Mukesh Babu vs State Of Uttar Pradesh And Another

As per Resolution dated 7.4.2021 of the Committee of this Court for the Purpose of Taking Preventive and Remedial Measures and for Combating the Impending Threat of Covid-19,this case is being heard by way of virtual mode.

Heard Shri Arjun Singh Solanki, learned counsel for the applicant and learned A.G.A. for the State through video conferencing.

The instant anticipatory bail application has been filed with a prayer to grant an anticipatory bail to the applicant,Mukesh Babu , in Case Crime No. 988 of 2019, under Sections- 376,342,506,120-B I.P.C., Police Station- Dadri , District- Gautam Buddh Nagar .

Prior notice of this bail application was served in the office of Government Advocate and as per Chapter XVIII, Rule 18 of the Allahabad High Court Rules and as per direction dated 20.11.2020 of this Court in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 8072 of 2020, Govind Mishra @ Chhotu Versus State of U.P., hence, this anticipatory bail application is being heard. Grant of further time to the learned A.G.A as per Section 438 (3) Cr.P.C. (U.P. Amendment) is not required.

The allegation in the First Information Report lodged by the informant is that about two and half years ago she came to Delhi from Ghaziabad for the purpose of getting project made and the applicant , who is her relative, called her to his house.In his house his wife was also there and applicant asked his wife to bring snacks for the informant. When his wife left the place he disrobed her and committed rape on gun point.His wife came back on the place of incident and took her objectionable photographs and thereafter asked her to do what they say otherwise photographs shall be viral. She was also threatened of her life,therefore she did not lodged the First Information Report.The applicant and his wife are forcing her to do illegal acts.The informant told her father and elder uncle about the incident but on account of fear of social stigma they did not lodged the First Information Report Report.Applicant and his wife have sent photographs to her relative, hence she has lodged the First information Report.

Learned counsel for the applicant has submitted that the applicant has been falsely implicated in this case. He has no criminal history to his credit. The applicant has definite apprehension that he may be arrested by the police any time.

From perusal of the record it appears that applicant has approached this court earlier by way of filing Criminal Misc. Writ Petition No. 13672 of 2020 and same was dismissed directing him to apply anticipatory bail.

Learned A.G.A. has opposed the prayer for anticipatory bail of the applicant. He has submitted that in view of the seriousness of the allegations made against the applicant, he is not entitled to grant of anticipatory bail. The apprehension of the applicant is not founded on any material on record. Only on the basis of imaginary fear, anticipatory bail cannot be granted.

After considering the rival submissions, it appears that the incident took place two and half years ago , First Information Report has been lodged on 31.8.2019.Applicant and victim are relatives and knew each other earlier. There is allegation against the applicant that he has made obscene photographs of the victim viral .The implication of the wife of the applicant and her assistance in the alleged offence of rape does not appears to be probable , since wife will not normally permit her husband to rape another women before her.On account of some other dispute the applicant has been implicated in the offence of rape.It is also clear that on account of present implication of the applicant, his father-in-law implicated him in case crime no. 299 of 2019 under sections 498-A,307,323, I.P.C. P.S. Dadri District Gautam Budh Nagar.

This Court finds that there is a case registered against the applicant. It cannot be definitely said when the police may apprehend him. After the lodging of F.I.R., the arrest can be made by the police at will. There is no definite period fixed for the police to arrest an accused against whom an F.I.R. has been lodged. The courts have repeatedly held that arrest should be the last option for the police and it should be restricted to those exceptional cases where arresting the accused is imperative or his custodial interrogation is required. Irrational and indiscriminate arrests are gross violation of human rights. In the case of Joginder Kumar v. State of Uttar Pradesh AIR 1994 SC 1349, the Apex Court has referred to the third report of National Police Commission wherein it is mentioned that arrests by the police in India is one of the chief source of corruption in the police. The report suggested that, by and large, nearly 60 percent of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2 percent of expenditure of the jails. Personal liberty is a very precious fundamental rights and it should be curtailed only when it becomes imperative. According to the peculiar facts and circumstances of the case, the arrest of an accused should be made.

Without expressing any opinion on the merits of the case and considering the nature of accusation and his antecedents and also the second surge in the cases of novel coronavirus and possibility of further surge of the pandemic, the applicant is entitled to be released on anticipatory bail for limited period in this case considering the exceptions considered by the Hon'ble Supreme Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98.

In the event of arrest, the applicant shall be released on anticipatory bail till cognizance is taken by the Court on the police report, if any, under section 173 (2) Cr.P.C. before the competent Court on furnishing a personal bond of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the Station House Officer of the police station/ concerned Court with the following conditions:-

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

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

(iii) The applicant shall not leave India 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.

(iv) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.

(v) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

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

The Investigating Officer is directed to conclude the investigation, if pending, of the present case in accordance with law, expeditiously, independently without being prejudiced by any observations made by this Court while considering and deciding the present anticipatory bail application of the applicant.

The applicant is directed to produce a copy of this order downloaded from the official website of this Court before the S.S.P./S.P. concerned within ten days from today, if investigation is in progress, who shall ensure the compliance of present order.