ORDER :

1. The applicant has preferred this bail application under Section 438 of the Cr.P.C. for grant of anticipatory bail statng that she is apprehending her arrest in connection with Crime No. 16 of 2019 registered at Police Station AJK, Baikunthpur, District Korea, Chhattisgarh for offence punishable under Section 376(D) of Indian Penal Code (hereinafter referred to as 'IPC'), Section 6 read with 17 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POSCO Act).

2. Facts of the case in nutshell are that, applicant along with others was arrested in connection with instant crime for offence punishable under Section 376(2)(d) of IPC, Sections 4, 6, 5 & 17 of POSCO Act and Section 3(2)(v) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as SC/ST Act)'. Applicant was enlarged on bail vide order dated 03.10.2019 in MCRC No.5470 of 2019. Applicant after her release on bail did not appear before the trial Court on 22.10.2019, hence, arrest warrant was ordered. Applicant submitted application for grant of bail on 07.11.2019, which was allowed. Applicant, thereafter, on 03.12.2019 again did not appear before the trial Court and arrest warrant was issued. When applicant remained continuously absent from the proceedings, permanent arrest warrant was issued on 08.04.2021 declaring her absconding. Applicant filed an application under Section 438 of Cr.P.C. seeking anticipatory bail, which came to be dismissed vide order dated 31.07.2021.

3. Shri Pawan Shrivastava, learned counsel for the applicant would submit that applicant is woman and not absented herself to avoid the proceedings. Applicant became ill, which was informed to her counsel, but unfortunately, reason of absent of applicant could not be brought to the notice of trial Court by filing appropriate application. Applicant has placed on record medical prescription in support of his contention. He further submits that Court proceedings were stopped due to spread of COVID-19, hence, applicant could not able to file application for grant of bail earlier.

4. Per contra, Shri Vimlesh Bajpai, learned Government Advocate representing the State opposing the submissions made by learned counsel for the applicant, would submit that after getting benefit of regular bail on 03.10.2019, applicant continuously remained absent from 03.12.2019 hence, she is not entitled for the benefit of Section 438 of Cr.P.C.

5. I have heard learned counsel appearing for the respective parties.

6. In view of facts and circumstances of the case and submissions made by learned counsel for the respective parties, question arises before this Court is whether application for grant of anticipatory bail under Section 438 of Cr.P.C. in the facts of the case would be maintainable?

7. Shri Pawan Shrivastava, learned counsel for the applicant would submit that provisions of Section 438 of Cr.P.C. provides for grant to anticipatory bail where applicant is apprehending his/her arrest in any crime. Applicant as apparent from Annexure A/1 is apprehending her arrest because of issuance of permanent arrest warrant by the trial Court hence, application under Section 438 of Cr.P.C. is maintainable.

8. To appreciate the submissions made by learned counsel for the applicant, in the facts of the case, I find it appropriate to extract the provisions of Section 438 (1) of Cr.P.C., which reads as under :

“438. Direction for grant of bail to person apprehending arrest.-(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this Section that in the event of such arrest, he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:-

(i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant including the fact as to whether he has