# Achchey Lal Jaiswal v. State of U.P. & Anr

- **Citation:** (2024) 7 ILRA 986
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-15
- **Case number:** Crl. Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 1422 of 2024
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/achchey-lal-jaiswal-v-state-of-u-p-anr-52363
- **Pages:** 14

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 120B, 420, 465, 466, 467, 468 &
471 - The Code of Criminal Procedure,
1973 - Sections 437 & 482 - Constitution
of India - Article 226 - Allahabad High
Court Rules, 1952 - Chapter XVIII Rule
18-A - As per FIR, mother of informant
was owner of property and adjacent to the
said property, there was property of
applicant's son-in-law, a registered Will
was executed by her in which, the
applicant's
son-in-law,
his
wife
and
applicant were shown as heirs of her,
applicant was attesting witness - Issue
before Court, whether the non-disclosure
of previous legal actions by applicant by
filing a writ petition and an application
u/s 482 , Cr.P.C. would be fatal to
anticipatory bail application or not -
Held, civil litigations are there in between
the parties, the FIR has been lodged after
almost 8 years - Injunction order was
confirmed after hearing both the parties,
coupled with fact that he is aged about
74 years - Only allegation against him is
that he was an attesting witness -
Applicant is neither at a flight risk nor
can adversely effect the trial, entitled to
anticipatory bail - Directions accordingly
(Para 3, 13, 21)

The application allowed. (E-13)

List of Cases cited:

## Text

986 INDIAN LAW REPORTS ALLAHABAD SERIES
contract was necessary for the purpose of
determining whether the claim was justified
or otherwise.

37. In the present case, for
determination of issue pertaining to epoxy
grouting, no reference whatsoever was
required to be made to the contract in
question as the same only pertained to
rebuilding the Bridge No. 70, the dispute in
this regard, cannot and does not fall within
the arbitrable dispute. The Commercial
Court was perfectly justified in observing
that the appellants may be entitled to be
compensated for epoxy grouting work
somewhere else but not under the present
arbitration case.

38. So far as the judgement relied
on by the counsel for the appellants are
concerned,
none
of
the
judgements
apparently deal with execution of nongratuitous work wholly independent of the
contracted work.

39. In the case of Promode Kumar
Agarwalla (Supra) also, the court referred
to the judgement in A. M. Mair & Co. v.
Gordhandas Sagarmull : 1951 AIR (SC)
9 wherein also the principle was laid down
that if a party has to take recourse to the
contract to establish the claim, the dispute
in respect of which the claim arises is a
dispute under or arising out of the contract.
As noticed herein-before, the case of the
appellants fails on the touchstone of the
said principle laid down by Hon'ble
Supreme Court.

40. In case of Ravi Kumar
(Supra), the dispute pertained to additional
work, in relation to the contract in question.
Similarly, in the case of Bharat Sanchar
Nigam Limited (Supra) also the dispute
arose out of the contract containing an
arbitration clause and was found to be
arbitrable.

41. In view of the above
discussions, findings recorded by the
Commercial Court in relation to the claim
pertaining to epoxy grouting being not
arbitrable cannot be faulted.

42. Consequently, the appeal is
partly allowed. The judgement impugned
dated
28.06.2023
passed
by
the
Commercial Court in Arbitration Case No.
19 of 2021 is set aside. While the Arbitral
Award dated 06.11.2020 relating to claim
of the appellants pertaining to epoxy
grouting amounting to Rs.61,24,732.79P.
and payment of interest @ 12% from the
date on which the cause of action arose till
the date of award, is set aside, the rest of
the award is upheld.

43. The appellant, except for the
amount of epoxy grouting and pendente lite
interest awarded by the Arbitrator, would
be entitled to execute the rest of the award
in accordance with law.

44. No order as to costs.
----------
(2024) 7 ILRA 986
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 15.07.2024

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Crl. Misc. Anticipatory Bail Application U/S 438
Cr.P.C. No. 1422 of 2024

Achchey Lal Jaiswal ...Applicant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicant:
7 All. Achchey Lal Jaiswal Vs. State of U.P. & Anr.
987
Jitendra Saksena

Counsel for the Respondents:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 120B, 420, 465, 466, 467, 468 &
471 - The Code of Criminal Procedure,
1973 - Sections 437 & 482 - Constitution
of India - Article 226 - Allahabad High
Court Rules, 1952 - Chapter XVIII Rule
18-A - As per FIR, mother of informant
was owner of property and adjacent to the
said property, there was property of
applicant's son-in-law, a registered Will
was executed by her in which, the
applicant's
son-in-law,
his
wife
and
applicant were shown as heirs of her,
applicant was attesting witness - Issue
before Court, whether the non-disclosure
of previous legal actions by applicant by
filing a writ petition and an application
u/s 482 , Cr.P.C. would be fatal to
anticipatory bail application or not -
Held, civil litigations are there in between
the parties, the FIR has been lodged after
almost 8 years - Injunction order was
confirmed after hearing both the parties,
coupled with fact that he is aged about
74 years - Only allegation against him is
that he was an attesting witness -
Applicant is neither at a flight risk nor
can adversely effect the trial, entitled to
anticipatory bail - Directions accordingly
(Para 3, 13, 21)

