Partly allowed

Deepak Sonkar and 2 Other v. State of U.P.

Allahabad HC16 Jul 2021ABAIL/9067/2021

Case brief

AI extract

What is this about?

Court allowed anticipatory bail for two applicants facing matrimonial offenses including IPC 377, holding they had no antecedents. Third applicant, the husband specifically accused of sodomy, was denied bail as allegations against him were solely on record.

What did the court decide?

Bail allowed for applicants 1 and 2 on personal bond of Rs. 50,000 with conditions; application rejected for applicant 3.

Deepak Sonkar and 2 Other Vs State of U.P. — Matrimonial and Divorce | Allahabad HC (2021)

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Court No. - 67

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Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 9067 of 2021

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Applicant :- Deepak Sonkar And 2 Other Opposite Party :- State of U.P. Counsel for Applicant :- Lakshman Tripathi Counsel for Opposite Party :- G.A.

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Hon'ble Rahul Chaturvedi,J.

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(1) Heard learned counsel for the applicants and learned A.G.A. Perused the record.

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(2) The instant application is being moved by the applicants namely, Deepak Sonkar(devar), Gulab Chandra Sonkar(fatherin-law) and Karan Sonkar(husband) invoking the powers of Section 438 Cr.P.C. apprehending their arrest in connection with Case Crime no.0669 of 2020, under Sections 498A, 323, 504, 506, 354, 377 I.P.C. and Section 3/4 of D.P. Act, Police Station-Bhelupur, District-Varanasi.

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(3) From the record it is evident that the applicants have approached this Court straightaway without getting their anticipatory bail rejected from the Court of Session.

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(4) Learned counsel for the applicants has drawn attention of the Court to Clause-7 of Section 438 Cr.P.C. (U.P. Act No.4 of 2021), which read thus :

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" (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. "

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After interpreting the aforesaid clause it is clear that the Legislature in its wisdom bestowed two avenues open for the accused. 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.

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(5) 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.

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(6) It has been contended by the learned counsel for the applicants that the applicants have got no criminal antecedents and they have 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 applicants on behalf of the applicants that they 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.

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(7) Learned counsel for the applicants has strenuously argued that the applicants have been made target just to besmirch their reputation and belittle him in the public estimate by the informant. Number of arguments were advanced by learned counsel for the applicants to demonstrate the falsity of the accusation made in the FIR against the applicants by the informant. Learned counsel for the applicants 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.

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(8) In the case of Arnesh Kumar ( supra ) Hon'ble Apex Court has opined that the pith and core is that the police officer before arrest must put questions to himself, Why arrest?, Is it really required?, What purpose it will serve? What object it will achieve? If it is only after these questions are addressed and one or other conditions, as enumerated above, are satisfied, the power of arrest needs to be exercised. Before the arrest the police office should have a reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to satisfy further that the arrest is necessary for one or more purposes envisaged in sub-clauses (a) to (e) to Clause-1 of Section 438 Cr.P.C.

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(9) In this backdrop of legal proposition, learned counsel for the applicants has submitted that the allegations made in the FIR are mostly of matrimonial discord between the husband and wife. There is specific allegation of sodomy against the husband.

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(10) Per contra, learned A.G.A. has vehemently opposed the anticipatory bail application by mentioning that though the applicants have got no criminal antecedents but there is nothing on record to satisfy that the police personnel are after the applicants to arrest them. The alleged apprehension on behalf of applicants is imaginary and unfounded one. Learned A.G.A. has

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also submitted that in view of the seriousness of the allegations made in the F.I.R., the applicants are not entitled for any relaxation from this Court.

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(11) After considering the record of the case as available before the Court, in the light of rival submissions made at the Bar and keeping in view the nature and gravity of the accusation, antecedents of the applicants, their undertaking to make themselves available to the authorities whenever required, the Court feels satisfied that it would be expedient to grant an order of anticipatory bail in favour of the applicant nos.1 and 2. Thus instant Anticipatory Bail stands ALLOWED with regard to applicant no.1-Deepak Sonkar and applicant no.2-Gulab Chandra Sonkar .

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(12) Without expressing any opinion upon ultimate merits of the case either ways which may be adversely affect the investigation and subsequent stage of the case, the Court directs that in the event of arrest of the applicants in aforesaid case crime, they shall be released on bail on furnishing a personal bond of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the Arresting Officer with the conditions that :

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(i) The applicants shall make themselves available for the interrogation by the police as and when required. The Investigating Officer of the case would give 48 hours prior notice or telephonically inform the concerned accusedapplicant to remain available to him for the purposes of interrogation and the accused-applicants are obliged to abide by such directions.

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(ii) The applicants shall not directly or indirectly make any inducement, threats or comments to any person acquainted with the facts of the case so as to dissuade him from disclosing the correct facts to the court or to the police officer.

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(iii) The Investigating Officer of the case would make all necessary endeavour to gear up the investigation in utmost transparent and professional way and would try to conclude the same within a maximum period of 90 days. During this period the accused-applicants would not leave the State of Uttar Pradesh without informing the Investigating Officer of the case and sharing his contact number.

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(iv) In the event the applicants are having their passports, they will have to surrender the same before the concerned SP/SSP of the District till the submission of report u/s 173(2) Cr.P.C.

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(13) In the event, the applicants breach or attempt to breach any

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of the aforesaid conditions or wilfully violate above conditions or abstains themselves from the investigation, it would be open for the Investigating Officer or the concerned authority to apply before the court of Session for cancellation of bail and the Court of Session has every liberty and freedom to revoke the anticipatory bail after recording the reasons for the same.

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(14) Keeping in view that the entire allegation is solely upon the applicant no.3(husband), thus, giving a panoramic view of the matter, the Court is not inclined to exercise its powers in favour of the applicant no.3, and thus the present anticipatory bail application is hereby rejected with regard to applicant no.3 - Karan Sonkar .

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Order Date :- 16.7.2021 Sumit S

Deepak Sonkar and 2 Other v. State of U.P.

Case brief

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Deepak Sonkar and 2 Other v. State of U.P.

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