Sonu @ Abhay Kumar Vs State of U.P. Thru. Prin. Secy. Home Deptt. Lko. and 3 Others

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In The High Court Of Judicature At Allahabad

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Sitting At Lucknow

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Neutral Citation No. - 2025:AHC-LKO:26755

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Court No. - 15

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Case :- CRIMINAL MISC. ANTICIPATORY BAIL APPLICATION U/S 482 BNSS No. - 424 of 2025

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Applicant :- Sonu @ Abhay Kumar Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And 3 Others Counsel for Applicant :- Amit Kumar Awasthi,Ashish Mishra Counsel for Opposite Party :- G.A.,Aman Kumar Shrivastav

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Hon’ble Subhash Vidyarthi J.

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Heard Sri Amit Kumar Awasthi, the learned counsel for the applicant, Sri Anurag Verma, the learned Additional Government Advocate – I, Sri Aman Kumar Srivastava, the learned counsel for the complainant and perused the records.

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The instant application has been filed seeking anticipatory bail for the applicant in Case Crime No. 319 of 2024, under Sections 376-D I.P.C., Section 5g/6 of Protection of Children from Sexual Offences Act, 2012 and Sections 3 (2) 5, 3(1) w (i) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, registered at Police Station Mitauli, District Kheri.

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The aforesaid case has been registered on the basis of an F.I.R. lodged on 11.10.2024 in furtherance of an application under Section 156 (3) Cr.P.C. filed against the applicant and two unknown persons on 03/04.06.2024 alleging that while the complainant was sleeping at about 1.00 a.m. on 03.05.2024 and her minor daughter was sleeping at some distance, she saw that her daughter had gone missing. While searching for her daughter, she reached near a canal and saw that the applicant was raping the complainant’s daughter and two unknown persons were present there. It was also stated in the application under

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Section 156 (3) Cr.P.C. that the complainant had gone to lodge a report but her report was not registered. She gave an application to the Superintendent of Police Kheri, yet her report was not lodged.

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In the statement of the complainant recorded under Section 180 BNSS she reiterated the F.I.R. version. The victim has also reiterated the F.I.R. version in her statements recorded under Section 180 BNSS and 183 BNSS. The medico legal examination report of the victim mentions no mark of injury or sign of use of force.

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Initially, the Investigating Officer had submitted a charge sheet for the offences under Section 354 I.P.C. and Section 7/8 of Protection of Children from Sexual Offences Act. However, the trial court has taken cognizance of the offences under Section 376-D I.P.C., Section 5g/6 of Protection of Children from Sexual Offences Act, 2012 and Sections 3(2)5, 3(1)w(i) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

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The learned counsel for the complainant has raised a preliminary objection against the maintainability of the anticipatory bail application on the ground that the same is barred by Section 18 of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act.

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Section 18 and 18-A of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act provide as follows: -

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“18. Section 438 of the Code not to apply to persons committing an offence under the Act .—Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.

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18-A. No enquiry or approval required .—(1) For the purposes of this Act—

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(a) preliminary enquiry shall not be required for registration of a first information report against any person; or

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(b) the investigating officer shall not require approval for the arrest, if necessary, of any person,

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against whom an accusation of having committed an offence under this Act has been made, and no procedure other than that provided under this Act or the Code shall apply.

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(2) The provisions of Section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court.”

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In Prathvi Raj Chauhan v. Union of India : (2020) 4 SCC 727, the Hon’ble Supreme Court held that: -

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“11. Concerning the applicability of provisions of Section 438 CrPC, it shall not apply to the cases under the 1989 Act. However, if the complaint does not make out a prima facie case for applicability of the provisions of the 1989 Act, the bar created by Sections 18 and 18-A(i) shall not apply.”

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Section 3 (1) (w) (i) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act provides that whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, intentionally touches a woman belonging to a Scheduled Caste or a Scheduled Tribe, knowing that she belongs to a Scheduled Caste or a Scheduled Tribe, when such act of touching is of a sexual nature and is without the recipient’s consent.

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Section 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act provides that whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine.

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The F.I.R. and the statements recorded during investigation do not make any mention that the applicant had committed the alleged act knowing that the victim belongs to a scheduled caste. There is no mention in the F.I.R. and in any of the statements about the caste of the complainant or the victim anywhere and there is no allegation that the offence was committed because of the caste of the victim.

