Adil v. State of U.P. and Another

Court No. - 73 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 13492 of 2023 Applicant :- Adil Opposite Party :- State of U.P. and Another Counsel for Applicant :- Vinod Singh,Rajendra Prasad Counsel for Opposite Party :- G.A. Hon'ble Nalin Kumar Srivastava,J.

¶1Supplementary Affidavit filed today, is taken on record.

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

¶3Apprehending his arrest in Case Crime No.333 of 2023, under Sections 323, 342, 354, 452, 376, 504, 506 IPC, Police Station Swar, District Rampur, the applicant-Adil has filed this anticipatory bail application seeking anticipatory bail in the aforesaid crime number.

¶4It was alleged in the first information report that the present applicant who happens to be the brother-in-law (Dever) of the victim, committed rape upon her in her house on 16.06.2023. The FIR was lodged on 20.09.2023 and investigation started, which is still going on.

¶5Learned counsel for the applicant submits that that applicant is innocent and he has apprehension of arrest in the above-mentioned case, whereas there is no credible evidence against him. He has been falsely implicated in this matter. Allegations levelled against the applicant are false. Investigation is going on into the matter. It is further submitted that as a matter of fact, there is a matrimonial dispute between the victim and her husband, who is real brother of the present applicant. It is also submitted that a notice for divorce was given by the brother of the applicant on the same day alleging the incident to be happened in the evening. FIR was lodged on 20.09.2023 It is further submitted that earlier NCR No.106 of 2023, under section 323, 506 IPC, was lodged by the victim of the case wherein an application under section 155(2) Cr.P.C. was also filed by the victim/opposite party no.2 with the allegation of gang rape and attempt to murder and other serious allegations. The said application was allowed by the learned Magistrate, thereafter investigation took place in the NCR. The police investigated the said case and found that allegation of the gang rape, assault and attempt to murder was false and which was submitted only offence under section 323, 325, 504, 506 IPC. It is further submitted that the medical report does not corroborate the prosecution version. The applicant has no criminal history to his credit. The first information report has been lodged after 40 days of the incident without any plausible explanation of delay, whereas according to FIR, the victim has narrated the story to her father and brother in the next morning of the incident. It is also submitted that he is cooperating with the investigation of the case, and as such he is entitled for anticipatory bail, he shall not misuse the liberty of bail and would obey all conditions of bail.

¶6Per contra learned A.G.A. opposed the prayer for anticipatory bail and argued that the applicant, who happens to be the dever of the victim committed rape upon her who is a married lady, but however, could not dispute this fact that a notice for divorce was given by Talib, the husband of the victim who happens to be the real brother of the present applicant on 8.9.2023. Just thereafter the present FIR has been lodged. It is also submitted that in her statement under sections 161 and 164 Cr.P.C the victim has corroborated the FIR version and the but the medical report, prima facie, supports the prosecution version.

¶7In 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, likelihood 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.

¶8In 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.

¶9Considering 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 the filing of police report under section 173 (2) Cr.P.C. before the competent Court.

¶10The anticipatory bail application is allowed.

¶11In the event of arrest of the applicant in the aforesaid case crime, he shall be released on anticipatory bail till the filing of police report under section 173 (2) Cr.P.C. before the competent Court 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.

¶12In case of default of any of the conditions, the Investigating Officer shall be at liberty to file appropriate application for cancellation of protection granted to the applicant. Order Date :- 6.12.2023 SFH High Court of Judicature at Allahabad