Dismissed

Satjinder Singh v. State of U.P. Thru. Prin. Secy. (Home) Lko. and Another

Allahabad HC20 Oct 2022/464/2022

Case brief

AI extract

What is this about?

The court dismissed an anticipatory bail application as infructuous because the relief sought was limited to bail pending investigation, which had already been granted. The court held that Section 438 Cr.P.C. does not protect liberty after a charge-sheet is filed, and further relief requires a specific prayer.

What did the court decide?

The application was dismissed as infructuous; no relief was granted to extend or alter the existing bail.

Satjinder Singh Vs State of U.P. Thru. Prin. Secy… — Anticipatory Bail | Allahabad HC (2022)

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Court No. - 13

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Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 464 of 2022

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Applicant :- Satjinder Singh Opposite Party :- State Of U.P. Thru. Prin. Secy. (Home) Lko. And Another Counsel for Applicant :- Ramakar Shukla Counsel for Opposite Party :- G.A.,Ashutosh Singh,Ravi Prakash Mishra,Suresh Kumar Upadhyay,Sushil Kumar Singh,Vivek Kumar Pandey

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Hon'ble Rajesh Singh Chauhan,J.

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Heard Sri Ramakar Shukla, learned counsel for the applicant, Sri Arvind Kumar Tripathi, learned AGA for the State and Sri Ashutosh Singh, learned counsel for the informant / complainant.

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This Court has passed order dated 12.10.2022 which reads as under :

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"Heard Sri Ramakar Shukla, learned counsel for the applicant, Ms. Shikha Sinha, learned AGA for the State and Sri Sushil Kumar Singh, learned counsel for the informant/ complainant.

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Learned counsel for the applicant has filed rejoinder affidavits, the same are taken on record.

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In this case, the present applicant has been granted interim anticipatory bail on 25.03.2022, which reads as under:-

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"Heard Sri Ramakar Shukla, learned counsel for the applicant, Sri D.P. Singh, Advocate assisted by Sri Vinod Kumar Pandey, learned counsel for the first informant, learned AGA for the State and perused the material available on record.

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The present anticipatory bail application has been filed on behalf of the applicant in FIR No.165 of 2022, under Section 376 IPC, Police Station Kotwali Nagar, District Sultanpur, with a prayer to enlarge him on anticipatory bail.

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As per prosecution story, the applicant is stated to have sexually exploited the daughter of the first informant for the last four years on the promise of marrying her. He even again abducted her on 27.01.2022 at 4:00 am from her house and molested her again for six days and then he is stated to have sent her back to her house on a promise to come to marry her on 21.02.2022. But he did not turn up on the date he promised to marry the victim. The FIR was lodged on 21.02.2022 at about 23:40 hours.

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Learned counsel for the applicant has stated that no offence is made out against the applicant. The matter pertains to consensual sexual relationship and he has been implicated just to tarnish his reputation. Learned counsel for the applicant undertakes that he will cooperate in the investigation failing which the State can move appropriate application for vacation of the interim protection.

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Sri D.P. Singh, learned counsel for the first informant and learned A.G.A. have vehemently opposed the prayer for grant of anticipatory bail application on the ground that the applicant even has abducted the girl and kept her as a captive in OYO room for six long days and had released her after promising to marry her

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and has not kept his promise as such.

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Matter requires consideration.

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Learned AGA is granted three weeks' time to file counter affidavit. Rejoinder affidavit, if any, may be filed within a week thereafter.

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List this case on 25.04.2022 in the additional cause list.

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On due consideration to the arguments advance by learned counsel for the applicant as well as learned A.G.A. and considering the nature of accusations and antecedents of the applicant, the applicant, as an interim measure, is liable to be enlarged on anticipatory bail in view of the Constitution Bench judgment of Supreme Court in the case of "Sushila Aggarwal Vs. State (NCT of Delhi)-2020 SCC online SC 98". The future contingencies regarding the anticipatory bail being granted to applicant shall also be taken care of as per the aforesaid judgment of the Apex Court.

