# Alok v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2022) 8 ILRA 469
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-25
- **Case number:** Crl. Misc. Bail Appl. No. 15184 of 2021
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/alok-v-state-of-u-p-ors-opp-parties-48907
- **Pages:** 7

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 319 since it is a
discretionary power given to the Court under
Section 319 Cr.P.C. and is also an extraordinary
one, same has to be exercised sparingly and
only in those cases where the circumstances of
the case so warrants. The degree of satisfaction
is more than the degree which is warranted at
the time of framing of the charges against
others in respect of whom chargesheet was
filed. Only where strong and cogent evidence
occurs against a person from the evidence led
before the Court that such power should be
exercised. It is not to be exercised in a casual or
a cavalier manner. The prima facie opinion
470 INDIAN LAW REPORTS ALLAHABAD SERIES
which is to be formed requires stronger
evidence than mere probability of his complicity.

Bail Application allowed. (E-12)

List of Cases relied upon:-

## Text

8 All. Alok Vs. State of U.P. & Ors.
469

(iii) The applicant shall cooperate in the
trial
sincerely
without
seeking
any
adjournment.

(iv) The applicant shall not indulge in
any criminal activity or commission of any
crime after being released on bail.

(v) In case, the applicant misuses the
liberty of bail and in order to secure his
presence proclamation under Section 82
Cr.P.C. is issued and the applicant fails to
appear before the court on the date fixed in
such proclamation, then, the trial court shall
initiate
proceedings
against
him,
in
accordance with law, under Section 174-A of
the Indian Penal Code.

(vi) The applicant shall remain present,
in person, before the trial court on the dates
fixed for (i) opening of the case, (ii) framing
of charge and (iii) recording of statement
under Section 313 Cr.P.C. If in the opinion of
the trial court default of this condition is
deliberate or without sufficient cause, then it
shall be open for the trial court to treat such
default as abuse of liberty of his bail and
proceed against him in accordance with law.

(vii) The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad or certified copy issued from the
Registry of the High Court, Allahabad.

(viii) 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.

20. It may be observed that in the event
of any breach of the aforesaid conditions, the
court below shall be at liberty to proceed for
the cancellation of applicant's bail.

21. It is clarified that the observations,
if any, made in this order are strictly
confined to the disposal of the bail
application and must not be construed to
have any reflection on the ultimate merit of
the case.

22. Being a peculiar case, the trial
court is directed to conclude the trial of this
case preferably, within a period of four
months from today without granting any
unnecessary adjournment to either parties
except there is any legal impediment or
order of higher Court.
----------
(2022) 8 ILRA 469
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.07.2022

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Crl. Misc. Bail Appl. No. 15184 of 2021

Alok ...Applicant
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicant:
Manoj Kumar Misra, Awadhesh Kumar Misra,
Pawan Kishor Mishra

Counsel for the Opp. Parties:
G.A., Hemant Kumar Mishra

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 319 since it is a
discretionary power given to the Court under
Section 319 Cr.P.C. and is also an extraordinary
one, same has to be exercised sparingly and
only in those cases where the circumstances of
the case so warrants. The degree of satisfaction
is more than the degree which is warranted at
the time of framing of the charges against
others in respect of whom chargesheet was
filed. Only where strong and cogent evidence
occurs against a person from the evidence led
before the Court that such power should be
exercised. It is not to be exercised in a casual or
a cavalier manner. The prima facie opinion
470 INDIAN LAW REPORTS ALLAHABAD SERIES
which is to be formed requires stronger
evidence than mere probability of his complicity.

