Narayan v. State of U.P

Court No. - 73 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 9864 of 2023 Applicant :- Narayan Opposite Party :- State of U.P. Counsel for Applicant :- Sushil Kumar Pandey Counsel for Opposite Party :- G.A. Hon'ble Nalin Kumar Srivastava,J.

¶1Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

¶2This application has been moved on behalf of the applicant - Narayan seeking anticipatory bail in Case Crime No. 73 of 2023, under Sections 195, 363, 420, 467, 468, 471, 120-B IPC, Police Station-Kosikalan, District-Mathura.

¶3An FIR alleging gang rape with the daughter of the informant was lodged against three named accused persons as case crime no. 73 of 2023 under Section 376D, 504, 506 I.P.C. and 5/6 POCSO Act but during investigation it came into light that the FIR of this case was lodged on the basis of false and fabricated facts only with intention to falsely implicate the accused persons in a case of gang rape and the said FIR was converted into one Sections 195, 363, 420, 467, 468, 471, 120-B IPC and investigation started.

¶4It has been submitted by the learned counsel for the applicant that applicant is innocent and he has apprehension of arrest in the above-mentioned case, whereas there is no credible evidence against him. Allegations levelled against the applicant are false. Investigation is going on in the matter. It is further submitted that the name of the applicant came to surface on the basis of the statement of Smt. Bhuri, the informant of the case whereas the present applicant has no concern with the informant or her daughter. It is further submitted that informant Smt. Bhuri is herself a liar and she had lodged a false FIR of gang rape against other persons and she is not reliable at all. It is further submitted that even in the statement of Smt. Bhuri no specific role of offence has been assigned to the present applicant. It is further submitted that the applicant has been cooperative with the investigation of the case so far. He has having no criminal antecedents to his credit and is entitled for anticipatory bail In case applicant is granted anticipatory bail, he shall not misuse the liberty of bail and would obey all conditions of bail.

¶5Learned A.G.A. opposed the prayer for anticipatory bail.

¶6In the present matter FIR on the basis of false allegations was lodged by the informant and subsequently when the fraud was disclosed she changed her statement and made another statement before the police with certain allegations of fraud against the present applicant and other persons. Investigation is going on.

¶7In Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1, the Hon'ble Apex Court has held that while considering an application for grant of anticipatory bail, the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence including intimidating witnesses, llikelihood of fleeing justice, such as leaving the country, etc. It has further been held that Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion.

¶8In Siddharth Vs. State of Uttar Pradesh & Another, (2022) 1 Supreme Court Cases 676, the Hon'ble Apex Court has held that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation, then there is no compulsion on the officer to arrest the accused.

¶9Considering the settled principles of law regarding anticipatory bail, submissions of the learned counsel for the parties, nature of accusation, role of applicant and all attending facts and circumstances of the case, without expressing any opinion of the merits of the case, in my view, it is a fit case for anticipatory bail to the applicant till filing of police report under Section 173(2) Cr.P.C. before the competent Court.

¶10The application is allowed accordingly.

¶11In the event of arrest of the applicant, he shall be released on anticipatory bail on his furnishing a personal bond of Rs.50,000/-with two sureties each in the like amount to the satisfaction of Station House Officer of the police station concerned with the following conditions:-

(i) The applicant shall make himself available for interrogation by a police officer as and when required.

(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/her from disclosing such facts to the Court or to any police office.

(iii) The applicant shall not leave India without the previous permission of the Court and if he has passport, the same shall be deposited by him before the S.S.P./S.P. Concerned.

¶12In case of default of any of the conditions, the Investigating Officer shall be at liberty to file appropriate application for cancellation of interim protection granted to the applicant. Order Date :- 12.10.2023 Fhd High Court of Judicature at Allahabad