Allowed

Vipin Kumar ( Vipin Kumar @ V.P. in Chargesheet) v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko. and 3 Others

Allahabad HC6 Aug 2024ABAIL/1760/2024

Case brief

AI extract

What is this about?

In an anticipatory bail application, the Allahabad High Court allowed the applicant's plea, granting protection from arrest during the trial phase given the delay in allegations regarding a heinous offence involving sexual assault.

What did the court decide?

Release on anticipatory bail upon arrest or appearance within 20 days, subject to furnishing a personal bond of Rs. 50,000 and two sureties with specific conditions of cooperation and non-interference

Vipin Kumar ( Vipin Kumar @ V.P. in Chargesheet) vs… — Anticipatory Bail | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:54010

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Court No. - 15

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Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 1760 of 2024

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Applicant :- Vipin Kumar ( Vipin Kumar @ V.P. In Chargesheet)

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Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And 3 Others

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Counsel for Applicant :- Brijesh Kumar Yadav,Rajesh Kumar Counsel for Opposite Party :- G.A.,Archana Yadav

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Hon'ble Mohd. Faiz Alam Khan,J.

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Heard Shri Rajesh Kumar, learned counsel for the applicant as well as learned A.G.A. for the State and perused the record.

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Ms. Archana Yadav has appeared on behalf of opposite party no.2/ complainant and filed a short counter affidavit and the same is taken on record.

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On the other hand learned AGA informs that he has procured complete instructions in the matter.

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The present anticipatory bail application has been moved by the accused/applicant- Vipin Kumar ( Vipin Kumar @ V.P. In Chargesheet) in Case Crime No. 777/2023, under Sections 363, 366, 376-DA, 506 IPC and Sections 5/6 of the Protection of Children Act with the prayer to enlarge him on anticipatory bail as he is apprehending arrest in the above-mentioned case.

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Learned counsel for the accused-applicant while pressing the anticipatory bail application submits that it is a case of false implication. It was on 6.2.2024 this Court after considering all the facts and circumstances of the case has disposed of the first anticipatory bail application of the applicant bearing 438 No. 204 of 2024 vide order dated 26.2.2024 granting protection of arrest to the applicant till submission of Police report under Section 173(2) Cr.P.C. subject to certain conditions.

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It is further submitted that in compliance of the said order the applicant has regularly appeared before the Investigating Officer and cooperated throughout, however, the Investigating Officer without there being any credible material/ evidence collected against the applicant, has submitted charge sheet.

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It is vehemently submitted that manner in which the name of

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the applicant has surfaced in the statement of the prosecutrix recorded under Section 164 Cr.P.C., after many days of the incident would itself throws the cloud of suspicion over whole story as cooked up by the prosecutrix.

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It is also submitted that today the complainant has also submitted a short counter affidavit stating therein that the name of the applicant has been taken due to misconception and misguidance. The applicant is not having any criminal hsitory, thus the protection from arrest till conclusion of the trial be granted to him.

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Learned AGA, on the other hand opposes the prayer of anticipatory bail of the applicant while Ms. Archana Yadav while relying on the short counter affidavit filed by the complainant submits that she under instruction not opposing the plea of bail of the applicant as the name of the applicant appears to have been taken by the victim on account of some misconception and therefore the applicant may be released on anticipatory bail during the course of trial.

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Having heard learned counsel for the parties and having perused the record, it is reflected that earlier the applicant had approached this Court by filing CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 204 of 2024 and this Court vide order dated 6.2.2024 disposed of the same providing protection from arrest to the applicant till submission of Police Report under Section 173(2) Cr.P.C. The said order for the sake of convenience is being reproduced as under:-

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"1. Smt. Archana Yadav has filed short counter affidavit along with her power/ Vakalatnama on behalf of opposite no.2 / complainant, which is taken on record.

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2. Learned AGA informs that he has procured complete instructions in the matter including upto date case diary.

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3. Heard Shri Brijesh Kumar Yadav, learned counsel for the applicant, Smt. Archana Yadav, learned counsel for the complainant/ opposite party as well as learned A.G.A. for the State and perused the record.