Bail Application allowed. (E-12)

List of Cases relied upon:-

1. Hardeep Singh Vs St. of Pun. & ors., (2014) 3
SCC 92

2. Labhuji Amratji Thakor & ors. Vs The State of
Guj. & anr., 2018 (0) Supreme (SC) 1147.

3. Brijendra Singh & ors. Vs St. of Raj., (2017) 7
SCC 706,

4. Periyasami & ors. Vs S. Nallasamy, (2019) 4
SCC 342

5. Dataram Singh Vs St. of U.P. & anr., reported
in (2018) 3 SCC 22
(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard Shri Manoj Kumar Misra,
the learned counsel for the applicant, Shri
Aniruddha Singh, the learned A.G.A.-I for
the State as well as Shri Hemant Kumar
Mishra, the learned counsel for the
complainant/ opposite party No. 2, and
perused the record.

2. The applicant, Alok, has moved the
present bail application seeking bail in
F.I.R. No. 0261 of 2019, under Section
376-D I.P.C. read with Section 5(g)/6 of
Protection
of
Children
From
Sexual
Offences Act, Police Station Maholi,
District Sitapur.

3. Learned counsel for the applicant
further submits that the applicant is not
named in the F.I.R. and he is innocent and
has falsely been implicated in the present
case. There is no role of applicant in the
commission of offence. His name has been
taken with malicious intention to falsely
implicate and to defame the image of
applicant and his family members in the
society. The applicant has not committed
rape as alleged by the prosecution. The
victim has taken the name of applicant in
her statement recorded under Section 164
Cr.P.C., only on the pressure created by her
family members but no allegation of rape
was made therein against the applicant.
During the course of investigation no
material was found against the applicant, as
such his name does not find place in the
charge sheet.

4. Learned counsel for the applicant
submits that the name of applicant was
surfaced in the statements of P.W.1 and P.W.2
during the course of trial. Thereafter, informant
moved an application under Section 319
Cr.P.C., whereupon the learned Magistrate,
without considering the evidence available on
record, in a cursory manner, passed an order
dated 24.03.2021, summoning the applicant to
face the trial, thereafter, applicant surrendered
before the court concerned on 05.10.2021 and
since then he is in jail.

5. Learned counsel for the applicant
further submits that the main accused, namely,
Shivam, Suraj and Girdhar have already been
granted bail by different coordinate Benches of
this Court vide orders dated 30.05.2022 and
06.07.2022 passed in Criminal Misc. Bail
Application Nos. 49, 2961 and 673, all of the
year, 2022, respectively. The case of the
applicant is not on the worse footing than that
of the aforesaid co-accused, where named in
the F.I.R. and have been granted bail by this
Court, whereas the applicant was not named in
the F.I.R. and his name was maliciously taken
by P.W.1. and P.W.2 only within intention to
implicate him falsely.

6. Learned counsel for the applicant
further submits that the summoning order
dated 24.03.2021 is also against the spirit
8 All. Alok Vs. State of U.P. & Ors.
471
of various judgments of Hon'ble Supreme
Court. A Constitution Bench of Hon'ble
Apex Court in paragraphs- 105 and 106 of
its judgment in the case of Hardeep Singh
Vs. State of Punjab & others, (2014) 3
SCC 92 has observed as under:-

"105. Power under Section 319 CrPC
is a discretionary and an extraordinary
power. It is to be exercised sparingly and
only in those cases where the circumstances
of the case so warrant. It is not to be
exercised because the Magistrate or the
Sessions Judge is of the opinion that some
other person may also be guilty of
committing that offence. Only where strong
and cogent evidence occurs against a
person from the evidence led before the
court that such power should be exercised
and not in a casual and cavalier manner.

106. Thus, we hold that though only a
prima facie case is to be established from
the evidence led before the court, not
necessarily tested on the anvil of crossexamination, it requires much stronger
evidence than mere probability of his
complicity. The test that has to be applied is
one which is more than prima facie case as
exercised at the time of framing of charge,
but short of satisfaction to an extent that
the evidence, if goes unrebutted, would lead
to conviction. In the absence of such
satisfaction, the court should refrain from
exercising power under Section 319 CrPC.
In Section 319 CrPC the purpose of
providing if "it appears from the evidence
that any person not being the accused has
committed any offence" is clear from the
words "for which such person could be
tried together with the accused". The words
used are not "for which such person could
be convicted". There is, therefore, no scope
for the court acting under Section 319
CrPC to form any opinion as to the guilt of
the accused."

