Allowed

Chandan v. State of U.P. Thru. Prin. Secy. Home Lko. and 3 Others

Allahabad HC18 Oct 2024ABAIL/2318/2024

Case brief

AI extract

What is this about?

High Court allowed anticipatory bail to the applicant. Notes FIR lodged under old CrPC post-BNSS commencement. Ranges comminiscence that prosecutrix radiological age is 18 and confessed voluntary relationship. Grants bail pending investigation.

What did the court decide?

Application allowed. Liberty granted till completion of investigation and filing of police report on furnishing personal bond and sureties.

Chandan vs State of U.P. Thru. Prin. Secy… — Child Sexual Offences (POCSO) | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:70204

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Court No. - 11

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Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 2318 of 2024

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Applicant :- Chandan Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And 3 Others Counsel for Applicant :- Mukesh Kumar Shukla Counsel for Opposite Party :- G.A.

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Hon'ble Rajesh Singh Chauhan,J.

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Heard Sri Mukesh Kumar Shukla, learned counsel for the applicant and Sri Anant Pratap Singh, learned AGA.

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The learned AGA has informed that the notice has been provided to the opposite party no. 2 by the Police but no one has appeared on behalf of the opposite party no. 2. However, the notice has been given on 28.09.2024.

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The impugned FIR has been lodged on 26.06.2024 after the delay of five days and BNSS 2024 is applicable with effect from 1st July 2024, therefore, this anticipatory bail application should be treated being filed under Section 483 CrPC and the Sections of BNS 2023 should not be attracted in this case.

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Besides, as per the statement of the prosecutrix recorded under Sections 161 and 164 of CrPC, her age is aged about 17 years and 8 months, though she has stated herself as 18 years old in her statement under Section 161 of CrPC and in both the statements she has stated that he was living with the applicant willingly as she was in affairs with the applicant.

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Learned counsel for the applicant has stated that the chargesheet has not been filed as the investigation is going on and the applicant undertakes that he shall cooperate in the investigation and shall not misuse the liberty if provided by this Court.

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The learned counsel has further submitted that under subsection 4 of Section 438 of CrPC there is no bar to entertain this anticipatory bail application, in view of the sections under which the present FIR has been filed inasmuch as the present FIR has been filed under Section 376 of IPC besides other sections, whereas, the specific bar to entertain anticipatory bail application are 376(3), 376-AB, 376-DA and 376-DB of IPC. Learned counsel has further submitted that even as per the

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medical examination report, the radiological age of the prosecutrix has been determined as 18 years. Besides, the benefit of two years may be extended in these circumstances.

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The learned AGA has opposed the aforesaid anticipatory bail application and has requested that some short time may be given to file counter affidavit.

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Having heard the learned counsel for the parties and having perused the material available on record, since, the rediological age of the prosecutrix has been determined as 18 years, she recorded her statement under Sections 161 and 164 of CrPC without levelling any allegation against the present applicant, rather she has stated that she was willingly living with the present applicant with whom she was in affairs and also considering the undertaking of the present applicant that he shall cooperate in the investigation, shall not misuse the liberty of anticipatory bail, therefore, the present applicant is entitled for anticipatory bail till completion of the investigation and filing of the police report. Therefore, considering the aforesaid facts and circumstances, I find it appropriate that liberty of the present applicant may be protected till conclusion of investigation proceedings in view of the dictum of Hon'ble Apex Court rendered in re: Sushila Aggarwal Vs. State (NCT of Delhi)-2020 SCC online SC 98 .

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Therefore, the applicant shall surrender before the trial court concerned or before the arresting authority within a period of ten days from today. It is further directed that in the event of arrest, applicant (Chandan) shall be released on anticipatory bail in the aforesaid case crime number till completion of the investigation and filing of Police report on his furnishing a personal bond of Rs.1,00,000/- with two sureties each in the like amount to the satisfaction of the trial court/ court concerned/arresting authority with the following conditions:-

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that the applicant shall appear before the investigating officer and trial court on each date fixed unless his personal presence is exempted;

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that 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 from disclosing such facts to the court or to any police officer or tamper with the evidence;

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that the applicant shall not leave India without prior permission of the court;

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that the applicant shall not pressurize/ intimidate the

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prosecution witnesses and shall not tamper with evidence during trial;

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that 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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that in default of any of the conditions mentioned above, the learned counsel for the State shall be at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicant.

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Before parting with, it is expected that the trial shall be concluded with expedition, strictly in accordance with law, without adjourning the case for any unnecessary reason. Further, the learned trial court may take all coercive measures, as per law, if either of the parties do not co-operate in the trial properly.

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In view of the aforesaid terms, this anticipatory bail application is dispose of .

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Order Date :- 18.10.2024 Anurag

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Digitally signed by :- ANURAG SINGH High Court of Judicature at Allahabad, Lucknow Bench

Chandan v. State of U.P. Thru. Prin. Secy. Home Lko. and 3 Others

Case brief

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Chandan v. State of U.P. Thru. Prin. Secy. Home Lko. and 3 Others

Case brief

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