Lunain @ Nurul Ain v. State of U.P

Court No. - 73 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 13196 of 2023 Applicant :- Lunain @ Nurul Ain Opposite Party :- State of U.P. Counsel for Applicant :- Rishu Srivastav Counsel for Opposite Party :- G.A.,Mahboob Ahmad Siddiqui Hon'ble Nalin Kumar Srivastava,J.

¶1Counter affidavit filed by Sri Mahboob Ahmad Siddiqui, learned counsel for the first informant, today, which is taken on record.

¶2Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

¶3This application has been moved on behalf of the applicant Lunain @ Nurul Ain seeking anticipatory bail in Case Crime No. 285 of 2023, under Sections 376, 506 IPC, Police Station-Sarai Kakhansi, District-Mau.

¶4On call of main accused-Hasnain, the prosecutrix went to his house where accused persons Azhar and the present applicant were also present there and main accused Hasnain made physical relations with the victim forcibly. The F.I.R. was lodged on

16.08.2023 and investigation started, which is going on against the present applicant.

¶5It is submitted by learned counsel for the applicant that in the F.I.R. itself no allegation of rape has been alleged against the present applicant. It is further submitted that even in the statement given by the victim u/s 161 Cr.P.C. she has been assigned role of threatening only to the present applicant and moreover in her statement u/s 164 Cr.P.C. made before the Magistrate, the victim has not named the present applicant. It is also submitted that medical report does not corroborate the prosecution version. It is also submitted that there is no evidence against the present applicant at all. It is also submitted that victim of this case is a major lady. The present applicant has been cooperative with the investigation so far. He is having no criminal history to his credit and, as such, he is entitled for anticipatory bail.

¶6Per contra, learned A.G.A. for the State and learned counsel for the first informant vehemently opposed the anticipatory bail application and it has been submitted that during the course of alleged offence the present applicant was present at the place of incident and has co-operated with the main accused-Hasnain in commission of the alleged crime. In the present case investigation is going on and it is said that the present applicant is co-operating with the investigation.

¶7I have considered the rival submissions made by learned counsel for the parties.

¶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. before the competent Court.

¶11The application is allowed accordingly.

¶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 themselves 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 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 have 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 :- 6.12.2023 Vibha High Court of Judicature at Allahabad