Javed Alias Jahid v. State of U.P. and 3 Others

Court No. - 73 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 11981 of 2023 Applicant :- Javed Alias Jahid Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Rakesh Pati Tiwari Counsel for Opposite Party :- G.A. Hon'ble Nalin Kumar Srivastava,J.

¶1Crl. Misc. Exemption Application No.01 of 2023 is allowed.

¶2Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

¶3Apprehending his arrest in Case Crime No.190 of 2023, under Sections 363, 366, 368, 376 (2) (N) IPC and Section 5L/6, 17 POCSO Act, Police Station Bhojipura, District Bareilly, the applicant - Javed alias Jahid has filed this anticipatory bail application seeking anticipatory bail in the aforesaid crime number.

¶4The minor victim was enticed away by the named accused persons in the F.I.R. On 20.3.2023, the F.I.R. was lodged and investigation started, which is still going on in respect of the present applicant.

¶5It is submitted by the learned counsel for the applicant that that applicant is innocent and he has apprehension of arrest in the above-mentioned case, whereas there is no credible evidence against him. He has been falsely implicated in this matter. Allegations levelled against the applicant are false. Investigation in respect of the present applicant is going on into the matter. It is further submitted that the applicant is not named in the F.I.R. The role of kidnapping the minor victim has been assigned to other co-accused persons and as a matter of fact, the victim of this case has not been recovered from the house or from any place under control of the present applicant. It is further submitted that the only role assigned to the applicant is that when the victim of this case willfully eloped with co-accused Waseem, they had stayed at the house of the present applicant for some time. It is further submitted that the applicant has absolutely no concern with the alleged offence of kidnapping or rape committed against the minor victim. It is further submitted that the victim herself in her statements under sections 161 and 164 Cr.P.C. has assigned the main role to co-accused Waseem and not to the present applicant. It is also submitted that the medical report does not corroborate the prosecution version. Applicant has been cooperative so far during investigation. He is having no criminal antecedents to his credit and as such he is entitled for anticipatory bail.

¶6Per contra, learned A.G.A. opposed the prayer for anticipatory bail, but however could not dispute the factual submissions made by counsel for the applicant.

¶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, likelihood 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 the filing of police report under section 173 (2) Cr.P.C. before the competent Court.

¶10The anticipatory bail application is allowed.

¶11In the event of arrest of the applicant in the aforesaid case crime, he shall be released on anticipatory bail till the filing of police report under section 173 (2) Cr.P.C. before the competent Court 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 protection granted to the applicant. Order Date :- 2.11.2023 ss High Court of Judicature at Allahabad