Monday, December 4, 2023

Allahabad High Court rejects the anticipatory bail application to rape accused

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The Allahabad High Court has rejected the anticipatory bail application of an accused who was alleged of raping and having illicit relations with a minor daughter and her mother by threatening to blackmail by certain unsolicited video clips.

A Single Bench of Justice Saurabh Shyam Shamshery passed this order while hearing a Criminal Misc anticipatory bail application under Sections 438 Cr.P.C filed by Yogendra Kumar Mishra.

Applicant-Yogendra Kumar Mishra has approached the Court by way of filing the Criminal Misc Anticipatory Bail Application under Section 438 Cr.P.C after rejection of his anticipatory bail application order dated 30.11.2021 passed by Additional District and Additional District and Sessions Judge/Special Judge (POCSO Act), Allahabad, seeking Anticipatory Bail in Case Crime under Sections 376, 506, 328 IPC, 3/4 POCSO Act and 67 I.T Act, Police Station Kotwali, District Prayagraj.

Anil Tiwari, Senior Advocate has vehemently argued that it is a fit case for anticipatory bail. Undisputedly the applicant is a married person having a wife and son whereas Opposite Party No 2 (Informant) along with her daughter (a minor girl and victim) are living separately from her husband. The Informant is a Teacher in a School where the applicant is working as a Class-IV employee in the same school. It is an admitted case that the applicant has a consensual relationship with Informant and Informant and her daughter are staying with him. There are cordial relationships with the son of applicant with the daughter of First Informant as brother and sister. In support of this submission Senior Advocate has relied on the photographs and whatsapp chat history which are part of record.

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Senior Advocate also submitted that their relations were very cordial and he has purchased land in his name as well as in the name of Opposite Party No 2 and an agreement to sell is also on record. The relationship became strained when the First Informant, though not legally divorced, insisted the applicant get married which was not possible for the applicant because he is a married person. In these circumstances, the applicant withdrew the money deposited towards agreement to sell.

All these circumstances made the First Informant annoyed and, therefore, a false FIR was lodged wherein false allegation of rape against applicant, not only with First Informant but with her minor daughter, was levelled. All the alleged incidents mentioned in FIR are very old. So far the allegation of rape with minor daughter is concerned, it is the case of First Informant that applicant himself communicated to her about the incident, therefore, considering that it is absolutely improbable, a case of anticipatory bail is made out.

Senior Advocate has also submitted that after the Trial Court rejected applicant’s anticipatory bail, not only non-bailable warrant was issued against applicant but proceedings were also initiated under Sections 82 and 83 Cr.P.C.

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Munne Lal, A.G.A appearing for State and Subhash Chandra Tiwari, Advocate appearing for Opposite Party No 2, have vehemently opposed the aforesaid submissions. They submitted that First Informant as well as her minor daughter have made a categorical statement against applicant in their statements recorded under Section 164 Cr.P.C that they were raped on multiple times taking benefit of their separation and trust imposed by First Informant and her daughter with applicant.

They also submitted that the applicant is not cooperating with the investigation process, therefore, not only a non-bailable warrant was issued but now proceedings under Sections 82 and 83 Cr.P.C have also been initiated against the applicant, therefore, no case for anticipatory bail is made out.

The Court said that, few factors and parameters, which the Court has to consider for exercising discretion for grant or refusal of anticipatory bail are nature and gravity of accusation, exact role of the accused, his or her antecedents, possibility of the accused to flee from justice, likelihood to repeat similar or other offence. Whether accusations are made only with the object of injury and causing humiliation to the accused or case is of large magnitude with possible effect on a large number of people. Greater care and caution is required while considering cases under Section 34 and 149 IPC. Further consideration of threat to complainant and witnesses and tempering of evidence are other relevant factors.

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The Court held that, while considering anticipatory bail application the Court has to strike balance between two factors namely, no prejudice should be caused to the fair and free investigation and accused should not be subjected to harassment, humiliation and unjustified detention. This Court is justified to impose conditions spelt out in Section 437 Cr.P.C and also other restrictive conditions if deemed necessary in the facts and circumstances of a particular case including limit of the anticipatory bail but not in routine manner. An Anticipatory Bail Application has to be based on concrete facts relatable to offence and why the applicant reasonably apprehends his or her arrest, as well as his version of the facts.

Before considering the case of applicant on merit with regard to prayer for anticipatory bail, I have to consider that since there are proceedings initiated against applicant under Sections 82 and 83 Cr.P.C, whether in the facts and circumstances of the case, the applicant is entitled for anticipatory bail or not, the Court further said.

The Court further held that, in the case, Trial Court order dated 10.01.2022 has noted that despite proclamation for applicant being absconder issued under Section 82 Cr.P.C and in this regard publication was also made in newspaper, the applicant remained absconding, therefore, by the said order Trial Court issued order for attachment of property, movable or immovable or both, belongs to proclaimed person, i.e, applicant, under the provisions of Section 83 Cr.P.C. Therefore, the facts and circumstances of present case squarely covered by the judgment passed by Supreme Court in Prem Shankar Prasad (supra).

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At this stage, the Court also deals with the rival submissions made by parties on merit.

“On the basis of records available it appears that applicant first inspired the confidence of victims and when they imposed complete trust on him, not only applicant violated the trust of First Informant but her minor daughter also. The averments made in the statements recorded under Section 164 Cr.P.C also depict that applicant not only raped the First Informant but also raped her minor daughter. There are allegations that the applicant has certain unsolicited video clips also and he has threatened to viral it and blackmailed the victim and her mother.

In view of above discussion the applicant is not entitled for anticipatory bail on the ground that applicant was not only declared proclaimed offender under Section 82 Cr.P.C but proclamation of attachment of property was also issued under Section 83 Cr.P.C and, therefore, as held in Prem Shankar Prasad (supra) applicant is not entitled for anticipatory bail.

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Even otherwise, on merit also, considering the specific averments made under Section 164 Cr.P.C by First Informant as well as her minor daughter, there are very serious allegations against the applicant and, therefore, no case for anticipatory bail is made out on merit also”, the Court observed while rejecting the application.

“However, two weeks’ time is granted to the applicant to surrender before Trial Court and to move an application for bail. In case such an application is filed by applicant, the Trial Court is directed to decide the same expeditiously considering the judgment passed by Supreme Court in Satender Kumar Antil vs Central Bureau of Investigation and another, (2021) 10 SCC 773”

-the order reads.

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