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In the event of arrest, the accused-applicant- Satjinder Singh shall be released forthwith in the aforesaid case crime (supra) on interim anticipatory bail on furnishing a personal bond of Rs.50,000/- 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:-

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(i) the applicant shall make himself available for interrogation as and when required;

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(ii) the 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

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(iii) the applicant shall not leave India without the previous permission of the Court.

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It is made clear that observations made hereinabove are exclusively for deciding the instant anticipatory bail application and shall not affect the trial or deciding the regular bail application."

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Sri Sushil Kumar Singh has drawn attention of this Court towards Annexure No.2 of the application, which are the photographs of the applicant and the prosecutrix wherein it appears that both the persons are in love affair. Sri Sushil Kumar Singh has submitted that the present applicant, on the pretext of promise of marriage, has exploited the prosecutrix and established physical relation with her for couple of times. Even the applicant promised the prosecutrix that on particular date, he along with his family members shall come to her house to marry with her. However, when the prosecutrix and her family members have requested for marriage, the applicant and his family members have denied.

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On being confronted Sri Ramakar Shukla, learned counsel for the applicant as to whether the applicant is agreeable to marry with the prosecutrix, he has submitted that he has no instructions on that point, therefore, he may be granted some time to seek specific instructions on that point.

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The same query has been put to Sri Sushil Kumar Singh as to whether the prosecutrix is agreeable to marry with the applicant, Sri Singh has submitted on the basis of instructions that the girl is agreeable to marry with the present applicant and her family members have no objection on that.

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Since both the counsels are giving their statement on the basis of instructions as neither the applicant nor any family member of the prosecutrix is present in the Court, therefore, I hereby fix the date for appearance of the present applicant and the prosecutrix along with her mother to apprise the Court as to whether marriage of the applicant with the prosecutrix is possible or not.

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List on 20.10.2022.

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This case shall be taken up at 12:45 PM sharp. Learned counsel for the parties shall apprise the date to the parties. On that date, the case shall not be adjourned and if any adjournment is sought on the next date, the matter may be disposed of finally on the basis of material available on record and the arguments so advanced by the learned counsel for the parties."

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In compliance of the aforesaid order the applicant and the prosecutrix along with her mother are present.

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On being confronted from applicant as to whether he is agreeable to marry with the prosecutrix, he has stated that he and his family members are not agreeable. He has further submitted, by referring para 14 of the application that he and prosecutrix have been a good friend and he never developed any physical relation with her. He has also submitted that while filing counter affidavit by the learned counsel for the complainant / informant the aforesaid contents of the application has not been denied, rather it has been stated in para 15 of the counter affidavit that the contents of para 14 of the application need no comments. On the contrary, the prosecutrix / victim has stated in the presence of her mother that she was agreeable for marriage and she is still agreeable for marriage with the applicant. The mother of the victim has also stated that her family members have no objection if the applicant and her daughter get married.

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So as to adjudicate the controversy in question, I would deal the facts and circumstances of the issue in question in brief.

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The present applicant is apprehending his arrest in Case Crime F.I.R. No. 165 of 2022 u/s 376 IPC, P.S. Kotwali Nagar, District Sultanpur.

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In the aforesaid crime case the liberty of the present applicant was protected vide interim Anticipatory Bail order dated 25.3.2022 (supra). Undisputedly, the aforesaid protection was granted before filing of the charge-sheet. After completion of the investigation the charge-sheet was prepared on 29.3.2022 (supra), put up before the learned trial couret on 4.4.2022 and learned trial court took cognizance of the aforesaid charge-sheet on 6.4.2022 issuing summon to the applicant. The aforesaid charge-sheet has been enclosed as Annexure no. C.A.-1 with the counter affidavit of the complainant / informant who is mother of the prosecutrix. As per aforesaid counter affidavit when the prosecutrix had gone to the learned trial court along with her mother to do pairvi, the present applicant threatened her for dire

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consequences and pressurized her to withdraw the F.I.R., therefore, a F.I.R. was lodged against the applicant bearing Case Crime No. 698 of 2022 u/s 504 / 506 IPC, P.S. Kotwali Nagar, District Sultanpur as the copy of the aforesaid F.I.R. dated 3.7.2022 has been filed as Annexure no. C.A.-2.

