Allowed

Hemant Kaushik Alias Tinku v. State of U.P. and Another

Allahabad HC3 Aug 2022ABAIL/6970/2022

Case brief

AI extract

What is this about?

The Single Judge allowed an anticipatory bail application filed by Hemant Kaushik Alias Tinku accused of rape (Section 376 IPC) and related offences. The court held that the applicant deserves release, subject to furnishing a bond and complying with specific conditions regarding police interrogation, non-interference with witnesses, and cooperation during investigation and trial.

What did the court decide?

Anticipatory bail allowed on personal bond of Rs. 70,000 with two sureties each, subject to conditions to appear for interrogation, not tamper with evidence/witnesses, and cooperate in trial.

Hemant Kaushik Alias Tinku Vs State of U.P. and… — Criminal Trial and Appeal | Allahabad HC (2022)

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Court No. - 75

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Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 6970 of 2022

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Applicant :- Hemant Kaushik Alias Tinku Opposite Party :- State of U.P. and Another Counsel for Applicant :- Shishir Tandon Counsel for Opposite Party :- G.A.,Rajneesh Pratap Singh

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Hon'ble Raj Beer Singh,J.

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Heard G.S. Chaturvedi, learned Senior Counsel assisted by Sri Shishir Tandon, learned counsel for the applicant, Sri Rajneesh Pratap Singh, learned counsel for the complainant, learned A.G.A. for the State and perused the record.

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The present application has been moved seeking anticipatory bail in Session Trial No. 197 of 2017 (State of U.P. vs. Hemant Kaushik), Case Crime No. 02 of 2017, under Section 376 IPC, P.S. Rabupura, District Gautam Budh Nagar, with the prayer that in the event of arrest, applicant may be released on bail.

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It has been argued by the learned Senior counsel for the applicant that applicant is innocent and he has an apprehension that he may be arrested in the abovementioned case, whereas there is no credible evidence against him. It has further been submitted that applicant has no criminal antecedents. The first information report of this case was lodged against one Rahul, Amit, Robin and Saurabh after one week of the incident regarding alleged kidnapping of the daughter of the complainant. The applicant is a resident of the same village but applicant was not named in the first information report. Learned Senior counsel submitted that during investigation, applicant was falsely implicated on the basis of some call details record and thereafter alleged recovery of dead body of deceased was falsely shown at the instance of applicant and that during investigation all the above stated named co-accused persons were exonerated and after investigation applicant was charge-sheeted for offences under Sections 364, 302, 201 IPC. However, later on applicant was granted regular bail for said offences under Sections 364, 302, 201 IPC. It was submitted that after framing of the charges, while the trial of the case was going on, the FSL report was received,

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wherein it was mentioned that spermatozoa have been found in the swab of deceased, which was earlier sent for FSL, and on the basis of that report, the trial Court summoned the applicant for offences under Section 376 IPC also. The applicant has approached the court below for anticipatory bail for offence under Section 376 IPC but it has been rejected by order dated 18.07.2022. Learned Senior Counsel submitted that applicant was already on bail for offences under Sections 364, 302, 201 IPC and he is being summoned for offence under Section 376 IPC during trial merely on the basis of FSL report and applicant has never misused the liberty of bail granted to him by this Court. It is further submitted that in case the applicant is granted bail he shall not misuse the liberty of bail and would cooperate during trial. The applicant undertakes to co-operate during investigation and trial and he would appear as and when required by the investigating agency or Court. It has been stated that in case, the applicant is granted anticipatory bail, he shall not misuse the liberty of bail and will cooperate during investigation and would obey all conditions of bail.

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Learned A.G.A. and learned counsel for the complainant have opposed the application for anticipatory bail. Learned counsel for the complainant submitted that during investigation, the involvement of applicant was found. After postmortem report of deceased, her swab was sent to FSL for examination and during trial FSL report was received, wherein, it was shown that there were spermatozoa in the vaginal swab of deceased and thus, it is clear that deceased was subjected to sexual assault and thus, no case for anticipatory bail is made out.

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In the present matter, it is not disputed that first information report of this case was lodged by the complainant after seven days of incident regarding kidnapping of his daughter (deceased) against four named persons and the complainant has claimed himself to be an eye-witness of kidnapping of his daughter. The applicant was not named in the first information report. Even in the statement of complainant under Section 161 Cr.P.C., applicant was not named. The involvement of applicant was shown during investigation on the basis of some call details record and that recovery of dead body was shown at

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the instance of applicant. During investigation, named accused persons were exonerated and charge-sheet was filed against applicant under Section 364, 302, 201 IPC and later on applicant was granted bail for offences under Section 364, 302 and 201 IPC by this Court vide order dated 25.05.2017, passed in Criminal Misc. Bail Application No. 14681 of 2017 and thereafter during trial, on the basis of FSL report, applicant is being summoned for offence under Section 376 IPC. There is no such allegation that applicant has misused the liberty of bail granted by this Court earlier.

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It may be stated that in case of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 , it has been held by Hon'ble Supreme Court that while deciding anticipatory bail, Court must consider nature and gravity of accusation, antecedent of accused, possibility of accused to flee from justice and that Court must evaluate entire available material against the accused carefully and that the exact role of the accused has also to be taken into consideration.

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In the instant case, considering the settled principles of law regarding anticipatory bail, submissions of the learned counsel for the parties, nature of evidence shown against the applicant and all attending facts and circumstances of the case, without expressing any opinion on merit of the case, the applicant deserves to be released on bail.

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The anticipatory bail application is allowed.

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In the event of arrest of the applicant- Hemant Kaushik Alias Tinku in the aforesaid case crime, he shall be released on anticipatory bail on his furnishing a personal bond of Rs. 70,000/- with two sureties each in the like amount to the satisfaction of the Station House Officer of the police station concerned/Court below concerned with the following conditions :-

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(i) the applicant shall make himself available for interrogation by the police 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

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him/her/them from disclosing such facts to the Court or to any police officer;

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(iii) the applicant would co-operate during investigation and trial and would not misuse the liberty of bail.

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In default of any of the conditions, the Investigating Officer/prosecution shall be at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicant.

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Order Date :- 3.8.2022 A. Tripathi

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Digitally signed by AKHILESH TRIPATHI Date: 2022.08.05 15:22:28 IST Reason: Location: High Court of Judicature at Allahabad

Hemant Kaushik Alias Tinku v. State of U.P. and Another

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Hemant Kaushik Alias Tinku v. State of U.P. and Another

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