Allahabad High Court
Kamlesh vs State Of U.P. And 3 Others on 15 May, 2024
Author: Shekhar Kumar Yadav
Bench: Shekhar Kumar Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:87393
Court No. - 74
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 4257 of 2024
Applicant :- Kamlesh
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Ajeet Kumar Srivastava,Satyadeo Shamra
Counsel for Opposite Party :- G.A.
Hon'ble Shekhar Kumar Yadav,J.
1. Learned AGA has stated that notice has been served upon the informant but in spite of that, nobody has appeared on behalf of informant.
2. Heard Mr. Anil Srivastva, learned Senior Counsel assisted by Mr. Ajeet Kumar Srivastava, learned counsel for the applicant and learned Additional Government Advocate for the State.
3. This anticipatory bail application (under Section 438 Cr.P.C.) has been moved seeking bail in Case Crime No.11 of 2023, under Sections 120-B, 354, 363, 366, 376D IPC and 3/4 POCSO Act, Police Station Rijor, District Etah.
4. Learned counsel for the applicant submits that applicant has been falsely implicated in the present case just to harass the applicant in fact no such incident has taken place as alleged in the impugned FIR. The applicant has never committed any offence as alleged in the impugned FIR. The applicant is the real maternal uncle (mama) of the victim. The applicant being Mama has fixed her marriage with old person just to take money, due to this reason, some hot talk between the applicant and uncle of the victim has taken place, thereafter due to this reason, the applicant has been implicated. Initially, the impugned FIR has been lodged by the father of the victim under Sections 366 and 120B IPC alleging that co-accused Billu with the help of applicant has enticed away her daughter. The victim was recovered after six days of the alleged incident, thereafter, her statement was recorded under Section 161 Cr.P.C. in which she has stated that co-accused Billu enticed her away with the help of the applicant and Billu has committed rape upon her but the victim has not levelled any allegation against the applicant. Thereafter, statement of the victim was recorded under Section 164 Cr.P.C. in which she has developed the version and has stated that co-accused Billu and applicant have committed rape upon her even during trial, the victim has not alleged anything against the applicant. He further submits that as per medical report, no internal and external injury found on the body of the victim. Before the doctor, the victim has also stated that she is having love affairs with co-accused Billu and she went with him out of her own sweet will. He further submits that there are material contradictions in the statement of the victim recorded under Sections 161 and 164 Cr.P.C. As per FIR, the victim is aged about 19 years. Prima facie no alleged offence is made out against the applicant. The applicant is having no previous criminal history as has been mentioned in paragraph 29 of the affidavit. He further submits that there is apprehension of imminent arrest of the applicant and in case, the applicant is released on anticipatory bail, he will not misuse the liberty and would co-operate with the trial.
5. Learned A.G.A. has vehemently opposed the prayer for anticipatory bail of the applicant but could not dispute the aforesaid contentions raised by learned counsel for the applicant.
6. 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.
7. In the event of arrest, the applicant shall be released on anticipatory bail. Let the applicant-Kamlesh, involved in the aforesaid case crime be released on anticipatory bail till conclusion of trial 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.
8. 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.
9. With the aforesaid observations/ directions, the application is disposed of.
Order Date :- 15.5.2024
Ajeet