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4. The present anticipatory bail application has been moved by the accused/applicant- Vipin Kumar in Case Crime No. 777/2023, under Sections 363, 366, 376 (3) IPC and Section of the Protection of Children from Sexual Offences Act, 2012, Police Station Thakurganj, District Lucknow, with the prayer to enlarge him on anticipatory bail as he is apprehending arrest in the above-mentioned case.

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5. Learned counsel for the accused-applicant while pressing the bail application submits that it is a case of false implication. In the First Information Report though the name of the applicant has been mentioned

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but it has been stated that the victim had told the informant that the instant applicant has not committed rape on her.

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6. It is further submitted that in the statement of the informant and victim no allegation has been levelled against the applicant so far as the commission of rape is concerned and the allegation to the extent of facilitating abduction has been levelled so far as the applicant is concerned.

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7. It is vehemently submitted that after 10 days of recording the statement of victim under Sections 161 Cr.P.C., her statement under Section 164 Cr.P.C. was recorded, wherein for the very first time she has imputed the allegation of rape against the applicant also, probably under the influence of her family members.

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8. Elaborating further, it is submitted that before the doctor also, who has medically examined the informant, she categorically stated that she had gone with co-accused Sonu and sexual relations were also established by him alone and there was no mention of the applicant. Thus it is evident that the name of applicant has only been dragged in this case so far as the commission of rape is concerned as he was involved in the alleged elopement of the victim.

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9. It is further submitted that the age of the prosecutrix has been assessed as 14 years on the basis of ossification test, however, having regard to the two years variable either side the prosecutrix may be of the age of 14 years at the date and time of the incident and her age is not relevant so far as the applicant is concerned, as the allegation of rape is itself doubtful and the allegations of rape are also not finding corroboration with any medical evidence. As the medical reports of the prosecutrix are clean and no injury of any kind has been found on her person during the course of examination. The applicant is not having any criminal history and there is no apprehension that the accused- applicant after release on anticipatory bail, may flee from the process of law or may otherwise misuse the liberty.

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10. Learned AGA on the other hand submits that the applicant is accused of committing an heinous offence and therefore he is not entitled for any protection.

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11. Ms. Archana Yadav, learned counsel appearing for the complainant/ informant while referring to paragraph no.3 of the short counter affidavit filed on behalf of the complainant and alleged victim, submits that the applicant in fact has not committed any offence with the victim and it was on 29.12.2023 the informant had given an application to the police authorities informing that the applicant has not committed any offence with the victim.

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12. Perusal of the record would reveal that the FIR of this case has been lodged by the mother of the victim on the basis of the information given by the victim to the informant and the role which has been assigned to the applicant is only of facilitating the elopement of the victim and there is no whisper so far as the commission of rape by him is concerned. In the statement of the prosecutrix as well as of informant recorded under Section 161 Cr.P.C. no allegation has been levelled with regard to the commission of rape on the applicant and his role was confined only upto helping the main accused Sonu Yadav, however, after 10 days of recording

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the statement under Section 161 Cr.P.C., in the statement of the prosecutrix recorded under Section 164 Cr.P.C. , for the very first time, the allegations have been levelled against the applicant of committing rape along with co-accused Sonu Yadav. Significantly while the prosecutrix / victim was under medical examination an information was given by her to the doctor which has been recorded on the medical injury report by the doctor that co accused has committed sexual intercourse with her. The submission of learned counsel for the applicant is that apparently it is a case of false accusation so far as the applicant is concerned.

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13, Be that as it may, having regard to the aforementioned facts, that accusation of rape has been levelled by the prosecutrix against the applicant, for the very first time in the statement of the prosecutrix/ victim recorded under Section 164 Cr.P.C. while the first information report itself appears to have been lodged on the information given to the informant by the victim and in the FIR as well as the statement of the victim and informant recorded u/s 161 Cr.P.C. there was no allegation of rape so far as the applicant is concerned and keeping in view the law laid down by the Hon'ble Supreme Court in Siddharam Satlingappa Mhetre v. State of Maharashtra (2011) 1 SCC 694 as well as in Sushila Aggarwal v. State (NCT of Delhi) (2020) 5 SCC 1, Gurbaksh Singh Sibbia and Ors. v. State of Punjab MANU/SC/0215/1980 : 1980 (2) SCC 565 and in Nathu Singh Vs State of U.P. and Others, 2021(6) SCC 64, MANU/SC/0360/2021 , protection from arrest may be granted to the applicant for a limited period of time i.e. till submission of police report under Section 173(2) Cr.P.C.

