Allowed

Kapil Kumar v. State of U.P. and 3 Others

Allahabad HC5 Dec 2023ABAIL/12118/2023

Case brief

AI extract

What is this about?

The Allahabad High Court allowed an application for anticipatory bail under Section 438 CrPC. Relying on Supreme Court precedents, the court held that bail could continue till the end of the trial, noting the applicant's cooperation and lack of incriminating evidence.

What did the court decide?

Anticipatory bail granted till the end of trial with a personal bond of Rs. 50,000 and two sureties.

Kapil Kumar Vs State of U.P. and 3 Others — Child Sexual Offences (POCSO) | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:230175

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Court No. - 73

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Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 12118 of 2023

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Applicant :- Kapil Kumar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Kuldeep Kumar Counsel for Opposite Party :- G.A.

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Hon'ble Nalin Kumar Srivastava,J.

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This application has been moved on behalf of the applicant Kapil Kumar seeking anticipatory bail in Case Crime No. 321 of 2019, under Sections 354(D), 504, 506 IPC and 11 & 12 POCSO Act, Police Station Syana, District Bulandshahr.

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Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record. However, none is present for the opposite party no.2 despite service of notice.

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It is submitted by the learned counsel for the applicant that applicant is innocent and he has apprehension of arrest in the above-mentioned case, whereas there is no credible evidence against him. Allegations levelled against the applicant are false. It is further submitted that earlier Criminal Misc. Bail Application No. 50336 of 2019 was moved by the present applicant wherein protection was granted to him till submission of police report under Section 173(2) CrPC. vide order dated 18.11.2019. It is further submitted that after completion of investigation, charge sheet has been submitted into the matter and the Court concerned took cognizance of the matter. It is also submitted that for want of prosecution and treating it as infructuous this Court dismissed the said Criminal Misc. Bail Application vide order dated 3.10.2023. It is also submitted that the applicant has been cooperative during investigation and now after submission of charge sheet he is appearing before the Court concerned and taking part in the proceeding of the case. There is no injury report of the victim on record. It is also submitted that in her statement under Section 164 CrPC the prosecutrix has stated that her objectionable photographs were made viral through internet by the present applicant but no incriminating article is available in the case diary. It is also submitted that the applicant has no criminal history to his credit. In case applicant is granted anticipatory bail, he will not misuse

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the liberty of bail and would obey all conditions of bail.

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Learned A.G.A. opposed the prayer for anticipatory bail but has fairly conceded that the applicant has been cooperating with the I.O. of the case and is also cooperating with the trial court and no material has been annexed with the case diary to show that on internet some objectionable photographs of the victim were made viral by the present applicant.

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I have considered the rival submissions made by the learned counsel for the parties.

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It appears that the present applicant used to eve-teasing the minor grand daughter of the informant and F.I.R. was was lodged on 10.10.2019 and investigation started, which culminated into charge sheet. It also reveals that the applicant has been cooperating with the I.O. of the case and is also cooperating with the trial court and no material has been annexed with the case diary to show that on internet some objectionable photographs of the victim were made viral by the present applicant.

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In Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1 , the Hon'ble Apex Court has settled the law on the subject finally by holding that the anticipatory bail need not be of limited duration invariably. In appropriate case, it can continue upto conclusion of trial.

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It has been further held therein that anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial.

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It has been further held by the Hon'ble Apex Court that while considering an application for grant of anticipatory bail, the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence including intimidating witnesses, likelihood of fleeing justice, such as leaving the country, etc. It has further been held that Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion.

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In Aman Preet Singh v. CBI, (2022) 13 SCC 764 , the Hon'ble Apex Court has held that :

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"11. A reading of the aforesaid shows that it is the guiding principle for a Magistrate while exercising powers under Section 170CrPC which had been set out. The Magistrate or the Court empowered to take cognizance or try the accused has to accept the charge-sheet forthwith and proceed in accordance with the procedure laid down under Section 173CrPC. It has been rightly observed that in such a case the Magistrate or the Court is required to invariably issue a process of summons and not warrant of arrest. In case he seeks to exercise the discretion of issuing warrants of arrest, he is required to record the reasons as contemplated under Section 87CrPC that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him. In fact the observations in sub-para (iii) above by the High Court are in the nature of caution.

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Insofar as the present case is concerned and the general principles under Section 170CrPC, the most apposite observations are in sub-para (v) of the High Court judgment in the context of an accused in a non-bailable offence whose custody was not required during the period of investigation. In such a scenario, it is appropriate that the accused is released on bail as the circumstances of his having not been arrested during investigation or not being produced in custody are itself sufficient to entitle him to be released on bail. The rationale has been succinctly set out that if a person has been enlarged and free for many years and has not even been arrested during investigation, to suddenly direct his arrest and to be incarcerated merely because charge-sheet has been filed would be contrary to the governing principles for grant of bail. We could not agree more with this."

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Considering the settled principles of law regarding anticipatory bail, nature of accusation, role of applicant and all attending facts and circumstances of the case, without expressing any opinion on the merits of the case, in my view, it is a fit case for anticipatory bail to the applicant till the end of trial.

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The application is allowed accordingly.

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In the event of arrest of the applicant, he shall be released on anticipatory bail on his furnishing a personal bond of Rs.50,000/with two sureties each in the like amount to the satisfaction of the Court concerned with the following conditions:-

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(i) The applicant shall make himself available before the Court concerned on the date fixed in the matter and will cooperate in the trial.

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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/her from disclosing such facts to the Court or to any police office.

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(iii) The applicant shall not leave India without the previous permission of the Court and if he has passport, the same shall be deposited by him before the S.S.P./S.P. Concerned.

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In case of default of any of the conditions, the same may be a ground for cancellation of protection granted to the applicant.

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Order Date :- 5.12.2023

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safi

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Digitally signed by :- MAHBOOB SAFI High Court of Judicature at Allahabad

Kapil Kumar v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Kapil Kumar v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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