Allowed

Aman Khan v. State of U.P. and Another

Allahabad HC18 Jul 2023ABAIL/7613/2023

Case brief

AI extract

What is this about?

The Allahabad High Court granted anticipatory bail to the applicant pending filing of the police report under Section 173(2) Cr.P.C. The court noted the deletion of the POCSO offence due to the victim being a minor allowed, observing that medical evidence did not corroborate the prosecution version. Bail was granted on a personal bond with conditions regarding interrogation, tampering with witness

What did the court decide?

Anticipatory bail granted pending filing of police report under Section 173(2) Cr.P.C. on a personal bond of Rs. 50,000/- with two sureties each.

Aman Khan Vs State of U.P. and Another — Child Sexual Offences (POCSO) | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:146057

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Court No. - 73

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Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 7613 of 2023

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Applicant :- Aman Khan Opposite Party :- State of U.P. and Another Counsel for Applicant :- Mohammad Faisal Khan Counsel for Opposite Party :- G.A.,Sumit Goyal

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Hon'ble Nalin Kumar Srivastava,J.

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Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

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This application has been moved on behalf of the applicant - Aman Khan seeking anticipatory bail in Case Crime No.112 of 2023, under Sections 377, 363, 506 IPC and 3/4 POCSO Act, Police Station Rampur Maniharan, District Saharanpur.

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Offence of unnatural sex with the minor victim on 3.5.2023 has been alleged in the F.I.R. dated 5.5.2023 against the named accused persons Aman Khan and Moin Khan. F.I.R. was lodged under Sections 377, 363, 506 IPC and 3/4 POCSO Act and investigation started, which is still going on.

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Learned counsel for the applicant submits that that applicant is innocent and he has apprehension of arrest in the above-mentioned case, whereas there is no credible evidence against him. He has been falsely implicated in this matter. Allegations levelled against the applicant are false. Investigation is going on into the matter. It is further submitted that the medical report does not corroborate the prosecution version and no internal injury has been found on the person of the victim of the case. During the course of investigation, the victim has been found major, hence the offence under the POCSO Act has been deleted from this matter. It is further submitted that in his statement under section 164 Cr.P.C., the victim has not named the applicant and even he has stated that he could not recognize the person who has done the sexual act with him. It is further submitted that the applicant has no criminal history to his credit and he is cooperating with the investigation of the case and as such he is entitled for anticipatory bail.

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Learned A.G.A. opposed the prayer for anticipatory bail, but

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however admits that now the case is not running under the POCSO Act, as the victim was found major during the course of investigation in this case.

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From the perusal of record, it reveals that the medical report of the victim prima facie does not corroborate the prosecution version and the victim has been found major. However, it is surprising that the I.O. of the case deleted the offence under the POCSO Act from the matter, but even after finding the victim as major, offence under section 363 IPC is still existing.

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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 held 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 Siddharth Vs. State of Uttar Pradesh & Another, (2022) 1 Supreme Court Cases 676 , the Hon'ble Apex Court has held that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation, then there is no compulsion on the officer to arrest the accused.

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Considering the settled principles of law regarding anticipatory bail, submissions of the learned counsel for the parties, nature of accusation, role of applicant 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 applicant till the filing of police report under section 173 (2)

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Cr.P.C. before the competent Court.

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The anticipatory bail application is allowed .

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In the event of arrest of the applicant in the aforesaid case crime, he shall be released on anticipatory bail till the filing of police report under section 173 (2) Cr.P.C. before the competent Court on his furnishing a personal bond of Rs.50,000/- with two sureties each in the like amount to the satisfaction of Station House Officer of the police station concerned with the following conditions:-

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(i) The applicant shall make himself available for interrogation by a police officer 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 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 Investigating Officer shall be at liberty to file appropriate application for cancellation of interim protection granted to the applicant.

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Order Date :- 18.7.2023 ss

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Digitally signed by :- SANDEEP SHARMA High Court of Judicature at Allahabad

Aman Khan v. State of U.P. and Another

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Aman Khan v. State of U.P. and Another

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