The application allowed. (E-13)

List of Cases cited:

1. Madhya Pradesh Vs Pradeep Sharma, (2014)
2 SCC 171

2. Lavesh Vs State (NCT of Delhi), (2012) 8
SCC 730

3. K. Jayaram & ors. Vs Bangalore Development
Authority & ors., (2022) 12 SCC 815

4. Shivam Vs St. of U.P. & anr., 2021 (4) ALJ 132

5. Srikant Upadhyay & ors. Vs St. of Bihar &
anr., (2024) 3 SCR 421
6. Kamlesh & anr. Vs The St. of Rajasthan &
anr., Crl Misc. Appeal No.1006 of 2019 (arising
out of SLP (Crl.) No.1530 of 2018)

7. Sardool Singh & ors. Vs Nasib Kaur (Smt.),
1987 Supp SCC 146

8. Sushila Aggarwal & ors. Vs St. (NCT of Delhi)
& anr., (2020) 5 SCC 1

9. Gurbaksh Singh Sibbia Vs St. of Pun., (1980)
2 SCC 565

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. Heard learned Counsel for the
applicant as well as Sri V.K. Singh, learned
Government Advocate assisted by Sri
Shivendra Shivam Singh Rathore, learned
brief holder and Sri Vivek Kumar Rai,
learned Counsel appearing on behalf of the
complainant and perused the record.

2. The present application has been
filed by the applicant aged about 74 years
under Section 438 of Cr.P.C. seeking
anticipatory bail apprehending arrest in FIR
No.298 of 2023, under Sections 120B, 420,
465, 466, 467, 468, 471 IPC, Police Station
Kotwali Nagar, District Sultanpur.

3. It is stated that an FIR dated
10.04.2023 was lodged with the allegations
that the mother of the informant was owner
of the property and adjacent to the said
property, there was a property of the son-inlaw of the applicant and on account of bad
intention, a registered Will was executed by
the mother on 17.07.2019, in which, the
son-in-law of the applicant and his wife and
the applicant were shown as heirs of the
said mother. It was stated that the applicant
was the attesting witness to the said Will.

4. The Counsel for the applicant
argues that the Will was a registered Will
and on account of the dispute in between
988 INDIAN LAW REPORTS ALLAHABAD SERIES
the parties, a civil suit was filed being
Original Suit No.1343 of 2016, in which,
the informant had appeared and has filed
his written statement taking a specific plea
that the Will was a forged Will. Despite the
said, an injunction order came to be passed
in favour of the plaintiffs on 15.02.2023
after hearing the parties and after the
injunction order was made final, the present
FIR was registered on 10.04.2023 at the
instance of defendants of civil suit.

5. The Counsel for the applicant
also draws my attention to the proceedings
pending in the court of Tehsildar, Sadar in
between the parties in respect of the said
land. He thus argues that essentially after
the informant having failed in the civil suit
for vacation of the injunction, the present
FIR was lodged. Essentially a civil case is
being converted into a criminal case.

6. The Counsel for the informant
and the learned G.A. Sri V.K. Singh oppose
the prayer for grant of anticipatory bail
mainly on the ground that there was
concealment of material facts.

7. It was stated by the Counsel for
the State that the applicant had approached
this Court by filing a petition under Article
226 of the Constitution of India for
quashing of the FIR, in which, an interim
order was obtained in favour of the
applicant being Criminal Misc. Writ
Petition No.3559 of 2023. In pursuance
thereto, the applicant was not arrested. The
said writ petition was dismissed on
18.08.2023
for
want
of
prosecution.
Thereafter, an application was filed for
recall of the order dated 18.08.2023 and
ultimately, the said order was recalled and
also extended the interim order till the next
date of listing, while issuing notice to the
private opposite parties. It is argued that
despite the restoration of the writ petition,
the applicant filed an application under
Section 482 of Cr.P.C. being Application
No.9084 of 2023 challenging the chargesheet, as the charge-sheet has already been
filed on 09.08.2023 and the court had taken
cognizance on 11.08.2023. He thus argues
that the filing of an application under
Section 482 of Cr.P.C. demonstrates that
the applicant was aware of the charge-sheet
and despite being aware, the Criminal
Misc. Writ Petition No.3559 of 2023 was
got restored and the interim order was got
extended.

8. The Counsel for the State
further argues that the Application U/S 482
Cr.P.C. No.10202 of 2023 filed by the
applicant came to be dismissed on
17.01.2024 mainly noticing the conduct of
the applicant in getting the writ petition
restored despite the charge-sheet having
been filed, however, the Court had made
observations that as the applicant is an old
person and suffering from various aliments,
he may avail his remedy in the light of the
provisions of Section 437 of Cr.P.C. and
also may avail his remedy of filing
discharge application, which has to be
decided on merit.

