In this criminal miscellaneous anticipatory bail application under Section 438 Cr.P.C., the High Court rejected the prayer. The court noted that although a summon was issued, the applicant refused to accept it and continued to avoid court process despite warrants, providing no ground for granting bail.
The anticipatory bail application is rejected.
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Court No. - 80
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 12211 of 2022
Applicant :- Dr Javed Opposite Party :- State of U.P. and Another Counsel for Applicant :- Anurag Yadav Counsel for Opposite Party :- G.A.,Santosh Kr. Singh Paliwal
Hon'ble Subhash Chandra Sharma,J.
This second anticipatory bail application. The first anticipatory bail application of the applicant was dismissed as not pressed.
Learned counsel for the applicant filed Criminal Misc. Amendment Application regarding name of the applicant Dr. Javed on the place of Gaurav Kumar as deponent and an affidavit has also been given in support of this request which is taken on record.
Heard learned counsel for the applicant as well as learned counsel for the opposite party alongwith learned A.G.A. for the State and perused the material placed on record.
This anticipatory bail application (under section 438 Cr.P.C.) has been moved seeking bail in Complaint Case No.6252 of 2020, under sections 376, 420 I.P.C., Police Station Izzat Nagar, District Bareilly, during the pendency of trial.
Facts in brief are that the opposite party Dr. Khushnuma filed a complaint against this applicant u/s 376, 420 I.P.C. making allegation that in the year 2011 the applicant committed rape with her in the house of one Smt. Manju Mishra. Thereafter, she asked him to marry but he denied by saying that she was handicapped. When she lodged an F.I.R. against the applicant as Crime No.118/2015 u/s 376 I.P.C. then the applicant married with the informant/opposite party and kept her as wife as a result final report was submitted in the case. Later on, the applicant left her and when notice was issued by the court for final report the applicant by making forged signature of the opposite party returned the notice and on the basis of due service of notice final report was accepted before the court concerned. In this way, the applicant got the final report accepted through fraudulent means, so opposite party no.2 filed the present complaint in which statement of the informant/complainant u/s 200 and of other witnesses u/s 202 Cr.P.C. were recorded and summoning was made against which revision was filed before the learned court of session which was
rejected. Thereafter, a writ petition was filed before this Court in which proceedings were stayed but ultimately it was dismissed and the process was issued by the learned court concerned.
It is submitted that in this case the complainant is wife of the applicant and he has committed no rape with her but on account of mutual dispute she already lodged an F.I.R. u/s 498A I.P.C. in which this applicant is on bail and is facing trial. Further submitted that with false allegation the present complaint has been filed by the opposite party against this applicant who is doctor and renowned person. Further submitted that the proceedings of this case were stayed by this Court in Writ Petition No.2228 of 2020 which was filed by the applicant though later on it was dismissed vide order dated 22.09.2022. It is also submitted that for two consecutive events of rape said to be committed in the year 2011 and 2014 in which final report was submitted and again that matter cannot be reagitated. After marriage between the parties establishment of physical relation cannot be said to be amounting to the offence of rape. It is also submitted that this complaint had been filed only for the purpose of making harassment of the applicant and nothing else. He further submitted that this applicant never avoided the process of the court but on account of stay of the proceedings by this Court he did not appear before it but now after issuance of process of the court concerned there is apprehension of arrest against the applicant. In case, the applicant is released on bail, he would not misuse the liberty of bail and would cooperate with the investigation.
Learned counsel for the opposite party as well as learned A.G.A. opposed the prayer for anticipatory bail and urged that in this case the physical relation was established with the complainant by the applicant using force without her consent. When case was got registered in this regard by the opposite party against the applicant then he entered into marriage dishonestly for the purpose of settling the dispute. Thereafter, the complainant agreed to live with him as wife then final report was submitted and again he left her and got the final report accepted in the court by producing false receiving by the opposite party. In this way, the applicant did not act in good faith from the very outset even today he is avoiding the process of the learned trial court though several times summon, B.W. and N.B.W. were issued against him and served on him personally. He has also relied his arguments on the basis of judgment in case of Lavesh vs. State (N.C.T. of Delhi) in Criminal Appeal No.1331 of 2012 decided on 31.08.2012 by the Hon'ble Supreme Court in which it has been observed that where the applicant is declared absconder no anticipatory bail
can be granted in his favour.
Considering the facts and circumstances of the case, submissions made by learned counsel for the parties, perusal of record and without making any comment on the merit of the case, it is to note that in this case the summon was issued by the learned court concerned which was served on the applicant but he refused to accept it. Thereafter, bailable warrant was issued then non-bailable warrant but applicant is avoiding the process of the court as a result letter was written to S.S.P. concerned by the court even though he did not appear before the court concerned. In this way, there is no ground to grant anticipatory bail in favour of this applicant. Hence, the anticipatory bail application is, hereby, rejected.
However, if applicant appears and moves recall/bail application before the learned court concerned, the same shall be decided as expeditiously as possible in accordance with law while considering the aforesaid facts of the case.
Order Date :- 17.1.2023 Ashok Gupta
Digitally signed by :- ASHOK KUMAR GUPTA High Court of Judicature at Allahabad
1 issue framed by the court
Whether anticipatory bail should be granted to an applicant who is avoiding court process despite issuance of summon and warrants.
Colour shows how this judgement treated each authority
Lavesh vs. State (N.C.T. of Delhi) in Criminal Appeal No.1331 of 2012 decided on 31.08.2012Referred¶13
1 provisions across 1 enactments
Dr Javed
State of U.P.
Subhash Chandra Sharma
Ashok Kumar Gupta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
