The Allahabad High Court has allowed the anticipatory bail application of 17 years- nine months-old boy accused of committing rape and kidnapping.
A Single Bench of Justice Shekhar Kumar Yadav passed this order while hearing a Criminal Misc Bail Application filed by Krishna.
The applicant seeks anticipatory bail in Complaint Case under Sections 363, 376(3) IPC and Section ¾ of POCSO Act, 2012, P.S Kuthaundh, District Jalaun, during the pendency of trial.
AGA for the State raised preliminary objection that sub-section (4) of Section 438 of Cr.P.C, explicitly excludes the application of the provision relating to pre-arrest bail in relation to any case involving the arrest of any person on accusation of having committed an offence under subsection (3) of Section 376 IPC as such the application for pre-arrest bail is not maintainable.
Counsel for the applicant has submitted that the new section (438 Cr.P.C) inserted in the State of Uttar Pradesh vide Uttar Pradesh Act No 4 of 2019, (assented by the President on June 1, 2019), does not exclude the person seeking pre-arrest bail for an offence committed under Section 376 (3) IPC.
Counsel for the applicant has further drawn attention of the court towards Article 254(2) of the Constitution of India to contend that in case of repugnancy, if any, between the State Act and Central Legislation on a subject in the concurrent list, would stand cured if the State Act receives the assent of the President under Article 245(2) of the Constitution of India and such repugnancy cannot therefore be a ground to invalidate the State Act.
It is further submitted that the whole purpose of the Article 254(2) is to protect the State enactment when it runs contrary to the central legislation.
AGA has further drawn the attention of the Court to the Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 2022, which aims to include offences under Protection of Children from Sexual Offences Act (POCSO) and offences relating to rape enumerated in Sections 376, 376-A, 376-AB, 376-B, 376-C,376-D, 376-DA, 376-DB, 376-E of the IPC in the exceptions to the provision of anticipatory bail.
To the contrary, counsel for the applicant has submitted that the said bill is still pending for assent of the President and as such has no legal sanctity as yet.
As per case of prosecution, on 14.10.2022, while minor daughter of the informant, who is said to be a student of high school, had gone to school at 8 in the morning, the applicant is said to have reached the college and seduced her daughter and took her to Som Plaza Guest house and kept her locked in a room for two hours and did wrong things by molesting the delicate parts of her body.
It is also alleged that even prior to this, the applicant also molested her daughter many times and on complaint to the applicant’s family but of no avail.
Counsel for the applicant has contended that the applicant is innocent of the offences alleged against him and he has been falsely implicated in the case.
The counsel further submitted that no materials are on record to connect the applicant with the alleged crime; hence, he is entitled to get pre-arrest bail.
It is also submitted that in the case, the FIR was filed by the informant in relation to the incident that happened with his minor daughter, in which the final report was presented in the court by the Investigating Officer at an earlier point of time.
Counsel for the applicant said that thereafter a protest petition was filed by the informant on which the order to register it as a complaint was passed on 20.06.2023. After this, the statement of the informant was recorded under Section 200 Cr.P.C. and his witnesses under Section 202 Cr.P.C. and on the basis of evidence, the applicant was summoned by the court in the said crime on 03.11.2023.
It is further contended by counsel for the applicant that relying on the statement of the victim said to have been recorded under Sections 161 & 164 Cr.P.C as well as the medical report, the incident was found to be untrue by the Investigating Officer and hence no offence under Section 376(3) IPC is made against the applicant.
Counsel for the applicant further said that the victim in her statement under Section 164 Cr.P.C has not stated about rape but later on after nine months of the incident she has given her statement under Section 202 Cr.P.C and changed her statement that she was raped by the applicant. The victim in her statement under Section 164 Cr.P.C has herself admitted that she is 16 years of age and the applicant is aged about 17 years nine months. The applicant has no criminal history.
It has been stated that in case, the applicant is granted anticipatory bail, he shall not misuse the liberty of bail and will co-operate during proceedings before the Court below and would obey all conditions of bail.
The Court observed that,
In the light of the above quoted provisions and after having considered the arguments of the respective parties, the argument of the counsel for the applicant that the state amendment would prevail over the Central Act find force as there is no bar to exclude the application of the provision relating to pre-arrest bail in relation to any case involving the arrest of any person on accusation of having committed an offence under subsection (3) of Section 376 IPC in view of the amendment in the State of UP under Section 438 Cr.P.C as amended vide UP Act No 04 of 2019, as such the application for pre-arrest bail would be equally maintainable.
Moreover, it is no doubt true that the provision of pre arrest bail enshrined in Section 438 of Cr.P.C is conceptualised under Article 21 of the Constitution of India, which relates to personal liberty. The law presumes an accused to be innocent till his guilt is proven. As a presumably innocent person, he is entitled to all the fundamental rights, including the right to liberty guaranteed under Article 21 of the Constitution of India.
“On due consideration to the arguments advanced by the counsel for the applicant as well as A.G.A and considering the nature of accusations and antecedents of the applicant, the applicant is liable to be enlarged on anticipatory bail in view of the judgment of Supreme Court in the case of Sushila Agrawal Vs State (NCT of Delhi), (2020) 5 SCC 1. The future contingencies regarding the anticipatory bail being granted to applicant shall also be taken care of as per the aforesaid judgment of the Apex Court ”, the Court further observed while allowing the bail application.
The Court ordered that,
Let the accused-applicant- Krishna be released forthwith in the aforesaid complaint case on anticipatory bail till the conclusion of trial on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the trial court concerned with the following conditions:-
(1) The applicant shall not leave India during the currency of trial without prior permission from the concerned trial Court.
(2) The applicant shall surrender his passport, if any, to the concerned trial Court forthwith. His passport will remain in custody of the concerned trial Court.
(3) 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 them from disclosing such facts to the Court or to any police officer;
The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law to ensure presence of the applicants.
In case, the applicant misuses the liberty of bail, the trial Court concerned may take appropriate action in accordance with law and judgment of Apex Court in the case of Sushila Aggarwal and others Vs State (NCT of Delhi) and another, (2020) 5 SCC 1.