CASE TITLE:
Yogendra Kumar Mishra v. State of U.P. and Another
DATE OF JUDGEMENT:
6th April, 2022
JUDGES:
Justice Saurabh Shyam Shamshery
PARTIES:
Yogendra Kumar Mishra (Petitioner)
State of U.P. and Another (Respondent)
SUBJECT
In this case, the Allahabad High Court observed that POCSO accused was not entitled to anticipatory bail under Section 82 Cr.P.C who allegedly raped a minor girl and her mother.
IMPORTANT PROVISIONS
Criminal Procedure Code
Section 82 - Proclamation for person absconding
Section 83 - Attachment of property of a person absconding
Section 438 - Provision for Anticipatory Bail
BRIEF FACTS
- Yogendra Kumar Mishra was charged with raping a juvenile girl and her mother/informant under Sections 376, 506, 328 IPC, 3/4 POCSO Act, and 67 I.T. Act.
- As per the case of the accused, he and the first informant/mother had a consensual relationship even though the accused is a married man and the informant is living separately from her husband.
- The applicant approached the Court seeking Anticipatory Bail after the rejection of his anticipatory bail application by Additional District and Additional District and Sessions Judge/Special Judge (POCSO Act), Allahabad.
- The accused argued before the Court that the informant is a Teacher in a School where the applicant is working as a Class-IV employee and when the informant asked him to get married to him, he refused as he is a married person and therefore, she lodged an FIR against him on false allegations.
- The state, on the other hand, objected to the applicant being granted anticipatory bail, claiming that the informant and her underage daughter made a categorical declaration against the applicant in their statements recorded under Section 164 Cr.P.C. that they were raped several times.
- Lastly, it was also argued that since the applicant did not cooperate with the investigation process, therefore, not only non a bailable warrant was issued against him, but now proceedings under Sections 82 and 83 Cr.P.C. have also been initiated against the applicant, therefore, no case for anticipatory bail was made out.
ARGUMENTS ADVANCED BY THE APPLICANT
- Sri Anil Tiwari, a senior advocate, argued vehemently that the case was appropriate for anticipatory bail. The applicant is undisputedly a married man with a wife and son, but Opposite Party No. 2 (Informant) and her daughter (a minor girl and victim) were living apart from her husband.
- The Informant was a Teacher in a School where the applicant is working as a Class-IV employee in the same school. The applicant had a consensual relationship with Informant, and Informant and her daughter were staying with him, it was admitted. As brother and sister, the applicant's son and the First Informant's daughter had a friendly relationship.
- In support of this submission, the Senior Advocate relied on the photographs and whatsapp chat history which are part of the record.
- Learned Senior Advocate also submitted that their relations were very cordial and he purchased land in his name as well as in the name of Opposite Party No. 2 and an agreement to sell was also on record. The relationship deteriorated when the First Informant, despite not being officially divorced, requested that the applicant marry, which the applicant could not do because he was already married.
- In these situations, the applicant withdrew the money that had been deposited toward the sale agreement. All of these situations irritated the First Informant, and as a result, a fake FIR was filed, alleging rape against the applicant, not only with the First Informant but also with her underage daughter. All of the alleged instances in the FIR are quite old.
- When the allegation of rape with minor daughter is concerned, it is the case of First Informant that applicant himself communicated to her about the incident, therefore, considering that it is absolutely improbable, a case of anticipatory bail is made out. Learned Senior Advocate also fairly submitted that after the Trial Court rejected applicant’s anticipatory bail, not only non-bailable warrant was issued against applicant but proceedings were also initiated under Sections 82 and 83 Cr.P.C.
ARGUMENTS ADVANCED BY THE RESPONDENT
- Sri MunneLal, appearing for State and Sri Subhash Chandra Tiwari, Advocate appearing for Opposite Party No. 2, vehemently opposed the aforesaid submissions.They claimed that in their statements recorded under Section 164 Cr.P.C., First Informant and her minor daughter made a categorical statement against applicant, claiming that they were raped multiple times while benefiting from the separation and trust imposed by First Informant and her daughter with applicant.
- They also claimed that because the applicant is refusing to cooperate with the inquiry, not only was a non-bailable warrant issued, but also proceedings under Sections 82 and 83 Cr.P.C. were started against him, and thus no basis for anticipatory bail could be brought out.
ANALYSIS BY THE COURT
- The Court cited the Supreme Court's decision in the Prem Shankar Prasad case, whereas the Apex Court, citing the State of Madhya Pradesh v. Pradeep Sharma case, had reiterated that anyone who has been declared an absconder/proclaimed offender under Section 82 Cr.P.C. is not entitled to anticipatory bail relief.
- The Court further noted that, according to the prosecution's case, the accused-applicant initially inspired the victims' trust, and when they entirely trusted him, he not only violated the First Informant's trust, but also that of her minor daughter.
- The applicant not only raped the First Informant but also her minor daughter, according to the allegations made in the statements recorded under Section 164 Cr.P.C. There is also an allegation that the applicant has certain unsolicited video clips that he threatened to make viral and blackmailed the victim and her mother.
- The Court found that the petitioner was not entitled to anticipatory bail based on the fact that he was not only deemed a proclaimed felon under Section 82 Cr.P.C., but also a proclamation of attachment of property was issued under Section 83 Cr.P.C.
CONCLUSION
Anticipatory Bail is a court order that allows a person to be released on bail before they are arrested. There is a fear of arrest in this case, but the person is not apprehended before the Bail is granted. A person can apply for such bail under Section 438 of the Code of Criminal Procedure (CrPC). Only the Sessions Court and the High Court can issue it. Influential people often try to put their rivals in bogus cases in order to disgrace them or to get them imprisoned for other reasons. Apart from fraudulent cases, when there are reasonable grounds to believe that a person accused of an offence would not abscond or misuse his liberty while on Bail, there is no need to place him in custody, keep him in prison, and then file for Bail. Bail could be given sooner in such circumstances.
Section 438 was enacted to protect personal liberty; however, in heinous cases of rape, murder, sexual assault, and other crimes, it is not prudent to grant anticipatory bail to someone who may flee and become an absconder, causing the case to languish in court for years without a verdict, or in cases where the accused is a habitual offender of the law.
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