Court No. - 74
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 13771 of 2021 Applicant :- Jitendra Opposite Party :- State of U.P. and Another Counsel for Applicant :- Jamwant Maurya,Raj Deo Singh Counsel for Opposite Party :- G.A.
Hon'ble Pradeep Kumar Srivastava,J.
Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.
This anticipatory bail application has been filed by the applicant Jitendra in Case Crime No. 0229 of 2020, under sections 376D, 504 I.P.C., P.S.- Barsana, District - Mathura.
The first information version is that the incident took place on 13.05.2020 and the first information report has been lodged on 20.07.2020 in which the accused- applicant and other co-accused have been named and the allegation is that on 13.05.2020, when the informant was sleeping on the roof with her children, suddenly, co-accused namely Rajesh hump over the wall and came on roof and abused her and took her in the room and he also called the applicant and closed the door and both have committed rape on her after tearing the cloths of the victim (informant). It has also been written in the first information report that both kept her in confinement in the room till 10.06.2020. Thereafter, the family members of the victim got information about the incident and they came and free her from the confinement. The informant has also kept the cloths of the accused persons in a polythene, which they were wearing at the time of incident. The accused persons are pressurizing her for settlement. Hence, the first information report has been lodged.
Submission of the learned counsel for the applicant is that the first information report is based on incorrect facts. No such incident took place and the accused- applicant has been falsely implicated in the present case. The applicant is working as Constable in State of Chhatisgarh. It has been submitted that on account of some property dispute, the present case has been lodged only to create pressure on the applicant, hence, it is a fit case for anticipatory bail. Co- accused namely Rajesh has already been released on regular bail by the coordinate Bench of this Court, vide order dated 19.03.2021, passed in Criminal Misc. Bail Application No. 14720 of 2021. Copy of the bail order is annexed at page 99. It is further submitted that applicant has no criminal history and applicant is prepared to furnish sureties and bonds, there is no possibility of his either fleeing away from the judicial process or tampering with the evidence.
Learned A.G.A. has vehemently opposed the prayer of bail and has submitted that after investigation, the police has submitted charge sheet against one of the accused and he has already been released on regular bail by the coordinate Bench of this Court. As the present accused-applicant has not been arrested, therefore, the investigation is still pending against him. It has also been submitted that the victim has supported first information report version in her statements given under Sections 161 and 164 Cr.P.C. It has also been submitted that the incident has been seen by both the children of the victim and they have stated to the I.O. that they saw that the accused persons took the victim inside the room and lock the room. Therefore, it has been submitted that there is no ground for anticipatory bail.
Considering the submissions of both the sides. The allegations against the accused applicant is of gang rape. This fact has been supported by the children of the victim and she has also supported the fact of first information report in both of her statements given under Sections 161 and 164 Cr.P.C. The offence appears to be serious in nature and in such kind of offence, there is no question of anticipatory bail, particularly taking into consideration that the first information report version is not only supported by the statements of the victim but it finds support by statements of the children of the victim. The grounds which are being taken in support of anticipatory bail application may be the good grounds which can be taken at the time of filing regular bail application. As the co-accused has already been released on regular bail by the coordinate Bench of this Court against whom charge sheet has been filed, the present applicant has also the remedy of regular bail.
It is pertinent to mention that the anticipatory bail is not a substitute of a regular bail and for it, some extraordinary circumstances are required in comparison to regular bail. There should be some special reason for taking recourse of the provisions of anticipatory bail. There must also be a threat of arrest of the accused. The applicant has not been able to show any real threat of arrest or any extraordinary circumstances, as such, I do not find any ground for giving benefit of anticipatory bail, hence the anticipatory bail application filed by the applicant is rejected.
Order Date :- 16.8.2021 sailesh