9. It is argued by the Counsel for
the State that these material facts have not
been disclosed in the present application, as
such, the Court should not exercise the
jurisdiction under Section 438 of Cr.P.C. in
favour of the applicant as the jurisdiction
by virtue of Section 438 of Cr.P.C. is a
discretionary jurisdiction and considering
the conduct of the applicant, discretion
cannot be exercised in his favour.

10. The Counsel for the State
places reliance on the judgment of the
Hon'ble Supreme Court in the case of State
7 All. Achchey Lal Jaiswal Vs. State of U.P. & Anr.
989
of Madhya Pradesh vs Pradeep Sharma;
(2014) 2 SCC 171, which is to the effect
that jurisdiction under Section 438 of
Cr.P.C. should not be exercised if any one
is declared as absconder/ proclaimed
offender. He argued that in the case of the
applicant, non-bailable warrants have been
issued. He further draws my attention to a
similar judgment in the case of Lavesh vs
State (NCT of Delhi); (2012) 8 SCC 730.

11. The learned G.A. further
argues that it is well settled that equitable
jurisdiction under Article 226 of the
Constitution of India cannot be invoked
unless of the material facts are disclosed.
For the said proposition, reliance is placed
in the case of K. Jayaram and others vs
Bangalore Development Authority and
others; (2022) 12 SCC 815. My attention
has also been drawn to a co-ordinate Bench
judgment of this Court in the case of
Shivam vs State of U.P. and another; 2021
(4) ALJ 132, wherein, this court had laid
down the conditions, in which, anticipatory
bail cannot be granted to an accused after
submission of the charge-sheet. Lastly my
attention has been drawn to the judgment of
the Hon'ble Supreme Court in the case of
Srikant Upadhyay and others vs State of
Bihar and another; (2024) 3 SCR 421 laid
emphasis of paragraphs 16 and 24, which
are to the following effect:

"16.
For
a
proper
consideration
of
the aforesaid
contentions and allied questions, it
is only appropriate to refer to
certain provisions of law as also
certain relevant decisions. From
the chronology of events narrated
hereinbefore, it is evident that for
reasons
best
known
to
the
appellants, subsequent to the filing
of the final report in terms of the
provisions under Section 173(2),
Cr.P.C in FIR No.79/2020 and
issuance of summons, issuance of
bailable warrants and issuance of
non-bailable warrants; pursuant to
the failure of the appellants to
appear before the Court on the date
fixed for their appearance based on
bailable warrants, they did not care
to take any action in accordance
with
law
except
moving
applications for bail. Same was the
position even after the issuance of
the proclamation under Section 82,
Cr.PC. As noted earlier, in the case
of similarly situated co-accused of
the appellants, they appeared and
obtained regular bail pursuant to
the issuance of bailable warrants.
Thus, a scanning of the acts and
omissions of the appellants, it can
only be seen that virtually, the
appellants
were
defying
the
authority of law and moving
applications for bail when they
apprehended arrest owing to their
non- attendance and dis-obedience.
It is in the context of the aforesaid
facts revealed from the materials
on record that the contention of the
appellants that they were only
pursuing
their
right
to
file
application for anticipatory bail
and, therefore, they were not either
evading the arrest or absconding,
has to be appreciated.
24. We have already held
that the power to grant anticipatory
bail is an extraordinary power.
Though in many cases it was held
that bail is said to be a rule, it
cannot,
by
any
stretch
of
imagination,
be
said
that
anticipatory bail is the rule. It
cannot be the rule and the question
990 INDIAN LAW REPORTS ALLAHABAD SERIES
of its grant should be left to the
cautious and judicious discretion
by the Court depending on the facts
and circumstances of each case.
While called upon to exercise the
said power, the Court concerned
has to be very cautious as the grant
of interim protection or protection
to the accused in serious cases may
lead to miscarriage of justice and
may hamper the investigation to a
great extent as it may sometimes
lead to tampering or distraction of
the evidence. We shall not be
understood to have held that the
Court shall not pass an interim
protection pending consideration of
such application as the Section is
destined to safeguard the freedom
of
an
individual
against
unwarranted arrest and we say that
such orders shall be passed in
eminently fit cases. At any rate,
when
warrant
of
arrest
or
proclamation
is
issued,
the
applicant is not entitled to invoke
the extraordinary power. Certainly,
this will not deprive the power of
the Court to grant pre-arrest bail in
extreme, exceptional cases in the
interest
of
justice.
But
then,
person(s)
continuously,
defying
orders and keep absconding is not
entitled to such grant."

12. In respect to the said
preliminary objection, the Counsel for the
applicant argues that the present application
has
been
filed
by
the
applicant
apprehending his arrest in pursuance to the
non-bailable warrant, which has already
been issued, in a case, which is otherwise a
civil case being given the colour of
criminal case. He draws my attention to the
order of the Hon'ble Supreme Court in the
case of Kamlesh and another vs The State
of Rajasthan and another, decided on
09.07.2019
[Criminal
Misc.
Appeal
No.1006 of 2019 (arising out of SLP (Crl.)
No.1530 of 2018)], wherein, it was
observed that even if a petition under
Section 482 of Cr.P.C. is dismissed, the
same could not be a reason for rejecting the
anticipatory bail application. He also argues
that on the basis of an order passed by the
Hon'ble Supreme Court in the case of
Sardool Singh and other vs Nasib Kaur
(Smt.); 1987 Supp SCC 146, wherein, a
criminal prosecution was instituted on the
allegation that the Will is a forged one, it
was observed that the said issue is to be
decided in the civil proceedings.

