YOGENDRA KUMAR MISHRA Vs. STATE OF U.P.

JUDGEMENT

(1.) Applicant-Yogendra Kumar Mishra has approached this Court by way of filing this Criminal Misc. Anticipatory Bail Application under Sec. 438 Cr.P.C. after rejection of his anticipatory bail application vide order dtd. 30/11/2021 passed by Additional District and Additional District and Sessions Judge/Special Judge (POCSO Act), Allahabad, seeking Anticipatory Bail in Case Crime No. 324 of 2021, under Ss. 376, 506, 328 IPC, 3/4 POCSO Act and 67 I.T. Act, Police Station Kotwali, District Prayagraj.

(2.) Sri Anil Tiwari, learned Senior Advocate has vehemently argued that it is a fit case for anticipatory bail. Undisputedly the applicant is a married person having a wife and son whereas Opposite Party No. 2 (Informant) alongwith her daughter (a minor girl and victim) are living separately from her husband. The Informant is a Teacher in a School where applicant is working as Class-IV employee in same school. It is admitted case that applicant has consensual relationship with Informant and Informant and her daughter are staying with him. There are cordial relationship with the son of applicant with the daughter of First Informant as brother and sister. In support of this submission learned Senior Advocate has relied on the photographs and whatsapp chat history which are part of record. Learned Senior Advocate also submits that their relations were very cordial and he has purchased a land in his name as well as in the name of Opposite Party No. 2 and an agreement to sell is also on record. The relationship become strained when First Informant, though not legally divorced, insisted applicant to get merry which was not possible for applicant because he is a married person. In these circumstances, applicant withdrew the money deposited towards agreement to sell. All these circumstances made the First Informant annoyed and, therefore, a false FIR was lodged wherein false allegation of rape against applicant, not only with First Informant but with her minor daughter, was levelled. All the alleged incidents mentioned in FIR are very old. So far 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 has also fairly submits 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 Ss. 82 and 83 Cr.P.C.

(3.) Sri Munne Lal, learned A.G.A. appearing for State and Sri Subhash Chandra Tiwari, Advocate appearing for Opposite Party No. 2, have vehemently opposed the aforesaid submissions. They submitted that First Informant as well as her minor daughter have made a categorical statement against applicant in their statements recorded under Sec. 164 Cr.P.C. that they were raped on multiple times taking benefit of their separation and trust imposed by First Informant and her daughter with applicant. They also submitted that applicant is not cooperating with investigation process, therefore, not only non bailable warrant was issued but now proceedings under Ss. 82 and 83 Cr.P.C. have also been initiated against applicant, therefore, no case for anticipatory bail is made out.