Point of law :Bail - correctness of an order granting bail, can be considered by the appellate or superior court at the behest of the state or investigating agency, and set aside on the ground that the court granting it did not consider material facts or crucial circumstances

ORDER :

Siddharth, J.

Order on Criminal Misc. Correction Application No. 02 of 2020

1. The notice of the above noted anticipatory bail application was served online on the Government Advocate on 09.05.2020. By the order dated 20.05.2020 the above noted application was decided by this court since despite grant of time to learned Government Advocate no objection was received and the applicant was granted anticipatory bail till the submission of police report under Section 173 (2) Cr.P.C.

2. Correction application has been filed on behalf of applicant on the ground that in the present case chargesheet has been filed by the Investigating Officer therefore the grant of limited anticipatory bail till the submission of report under Section 173(2) is not justified, in view of the recent Apex Court's judgment in the case of Sushila Aggarwal vs. State (NCT of Delhi)- It has further been stated that this court in the case of Siddharth Varadarajan vs. State of U.P and another passed in Bail No. 2778 of 2020 (anticipatory bail) on 13.05.2020 has granted bail to the applicant without any limitation.

3. The facts of the case as pleaded in the affidavit in support of anticipatory bail application are that the prosecutrix lodged the First Information Report dated 29.08.2018 against co-accused, Jai Shankar Upadhyay and two unknown persons under Sections 376-D, 376(2)(n) 420, 506 of I.P.C. alleging therein that she works in Delhi and when she was coming to her hometown, she met one Jai Shankar Upadhyay who claimed himself to be Lekhpal, Tehsil Bansi, District-Siddharth Nagar. He promised her to provide job and demanded certain amount for payment to higher officers. Prosecutrix gave him the demanded amount but the said Jai Shankar Prasad did not provided her job and raped her continuously for three years by taking advantage of his position and her helplessness. It was further alleged that he also made her obscene video and when she opposed it, co-accused, Jai Shankar Upadhyay, started hatching conspiracy of her murder with his friends. Jai Shankar Upadhyay is threatening her that he will make the video viral on account of which she had to made complaints to his higher officers. Applicant is not named in the First Information report. He is neither driver nor friend of co-accused, Jai Shankar Upadhyay.

4. During the investigation, the investigating officer recorded the statement of prosecutrix under Section 161 Cr.P.C. on 30.08.2018. In her statement she narrated the same story as mentioned in the First Information Report. The statement of the prosecutrix was recorded under section 164 of Cr.P.C. before learned Magistrate on 01.09.2018. In her statement, she reiterated the allegations against Jai Shankar Upadhyay regarding commission of rape and video recording. She very specifically stated that it is Jai Shankar who made the video of rape. She further alleged that she gave about Rs. 4.5 Lacs between 2015 to 2017 to co-accused, Jai Shankar Upadhyay, Lekhpal, by borrowing money from the applicant, Parvez and one Krishna.

5. It is clear from the perusal of the statement of the prosecutrix, that the applicant is well known to her and she borrowed money from him. There is not a single allegation against the applicant in the statement of prosecutrix recorded under section 164 Cr.P.C. before Magistrate.

6. Co-accused, Jai Shankar Upadhyay, Lekhpal is very influential person. The investigating officer, Mahendra Kumar Chaturvedi colluded with him. First, he threatened the prosecutrix to change her statement and withdraw case against Jai Shankar Upadhyay. When she did not relent, she was mercilessly beaten by the police including the investigating officer. In the said circumstances, the prosecutrix filed a Criminal Misc. Writ Petition No. 27214 of 2018 before this court with the prayer to change of investigating officer and to set an inquiry conducted as to why she was beaten by police. This Court vide order dated 28.09.2018 disposed of the said petition directing