Sonu Alias Vishal Kumar v. State of U.P. and 2 Others

Court No. - 71 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 12599 of 2023 Applicant :- Sonu Alias Vishal Kumar Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Satyendra Narayan Singh,Pankaj Kumar Mishra Counsel for Opposite Party :- G.A. Hon'ble Shekhar Kumar Yadav,J.

¶1Heard Sri Satyendra Narayan Singh, learned counsel for the applicant 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.140 of 2022, under Sections 323, 504, 506, 376 I.P.C., P.S.- Chaubiya, District-Etawah.

¶3Learned counsel for the applicant submitted that the applicant has been falsely implicated in the present case due to ulterior motive. Earlier, an FIR was lodged against the applicant under Sections 323, 354, 504 IPC against which the applicant moved regular bail application before this Court and co-ordinate Bench of this Court vide order dated

13.9.2023 granted regular bail to the applicant, the said fact is mentioned in the case diary, copy of the case diary is annexed as Annexure No.7 to the affidavit. Learned counsel for the applicant submitted that allegation about rape is not mentioned in the FIR as well as in the statement of the victim recorded under Sections161 Cr.P.C., and after thought, the victim levelled allegation of rape against the applicant in her statement recorded under Section 164 Cr.P.C. before the Magistrate. He further submitted that the victim is married and is having two children and the applicant and victim are neighbour and there is a dispute regarding water drainage. The incident took place on 6.9.2022 where the FIR was lodged on 7.9.2022. Learned counsel for the applicant has draw attention of this Court towards the statement of the victim recorded under Section 161 Cr.P.C. on 7.9.2022 where, a quarry was made by I.O. to the victim, the victim has stated that no rape was committed against her by the applicant and only teasing was committed. There are contradictions in the statements of the victim recorded under Sections 161 and 164 Cr.P.C.. The applicant is having no previous criminal history as has been mentioned in paragraph 25 of the affidavit. Learned counsel for the applicant further submits that applicant has apprehension of imminent arrest and in case, applicant is released on anticipatory bail, he will not misuse the liberty and would co-operate with the trial.

¶4Learned A.G.A. has opposed the prayer for anticipatory bail of the applicant. He has submitted that in view of the seriousness of the allegations made against the applicant, she is not entitled to grant of anticipatory bail. The apprehension of the applicant is not founded on any material on record. Only on the basis of imaginary fear, anticipatory bail cannot be granted.

¶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 98. The 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-Sonu Alias Vishal Kumar, involved in the aforesaid case crime be released on anticipatory bail 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 stands allowed. Order Date :- 17.11.2023 Krishna* High Court of Judicature at Allahabad