Court No. - 79
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38539 of 2019 Applicant :- Gaurav Opposite Party :- State Of U.P.
Counsel for Applicant :- Brij Raj Singh Counsel for Opposite Party :- G.A.,Anwar Hussain
Hon'ble Ram Krishna Gautam,J.
Heard learned counsel for applicant, learned counsel for informant, learned A.G.A. appearing for State and perused the record.
This application under Section 438 Cr.P.C. has been filed by Gaurav for grant of anticipatory bail during the course of investigation in Case Crime No. 116 of 2019, under Sections 147, 342, 376-D I.P.C., Police Station Makkhanpur, District Firozabad.
Learned counsel for applicant argued that accused applicant is of no concern with alleged occurrence. Rather, he has been implicated under connivance and conspiracy of convict persons against whom a sessions trial for offence of murder of Tau of accused applicant was pending and he was doing pairvi of that case, wherein those accused persons were convicted and their bail has been rejected up to High Court. They have given huge money and have managed to implicate applicant in this case. Applicant's name and parentage was not there in first information report. It was initially got lodged for offence punishable under Sections 147 and 342 I.P.C. only. Subsequently on the basis of alleged statement and application moved before Senior Superintendent of Police concerned, Section 376-D I.P.C. was added. Moreso, this lady is more than 50 years of age having been married three times and having kids of different age was under dispute with her third husband, who has been implicated as accused. Applicant is of bright future because he had been a very brilliant student, having completed education up to M.Sc. He has been declared successful in competitive examination, for which documents have been filed and by implicating him in this case, his entire career will be ruined. He is of no criminal antecedent. Therefore, the applicant may be enlarged on anticipatory bail.
Learned counsel for informant and learned A.G.A. opposed the prayer for bail on the ground that first information report was got obtained under connivance of village pradhan, who himself is accused of this case, after getting it scribed by minor daughter of victim, who could not write the name of husband of victim too, that is why name of father of applicant could not be written in that report. This report was not adequate report. Subsequently, victim was medically examined and when she gain sense she narrated the occurrence to Senior Superintendent of Police. Thereafter, this offence of gang rape was got registered. Her statement under Sections 161 as well as 164 Cr.P.C. was got recorded, wherein she has categorically said about the gang rape by those named accused persons including specific accusation against applicant. Offence is very heinous. Hence, bail be rejected.
Having heard learned counsel for both side and gone through material placed on record as well as provision of Section 438 inserted w.e.f. 01.06.2019 in Code of Criminal Procedure, it is there that where any person has reason to believe that he may be arrested on accusation of having committed a non bailable offence, he may apply to the High Court of 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 previously undergone imprisonment on conviction by a Court in respect of any cognizable offence.
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested;
either reject the application forthwith or issue an interim order for the grant of anticipatory bail:
Provided that where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant, the applicant on the basis of the accusation apprehended in such application.
In present case, the nature and gravity of accusation is very heinous i.e. offence of gang rape. The statement recorded under Sections 161 and 164 Cr.P.C. is very well there. Under all above facts and circumstances, no ground for grant of anticipatory bail is there.
The anticipatory bail application is rejected accordingly.
Order Date :- 30.9.2019 NS