7. The above Constitution Bench
judgment was duly considered by the
Hon'ble Apex Court in the case of Labhuji
Amratji Thakor & others Vs. The State
of Gujarat and another, 2018 (0)
Supreme (SC) 1147. Paragraph-9 of the
aforesaid judgment reads as under:-

"9. The Constitution Bench has given
a caution that power under Section 319
Cr.P.C. is a discretionary and extraordinary
power, which should be exercised sparingly
and only in those cases where the
circumstances of the case so warrant. The
crucial test, which has been laid down as
noted above is "the test that has to be
applied is one which is more than prima
facie case as exercised at the time of
framing of charge, but short of satisfaction
to an extent that the evidence, if goes
unrebutted, would lead to conviction." The
present is a case, where the trial court had
rejected the application filed by the
prosecution under Section 319 Cr.P.C.
Further,
in
the
present
case,
the
complainant in the F.I.R. has not taken the
names
of
the
appellants
and
after
investigation in which the statement of
victim was also recorded, the names of the
appellants did not figure. After carrying
investigation,
the
Charge
Sheet
was
submitted in which the appellants names
were also not mentioned as accused. In the
statement recorded before the Police, the
victim has named only Natuji with whom
she admitted having physical relations and
who took her and with whom she went out
of the house in the night and lived with him
on several places. The mother of victim in
her statement before the Court herself has
stated that victim girl returned to the house
after one and a half months. In the
statement, before the Court, victim has
narrated the entire sequence of events. She
has stated in her statement that accused
472 INDIAN LAW REPORTS ALLAHABAD SERIES
Natuji used to visit her Uncle's house
Vishnuji, where she met Natuji. She,
however, stated that it was Natuji, who had
given her mobile phone. Her parents came
to know about she having been given
mobile phone by Natuji, then they went to
the house of Natuji and threatened Natuji."

8. The Hon'ble Apex Court in
paragraphs-13 and 15 of the judgment in
the case of Brijendra Singh and others
vs. State of Rajasthan, (2017) 7 SCC 706,
has observed as under:-

"13. In order to answer the question,
some of the principles enunciated in
Hardeep
Singh?s
case
may
be
recapitulated:

Power under Section 319 Cr.P.C. can
be exercised by the trial court at any stage
during the trial, i.e., before the conclusion
of trial, to summon any person as an
accused and face the trial in the ongoing
case, once the trial court finds that there is
some ?evidence? against such a person on
the basis of which evidence it can be
gathered that he appears to be guilty of
offence. The ?evidence? herein means the
material that is brought before the Court
during
trial.
Insofar
as
the
material/evidence collected by the IO at the
stage of inquiry is concerned, it can be
utilised for corroboration and to support
the evidence recorded by the Court to
invoke the power under Section 319 Cr.P.C.
No doubt, such evidence that has surfaced
in examination-in-chief, without cross-
examination of witnesses, can also be taken
into consideration. However, since it is a
discretionary power given to the Court
under Section 319 Cr.P.C. and is also an
extraordinary one,
same
has
to
be
exercised sparingly and only in those cases
where the circumstances of the case so
warrants. The degree of satisfaction is
more than the degree which is warranted at
the time of framing of the charges against
others in respect of whom chargesheet was
filed. Only where strong and cogent
evidence occurs against a person from the
evidence led before the Court that such
power should be exercised. It is not to be
exercised in a casual or a cavalier manner.
The prima facie opinion which is to be
formed requires stronger evidence than
mere probability of his complicity.

