Usman and Another v. State of U.P. and Another

Court No. - 71 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 12286 of 2023 Applicant :- Usman And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rajesh Yadav Counsel for Opposite Party :- G.A. Hon'ble Shekhar Kumar Yadav,J.

¶1Heard Mr. Rajesh Yadav, learned counsel for the applicants and learned Additional Government Advocate for the State.

¶2This anticipatory bail application (under section 438 Cr.P.C.) has been moved seeking bail in Case Crime No.331 of 2023, under Sections 498-A, 354, 323, 506, 376 IPC, 3/4 D.P. Act and 3/4 Muslim Women (Protection of Rights on Marriage) Act, 2019, Police Station Katghar, District Moradabad.

¶3Learned counsel for the applicants submits that the applicants have been falsely implicated in the present case, in fact, no such incident has taken place. The applicants have never committed any offence as alleged in the impugned FIR. The applicants are the borther-in-laws (dever) of the opposite party no.2, who has lodged the impugned FIR implicating entire family members of her husband. Applicants are living separately. They have no concern with the alleged incident. He further submits that as per statement of the victim recorded under Sections 161 and 164 Cr.P.C., there are material contradictions. The victim has not disclosed single version about rape in her statement recorded under Section 161 Cr.P.C. The impugned FIR is highly delayed for which no explanation has been mentioned. He further submits that medical report, no internal or external injury found on the body of the person. Prima facie no alleged offence is made out against the applicants. The applicants are having no previous criminal history as has been mentioned in paragraph 21 of the affidavit. He further submits that applicants have apprehension of imminent arrest and in case, the applicants are released on anticipatory bail, they will not misuse the liberty and would co-operate with the trial.

¶4Learned A.G.A. has vehemently opposed the prayer for anticipatory bail of the applicants but could not dispute the aforesaid contentions raised by learned counsel for the applicants.

¶5Hence without expressing any opinion on the merits of the case and considering the nature of accusations and antecedents of applicants, they are 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 applicants shall also be taken care of as per the aforesaid judgment of the Apex Court.

¶6In the event of arrest, the applicants shall be released on anticipatory bail. Let the applicants-Usman and Farman, involved in the aforesaid 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 applicants 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 applicants 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 them from disclosing such facts to the Court or to any police officer;

(iii) The applicants shall not leave the country during the currency of trial without prior permission from the concerned trial Court.

(iv) The applicants shall surrender their passport, if any, to the concerned Court forthwith. Their passport will remain in custody of the concerned Court.

(v) The applicants shall file an undertaking to the effect that they 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 applicants.

(vi) In case, the applicants misuse 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 applicants 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 their bail and proceed against them in accordance with law.

¶7In 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 applicants.

¶8With the aforesaid observations/ directions, the application is disposed of. Order Date :- 8.11.2023 Ajeet High Court of Judicature at Allahabad