Asharaf Hashmi @ Mohd. Asharaf Ali v. State of U.P. and Another

Court No. - 73 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 13005 of 2023 Applicant :- Asharaf Hashmi @ Mohd. Asharaf Ali Opposite Party :- State of U.P. and Another Counsel for Applicant :- Juned Alam,Mohd Hamid Counsel for Opposite Party :- G.A.,Shiv Vilas Mishra,Vinod Kumar Sharma Hon'ble Nalin Kumar Srivastava,J.

¶1Heard learned counsel for the applicant, learned A.G.A. for the State as well as learned counsel for the opposite party no.2 and perused the record.

¶2This application has been moved on behalf of the applicant - Asharaf Hashmi @ Mohd. Asharaf Ali seeking anticipatory bail in Case Crime No.323 of 2023, under Sections 376D, 384, 323, 506 IPC, Police Station Tiwaripur, District Gorakhpur.

¶3The major victim had some friendly relations with main accused Saif Ali Hashmi who by administering some intoxicant in the cold drink made her unconscious and committed rape to her and also prepared some obscene videos and thereafter subsequently by threatening her, he also took money and golden jewels from the victim and the present applicant also threatened her to make her video viral. F.I.R. was lodged by the victim herself on 13.9.2023 and investigation started, which is going on.

¶4It has been argued 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. It is also submitted that the present applicant, though named in the F.I.R., has been assigned no role in committing rape to the victim of this case. It is also submitted that even in her statement u/s 161 Cr.P.C., the victim of this case has not named the applicant and no allegation has been levelled against him by the victim herself. It is also submitted that in her statement u/s 164 Cr.P.C., the victim alleged the present applicant for committing gang rape with her on 24.7.2023. It is also submitted that the medical evidence does not corroborate the prosecution version. It is also submitted that no alleged obscene video has been collected by the I.O. so far during investigation. It is also submitted that the applicant is cooperating with the investigation having no criminal antecedents to his credit and as such he is entitled for anticipatory bail. In case the applicant is granted anticipatory bail, he shall not misuse the liberty of bail and would obey all conditions of bail.

¶5Per contra, learned A.G.A. as well as learned counsel for the opposite party no.2 opposed the prayer for anticipatory bail and it has been submitted that in her statement u/s 164 Cr.P.C., the victim has specifically mentioned that gang rape was committed to her by the main accused Saif Ali Hashmi and also by the present applicant. It is also submitted that the offence of the applicant is very grave and serious. He has procured obscene videos of the lady victim and she was blackmailed on the basis of the same.

¶6In the present matter, in the F.I.R. and in the statement of the victim u/s 161 Cr.P.C., the victim of this case has not named the applicant as taking participation in the commission of crime, but in her statement u/s 164 Cr.P.C., a twisted story has been mentioned by the applicant and the name of present applicant came to surface for committing gang rape with the victim. No criminal history of the applicant has been brought to the notice of this Court. Investigation into the matter is going on.

¶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, 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.

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

¶10The application is allowed accordingly.

¶11In the event of arrest of the applicant, he shall be released on anticipatory bail till 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 :- 11.12.2023 ss High Court of Judicature at Allahabad