13. Considering the submissions
made at the bar, the first question that arises
is whether the non-disclosure of the fact of
the applicant filing a writ petition and an
application under Section 482 of Cr.P.C.
would be fatal to be consideration of the
anticipatory bail application or not?

14. Section 438 of Cr.P.C. was
extensively discussed by the Hon'ble
Supreme Court in the case of Sushila
Aggarwal and others vs State (NCT of
Delhi) and another; (2020) 5 SCC 1, the
nature of the power of grant of anticipatory
bail was discussed and the earlier view of
the Hon'ble Supreme Court in the case of
Gurbaksh Singh Sibbia vs State of
Punjab; (1980) 2 SCC 565 was affirmed.
The Hon'ble Supreme Court had culled the
conclusion drawn by the Hon'ble Supreme
Court in the case of Gurbaksh Singh Sibbia
(Supra) in paragraph 52, which is as under:

52. In the light of the
relevant
extracts
of
Sibbia
[Gurbaksh Singh Sibbia v. State of
Punjab, (1980) 2 SCC 565 : 1980
7 All. Achchey Lal Jaiswal Vs. State of U.P. & Anr.
991
SCC (Cri) 465] , it would now be
worthwhile to recount the relevant
observations on the issue. The
discussion
and
conclusions
in
Sibbia [Gurbaksh Singh Sibbia v.
State of Punjab, (1980) 2 SCC 565
: 1980 SCC (Cri) 465] are
summarised as follows:
52.1. Grant of an
order
of
unconditional
anticipatory bail would be
"plainly contrary to the
very terms of Section 438".
Even though the terms of
Section
438(1)
confer
discretion, Section 438(2)
"confers on the court the
power
to
include
such
conditions in the direction
as it may think fit in the
light of the facts of the
particular case, including
the conditions mentioned in
clauses (i) to (iv) of that
sub-section".
52.2. Grant of an
order under Section 438(1)
does not per se hamper
investigation of an offence;
Sections 438(1)(i) and (ii)
enjoin
that
an
accused/applicant
should
cooperate
with
investigation.
Sibbia
[Gurbaksh Singh Sibbia v.
State of Punjab, (1980) 2
SCC 565 : 1980 SCC (Cri)
465] also stated that courts
can fashion appropriate
conditions governing bail,
as well. One condition can
be that if the police makes
out
a
case
of
likely
recovery
of
objects
or
discovery of facts under
Section 27 (of the Evidence
Act, 1872), the accused
may be taken into custody.
Given that there is no
formal method prescribed
by Section 46 of the Code if
recovery is made during a
statement (to the police)
and
pursuant
to
the
accused volunteering the
fact, it would be a case of
recovery during "deemed
arrest". (Para 19 of Sibbia
[Gurbaksh Singh Sibbia v.
State of Punjab, (1980) 2
SCC 565 : 1980 SCC (Cri)
465] )
52.3. The accused
is not obliged to make out a
special case for grant of
anticipatory bail; reading
an otherwise wide power
would fetter the court's
discretion. Whenever an
application
(for
relief
under
Section
438)
is
moved, discretion has to be
always
exercised
judiciously,
and
with
caution, having regard to
the facts of every case.
(Para
21,
Sibbia
[Gurbaksh Singh Sibbia v.
State of Punjab, (1980) 2
SCC 565 : 1980 SCC (Cri)
465] )

