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ALLAHABAD HIGH COURT
Saurabh Shyam Shamshery, J.
Yogendra Kumar Mishra – Applicant
versus
State of U.P. and Anr. – Opp. Parties
Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No.20357 of 2021
Decided on 6.4.2022
(A) Criminal Procedure Code, 1973 – Section 438 – Anticipatory Bail Application – Few factors and parameters which High Court has to consider for exercising discretion for grant or refusal of anticipatory bail are nature and gravity of accusation, exact role of accused, his or her antecedents, possibility of accused to flee from justice, likelihood to repeat similar or other offence – Whether accusation are made only with object of injury and causing humiliation to accused or case is of large magnitude with possible effect on a large number of people – Greater care and caution is required while considering cases under Section 34 and 149 IPC – Consideration of threat to complainant and witnesses and tempering of evidences are other relevant factors – While considering anticipatory bail application Court has to struck balance between two factors namely, no prejudice should be caused to fair and free investigation and accused should not be subjected to harassment, humiliation and unjustified detention – Court is justified to impose conditions spelt out in Section 437 Cr.P.C. and also other restrictive conditions if deem necessary in facts and circumstances of a particular case including limit of anticipatory bail but not in routine manner – Anticipatory Bail Application has to be based on concrete facts and not vague or general allegations relatable to offence and why applicant reasonably apprehends his or her arrest, as well as his version of facts. (Paras 5 and 6)
(B) Criminal Procedure Code, 1973 – Section 438 – Anticipatory Bail Application – Case Crime registered under Sections 376, 506, 328 IPC, 3/4 POCSO Act and 67 I.T. Act – Applicant first inspired confidence of victims and when they imposed complete trust on him, not only applicant violated trust of First Informant but her minor daughter also – Averments made in statements recorded under Section 164 Cr.P.C. also depict that applicant not only raped First Informant but also raped her minor daughter – There are allegation that applicant has certain unsolicited video clips also and he has put threat to viral it and blackmailed victim and her mother – Applicant is not entitled for anticipatory bail on the ground that applicant was not only declared proclaimed offender under Section 82 Cr.P.C. but proclamation of attachment of property was also issued under Section 83 Cr.P.C. – There are very serious allegations against applicant and no case for anticipatory bail is made out on merit also – Application rejected. (Paras 11, 12 and 13)
Result: Application rejected.
JUDGMENT
Saurabh Shyam Shamshery, J.—Applicant-Yogendra Kumar Mishra has approached this Court by way of filing this Criminal Misc. Anticipatory Bail Application under Section 438 Cr.P.C. after rejection of his anticipatory bail application vide order dated 30.11.2021 passed by Additional District and Additional District and Sessions Judge/Special Judge (POCSO Act), Allahabad, seeking Anticipatory Bail in Case Crime No. 324 of 2021, under Sections 376, 506, 328 IPC, 3/4 POCSO Act and 67 I.T. Act, Police Station Kotwali, District Prayagraj.
2. Sri Anil Tiwari, learned Senior Advocate has vehemently argued that it is a fit case for anticipatory bail. Undisputedly the applicant is a married person having a wife and son whereas Opposite Party No. 2 (Informant) alongwith her daughter (a minor girl and victim) are living separately from her husband. The Informant is a Teacher in a School where applicant is working as Class-IV employee in same school. It is admitted case that applicant has consensual relationship with Informant and Informant and her daughter are staying with him. There are cordial relationship with the son of applicant with the daughter of First Informant as brother and sister. In support of this submission learned Senior Advocate has relied on the photographs and whatsapp chat history which are part of record. Learned Senior Advocate also submits that their relations were very cordial and he has purchased a land in his name as well as in the name of Opposite Party No. 2 and an agreement to sell is also on record. The relationship become strained when First Informant, though not legally divorced, insisted applicant to get merry which was not possible for applicant because he is a married person. In these circumstances, applicant withdrew the money deposited towards agreement to sell. All these circumstances made the First Informant annoyed and, therefore, a false FIR was lodged wherein false allegation of rape against applicant, not only with First Informant but with her minor daughter, was levelled. All the alleged incidents mentioned in FIR are very old. So far the allegation of rape with minor daughter is concerned, it is the case of First Informant that applicant himself communicated to her about the incident, therefore, considering that it is absolutely improbable, a case of anticipatory bail is made out. Learned Senior Advocate has also fairly submits that after the Trial Court rejected applicant’s anticipatory bail, not only non-bailable warrant was issued against applicant but proceedings were also initiated under Sections 82 and 83 Cr.P.C.
3. Sri Munne Lal, learned A.G.A. appearing for State and Sri Subhash Chandra Tiwari, Advocate appearing for Opposite Party No. 2, have vehemently opposed the aforesaid submissions. They submitted that First Informant as well as her minor daughter have made a categorical statement against applicant in their statements recorded under Section 164 Cr.P.C. that they were raped on multiple times taking benefit of their separation and trust imposed by First Informant and her daughter with applicant. They also submitted that applicant is not cooperating with investigation process, therefore, not only non bailable warrant was issued but now proceedings under Sections 82 and 83 Cr.P.C. have also been initiated against applicant, therefore, no case for anticipatory bail is made out.
4. I have heard learned counsel for rival parties and perused the material available on record.
5. Few factors and parameters, which this Court has to consider for exercising discretion for grant or refusal of anticipatory bail are nature and gravity of accusation, exact role of the accused, his or her antecedents, possibility of the accused to flee from justice, likelihood to repeat similar or other offence. Whether accusation are made only with the object of injury and causing humiliation to the accused or case is of large magnitude with possible effect on a large number of people. Greater care an
Anticipatory Bail Application has to be based on concrete facts and not vague or general allegations relatable to offence and why applicant reasonably apprehends his or her arrest, as well as his ver....
applicant is not entitled for anticipatory bail on the ground that applicant was not only declared proclaimed offender under Section 82 Cr.P.C. but proclamation of attachment of property was also iss....
Anticipatory bail under Section 438 CrPC is an extraordinary remedy, granted only in exceptional circumstances, particularly when the applicant is not a proclaimed offender.
If anyone is declared as an absconder/proclaimed offender in terms of Section 82 of Cr.P.C., he is not entitled to relief of anticipatory bail.
The main legal point established in the judgment is the consideration of the gravity of the offences, the conduct of the accused, and the possibility of fleeing from justice in determining the eligib....
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