 506 I.P.C., P.S.- Kotwali, District- Mathura.
4. As per prosecution story, the victim/informant lodged an FIR through and application moved under Section 156(3) Cr.P.C. on 1.6.2017 against the applicant and other co-accused regarding an incident dated 26.3.2017 with the allegation the applicant along with other co-accused Guddan entered in her house and committed rape upon her.
5. Learned counsel for the applicant submits that the applicant has been falsely implicated in the present case due to ulterior motive. The applicant has not committed any offence as alleged in the impugned FIR. He submits that it is a counterblast case. Earlier, co-accused has filed a criminal case against the husband of the informant and husband of the informant was acquitted on 4.3.2017, thereafter, the present FIR was lodged against the applicant and co-accused- Guddan. He submits that the alleged incident took place on 26.3.2017 whereas the FIR has been lodged after due deliberation and consultation on 1.6.2017 i.e. about 2 months of the alleged incident but no plausible explanation regarding delay has been mentioned. He submits that during investigation, Investigating Officer found no credible evidence against the applicant and submitted final report on 1.7.2017, thereafter, informant filed a protect petition before the learned counsel below which was treated as a complaint and the court below vide its order dated 7.7.2022 summoned the applicants and against the summoning order, the applicants filed a revision which was dismissed on 15.8.2023 and records were returned to the court below concerned, thereafter, non-bailable warrant was issued against the applicant on 22.1.2024, thereafter, the applicant approached before the court below and filed anticipatory bail application on 23.1.2024 and the same was rejected on 26.2.2024, hence the present anticipatory bail application and during the pendency of the present anticipatory bail application, proclamation u/s 82 Cr.P.C. was issued against the applicant. He further submits that in the present case when the applicant filed his anticipatory bail application, he was not a proclaimed offender. His right to file such application before this Court was consequential as he could have approached the High Court u/s 438 Cr.P.C. after rejection of his application by the court below which was also filed u/s 438 Cr.P.C. Therefore, when the present applicant filed his application u/s 438 Cr.P.C. he was not a proclaimed offender so the bar imposed by the Apex Court entertaining anticipatory bail of the proclaimed offender would not attract in the present case. He further submits that there is much contradiction in the statements of the victim recorded under Sections 161 and 164 Cr.P.C as well as in the Majid Bayan.
6. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required. The applicant is having no previous criminal history. Learned counsel for the applicant further submits that applicant has apprehension of imminent arrest and in case, applicant is released on anticipatory bail, he will not misuse the liberty and would co-operate with the trial.
7. Sri Ashutosh Kumar, learned counsel for the informant has vehemently opposed the prayer for anticipatory bail of the applicant. He submits that proceeding under Section 82 Cr.P.C. has been initiated against the applicant. In support of his contention, he has placed reliance upon the judgment of the Apex Court passed in the case of Lavlesh Vs. State (NCT of Delhi), 2012 (8) SCC 730, therefore, the applicant 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.
8. In reply to the same, learned counsel for the applicant submits that proclamation u/s 82 Cr.P.C. was only issued after the applicant had moved anticipatory bail application before this Court and only issuance of process under Section 82 Cr.P.C., it cannot be said that the applicant is a proclaimed absconder. In support of his submission, learned counsel for the applicant has placed reliance upon the judgment of this Court passed in the case of Manish Yadav Vs. State of U.P. (Criminal Misc. Anticipatory Bail Application No.4645 of 2022) and in the case of Udit Arya Vs. State of U.P. (Criminal Misc. Anticipatory Bail Application No.4560 of 2023, which has been affirmed by the Apex Court vide order dated 30.4.2024 passed in Special Leave to Appeal (Crl.) No. 9260 of 2023 (Vipin Kumar Malhotra Vs. State of U.P. and another), wherein, it has been held that that if the order issuing process u/s 82 Cr.P.C. has been passed after filing of anticipatory bail application, there is no bar in the entertainment of the same.
9. Hence without expressing any opinion on the merits of the case and considering the nature of accusations and antecedents of applicant, he 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.
10. In the event of arrest, the applicant shall be released on anticipatory bail. Let the applicant- Saleem, involved in the aforesaid case 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 co-operate with the Investigating Officer during investigation and shall report to the Investigating Officer as and when required for the purpose of conducting investigation.
(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.
(iii) The applicant shall not leave the country during the currency of trial without prior permission from the concerned trial Court.
(iv) The applicant shall surrender his passport, if any, to the concerned Court forthwith. His passport will remain in custody of the concerned Court.
(v) The applicant shall file an undertaking to the effect that he 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.
(vi) 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.
(vii) 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 his bail and proceed against his in accordance with law.
11. 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.
12. With the aforesaid observations/ directions, the application stands allowed.
Order Date :- 8.5.2024
Krishna*
