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Allahabad HC Grants Interim Bail To The Government Counsel Accused Of Sexually Harassing A Young Lawyer [Read Order]

Sparsh Upadhyay
4 Sep 2020 7:19 AM GMT
Allahabad HC Grants Interim Bail To The Government Counsel Accused Of Sexually Harassing A Young Lawyer [Read Order]
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The Allahabad High Court on Thursday (03rd August) granted interim bail to a government counsel in connection to a rape case lodged against him by a young lawyer.The interim bail was granted in connection with FIR No.0326 of 2020, under Sections 328, 354A, 376 IPC, P.S. Vibhuti Khand, and District Lucknow.While hearing the government counsel's plea, who was apprehending his arrest in...

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The Allahabad High Court on Thursday (03rd August) granted interim bail to a government counsel in connection to a rape case lodged against him by a young lawyer.

The interim bail was granted in connection with FIR No.0326 of 2020, under Sections 328, 354A, 376 IPC, P.S. Vibhuti Khand, and District Lucknow.

While hearing the government counsel's plea, who was apprehending his arrest in connection with the aforesaid matter, the Single Bench of Justice Chandra Dhari Singh at Lucknow said,

"The applicant is a reputed Advocate and has been practicing in this Court for the last 29 years without having any criminal antecedent(s). The applicant was Additional Chief Standing Counsel for the State Government and for number of Departments and Corporations. The entire evidence against the applicant is based on documents. Having regard to the status which the applicant has, there is no likelihood of his fleeing away from justice. "

The background of the Case

It may be noted that Additional Chief Standing Counsel in the Lucknow bench of the High Court, Shailendra Singh Chauhan, has been accused of sexual harassment by a young practicing lawyer from Delhi. She has alleged that Chauhan raped her in his chamber.

Accordingly, an FIR [bearing No.0326 of 2020] has been lodged at the Vibhuti Khand Police Station in Gomti Nagar area, under Sections 328 (Causing hurt by means of poison, etc., with intent to commit an offence), 354A (Sexual harassment) and 376 (Rape) of IPC.

Allahabad HC granted interim relief from arrest (31st July)

Earlier, Chauhan had approached the High Court [Writ Petition No.12149 (MB) of 2020] stating that the allegations levelled against him were false and therefore, the FIR registered against him ought to be quashed.

While hearing the government counsel's plea for quashing of FIR, the Division Bench of Justices AR Masoodi and Rajeev Singh at Lucknow said,

"Looking to the contents of the F.I.R., prima facie, we are satisfied that a case for intervention is made out to the extent that the petitioner(accused) may not be arrested…"

Though the court refused to quash the proceedings instantly, it had granted interim relief from arrest to Chauhan on Friday (31st July 2020).

Meanwhile, without expressing much on the merits of the case, the Court had granted time to the Complainant's lawyer to file a reply in the matter.

Stay on Allahabad HC order granting interim relief from arrest by the Top Court (5th August)

Soon thereafter, the Supreme Court on Wednesday (05th August) stayed an order of the Allahabad High Court to the extent it restrained the UP Police from arresting Chauhan in connection to this case.

Significantly, the impugned order inasmuch as it made a direction upon the competent court to enable the investigating agency to recover relevant material connected with the case was not interfered with.

The stay order was passed by a Division bench comprised of Justice RF Nariman and Justice Navin Sinha while hearing an SLP against the HC order.

SC issued notices in a petition seeking transfer of investigation and trial in the case against Chauhan (21st August)

Further, the Supreme Court on Friday (21st August) issued notices in a writ petition seeking transfer of investigation and trial in the criminal case filed against Chauhan.

The petition was moved by one of the victim's friends, apprehending that investigation in the rape case may be hindered due to the "clout" of the accused enjoyed back in the state.

The Bench comprising Justices RF Nariman, Navin Sinha and Indira Banerjee had issued notices to the UP Government and SP, Lucknow.

The Petitioner had submitted that the FIR lodged by the victim in the Vibhuti Khand Police Station had shockingly been circulated all over media, disclosing the victim's identity and personal details to the public. This had made it impossible for her or her family to "step out of their house".

Allahabad HC grants Interim Bail to Chauhan (03rd September)

Petitioner's Arguments - It was submitted by the Counsel for the petitioner that no material of any sort was found at the place of alleged incident to substantiate the allegation of giving intoxicated juice. The Senior Counsel also submitted that the instant case has been filed only to blackmail the applicant and to extract money and grab the chamber of the applicant situated at Vibhuti Khand, Gomti Nagar, Lucknow. The instant case is nothing but gross misuse of the process of law.

