1. Heard Sri Sharad Dixit, learned counsel for the applicant learned A.G.A. for the State of U.P. and perused the record.
2. The instant application has been moved by the applicant seeking anticipatory bail in FIR/Case Crime No. 0760 of 2020, under Sections 363, 366 I.P.C., relating to Police Station - Kotwali City, District - Barabanki.
3. This Court by means of earlier order dated 02.02.2021, had directed the counsel for the applicant to file supplementary affidavit indicating/explaining criminal history of the applicant. Supplementary affidavit has been filed.
4. It has been submitted by the learned counsel for the applicant that a false and frivolous first information report has been lodged against the applicant. According to first information report the applicant and the prosecutrix are residing in the same locality and are known to each other since childhood. The allegation is that the applicant forcibly took away the prosecutrix, and subsequently her statements under Sections 161 and 164 Cr.P.C. were recorded. Counsel for the applicant has submitted that the applicant and the prosecutrix had knows to each other for long time and were friends and chatting with each other on social networking websites and the prosecutrix had herself come to the house of the applicant. It is further submitted that the prosecutrix was not recovered from the custody of the applicant and therefore has stated that the entire allegations levelled in the FIR are false and frivolous. The applicant has no criminal history and that there are no chances of his fleeing from justice. The applicant undertakes to fully cooperate in the investigation.
5. Learned Additional Government Advocate has received instructions as well as statements of the prosecutrix recorded under Sections 161 and 164 Cr.P.C. The prosecutrix in her statement u/s 161 Cr.P.C. has stated that she was taken to the house of the applicant but has denied that she was ever sexually assaulted. Similarly, prosecutrix in her statement u/s 164 Cr.P.C. has reiterated the version as given by her in her statement u/s 161 Cr.P.C. Learned A.G.A. has opposed the prayer for anticipatory bail but could not dispute the aforesaid facts as argued by learned counsel for the applicant.
6. After considering the rival submissions this court finds that there is a case registered/about to be registered against the applicant. It cannot be definitely said when the police may apprehend him. After the lodging of FIR 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 FIR 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 indiscriminate arrests are gross violation of human rights. In the case of Joginder Kumar v. State of Uttar Pradesh, AIR 1994 SC 1349, the Apex Court has referred to the third report of National Police Commission wherein it is mentioned that arrests by the police in India is one of the chief source of corruption in the police. Personal liberty is a very precious fundamental rights and it should be curtailed only when it becomes imperative. According to the peculiar facts and circumstances of the peculiar case the arrest of an accused should be made.
7. Hence without expressing any opinion on the merits of the case and considering the nature of accusations and antecedents of applicant, the applicant may be enlarged on anticipatory bail as per the Constitution Bench judgment of the Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98. The future contingencies regarding anticipatory bail being granted to applicant shall also be taken care of as per the aforesaid judgment of the Apex Court.
8. The Court has considered the rival submissions and looking into the circumstances as well as annexures which have been annexed with the application for anticipatory bail as well as counter and rejoinder affidavits, this Court finds it a fit case to allow the present anticipatory bail application.
9.The anticipatory bail application is allowed.
10. This Court directs that in the event of arrest, the accused-applicant Mohd. Arbaz @ Raj, involved in Case FIR/Case Crime No. 0760 of 2020, under Sections 363, 366 I.P.C., relating to Police Station - Kotwali City, District - Barabanki, shall be released forthwith on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the Arresting officer/Investigating Officer/ S.H.O. concerned on the following conditions:-
(i) That the accused-applicant shall make himself available for interrogation by police authorities as and when required and will cooperate with the investigation;
(ii). That the accused-applicant shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer; and
(iii). That the accused-applicant shall not leave India without the previous permission of the Court.
11.The papers regarding bail submitted to the police officer on behalf of the accused/applicant shall form part of the case diary and would be submitted to the court concerned along with same at the time of submission of report under Section 173(2) Cr.P.C.
12.In case there is breach of any of the above conditions or in case it is otherwise found for any other reason the bail is required to be cancelled, it shall be open for the State or the appropriate authority to move application for cancellation of bail in accordance with law.
Order Date :- 17.2.2021 A. Verma (Alok Mathur, J.)