Court No. - 67
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 14084 of 2021
Applicant :- Sonu Kumar
Opposite Party :- State Of Up And Other
Counsel for Applicant :- Babu Lal Ram,Santosh Kumar Yadav
Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
(1) Heard learned counsel for the applicant and learned A.G.A and perused the record.
(2) The instant application is being moved by the applicant invoking the powers of Section 438 Cr.P.C. that he has every reason to believe that he may be arrested on the accusation of having committed a non-bailable offence in connection with Case Crime no.81 of 2021, under Sections 363 I.P.C., Police Station-Sultanpur, District-Fatehpur.
(3) From the record, it is evident that the applicant has approached this Court straightway without getting his anticipatory bail rejected from the court of sessions.
(4) Learned counsel for the applicant has drawn attention of the Court to Clause- 7 of Section 438 Cr.P.C. (U.P. Act No.4 of 2019), which read thus :
"(7) If an application under this section has been made by any person to the High Court, no application by the same person shall be entertained by the Court of Session."
(5) After interpreting the aforesaid clause, it is clear that the Legislature in its own wisdom bestowed two avenues upon the accused with a rider that if the accused has chosen to come to the High Court straightaway, then he would not be relegated back to exhaust his remedy before the Court of Session first. In this regard, learned counsel for the applicant has placed reliance upon the Full Bench judgment of this Court in the case of Ankit Bharti and others Vs. State of U.P. and another, 2020(3) ADJ 575 in which the Bench has directed to spell out the extraordinary and special reasons for coming to the High Court. After perusal of those pleadings/reasons in this regard, this Court is satisfied that the reasons mentioned therein are quite convincing to entertain the present anticipatory bail application before this Court itself.
(6) 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.
(7) It has been contended by the learned counsel for the applicant that the applicant has got no criminal antecedents and he has not undergone any imprisonment after conviction by any court of law in relation to any cognizable offence previously. An assurance was also advanced by learned counsel for the applicant on behalf of the applicant that he would render all requisite co- operation and assistance in the process of law and with the investigating agency and shall not create any hindrance to reach to its logical conclusion and shall not flee away from the course of justice.
(8) Learned counsel for the applicant has strenuously argued that the applicant has been made target just to besmirch his reputation and belittle him in the public estimate by the informant. Number of arguments were advanced by learned counsel for the applicant to demonstrate the falsity of the accusation made in the FIR against the applicant by the informant. Learned counsel for the applicant has also relied upon the judgements in the cases of Arnesh Kumar vs State of Bihar and another, (2014) 8 SCC 273; Joginder Kumar vs State of U.P. and others (1994) 4 SCC 260 and Sanaul Haque vs State of U.P. and another, 2008 Cri. LJ 1998, to buttress his contentions.
(9) In this backdrop of legal as well as factual proposition, learned counsel for the applicant has submitted that the applicant is named in the FIR lodged by Jagat Pal against the sole accused person with the allegation that the applicant has enticed away his minor daughter of 14 years to some unknown place on 30.04.2021. The next contention is that both of them are in the dense affair with each other and eventually they have got married. Annexure-4 is the Marriage Certificate issued by Arya Samaj, Krishna Nagar, Prayagraj dated 15.06.2021. The next submission is that both of them are comfortably residing as husband and wife till date. In order to establish the age, the applicant has affixed the Aadhar Card of the victim by which it has been culled out that she is major who on her own volition and accord, has joined the company of the applicant and is residing as her legally wedded wife.
(10) On making an inquiry by the Court, it has been contended that the victim's 164 Cr.P.C. statement was not not recorded nor any documentary proof of her age is on record. Consequently, it is directed that the attendance of the girl Km. Khushboo be ensured by the applicant before the concerned Magistrate on or before 21.08.2021 so as to record her independent statement under section 164 Cr.P.C.
(11) The Superintendent of Police, Fatehpur is directed to ensure the safety and security of the girl(victim) so that she may express herself before the Magistrate independently and with free mind, without any threats or allurements. Thereafter, the Chief Judicial Magistrate, Fatehpur would organize and arrangements with the Chief Medical Officer to have victim's ossification test and victims's expected/probable age on the date of incident. If it is found that she is major girl or borderline case even, then giving the benefit of one year either ways coupled with the fact her 164 Cr.P.C. statement, a suitable order be passed by learned concerned Magistrate about her future. All these exercise has to be conducted on or before 21.08.2021.
(12) Till the conclusion of the aforesaid exercise i.e. recording of the statement under section 164 Cr.P.C and her ossification test, the applicant shall not be arrested.
(13) If it is found that she is minor girl, or she gives her statement under section 164 Cr.P.C. against the applicant then it is open for the police to take suitable action as per provisions of law against the applicant.
(13) With the aforesaid observations, the present anticipatory bail application stands disposed of.
(14) Let the copy of this order be produced by the applicant before the Superintendent of Police, Fatehpur/the Chief Judicial Magistrate, Fatehpur for its compliance within five days from today.
Order Date :- 30.7.2021 Sumit S
Digitally signed by Justice Rahul Chaturvedi Date: 2021.07.31 14:29:16 IST Reason: Document Owner Location: High Court of Judicature at Allahabad