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14. Thus, the anticipatory bail application moved on behalf of the applicant is disposed of with a direction that till the submission of police report under Section 173 (2) Cr.P.C., in the event of arrest of applicantVipin Kumar in the above noted case, he shall be released forthwith on anticipatory on his furnishing a personal bond of Rs. 50,000/- with two sureties of like amount to the satisfaction of Station House Officer of police station/court concerned with the following conditions:-

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(i) The applicant shall make himself available for interrogation by the police officer as and when required, if investigation is in progress;

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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 such person from disclosing such facts to the Court or to any police officer;

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(iii) The applicant shall not leave the country 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/Court concerned.

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15. In default of any of the conditions, the Investigating Officer / Government Advocate is at liberty to file appropriate application for cancellation of interim anticipatory bail granted to the applicant. "

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It has been argued with considerable force that the applicant had complied all the conditions under which his liberty was protected. This submission of learned counsel for the applicant ha snot been denied either by the State or by learned counsel for

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the complainant present in the Court. It is also to be recalled that short counter affidavit filed by the complainant contains the fact that the name of the applicant has been taken due to some misconception and misunderstanding.

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Be that as it may the applicant has already been released on anticipatory bail till submission of police report under Section173(2) Cr.P.C. and the charge sheet has been submitted and the applicant has complied all the conditions under which his liberty was protected.

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Thus, having regard to all the facts and circumstances of the case and keeping in view the law laid down by the Hon'ble Supreme Court in Satender Kumar Antil Vs. Central Bureau of Investigation and others : (2021) 10 SCC 773, Siddharam Satlingappa Mhetre v. State of Maharashtra (2011) 1 SCC 694 as well as in Sushila Aggarwal v. State (NCT of Delhi) (2020) 5 SCC 1 , Gurbaksh Singh Sibbia and Ors. v. State of Punjab MANU/SC/0215/1980 : 1980 (2) SCC 565 and in Nathu Singh Vs State of U.P. and Others, 2021(6) SCC 64, MANU/SC/0360/2021 , the liberty of the applicant may further be protected during the course of trial.

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Thus, the instant anticipatory bail application moved on behalf of the applicant- Vipin Kumar ( Vipin Kumar @ V.P. In Chargesheet) is allowed in terms that in the event of the applicant arrested under the order of the trial court or appears within 20 days from today i.e. on or before 26.08.2024, whichever is earlier, he shall be released forthwith on anticipatory bail on his furnishing a personal bond of Rs. 50,000/- with two sureties in the like amount to the satisfaction of the Trial Court concerned, subject to the following conditions::

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The applicant if not arrested earlier, shall surrender before the trial court within 20 days from today i.e. on or before 26.08.2024 and will cooperate in the trial.

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The applicant shall Cooperate in the investigation and will make himself available as and when required by the Investigating officer of the case, even for the recovery of any fact, if the case is directed to be further investigated.

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The applicant shall not make any attempt to influence the prosecution witnesses and will also not commit any crime during his release on anticipatory bail.

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The applicant shall file an undertaking to the effect that she shall not seek any adjournment on the dates fixed for evidence

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and especially when the prosecution witnesses are present in court.

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The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C.

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If in the opinion of the trial court default of any of the condition placed above is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and shall proceed against him in accordance with law.

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It is clarified that all the observations contained in this order are only for disposal of this anticipatory bail application and shall not affect the proceedings before the trial court in any manner.

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Order Date :- 6.8.2024 Muk

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Digitally signed by :- MOHD UMAR KHAN High Court of Judicature at Allahabad, Lucknow Bench

Vipin Kumar ( Vipin Kumar @ V.P. in Chargesheet) v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko. and 3 Others

Case brief

What is this about?

What did the court decide?

Vipin Kumar ( Vipin Kumar @ V.P. in Chargesheet) v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko. and 3 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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