Akshay Kumar v. State of U.P. and Another

Court No. - 73 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 12765 of 2023 Applicant :- Akshay Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rohit Shukla,Praveen Kumar Counsel for Opposite Party :- G.A. Hon'ble Nalin Kumar Srivastava,J.

¶1Heard learned counsel for the applicant as well as learned A.G.A. for the State and perused the material available on record.

¶2Present Anticipatory Bail Application has been filed with the prayer to grant anticipatory bail to the applicant -Akshay Kumar in Case Crime No.0253 of 2023, under Sections 376, 506 I.P.C., Police Station - Nagal, District - Saharanpur.

¶3It is alleged in the F.I.R. that on the false pretext of marriage, the present accused applicant sexually exploited the major prosecutrix of this matter but subsequently, he refused to marry with her. An F.I.R. was lodged on 23.09.2023 and investigation started, which is still going on.

¶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. Investigation is going on in the matter. In case applicant is granted anticipatory bail, he shall not misuse the liberty of bail and would obey all conditions of bail.

¶5It is further submitted that when the present applicant and prosecutrix were studying in Graduation in 2021, they had some sexual relationship between them but subsequently, the applicant had no relation with the prosecutrix of this case. It is also submitted that due to some family dispute, the applicant has been falsely implicated in this matter. It is further submitted that the medical evidence does not corroborate the prosecution version. It is next submitted that she is major lady and she was having consensual relationship with the present applicant and no forcible relationship was made with the prosecutrix by the present applicant. It is also submitted that the applicant never made any promise to marry with the prosecutrix. It is further submitted that he has been cooperative with the I.O. of the case during the course of investigation and he is having no criminal history to his credit and as such, he is entitled for anticipatory bail.

¶6Per contra, learned A.G.A. has opposed the prayer for anticipatory bail and it has been submitted that on the false pretext of marriage, the applicant had sexually exploited the prosecutrix for a period of about four years but subsequently, he refused to marry with her and the offence is serious and as such, the accused applicant is not entitled for anticipatory bail.

¶7In the present case, since the prosecutrix of this case is a major lady, prima facie, it appears to be a consensual relationship. No obscene videos and photographs has been collected by the I.O. during investigation so far as alleged in the F.I.R. and also in the statement of the victim under Sections 161 & 164 Cr.P.C.

¶8In 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, 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.

¶9In 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.

¶10Considering 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 filing of police report under Section 173(2) Cr.P.C. in the matter.

¶11The application is allowed.

¶12In the event of arrest of the applicant, 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 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.

¶13In case of default of any of the conditions, the Investigating Officer shall be at liberty to file appropriate application for cancellation of interim protection granted to the applicant. Order Date :- 22.11.2023 Shivangi High Court of Judicature at Allahabad High Court of Judicature at Allahabad