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One supplementary counter affidavit was filed by the complainant on 6.9.2022 enclosing therewith the copy of the statement of the prosecutrix / victim u/s 161 Cr.P.C. (SCA-1), u/s 164 Cr.P.C. (SCA-2) and statement of the Manager of one hotel namely, Anil Kumar Singh where the present applicant stayed with the prosecutrix from 27.1.2022 to 28.1.2022 (Annexure no. SCA-3).

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Learned counsel for the complainant / informant drawn attention of this Court towards the statement of the prosecutrix / victim recorded u/s 161 Cr.P.C. wherein the prosecutrix / victim has leveled specific allegation of rape against the application on the pretext of marriage. In her statement recorded u/s 161 Cr.P.C. the prosecutrix / victim has clearly stated that once the applicant apprised the date of marriage as 21.2.2022 ensuring her that on that date they will be married and the applicant will take the prosecutrix / victim in his home along with his family members but nothing happened on that date i.e. 21.2.2022. However, on the aforesaid false promise of marriage he kept on raping her. The applicant took her to one hotel on 27.1.2022 and remained there till 28.1.2022 and established physical relation with her during that period. The statement of Manager of said hotel namely, Anil Kumar Singh has also been enclosed as SCA-3 wherein he has stated on the basis of hotel records showing the entry register of the hotel dated 27.1.2022 at page no. 5/6 that Satjinder Singh (petitioner) and Ms. X Patel (name has been concealed) were checked in on 27.1.2022 in the said hotel in Room No. 206 at about 9.00 P.M. and remained there till 28.1.2022. Both the persons had given their required I.D. proofs. Said Manager has apprised the Investigating Officer that both the persons stayed in hotel willingly.

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Sri Ramakar Shukla, learned counsel for the applicant has reiterated that the present petitioner has not made any false promise of marriage. He has never established any physical relation with her, however, both were good friends. He has further submitted that taking advantage of said friendship relation the prosecutrix and her family members are compelling the petitioner to get married with

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her, however, the family members of the applicant are not agreeable as both are not belonging to the same caste inasmuch as the present petitioner is 'Sikh' by religion whereas the prosecutrix is 'Hindu' (Patel) by religion. Since both the persons are belonging to different religion, therefore, this marriage could have not taken place. He again reiterated the contents of para 14 of the application wherein the specific recital has been given that the petitioner has never established physical relation with the prosecutrix and has also drawn attention of this Court towards para 15 of the counter affidavit of the mother of the prosecutrix wherein the contents of para 14 have not been denied. Therefore, to sum up his arguments Sri Shukla has submitted that the present applicant has been falsely implicated and has not committed any offence as alleged, therefore, the instant application may be allowed. In support of his aforesaid contention Sri Shukla relied on the following dictum of Apex Court :

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1. Tilak Raj vs. State of Himachal Pradesh (2016 4 Supreme Court Cases 140;

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2. Maheshwar Tigga vs. State of Jharkhand (2020) 10 Supreme Court Cases 108;

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3. Sonu @ Subhash Kumar vs. State of Uttar Pradesh & Anr. 2021 LawSuit(SC) 163

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Heard learned counsel for the parties and perused the material available on record.

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At the very outset it would be appropriate to reproduce the prayer of this application which reads as under :

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"For the facts, reasons and circumstances as stated in the accompanying affidavit, it is most respectfully prayed that this Hon'ble Court may kindly be pleased to direct the Station Officer, Police Station Kotwali Nagar, District Sultanpur, in event of arrest in FIR No. 165 /2022, Under Section 376 IPC, Police Station Kotwali Nagar, District Sultanpur shall release the applicant / accused on bail in the interest of justice."