52.4.
While
the
power
of
granting
anticipatory bail is not
ordinary, at the same time,
its use is not confined to
exceptional cases. (Para
22, Sibbia [Gurbaksh Singh
Sibbia v. State of Punjab,
992 INDIAN LAW REPORTS ALLAHABAD SERIES
(1980) 2 SCC 565 : 1980
SCC (Cri) 465] )
52.5.
It
is
not
justified to require courts to
only grant anticipatory bail
in special cases made out
by
accused,
since
the
power is extraordinary, or
that several considerations
- spelt out in Section
437-or
other
considerations, are to be
kept in mind. (Paras 24-25,
Sibbia [Gurbaksh Singh
Sibbia v. State of Punjab,
(1980) 2 SCC 565 : 1980
SCC (Cri) 465] )
52.6. Overgenerous
introduction (or reading
into) of constraints on the
power to grant anticipatory
bail
would
render
it
constitutionally vulnerable.
Since fair procedure is part
of Article 21, the court
should
not
throw
the
provision (i.e. Section 438)
open to challenge "by
reading words in it which
are
not
to
be
found
therein". (Para 26)
52.7. There is no
"inexorable
rule"
that
anticipatory bail cannot be
granted
unless
the
applicant is the target of
mala
fides.
There
are
several
relevant
considerations
to
be
factored in, by the court,
while considering whether
to
grant
or
refuse
anticipatory bail. Nature
and seriousness of the
proposed
charges,
the
context of the events likely
to lead to the making of the
charges,
a
reasonable
possibility of the accused's
presence not being secured
during trial; a reasonable
apprehension
that
the
witnesses
might
be
tampered with, and "the
larger
interests
of
the
public or the State" are
some of the considerations.
A person seeking relief (of
anticipatory bail) continues
to be a man presumed to be
innocent. (Para 31, Sibbia
[Gurbaksh Singh Sibbia v.
State of Punjab, (1980) 2
SCC 565 : 1980 SCC (Cri)
465] )
52.8. There can be
no presumption that any
class of accused i.e. those
accused
of
particular
crimes, or those belonging
to the poorer sections, are
likely to abscond. (Para 32,
Sibbia [Gurbaksh Singh
Sibbia v. State of Punjab,
(1980) 2 SCC 565 : 1980
SCC (Cri) 465] )

52.9. Courts should
exercise
their
discretion
while
considering
applications
for
anticipatory bail (as they
do in the case of bail). It
would be unwise to divest
or limit their discretion by
prescribing
"inflexible
rules
of
general
application".
(Para
33,
Sibbia [Gurbaksh Singh
Sibbia v. State of Punjab,
7 All. Achchey Lal Jaiswal Vs. State of U.P. & Anr.
993
(1980) 2 SCC 565 : 1980
SCC (Cri) 465] )
52.10.
The
apprehension
of
an
applicant,
who
seeks
anticipatory bail (about his
imminent
or
possible
arrest) should be based on
reasonable grounds, and
rooted on objective facts or
materials,
capable
of
examination
and
evaluation, by the court,
and not based on vague
unspelt
apprehensions.
(Para
35,
Sibbia
[Gurbaksh Singh Sibbia v.
State of Punjab, (1980) 2
SCC 565 : 1980 SCC (Cri)
465] )
52.11. The grounds
for
seeking
anticipatory
bail should be examined by
the High Court or Court of
Session, which should not
leave
the
question
for
decision by the Magistrate
concerned.
(Para
36,
Sibbia [Gurbaksh Singh
Sibbia v. State of Punjab,
(1980) 2 SCC 565 : 1980
SCC (Cri) 465] )

52.12.
Filing
of
FIR is not a condition
precedent for exercising
power under Section 438; it
can be done on a showing
of reasonable belief of
imminent arrest (of the
applicant).
(Para
37,
Sibbia [Gurbaksh Singh
Sibbia v. State of Punjab,
(1980) 2 SCC 565 : 1980
SCC (Cri) 465] )
52.13. Anticipatory
bail can be granted even
after filing of an FIR - as
long as the applicant is not
arrested. However, after
arrest, an application for
anticipatory bail is not
maintainable. (Paras 3839, Sibbia [Gurbaksh Singh
Sibbia v. State of Punjab,
(1980) 2 SCC 565 : 1980
SCC (Cri) 465] )
52.14.A
blanket
order under Section 438,
directing the police to not
arrest
the
applicant,
"wherever arrested and for
whatever offence" should
not be issued. An order
based
on
reasonable
apprehension relating to
specific facts (though not
spelt out with exactness)
can be made. A blanket
order
would
seriously
interfere with the duties of
the police to enforce the
law
and
prevent
commission of offences in
the future. (Paras 40-41,
Sibbia [Gurbaksh Singh
Sibbia v. State of Punjab,
(1980) 2 SCC 565 : 1980
SCC (Cri) 465] )
52.15. The Public
Prosecutor
should
be
issued
notice,
upon
considering an application
under Section 438; an ad
interim order can be made.
The application "should be
re-examined in the light of
the respective contentions
of the parties". The ad
interim order too must
994 INDIAN LAW REPORTS ALLAHABAD SERIES
conform
to
the
requirements of the section
and
suitable
conditions
should be imposed on the
applicant
even
at
that
stage:
"42....
Should
the
operation
of
an
order passed under
Section 438(1) be
limited in point of
time?
Not
necessarily.
The
court may, if there
are
reasons
for
doing so, limit the
operation
of
the
order to a short
period until after
the filing of an FIR
in respect of the
matter covered by
the
order.
The
applicant may in
such
cases
be
directed to obtain
an order of bail
under Section 437
or 439 of the Code
within a reasonably
short period after
the filing of the FIR
as aforesaid. But
this need not be
followed
as
an
invariable rule. The
normal rule should
be not to limit the
operation
of
the
order in relation to
a period of time."
(SCC p. 591, para
42,
Sibbia
[Gurbaksh
Singh
Sibbia v. State of
Punjab, (1980) 2
SCC 565 : 1980
SCC (Cri) 465] )"

