This judgment dismisses an anticipatory bail application filed by Bhudev under Section 438 Cr.P.C. in a rape case involving a 17-year-old victim. The court, noting the applicant's presence during the incident and pending investigation, rejected the prayer by Additional District and Sessions Judge.
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Court No. - 47
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 4056 of 2022
Applicant :- Bhudev Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Ram Prakash Dwivedi Counsel for Opposite Party :- G.A.,Vijay Tripathi
Hon'ble Sanjay Kumar Pachori,J.
Heard Sri Ram Prakash Dwivedi, learned counsel for the applicant, Sri Vijay Tripathi, learned counsel for the first informant and Sri M.K Dwivedi, learned A.G.A. for the State and perused the material on record.
The present bail application has been filed on behalf of applicant Bhudev under Section 438 of the Code of Criminal Procedure, with a prayer to release him on anticipatory bail in Case Crime No. 133 of 2022 for offence punishable under Section 376, 328, 120B of the Indian Penal Code and Section 3/4 Protection of Children from Sexual offences Act 2012 and Section 3(2) (v) SC/ST Act, registered at Police StationMalpura, District- Agra till the conclusion of trial after rejecting the anticipatory bail application of the applicant by Additional District and Sessions Judge, Court no. 29, Agra vide order dated 22.04.2022.
Brief facts of the case are that first information dated 18.03.2022 at 10:18 hours has been lodged by the victim against the applicant and two other named persons stating therein that on 17.03.2022 at 6:30 P.M she was going to her field for plucking the wheat plant for roast the wheat for the occasion of Holi, when she reached near transformer coaccused Kanha and Nandi were standing there and the applicant was following her. Co-accused Kanha forced her to take chocolate after consuming the same she became unconscious, when she regained consciousness she found herself lying in the field without any clothes on her body and the applicant and coaccused committed rape with her. The applicant and other two co-accused are from Jat community. She saw Kanha standing there, the applicant is related to scheduled caste. The age of the victim is 17 years at the time of incident.
After lodging of the first information report, the statement of the victim was recorded under Section 161 of Cr.P.C. on 18.03.2022; medical examination of the victim was also conducted on 18.03.2022; the statement of the victim was
recorded under Section 164 Cr.P.C. on 25.03.2022. During medical examination clothes (salwar) of the victim has been collected for forensic laboratory report and supplementary medical report is awaited. After recording the statements other prosecution witnesses under Section 161 of Cr.P.C., the Investigating Officer has submitted charge-sheet against two persons-co-accused Kanha and Nandi @ Naresh. Investigation is pending against the applicant.
Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. It is further argued that due to village party bandi applicant has been falsely implicated in the present case. It is further argued that the victim was 20 years old at the time of incident. The applicant has not committed any offence. Role of mere presence at the place of incident has been assigned by the prosecution against the applicant. No case is made out against the applicant, therefore, case under Section SC/ST Act also not made out. Learned counsel for the applicant relied on the judgement of Apex Court in Prithiviraj Chauhan Vs. Union of India and others reported in AIR 2020 SC (1036).
It is further submitted that the applicant is no more required for custodial interrogation. The applicant has no criminal history and he has not undergone any imprisonment after conviction by any court of law in relation to any cognizable offence previously. It is further contended that the applicant is ready to participate in the investigation.
Learned A.G.A. as well as learned counsel for first informant has opposed the prayer for anticipatory bail of the applicant and supported the order of the court below and submitted that offence is made out against the applicant. As per the statement of the victim the applicant was present at the time of incident when she was unconscious after taking the chocolate. The applicant and other co-accused persons committed rape with her. F.S.L report as well as supplementary medical report is awaited
In view of the above facts and circumstances case is made out against the applicant.
Accordingly, anticipatory bail application of the applicant Bhudev is hereby rejected .
Order Date :- 6.6.2022 PS
Digitally signed by POOJA SHARMA Date: 2022.06.09 18:11:47 IST Reason: Location: High Court of Judicature at Allahabad
3 issues framed by the court
Whether anticipatory bail should be granted to the applicant Bhudev in a rape case involving minimum age of 17 years.
Whether the applicant's role as a mere presence justifies rejection of the anticipatory bail application.
Whether a case under the SC/ST Act is made out against the applicant.
Colour shows how this judgement treated each authority
Prithiviraj Chauhan Vs. Union of India and othersReferred¶10
Prithiviraj Chauhan Vs. Union of India and others reported in AIR 2020 SC (1036) · Who else cites this
4 provisions across 4 enactments
Bhudev
State Of U.P.
Kanha
Nandi
Sanjay Kumar Pachori
As recorded by the court registry
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