The applicant had first approached before Court of Sessions by way of filing anticipatory bail application under Section 438 Cr.P.C. and the Court of Additional Sessions Judge/F.T.C.-02, Lucknow rejected the bail application vide order dated 19.08.2020 rendered in Bail Application No.3553 of 2020.

The Counsel further submitted that the police of P.S. Vibhuti Khand was searching and trying to arrest the applicant, therefore, the applicant has apprehension that he could be arrested by the police in connection with FIR No.326 of 2020.

AGA Arguments - The Learned AGA has prayed for some time to file a supplementary affidavit along with the laboratory report.

Complainant's Arguments - The counsel appearing for the complainant vehemently opposed the submissions made by learned counsel for the applicant and submitted that the applicant is an influential person and he may influence the investigation.

He also submitted that the complainant had filed a writ petition under Article 32 of Constitution of India before the Hon'ble Supreme Court with a prayer that the investigation may be transferred to CBI from local police of P.S. Vibhuti Khand, Gomti Nagar, Lucknow.

At last, learned counsel for the complainant sought two weeks' time to file objection/counter affidavit of the anticipatory bail application along with all documents on which he is relying during the course of arguments.

Court's Observation – The court was of the view that the provision of anticipatory bail could be invoked by a person who has a "reasonable apprehension" that he may be arrested for committing a non-bailable offence.

In this context, the court opined,

"The main purpose of incorporating Section 438 in Cr.P.C. was that the liberty of an individual should not be unnecessarily jeopardised. Right to life and personal liberty are one of the important fundamental rights guaranteed by the constitution and therefore, no person should be confined or detained in any manner unless he has been held guilty."

While referring to the Judgment in the case of Nagendra v. King Emperor - AIR 1924 Cal 476, the High Court said that the object of the bail is to secure the attendance of the accused at the trial.

In the case of Nagendra (supra), it was held that the object of the bail is to secure the attendance of the accused at the time of the trial and that the proper test to be applied for the solution of the the question, whether bail should be granted or not, is whether it is probable that the party will appear to take his trial.

Further, the court explained that the expression "reasonable belief" fosters a belief of genuine belief the apprehension of the arrest of an allegation which prima facie is insubstantial and made with a sinister motive, the object being to malign a person where his arrest by prosecuting agency is immediate than remote.

However, the court further said, when a non-bailable offence has been committed by an accused, such "reason to believe" or apprehension of arrest can never be equated with the genuine belief of apprehension of arrest proceeding from prima facie substantial material entitling him to pre-arrest bail.

The court remarked,

"The section can never be used by any individual to cultivate his rights when he is prima facie liable for an accusation and does not commensurate with his innocence. Reasonable belief is not colourable belief."

Therefore, as the court noted, the apprehension that the accused may be arrested on an accusation of a non-bailable offence has alone to be given due consideration and weight.

The case in hand, the court observed, admittedly, the applicant has been arraigned as an accused alleging commission of non-bailable offence.

Further, the court observed,

"It is clearly well settled that, keeping an accused person in custody pending trial or investigation of a case is not a measure of punishment, but it is only to see that his presence during the trial is secured easily and to prevent the likelihood of tampering of evidence or threatening or inducement of witnesses in any manner, the detention of such accused person in custody would not be warranted."

In light of the above discussion, the court was of the considered opinion that the applicant may be released on interim bail.

Accordingly, it was directed that in the event of his arrest, the applicant namely Shailendra Singh Chauhan be released on interim bail in connection with FIR No.0326 of 2020, under Sections 328, 354A, 376 IPC, P.S. Vibhuti Khand, District Lucknow on his executing a personal bond to the tune of Rs.50,000/- (Rupees Fifty Thousand) with two sureties in the like amount to the satisfaction of the Arresting Officer.

In view of the above facts and circumstances, two weeks' time was allowed to enable learned AGA to file supplementary affidavit and learned counsel for the complainant to file objection/counter affidavit.

The matter has been listed for further hearing on 05.10.2020.

Case Details:

Case Title: Shailendra Singh Chauhan v. State Of U.P. & Another.

Case No.: BAIL No. - 5862 of 2020

Quorum: Justice Chandra Dhari Singh

Appearance: Advocates Sushil Kumar Singh and Lalit Kishore Pandey (for the Applicant); G.A Adity Vikram (for the Opposite Party)

Click Here To Download Order

[Read Order]



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