Anticipatory bail is denied when the accused is a proclaimed offender and involved in serious allegations such as gang rape, requiring custodial interrogation.

JUDGMENT

Chander Shekhar, J. (Oral)--This is an application filed by the petitioner under Section 438 of the Code of Criminal Procedure, 1973 (Cr.P.C.) for the grant of anticipatory bail in case FIR No.603/2018 under Sections 363/365/366A/376-D/342 of the Indian Penal Code, 1860 and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

2. It would be quite relevant to go through the facts of the case as per the status report before embarking upon the merits of the present application. The present case was registered on the statement of Smt. Rekha regarding her daughter aged 16 years, who was missing since 30.11.18. After which, the investigation was taken up and several attempts were made to search the missing girl but all in vain. Later, in the supplementary statement under Section 164 Cr.P.C., the complainant/mother of the victim alleged that she suspects that one Usman had kidnapped her daughter as he used to stalk her and he is also not at his home. It is further alleged by the complainant that family members of Usman are also involved in this kidnapping, to which search was carried out at the home of Usman but he and his family members absconded and avoided their arrest. Later, on 21.12.2018, the missing girl/victim was produced before the Court by the counsellor and thereafter the statement of the victim under Section 164 Cr.PC was recorded, wherein the victim stated that, on 30.11.2018, she went away from her home as her parents wanted her to get married. She slept on the road, sometimes near GTB Hospital and sometimes near AIIMS. She did not want to go back to her home as she was afraid of her family members.

3. During the course of the investigation, no CCTV footage was found in the said hospitals of the date mentioned by the victim in her supplementary statement. Thereafter, on examining the victim, she revealed in her supplementary statement under Section 161 Cr.P.C. that, on 30.11.2018, one Usman enticed her and took her away in a cab and they wandered all night. Next day, they met Usman's friend and brother-in-law-the petitioner herein, namely, Shamim. The petitioner/accused Shamim took them to a room in Loni, Ghaziabad and there in the room, the friend of Usman (the name of whom the victim doesn't remember) raped the victim at gunpoint in the presence of Usman and the petitioner Shamim. Thus, for ascertaining the S.O.C., the victim was taken to Loni, Ghaziabad, but the victim was not able to remember the same. Further, several attempts were made in order to arrest the petitioner, but he avoided his arrest.

4. Learned counsel for the petitioner submitted that the petitioner has been falsely implicated in the present case. Learned counsel for the petitioner further submitted that the name of the petitioner was not mentioned by the prosecutrix in her statement under Section 164 of the Cr.P.C, however, in her supplementary statement under Section 161 of the Cr.P.C., she mentioned about the petitioner.

5. Learned counsel for the petitioner has relied upon the order dated 28.12.2018 passed by the learned Metropolitan Magistrate, whereby the bail application of the accused Muniba, the mother of accused Usman was allowed, which reads as under:

"I have gone through the statement of victim u/s 164 Cr.P.C. according to which she had gone on her own and no one had kidnapped her.

Perusal of the record shown that there is no evidence as against accused/applicant Muniba that she had kidnapped the minor girl.

In view of the same, she is entitled to bail. Applicant/accused Muniba is admitted to bail in the sum of Rs.10,000/- with one surety i