15. Explaining further in the case
of Sushila Aggarwal (Supra), the Court
specifically held that there is no offence per
se, which stands excluded from the purview
of Section 438 of Cr.P.C with the following
term:

"75.
For
the
above
reasons, the answer to the first
question in the reference made to
this Bench is that there is no
offence, per se, which stands
excluded from the purview of
Section 438, except the offences
mentioned in Section 438(4). In
other words, anticipatory bail can
be granted, having regard to all the
circumstances, in respect of all
offences. At the same time, if there
are indications in any special law
or statute, which exclude relief
under Section 438(1) they would
have to be duly considered. Also,
whether anticipatory bail should be
granted, in the given facts and
circumstances of any case, where the
allegations relating to the commission
of offences of a serious nature, with
certain special conditions, is a matter
of discretion to be exercised, having
regard to the nature of the offences,
the facts shown, the background of the
applicant, the likelihood of his fleeing
justice
(or not
fleeing
justice),
likelihood of cooperation or noncooperation with the investigating
agency or police, etc. There can be no
inflexible time-frame for which an
order
of
anticipatory
bail
can
continue.
7 All. Achchey Lal Jaiswal Vs. State of U.P. & Anr.
995
16. In the case of Sushila
Aggarwal (Supra), the conclusions were
recorded in paras 84 to 87, which reads as
under:

"84. This Court answers
the reference in the following
manner:
84.1. Regarding Question
1, it is held that the protection
granted under Section 438 CrPC
should not always or ordinarily be
limited to a fixed period; it should
enure in favour of the accused
without any restriction as to time.
Usual or standard conditions under
Section 437(3) read with Section
438(2) should be imposed; if there
are peculiar features in regard to
any crime or offence (such as
seriousness or gravity, etc.), it is
open to the court to impose any
appropriate condition (including
fixed nature of relief, or its being
tied to an event or time-bound), etc.
84.2. The second question
referred to this Court is answered,
by holding that the life of an
anticipatory bail does not end
generally at the time and stage
when the accused is summoned by
the court, or after framing of
charges, but can also continue till
the end of the trial. However, if
there are any special or peculiar
features necessitating the court to
limit the tenure of anticipatory bail,
it is open for it to do so.

85. Having regard to the
above discussion, it is clarified that
the court should keep the following
points as guiding principles, in
dealing with applications under
Section 438 CrPC:
85.1. As held in Sibbia
[Gurbaksh Singh Sibbia v. State of
Punjab, (1980) 2 SCC 565 : 1980
SCC (Cri) 465] , when a person
apprehends arrest and approaches
a court for anticipatory bail, his
apprehension (of arrest), has to be
based on concrete facts (and not
vague
or
general
allegations)
relatable to a specific offence or
particular offences. Applications
for anticipatory bail should contain
clear and essential facts relating to
the offence, and why the applicant
reasonably apprehends his or her
arrest, as well as his version of the
facts. These are important for the
court which is considering the
application,
the
extent
and
reasonableness of the threat or
apprehension,
its
gravity
or
seriousness
and
the
appropriateness of any condition
that may have to be imposed. It is
not a necessary condition that an
application should be moved only
after an FIR is filed; it can be
moved earlier, so long as the facts
are clear and there is reasonable
basis for apprehending arrest.
85.2. The court, before
which an application under Section
438 is filed, depending on the
seriousness of the threat (of arrest)
as a measure of caution, may issue
notice to the Public Prosecutor and
obtain facts, even while granting
limited interim anticipatory bail.
85.3. Section 438 CrPC
does not compel or oblige courts to
impose conditions limiting relief in
terms of time, or upon filing of FIR,
or recording of statement of any
witness, by the police, during
investigation or inquiry, etc. While
996 INDIAN LAW REPORTS ALLAHABAD SERIES
weighing
and
considering
an
application
(for
grant
of
anticipatory bail) the court has to
consider the nature of the offence,
the
role
of
the
person,
the
likelihood of his influencing the
course
of
investigation,
or
tampering with evidence (including
intimidating witnesses), likelihood
of fleeing justice (such as leaving
the country), etc. The courts would
be justified - and ought to impose
conditions spelt out in Section
437(3) CrPC [by virtue of Section
438(2)]. The necessity to impose
other restrictive conditions, would
have to be weighed on a case-bycase basis, and depending upon the
materials produced by the State or
the investigating agency. Such
special
or
other
restrictive
conditions may be imposed if the
case or cases warrant, but should
not be imposed in a routine manner,
in all cases. Likewise, conditions
which
limit
the
grant
of
anticipatory bail may be granted, if
they are required in the facts of any
case or cases; however, such
limiting conditions may not be
invariably imposed.

