Sri. Avnish Yadav Vs State of U.P. Thru. Prin. Secy. Home and Another

Neutral Citation No. - 2024:AHC-LKO:61762

Court No. - 14

Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 462 of 2023 Applicant :- Sri. Avnish Yadav Opposite Party :- State Of U.P. Thru. Prin. Secy. Home And Another Counsel for Applicant :- Istekhaf,Avinash Pratap Singh Counsel for Opposite Party :- G.A.,Jay Prakash Singh

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Hon'ble Karunesh Singh Pawar,J.

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The present bail application has been filed by the applicant under Section 438 Cr.P.C. apprehending his arrest in F.I.R./Case Crime No. 2 of 2023 under Sections 376, 504, 506 I.P.C. Police Station Gomtinagar, District Lucknow.

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A request for Video Conferencing is received on behalf of the applicant. Learned AGA is present.

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The applicant could not be connected through video conferencing.

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Perused the record.

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This Court while granting interim protection to the applicant vide order dated 02.03.2023 has passed the following order:-

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"Heard Shri Sandeep Dubey learned Counsel for the applicant and learned A.G.A. for the State/respondent as well as perused the record.

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The present anticipatory bail application has been filed by the applicant apprehending his arrest in Case Crime No. 2 of 2023 under Sections 376, 504, 506 I.P.C. Police Station Gomtinagar, District Lucknow.

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Issue notice to opposite party no.2.

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Learned counsel for the applicant submits that First Information Report has been lodged after delay of more than one year without any explanation. The applicant is a serving officer of the Indian Airforce. The applicant was having friendship with the complainant's younger sister Zeenat Jahan since 2017. The complainant was married to one Shafiqurrehman.

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As per the prosecution case, it is admitted case of the prosecution that both were having physical relationship. However, since, the applicant

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refused to marry the prosecutrix, the F.I.R. has been lodged.

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It is submitted on behalf of the applicant that since the prosecutrix was already married and has not taken divorce from her husband it was not possible for the applicant to marry the prosecutrix. The prosecutrix has denied the request of the applicant to take formal divorce from the competent court of law rather she has entered into a mutual divorce agreement with her husband, which is of no relevance.

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Learned counsel for the applicant has invited attention of the Court towards the chats between the applicant and the prosecutrix and it is submitted on behalf of the applicant that these chats prima facie shows that both were having physical relationship. The prosecutrix was a consenting party and a major girl. The applicant is a sole bread winner of his family and has unblemished service record. The investigation is still going on.

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Learned counsel for the applicant undertakes that the applicant shall cooperate in the investigation. The applicant has no criminal antecedent. He submits that other matrimonial disputes are also pending before the competent court such as application under Section 125 Cr.P.C. given by respondent no.2.

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Learned A.G.A has opposed the bail prayer, However does not dispute the fact that the prosecutrix has refused to undergo medical examination. He prays for and is granted fifteen days' time to file Objections/Counter Affidavit.

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Considering the fact that the applicant is serving Officer of Indian Air force having no criminal antecedents; so also the fact that the prosecutrix has refused to undergo medical examination; undertaking that applicant shall cooperate in the trial and also considering the judgment in Sushila Aggarwal and others versus State (NCT of Delhi) and another (2020)5 SCC 1 and without entering into the merit of the case, it would be appropriate to grant interim protection to the applicant under Section 438 Cr.P.C.

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As an interim protection, till the next date of listing, it is provided that in the event of arrest, the applicant shall be released on bail in the aforesaid case crime number on his furnishing a personal bond and two sureties of the like amount to the satisfaction of the arresting officer/investigating officer/S.H.O. concerned with the following conditions:-

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The applicant shall cooperate in the investigation and she will not influence the witness.

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The accused-applicant will remain present within 20 days' from today before the Investigating Officer concerned, failing which, the benefit of this order shall not be available to her.

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The applicant shall not leave India without previous permission of the Court."

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On due consideration to the fact that there is nothing on record to show that the applicant is not cooperating in the trial; charge sheet has been filed; the applicant is serving officer in the

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Indian Navy; the prosecutrix has refused to undergo for the medical examination, coupled with the fact that the applicant has no criminal antecedent, the interim protection granted vide order dated 02.03.2023 is made absolute in view of dictum of Apex Court in re: Sushila Aggarwal Vs. State (NCT of Delhi)2020 SCC online SC 98.

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In view of the above, since, charge-sheet in the matter has been filed, if the applicant is summoned to face trial for offence in question, he shall be released on bail by the trial court on his furnishing a personal bond and two sureties of the like amount to the satisfaction of the trial court concerned with the following conditions:-

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(i) 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 from disclosing such facts to the court or tamper with the evidence;

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(ii) The applicant shall not leave India without the previous permission of the court;

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(iii)The applicant shall not pressurize/ intimidate the prosecution witness;

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(iv)The applicant shall appear before the trial court on each date fixed unless personal presence is exempted;

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(v) In case of breach of any of the above conditions the court below shall have the liberty to cancel the bail;

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Any other reasonable restrictions/conditions which the trial court may deem fit and proper can be imposed.

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It is made clear that the observations made in granting bail to the applicant shall not in any way affect the trial Judge in forming his independent opinion based on the testimony of the witnesses.

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In view of the aforesaid, the application is allowed .

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Order Date :- 6.9.2024 R.C.

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Digitally signed by :- RAM CHANDER YADAV High Court of Judicature at Allahabad, Lucknow Bench

Sri. Avnish Yadav v. State of U.P. Thru. Prin. Secy. Home and Another

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Sri. Avnish Yadav v. State of U.P. Thru. Prin. Secy. Home and Another

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