Birju v. State of U.P

nNeutral Citation No. - 2023:AHC:218285 Court No. - 73 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 51965 of 2019 Applicant :- Birju Opposite Party :- State of U.P. Counsel for Applicant :- Rakesh Kumar Upadhyay Counsel for Opposite Party :- G.A. Hon'ble Nalin Kumar Srivastava,J.

¶1Heard learned counsel for the applicant, learned AGA and perused the material available on record.

¶2This application for anticipatory bail has been filed by applicant-Birju in connection with Case Crime No. 336 of 2019, under sections 363, 366, 376 IPC and 3/4 POCSO Act, P.S. Rampur Karkhana, District Deoria.

¶3It is alleged in the F.I.R. that the minor daughter of the informant was enticed away by the present applicant. F.I.R. was lodged on 11.03.2019 and after investigation, charge sheet has been submitted in this matter.

¶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. Charge sheet in the matter has been submitted. It is further submitted that the victim of this case is a major girl and in the medical examination, her age has been found about 18 years and also in the birth certificate recorded by Gram Panchayat Adhikari, her date of birth is shown to be 04.09.1998. It is next submitted that the prosecutrix was a major girl on the date of the incident. It is further submitted that in her statement recorded under Sections 161 & 164 Cr.P.C., the prosecutrix has alleged nothing against the present applicant. It is next submitted that she had deliberately left her house with her own free will and she has now married with the present applicant. She has also stated that she was not compelled to leave the house and go with the present applicant. It is also submitted that she has got married with the present applicant and she wants to go with the present applicant. It is next submitted that earlier, accused applicant has already been granted interim anticipatory bail by the coordinate Bench of this Court vide order dated 27.11.2019 till submission of police report under Section 173(2) Cr.P.C. by way anticipatory bail application. It is next submitted that now, no custodial interrogation is required from the present applicant. It is further submitted that during the course of investigation, the applicant has been cooperative with the investigation of the case and he is having no criminal history to his credit. It is also submitted that after submission of the charge sheet, he 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. has opposed the prayer for anticipatory bail and it has been submitted that as per High School Certificate, the date of birth of the victim is 18.09.2003 whereas the incident is said to be occurred in the month of August, 2019 and on the date of occurrence, the victim of this case was minor. It is further submitted that consent of a minor is of no legal importance. The offence alleged against the present applicant is grave and serious and as such, he is not entitled for anticipatory bail.

¶6Although the charge sheet has been submitted in this matter, but in Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1, the Hon'ble Apex Court has settled the controversy finally by holding the anticipatory bail need not be of limited duration invariably. In appropriate case, it can continue upto conclusion of trial. It has been further held therein that anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial. It has been further held by the Hon'ble Apex Court 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.

¶7Hence, considering 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 conclusion of trial in the matter.

¶8The anticipatory bail application is allowed.

¶9In the event of arrest of the applicant in the aforesaid case crime, 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 the Court concerned with the following conditions :-

(i) 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 or tamper with the evidence.

(ii) The applicant shall not pressurize/ intimidate the prosecution witness.

(iii) The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.

(iv) The applicant shall not leave India without prior permission of the Court and if they have passport, the same shall be deposited by him before the S.S.P./S.P. concerned.

¶10In case of breach of any of the above conditions, the Investigating Officer shall be at liberty to file appropriate application for cancellation of anticipatory bail of the applicant in accordance with law. Order Date :- 16.11.2023 Shivangi High Court of Judicature at Allahabad