Shivendra @ Kallu v. State of U.P. and 2 Others

Court No. - 71 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 12161 of 2023 Applicant :- Shivendra @ Kallu Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- K.S. Tiwari,Vivek Tiwari Counsel for Opposite Party :- G.A. Hon'ble Shekhar Kumar Yadav,J.

¶1Heard learned counsel for the applicant and learned Additional Government Advocate for the State and perused the record.

¶2This anticipatory bail application (under section 438 Cr.P.C.) has been moved seeking bail in Case Crime No.0286 of 2023, under Sections 376-D, 504 & 506 IPC, Police Station Kotwali Nagar Hamipur, District Hamirpur.

¶3Learned 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. Applicant is LLB student. It is further submitted that as per allegation, the opposite party no.3-Smt. Himanshi (victim) has performed her love marriage on

05.02.2022 with one Ajai Dixit who is posted in Indian Army. After some time, dispute took place between them thereafter she left her husband house and started living with her Nani and lodged FIR against her husband and his family member. During pairavi of her case, she met the applicant and told her story thereafter applicant assured to help her. Applicant gave mobile phone to her and taken the documents. On 08.09.2023, applicant called her and went to Hamirpur for pairvi. After some time a boy came by motorcycle and met alone with the applicant thereafter both dragged to the opposite party no.3 behind the bush and rapped her. It is further submitted that applicant made a complaint against the Block Parmukh, Secretary of Panchayati Raj and other officials with respect to the financial irregularities. On the basis of complaint, Block Parmukh as well as other officials were removed and inquiry was initiated against them. It is next submitted that being the powerful persons they lodge the present FIR against the applicant by the opposite party no.3 by making false information. Learned counsel for the applicant drawn attention to the Court on the statement of the mother, grand-mother (nani) and maternal-uncle, they have not supported the prosecution version. Opposite party no.3 is major and no children. 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-8 of the affidavit. He further submits that applicant has apprehension of imminent arrest and in case, the applicant is released on anticipatory bail, he 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 applicant but could not dispute the aforesaid contentions raised by learned counsel for the applicant.

¶5Hence 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

¶98The future contingencies regarding anticipatory bail being granted to applicant shall also be taken care of as per the aforesaid judgment of the Apex Court.

¶6In the event of arrest, the applicant shall be released on anticipatory bail. Let the applicant-Shivendra @ Kallu, 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.

¶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 applicant.

¶8With the aforesaid observations/ directions, the application is disposed of. Order Date :- 17.11.2023 I.A.Siddiqui High Court of Judicature at Allahabad