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In view of the aforesaid prayer the petitioner has prayed that in case of his arrest the Station Officer of Police Station concerned be directed to release him on bail in the aforesaid crime case. It has not been prayed that the present applicant may be granted anticipatory bail till conclusion of the trial. Since the application was filed when the investigation was going on, therefore, no such prayer must have been prayed by the applicant. As a

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matter of fact the aforesaid prayer was allowed vide interim anticipatory bail order dated 25.3.2022 (supra). Admittedly, the charge-sheet has been filed later on and the learned trial court took cognizance of said chargesheet and issued summon to the present applicant.

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The law is trite on the point that the Court can grant only that relief which has been prayed and no relief can be granted beyond the relief prayed in the petition / application. Besides, in the present case even this much has not been prayed that this Court may grant any other relief looking into the facts and circumstances of the issue in question, therefore, after filing of the charge-sheet and issuing summon against the applicant no relief can be granted protecting the liberty of the applicant till conclusion of trial as no such relief has been prayed.

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Therefore, this application is liable to be dismissed on the aforesaid reason alone as this application has been rendered infructuous.

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So far as the submission of Sri Shukla to the effect that in para 14 of the application the applicant has categorically indicated that he has never established any physical relation with the prosecutrix on the false promise of marriage and they were only good friends; the same has not been disputed by the complainant / informant who is mother of the victim in her counter affidavit is concerned, I am of the concerned opinion that on the basis of nondenial of the statement of the applicant for not establishing any physical relation with the prosecutrix on false promise of marriage in an affidavit filed by the mother of the prosecutrix would not dilute the allegation so leveled in the F.I.R. in view of the fact that the prosecutrix has recorded her statement u/s 161 and 164 Cr.P.C. supporting the prosecution case / allegations of the F.I.R. Further, after conclusion of the investigation, when the charge-sheet has been filed against the present applicant u/s 376 IPC, the veracity of the charges as per charge-sheet may not be tested / examined u/s 438 Cr.P.C. inasmuch as the appropriate remedy for challenging the charge-sheet would be by filing an application u/s 482 Cr.P.C. or any other legal recourse may be adopted which are permissible under the law. It appears that while concluding the investigation the Investigating Officer must have collected credible evidences against the applicant and must have considered the statements of other persons including the statement of Manager of the hotel (supra).

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It is made clear that I am in full agreement with the dictums of Apex Court in re: Tilak Raj vs. State of Himachal Pradesh (supra), Maheshwar Tigga vs. State of Jharkhand (supra) and Sonu @ Subhash Kumar vs. State of Uttar Pradesh & Anr. (supra) , so cited by Sri Shukla but the facts and circumstances of the present case are different from the cases so dealt by the Hon'ble Apex Court inasmuch as in the present case the applicant has only prayed his protection till completion of the investigation, he has not prayed any other relief, charge-sheet has been filed against the present applicant u/s 376 IPC after the interim anticipatory bail is granted to him, the charge-sheet cannot be quashed u/s 438 Cr.P.C. and practically this application has been rendered infructuous for the reason that relief prayed by the applicant has already been granted to him inasmuch as he has not been arrested during investigation or till filing of the charge-sheet, therefore, the benefit of aforesaid dictums of Apex Court may not be granted to the applicant.

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In view of what has been considered above, I am not inclined to grant anticipatory bail to the applicant till conclusion of the trial as no such prayer has been prayed in the application.

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Accordingly, the application is dismissed being infructuous . However, it is always open for the petitioner to take appropriate legal recourse which is permissible under the law.

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No order as to costs.

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(Rajesh Singh Chauhan. J.)

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Order Date :- 20.10.2022 Om

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Digitally signed by OM PRAKASH MISHRA Date: 2022.11.09 18:57:26 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Satjinder Singh v. State of U.P. Thru. Prin. Secy. (Home) Lko. and Another

Case brief

What is this about?

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Satjinder Singh v. State of U.P. Thru. Prin. Secy. (Home) Lko. and Another

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