Smt. Bhuri and Another v. State of U.P. and 2 Others

Court No. - 73 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 12775 of 2023 Applicant :- Smt. Bhuri And Another Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Balbir Yadav Counsel for Opposite Party :- G.A. Hon'ble Nalin Kumar Srivastava,J.

¶1Heard learned counsel for the applicants 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 applicants -Smt. Bhuri & Sarik in Case Crime No.336 of 2022, under Sections 363, 366, 506, 368 I.P.C., Police Station - Sasni Gate, District - Aligarh.

¶3It is alleged in the F.I.R. that the minor daughter of the informant was kidnapped by the named accused persons and when she was not traced, an F.I.R. was lodged on 23.06.2022 and investigation in respect of the present applicants, 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 the main offence in this matter has been committed by the co-accused, Bhura and in her statements under Sections 161 & 164 Cr.P.C., the minor victim herself has alleged the main allegations against the co-accused, Bhura. It is next submitted that applicant no.1, Smt. Bhuri is a lady and she has nothing to do with the offence of sexual exploitation of the minor victim. It is also submitted that only a role of cooperation to the main accused Bhura has been assigned to the present applicants. It is next submitted that investigation in this respect of the present applicants is still going on and no charge sheet has been submitted in this matter. It is further submitted that in her statement under Sections 161 & 164 Cr.P.C., the victim has not even named the applicant no.2 and the applicant no.1, who are the brother and mother of main accused Bhura. It is next submitted that the applicants have no criminal history to their credit and as such, they are entitled for anticipatory bail.

¶6Per contra, learned A.G.A. opposed the prayer and it has been submitted that since the victim is a minor girl, consent if any, obtained from her is of no legal importance. It is next submitted that the ample and sufficient evidence has been collected by the I.O. of the case so far during investigation and as such, they are not entitled for anticipatory bail.

¶7In the present case, the recovery of the minor daughter has not been recovered from the custody of the present applicants. They are having no criminal history to their credit and they are cooperating with the investigation of the case. The main offence has been alleged against the co-accused, Bhura.

¶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 applicants 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 applicants 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 applicants shall make themselves available for interrogation by a police officer as and when required.

(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 their from disclosing such facts to the Court or to any police office.

(iii) The applicants shall not leave India without the previous permission of the Court and if they have passport, the same shall be deposited by them 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 applicants. Order Date :- 22.11.2023 Shivangi High Court of Judicature at Allahabad