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Therefore, when we examine the facts of the present case in the light of the law laid down by Hon’ble Supreme Court in the case of Prathvi Raj Chauhan (Supra), it prima facie appears that the provisions of SC/ST Act will not apply as per the prosecution case

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developed by the F.I.R. and the statements recorded under Sections 180 and 183 BNSS. Consequently, I find no force in the preliminary objection raised by the learned counsel for the complainant and the same is rejected.

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Moreover, although the complainant has alleged in her application under Section 156 (3) Cr.P.C. that the complainant had gone to lodge a report but her report was not registered and that she had given an application to the Superintendent of Police Kheri, yet her report was not lodged, there is no proof of any application having been given to the Superintendent of Police.

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Section 154 Cr.P.C. provides that

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“154. Information in cognizable cases .—(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the complainant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf:

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Provided that if the information is given by the woman against whom an offence under Section 326-A, Section 326-B, Section 354, Section 354-A, Section 354-B, Section 354-C, Section 354D, Section 376, Section 376-A, Section 376-AB, Section 376-B, Section 376-C, Section 376-D, Section 376-DA, Section 376-DB, Section 376-E or Section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer:

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Provided further that—

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(a) in the event that the person against whom an offence under Section 354, Section 354-A, Section 354-B, Section 354-C, Section 354-D, Section 376, Section 376-A, Section 376-AB, Section 376-B, Section 376-C, Section 376-D, Section 376-DA, Section 376-DB, Section 376-E or Section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person's choice, in the presence of an interpreter or a special educator, as the case may be;

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(b) the recording of such information shall be videographed;

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(c) the police officer shall get the statement of the person recorded by a Judicial Magistrate under clause (a) of subsection (5-A) of Section 164 as soon as possible.

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(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the complainant.

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(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him , in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.”

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(Emphasis added)

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In case the complainant was aggrieved by the refusal on the part of the officer in charge of the police station to register the F.I.R., she should have sent the information in writing and by post to the Superintendent of Police, who would have examined it so as to satisfy himself that the information disclosed the commission of a cognizable offence and upon such satisfaction, the Superintendent of Police could have either investigated the case himself or have directed an investigation to be made by any police officer subordinate to him.

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The application under Section 156 (3) Cr.P.C. does not state that a complaint was sent to the Superintendent of Police through registered post, which is pre-requisite for entertaining an application under Section 156 (3) Cr.P.C. and prima facie it appears that no cognizance ought to have been taken on such an application filed without sending a complaint to the Superintendent of Police through registered post

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In the affidavit filed in support of bail application it has been stated that the applicant is a young man aged 21 years, he is innocent, he has been falsely implicated in the present case and he has no criminal history.

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Having considered the aforesaid facts and circumstances of the case and keeping in view the fact that the incident is alleged to have taken place in the night of 03.05.2024 and an application under Section 156 (3) Cr.P.C. was filed on 03.06.2024; that the application under Section 156 (3) Cr.P.C. does not state that a complaint was sent to the Superintendent of Police through registered post, which is prerequisite for entertaining an application under Section 156 (3) Cr.P.C. and prima facie it appears that no cognizance ought to have been taken on such an application filed without sending a complaint to the Superintendent of Police through registered post and that besides the statements of the victim there is no other material to support the same coupled with the fact that the applicant is a young man aged 21 years having no criminal history and without making any observations which may affect the outcome of the case, I am of the view that the aforesaid facts are sufficient for making out a case for granting anticipatory bail to the applicant.

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In view of the foregoing discussion, the anticipatory bail application of the applicant is allowed . In the event of arrest / appearance of applicant-Sonu @ Abhay Kumar before the learned Trial Court in the aforesaid case crime, he shall be released on bail on his furnishing personal bond and two solvent sureties, each in the like amount, to the satisfaction of S.H.O./Court concerned on the following conditions and subject to any other conditions that may be fixed by the Trial Court:

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(i). that the applicant shall make himself available for interrogation by a police officer as and when required;

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(ii) 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 him from disclosing such facts to the Court or to any police officer or tamper with the evidence;

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(iii) that the applicant shall not leave India without the previous permission of the court’

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

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(v). that the applicant shall not pressurize/intimidate the prosecution witness.

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(Subhash Vidyarthi, J.)

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Order Date: 07.05.2025 Ram.

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

Sonu @ Abhay Kumar v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko. and 3 Others

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Sonu @ Abhay Kumar v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko. and 3 Others

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