85.4. Courts ought to be
generally
guided
by
the
considerations such as nature and
gravity of the offences, the role
attributed to the applicant, and the
facts of the case, while assessing
whether to grant anticipatory bail,
or refusing it. Whether to grant or
not is a matter of discretion;
equally whether, and if so, what
kind of special conditions are to be
imposed (or not imposed) are
dependent on facts of the case, and
subject to the discretion of the
court.
85.5.
Anticipatory
bail
granted can, depending on the
conduct and behaviour of the
accused, continue after filing of the
charge-sheet till end of trial. Also
orders of anticipatory bail should
not be "blanket" in the sense that it
should not enable the accused to
commit further offences and claim
relief. It should be confined to the
offence or incident, for which
apprehension of arrest is sought, in
relation to a specific incident. It
cannot operate in respect of a
future
incident
that
involves
commission of an offence.
85.6.
Orders
of
anticipatory bail do not in any
manner limit or restrict the rights
or
duties
of
the
police
or
investigating agency, to investigate
into the charges against the person
who seeks and is granted pre-arrest
bail.
85.7. The observations in
Sibbia [Gurbaksh Singh Sibbia v.
State of Punjab, (1980) 2 SCC 565
: 1980 SCC (Cri) 465] regarding
"limited custody" or "deemed
custody"
to
facilitate
the
requirements of the investigative
authority, would be sufficient for
the
purpose
of
fulfilling
the
provisions of Section 27, in the
event of recovery of an article, or
discovery of a fact, which is
relatable to a statement made
during such event (i.e. deemed
custody). In such event, there is no
question (or necessity) of asking
the accused to separately surrender
and seek regular bail. Sibbia
[Gurbaksh Singh Sibbia v. State of
7 All. Achchey Lal Jaiswal Vs. State of U.P. & Anr.
997
Punjab, (1980) 2 SCC 565 : 1980
SCC (Cri) 465] had observed that :
(SCC p. 584, para 19)
"19. ... if and when the
occasion arises, it may be possible
for the prosecution to claim the
benefit of Section 27 of the
Evidence Act in regard to a
discovery
of
facts
made
in
pursuance of information supplied
by a person released on bail by
invoking the principle stated by this
Court in State of U.P. v. Deoman
Upadhyaya
[State
of
U.P.
v.
Deoman Upadhyaya, AIR 1960 SC
1125 : (1961) 1 SCR 14 : 1960 Cri
LJ 1504] ."
85.8. It is open to the police
or the investigating agency to move
the court concerned, which granted
anticipatory bail, in the first
instance, for a direction under
Section
439(2)
to
arrest
the
accused, in the event of violation of
any term, such as absconding, noncooperating during investigation,
evasion,
intimidation
or
inducement to witnesses with a
view to influence outcome of the
investigation or trial, etc. The
court, in this context, is the court
which grants anticipatory bail, in
the first instance, according to
prevailing authorities.
85.9. The correctness of an
order
granting
bail,
can
be
considered by the appellate or
superior court at the behest of the
State or investigating agency, and
set aside on the ground that the
court granting it did not consider
material
facts
or
crucial
circumstances.
(See
Prakash
Kadam v. Ramprasad Vishwanath
Gupta
[Prakash
Kadam
v.
Ramprasad
Vishwanath
Gupta,
(2011) 6 SCC 189 : (2011) 2 SCC
(Cri) 848] , Jai Prakash Singh [Jai
Prakash Singh v. State of Bihar,
(2012) 4 SCC 379 : (2012) 2 SCC
(Cri) 468] and State of U.P. v.
Amarmani Tripathi [State of U.P. v.
Amarmani Tripathi, (2005) 8 SCC
21 : 2005 SCC (Cri) 1960 (2)] .)
This
does
not
amount
to
"cancellation" in terms of Section
439(2) CrPC.
85.10. The judgment in
Mhetre [Siddharam Satlingappa
Mhetre v. State of Maharashtra,
(2011) 1 SCC 694 : (2011) 1 SCC
(Cri) 514] (and other similar
decisions)
that
restrictive
conditions cannot be imposed at
all, at the time of granting
anticipatory
bail
are
hereby
overruled. Likewise, the decision in
Salauddin [Salauddin Abdulsamad
Shaikh v. State of Maharashtra,
(1996) 1 SCC 667 : 1996 SCC
(Cri)
198]
and
subsequent
decisions (including K.L. Verma
[K.L. Verma v. State, (1998) 9 SCC
348 : 1998 SCC (Cri) 1031] ,
Nirmal Jeet Kaur [Nirmal Jeet
Kaur v. State of M.P., (2004) 7 SCC
558 : 2004 SCC (Cri) 1989] )
which state that such restrictive
conditions, or terms limiting the
grant of anticipatory bail, to a
period
of
time
are
hereby
overruled.
86. In conclusion, it would
be useful to remind oneself that the
rights which the citizens cherish
deeply, are fundamental - it is not
the
restrictions
that
are
fundamental. Joseph Story, the
great jurist and US Supreme Court
Judge, remarked that "personal
998 INDIAN LAW REPORTS ALLAHABAD SERIES
security and private property rest
entirely upon the wisdom, the
stability, and the integrity of the
courts of justice".
87. The history of our
Republic
-
and
indeed,
the
Freedom Movement has shown how
the likelihood of arbitrary arrest
and indefinite detention and the
lack of safeguards played an
important role in rallying the
people to demand Independence.
Witness
the
Rowlatt Act,
the
nationwide protests against it, the
Jallianwala Bagh Massacre and
several other incidents, where the
general public were exercising
their right to protest but were
brutally suppressed and eventually
jailed for long. The spectre of
arbitrary and heavy-handed arrests
: too often, to harass and humiliate
citizens, and oftentimes, at the
interest of powerful individuals
(and not to further any meaningful
investigation into offences) led to
the enactment of Section 438.
Despite several Law Commission
Reports and recommendations of
several
committees
and
commissions,
arbitrary
and
groundless arrests continue as a
pervasive phenomenon. Parliament
has not thought it appropriate to
curtail the power or discretion of
the courts, in granting pre-arrest or
anticipatory
bail,
especially
regarding the duration, or till
charge-sheet is filed, or in serious
crimes. Therefore, it would not be
in the larger interests of society if
the
Court,
by
judicial
interpretation, limits the exercise of
that power : the danger of such an
exercise would be that in fractions,
little by little, the discretion,
advisedly kept wide, would shrink
to
a
very
narrow
and
unrecognisably tiny portion, thus
frustrating the objective behind the
provision, which has stood the test
of time, these 46 years."

