Allowed

Dharmendra v. State of U.P.and 2 Others

Allahabad HC28 Jul 2023ABAIL/5814/2023

Case brief

AI extract

What is this about?

The Allahabad High Court allowed two anticipatory bail applications filed by Dharmendra and Chheda Lal in a 2008 case involving offences under Sections 363, 366, 376, and 120-B IPC. The court, relying on Sushila Aggarwal, granted bail till the conclusion of trial, citing the applicants' marital relationship, the five children born, and the lack of need for custodial interrogation.

What did the court decide?

Personal bond of Rs. 50,000 with two sureties each in Rs. 50,000 with conditions to observe while released on bail.

Dharmendra Vs State of U.P.and 2 Others — Anticipatory Bail | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:152816

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Court No. - 73

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Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 5814 of 2023

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Applicant :- Dharmendra Opposite Party :- State Of U.P.And 2 Others Counsel for Applicant :- Surendra Kumar Counsel for Opposite Party :- G.A.,Shailendra Kumar Sharma

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and

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Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 7000 of 2023

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Applicant :- Chheda Lal Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Surendra Kumar,Sushant Misra Counsel for Opposite Party :- G.A.,Shailendra Kumar Sharma

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Hon'ble Nalin Kumar Srivastava,J.

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Since the controversy involved in both the applications are identical, therefore, they are being decided by this common order.

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Heard learned counsel for the applicants, learned AGA and perused the material available on record.

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Present anticipatory bail applications have been filed by applicants- Dharmendra & Chheda Lal in connection with Case Crime No. 315 of 2008, under sections 363, 366, 376, 120-B IPC, P.S. Jahanganj, District Farrukhabad.

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The prosecution case as unfolded in the F.I.R. is that on the date of occurrence, the present applicants along with co-accused, Vidyawati came to the house of the prosecutrix and enticed away her with them. F.I.R. was lodged on 31.05.2008 under Sections 363, 366 I.P.C. and investigation started. During investigation, Sections 376, 120-B I.P.C. were also added against the applicants and now charge sheet has been filed.

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It has been submitted by the learned counsel for the applicants that applicants are innocent and they have apprehension of arrest in the above-mentioned case, whereas there is no credible evidence

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against them. Allegations levelled against the applicants are false. Charge sheet in the matter has been submitted. In case applicants are granted anticipatory bail, they shall not misuse the liberty of bail and would obey all conditions of bail.

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It is further submitted that as a matter of fact, the prosecutrix was a major lady on the date of occurrence. The applicant and the prosecutrix had performed their marriage with free will and consent of the prosecutrix. It is next submitted that in the medical examination also, she has been found about 18 years of age. It is further submitted that fabricated statements of the prosecutrix were recorded under Sections 161 & 164 Cr.P.C, wherein the applicants were alleged to have committed the alleged offence whereas the prosecutrix herself moved an application before the Magistrate court mentioning the applicant as her husband and also claiming that she was a major girl and the marriage took place with her free will and consent and she is pregnant as well. The said application which was moved on 23.01.2010 was also supported with affidavit. It is next submitted that the informant also herself moved an application before the concerned Magistrate court mentioning therein that the prosecutrix was a major lady at the time of the occurrence when she had performed her marriage with the applicant. She is living happily with the applicant as wife. It is further submitted that after filing of the charge sheet, an Application u/s 482 Cr.P.C. No.17569 of 2010 was filed by the applicants wherein an order for no coercive measure was granted in their favour till the next date of listing. But subsequently, in compliance of the order passed by the Hon'ble Apex Court in the case of "Asian Resurfacing of Road Agency Pvt. Ltd. and others Vs. Central Bureau of Investigation", the concerned Magistrate court proceeded with the case and non-bailable warrants were issued against them. It is further submitted that out of the wedlock of applicant, Dharmendra and the prosecutrix, five children were born and they are aged about 13 years, 11 years, 8 years, 7 years and two and half years respectively. It is further submitted that this Court had granted interim anticipatory bail to the applicants vide order dated 29.05.2023 in Criminal Misc. Anticipatory Bail Application U/s 438 Cr.P.C. No. 5814 of 2023, which has not been misused by them. It is next submitted that after filing of the charge sheet, no custodial interrogation is required from the applicants and as such, they are entitled for anticipatory bail.

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Per contra, learned A.G.A. opposed the prayer and vehemently submitted that the prosecutrix has corroborated the prosecution version in her statement under Sections 161 & 164 Cr.P.C. and she

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was minor on the date of occurrence and her consent, if any, is of no legal value. But, however, he could not dispute this factual aspect that the applicant, Dharmendra and prosecutrix are living as husband and wife. They have solemnized their marriage with each other and out of the said wedlock, they have five children.

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The present case consists of its peculiar facts and circumstances. The matter is very old and relates to year 2008. The prosecutrix and applicant, Dharmendra are living together like wife and husband and are having five children out of their wedlock. After submission of charge sheet, now no custodial interrogation is required.

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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 controversy finally by holding 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, llikelihood 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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Hence, considering the settled principles of law regarding anticipatory bail, submissions of the learned counsel for the parties, nature of accusation, role of applicants and all attending facts and circumstances of the case, without expressing any opinion of the merits of the case, in my view, it is a fit case for anticipatory bail to the applicants till conclusion of trial in the matter.

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The anticipatory bail applications are allowed .

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In the event of arrest of the applicants in the aforesaid case crime, they shall be released on anticipatory bail on their 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 applicants 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 them from disclosing such facts to the Court or to any police officer or tamper with the evidence.

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(ii) The applicants shall not pressurize/ intimidate the prosecution witness.

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(iii) The applicants shall not commit an offence similar to the offence of which they are accused, or suspected, of the commission of which they are suspected.

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(iv) The applicants shall not leave India without prior permission of the Court and if they have passport, the same shall be deposited by them before the S.S.P./S.P. concerned.

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In case of breach of any of the above conditions, the Investigating Officer shall be at liberty to file appropriate application for cancellation of anticipatory bail of the applicants in accordance with law.

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Order Date :- 28.7.2023 Shivangi

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Digitally signed by :- SHIVANGI YADAV High Court of Judicature at Allahabad

Dharmendra v. State of U.P.and 2 Others

Case brief

What is this about?

What did the court decide?

Dharmendra v. State of U.P.and 2 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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