Court No. - 73

Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S

438 CR.P.C. No. - 2652 of 2021

Applicant :- Nabi Ahmed

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Mohd. Afzal

Counsel for Opposite Party :- G.A.,Nipun Singh

Hon'ble Siddharth,J.

Heard learned counsel for the applicant, Sri Nipun Singh, learned counsel

for the opposite party no. 2 and learned A.G.A. for the State.

The instant anticipatory bail application has been filed with a prayer to

grant an anticipatory bail to the applicant, Nabi Ahmed, in Case Crime

No. 1138 of 2019, under Sections- 323, 504, 376D, 120-B I.P.C., Police

Station- Loni, District- Ghaziabad.

Prior notice of this bail application was served in the office of Government

Advocate and as per Chapter XVIII, Rule 18 of the Allahabad High Court

Rules and as per direction dated 20.11.2020 of this Court in Criminal

Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 8072 of 2020,

Govind Mishra @ Chhotu Versus State of U.P., hence, this anticipatory

bail application is being heard. Grant of further time to the learned A.G.A

as per Section 438 (3) Cr.P.C. (U.P. Amendment) is not required.

The applicant is the brother-in-law (devar) of the victim, Afsana. The

allegation in the F.I.R is that the sister of the informant who was married

to co-accused, Aas Mohammad, was divorced by her husband and she was

standing outside his house. When the informant went there, he saw his

sister standing outside his house and the accused persons including the

applicant are alleged to have indulged in abuses and beaten the informant

and refused to send the sister of the informant with him. Subsequently, the

statement of the victim was recorded under Section 164 Cr.P.C. wherein

she has alleged that the applicant and co-accused, Shakeel, raped her and

on the instigation of the co-accused Jamil, her husband made a video of

the rape committed against her by the aforesaid persons.

Learned counsel for the applicant has submitted that initially there was no

allegation of gangrape in the F.I.R. Subsequently, on the basis of the

statement of the victim recorded u/s 164 Cr.P.C., the allegation of

gangrape has been made against the co-accused persons. The applicant is

alleged to have instigated and directed the husband of the victim to make

video and other co-accused persons to commit the alleged crime.

Learned counsel for the applicant next submitted that the allegations made

in the statement of the victim recorded u/s 164 Cr.P.C. are absolutely false.

She has made the allegations only to falsely implicate the applicant and

other co-accused persons. No such video of rape has been recovered till

date. Initially, a final report was submitted by the Investigating Officer but

thereafter further investigation has been directed and the investigation is

still under progress. The applicant has no criminal history to his credit. He

has definite apprehension that he may be arrested by the police any time.

Learned A.G.A. has opposed the prayer for anticipatory bail of the

applicant. He has submitted that in view of the seriousness of the

allegations made against the applicant, he is not entitled to grant of

anticipatory bail. The apprehension of the applicant is not founded on any

material on record. Only on the basis of imaginary fear, anticipatory bail

cannot be granted.

After considering the rival submissions, this Court finds that there is a case

registered against the applicant. It cannot be definitely said when the

police may apprehend him. After the lodging of F.I.R., the arrest can be

made by the police at will. There is no definite period fixed for the police

to arrest an accused against whom an F.I.R. has been lodged. The courts

have repeatedly held that arrest should be the last option for the police and

it should be restricted to those exceptional cases where arresting the

accused is imperative or his custodial interrogation is required. Irrational

and indiscr