17. In the light of the two
Constitutional Bench judgments what flows
out is that an anticipatory bail could be
considered by a Sessions Court or by a
High Court irrespective of the nature of the
offences unless barred by a statute in the
cases it deems fit without any restrictions.

18. In the light of the law as
explained in the case of Sushila Aggarwal
(Supra) following the earlier Constitutional
Bench judgment in the case of Gurbaksh
Singh Sibbia (Supra), the judgment cited by
the G.A. specifically in the case of Shivam
vs State of U.P. (Supra) merits rejection as
the restrictions of bail has culled out in
paragraph 43 of the said judgment would
have to give way to the judgment of the
Hon'ble Supreme Court in the case of
Sushila Aggarwal (Supra).

19. The other argument of the
learned G.A. based upon the judgment
rendered in the case of Srikant Upadhyay
(Supra) and State of Madhya Pradesh vs
Pradeep Sharma (Supra) also merits
rejection as in the present case admittedly,
no proceedings have been initiated and the
applicant has not been declared to be
proclaimed offender.

20. The other argument of the
learned G.A. that as the applicant has not
come with clean hand, the discretionary
relief
cannot
be
extended.
On
the
foundation of the judgment in the case of
K. Jayaram vs Bangalore Development
7 All. Shriniwas Rav Nayak Vs. State of U.P.
999
Authority (Supra) merits rejection as it is
fairly well settled that constitutional power
under
Article
226
are
extraordinary
discretionary power conferred upon the
constitutional courts and the court can
refuse to exercise the said power on various
factors one of them being that the person
not approaching clean hand and concealing
the material facts whereas in the present
case, the power invoked by the court is
under Section 438 of Cr.P.C., which is a
statutory power and does not confer
extraordinary discretion and cannot be
exercised on the same analogy, as is
required for exercise of power under
Article 226. Further more in terms of the
provisions contained in Chapter XVIII Rule
18-A of the Allahabad High Court Rules,
1952, the application for bail under Section
438 of Cr.P.C. are required to disclose facts
as specified from sub-rule 1 to sub-rule 8.
In short, the requirements of exercise of
powers under Article 226 are on different
footing and the exercise of power under
Section 438 of Cr.P.C. cannot be exercised
on the same lines.

21.

In
the
present
case,
admittedly civil litigations are going on
in between the parties, the FIR has been
lodged after almost 8 years of the alleged
incident and after the injunction order
was confirmed after hearing both the
parties coupled with the fact that the
applicant is aged about 74 years and only
allegation against him is that he was an
attesting witness. Further more there is no
material to suggest that the applicant is
either at a flight risk or in any way can
adversely effect the trial, if enlarged on
bail, thus, on these grounds the applicant
is entitled for the benefit of anticipatory
bail
till
conclusion
of
the
trial.
Accordingly,
the
anticipatory
bail
application is allowed.
22. In the event of arrest, let the
applicant Achchey Lal Jaiswal be released
on anticipatory bail in the abovesaid first
information report number till conclusion of
the trial on his furnishing personal bonds and
two reliable sureties of Rs.20,000/- each to
the satisfaction of the court concerned with
the following conditions:

(a) The applicant shall execute a
bond to undertake to attend the hearings;
(b) The applicant shall not
commit any offence similar to the
offence of which he is accused or
suspected of the commission; and
(c) 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 him from
disclosing such facts to the Court or to
any police officer or tamper with the
evidence.
(d) The applicant shall not leave
India without the previous permission of
the Court.

23. This Court appreciates its
appreciation provided by Ms. Rajshree
Lakshmi, Research Associate/ Law Clerk in
deciding the case.
----------
(2024) 7 ILRA 999
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.07.2024

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

Crl. Misc. Ist Bail Application No. 11804 of 2024

Shriniwas Rav Nayak ...Applicant
Versus
State of U.P. ...Respondent