Court No. - 66
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 52315 of 2019 Applicant :- Aayush Khemka Opposite Party :- State of U.P. and Another Counsel for Applicant :- Anurag Shukla,Shri Gopal S. Chaturvedi (Sr. Advt.) Counsel for Opposite Party :- G.A.,Gulrez Khan,Javed Husain Khan,Tatwesh Agarwal
Hon'ble Rajul Bhargava,J.
Supplementary affidavit filed by learned counsel for the applicant is taken on record.
Heard Shri Gopal S. Chaturvedi, learned Senior Advocate assisted by Sri Anurag Shukla, counsel for the applicant, Sri W.H. Khan, learned Senior Advocate, assisted by Sri Tatwesh Agarwal, counsel for opposite party no.2 as well as learned A.G.A. for the State and perused the first information report and rejection order.
The present anticipatory bail application has been filed by the applicant- Aayush Khemka in S.T. No.751 of 2019 (State vs. Aayush Khemka and others), arising out of Case Crime No. 213 of 2019, under Sections 376, 323, 504, 506, 417 I.P.C. and 3/4 POCSO Act, Police Station- Kalyanpur, District- Kanpur Nagar with the prayer to grant anticipatory bail to him.
I have perused the averments made in the first information report, the order by means of which the anticipatory bail application has been rejected by the court below as well as the material placed on record.
The prosecution version in brief as narrated in the first information report lodged by the victim is that about four years back in the year 2015 when she was about 16 years of age, she and the accused-applicant came in contact with each other on facebook and thereafter, their friendship converted into intimacy and the accused-applicant made the false assurance that he would marry her and thereafter, he established physical relationship with her many times. For the first time in 2017, she started realizing that accused-applicant was befooling her and would not marry her. His father also interfered and gave assurance but ultimately the marriage was not performed. Besides it, the facts in detail are mentioned in the first information report annexed as Annexure-1 to the affidavit filed It transpires from the record that after investigation charge- sheet was filed against the applicant and other accused in abscondance. The applicant filed a Criminal Misc. Application (U/s 482 Cr.P.C.) No.27399 of 2019 challenging the entire proceedings of S.S.T. No. 751 of 2019 (State vs. Aayush Khemka and others), arising out of Case Crime No. 213 of 2019, under Sections 376, 323, 504, 506, 417 I.P.C., 3/4 POCSO Act, P.S.- Kalyanpur, District- Kanpur Nagar along with impugned charge-sheet dated 11.06.2019 and cognizance/summoning order dated 13.06.2019 passed by the 7th Additional Sessions Judge/ Special Judge (POCSO Act), Kanpur Nagar. The co-ordinate Bench of this Court placed reliance on the judgment of Apex Court in Deepak Gulati vs. State of Haryana, (2013) 7 SCC 675 in which it has been held as follows:-
....."There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly, understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of mis- representation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives."
Thus, in the light of evidence which has been gathered by the Investigating Officer and material on record it cannot be said that no cognizable offence is made out against the applicant. The disputed defence of applicant-accused cannot be considered at this stage. Thus, the prayer for quashing the proceedings was refused. The Court, however, vide order dated 18.7.2019 granted indulgence to the applicant to raise all the points before the trial court and seek discharge, if so advised.
....."The trial court is directed to decide the discharge application within 30 days from today, if such an application is moved by the applicant. For a period of 30 days from today, no coercive action shall be taken against the accused-applicant in the aforesaid case. However, in case the discharge application is not moved or the same is rejected on merit within the aforesaid period, the trial court shall proceed in accordance with law."
The applicant pursuant to the order of the Court dated 18.7.2019 moved a discharge application on 9.8.2019 before the Special Judge (POCSO Act), Kanpur Nagar. The said application was dealt with by the Special Judge in extenso after affording opportunities to both the sides. Considering the evidence on record and law laid down by the Hon'ble Apex Court in several judgments rejected the discharge application vide impugned order dated 16.8.2019 and directed the applicant to appear before the court on 20.8.2019 i.e. after the expiry of 30 days of protection as provided by this Court vide order dated 18.7.2019. The applicant remained recalcitrant as ever and despite having knowledge that the court has rejected his discharge application and was directed to appear on 20.8.2019 deliberately did not appear before the trial court. As the applicant had also not obtained regular bail during investigation and was also provided a protection order by the Court for a period of 30 days that no coercive action shall be taken against him till the disposal of the discharge application, he did not appear on that date and even after that continued to remain absent on account of which the court was left with no option but to issue non-bailable warrant of arrest against him. Despite issuance of non-bailable warrant, the applicant did not appear, thus the charges could not be framed as has been noted by the court below while rejecting anticipatory bail to the applicant.
Learned Senior Advocate appearing on behalf of the applicant has argued that the victim is a major girl and even from the averments contained in the first information report lodged by the victim it appears that she was a consenting party and prima facie no offence under Section 376 I.P.C. is made out against the applicant who belongs to a respectable family. Therefore, the applicant, who has no criminal antecedents to his credit, entitled for anticipatory bail.
Per contra, learned A.G.A. as well as learned counsel for the informant have strongly opposed the prayer for anticipatory bail.
Advocates appearing for both the sides as well as learned A.G.A. for the State, I am of the considered opinion from the entire gamut of facts and circumstances of the case and especially the fact that the applicant remained absconding since 20.8.2019 after rejection of his discharge application and has not appeared before the court from which it can safely be inferred that the intention of the applicant is not bona fide and in case he is granted anticipatory bail the trial of such a grave offence of rape on a minor girl would be affected. Besides it, though the Hon'ble Apex Court has held that even after submission of charge-sheet the High Court is not precluded from exercising its power under Section 438 Cr.P.C. for grant of anticipatory bail, however, in the present case where the applicant has never appeared before the court is not entitled for any indulgence of the Court for grant of anticipatory bail.
Accordingly, the application for anticipatory bail is rejected.
The trial court is hereby directed to adopt all possible coercive steps against the applicant for securing his attendance so that trail in the aforesaid case can be proceeded against the applicant.
Order Date :- 27.11.2019 Vikas