xx xx xx

15. This record was before the trial
court. Notwithstanding the same, the trial
court
went
by
the
deposition
of
complainant and some other persons in
their examination-in-chief, with no other
material to support their so- called
verbal/ocular version. Thus, the ?evidence?
recorded during trial was nothing more
than the statements which was already
there under Section 161 Cr.P.C. recorded at
the time of investigation of the case. No
doubt, the trial court would be competent
to exercise its power even on the basis of
such statements recorded before it in
examination-in-chief. However, in a case
like the present where plethora of evidence
was
collected
by
the
IO
during
investigation which suggested otherwise,
the trial court was at least duty bound to
look into the same while forming prima
facie opinion and to see as to whether
?much
stronger
evidence
than
mere
possibility
of
their
(i.e.
appellants)
complicity has come on record. There is no
satisfaction of this nature. Even if we
presume that the trial court was not
apprised of the same at the time when it
passed the order (as the appellants were
not on the scene at that time), what is more
troubling is that even when this material on
record was specifically brought to the
notice of the High Court in the Revision
Petition filed by the appellants, the High
8 All. Alok Vs. State of U.P. & Ors.
473
Court too blissfully ignored the said
material.
Except
reproducing
the
discussion contained in the order of the
trial court and expressing agreement
therewith, nothing more has been done.
Such orders cannot stand judicial scrutiny."

9. Hon'ble Apex Court in paragraphs-
14 and 15 of its judgment in the case of
Periyasami and others vs. S. Nallasamy,
(2019) 4 SCC 342 has observed as under:-

"14. In the First Information Report or
in the statements recorded under Section
161 of the Code, the names of the
appellants or any other description have
not been given so as to identify them. The
allegations in the FIR are vague and can be
used any time to include any person in the
absence of description in the First
Information Report to identify such person.
There is no assertion in respect of the
villages to which the additional accused
belong. Therefore, there is no strong or
cogent evidence to make the appellants
stand the trial for the offences under
Sections 147, 448, 294(b) and 506 of IPC
in view of the judgment in Hardeep Singh
case (supra). The additional accused
cannot be summoned under Section 319 of
the Code in casual and cavalier manner in
the absence of strong and cogent evidence.
Under Section 319 of the Code additional
accused can be summoned only if there is
more than prima facie case as is required
at the time of framing of charge but which
is less than the satisfaction required at the
time of conclusion of the trial convicting
the accused.

15. The High Court has set aside the
order passed by the learned Magistrate
only on the basis of the statements of some
of
the
witnesses
examined
by
the
Complainant. Mere disclosing the names of
the appellants cannot be said to be strong
and cogent evidence to make them to stand
trial for the offence under Section 319 of
the Code, especially when the Complainant
is a husband and has initiated criminal
proceedings against family of his in-laws
and when their names or other identity
were not disclosed at the first opportunity."

10. Learned counsel for the applicant
further submits that prosecution story as set
up is totally false and fabricated. The
allegation of rape as levelled by the victim
against the accused persons got demolished
by the medical report of the victim as the
doctor does not find any sign of use of
force nor any external or internal injury
was found on the person of the victim,
therefore, applicant should be released on
bail by this Court sympathetically.

11.

Several
other
submissions
regarding legality and illegality of the
allegations made in the F.I.R. have also
been placed forth before the Court. The
circumstances which, according to the
counsel, led to the false implication of the
accused, have also been touched upon at
length. It has been assured on behalf of the
applicant that he is ready to cooperate with
the process of law and shall faithfully make
himself available before the court whenever
required and is also ready to accept all the
conditions which the Court may deem fit to
impose upon him. The applicant undertakes
that in case he is released on bail he will
not misuse the liberty of bail and will
cooperate in trial. It has also been pointed
out that the applicant is not having any
criminal history, which fact has been stated
in para-22 of the affidavit filed in support
of bail application. The applicant is in jail
since 05.10.2021 and that in the wake of
heavy pendency of cases in the courts,
there is no likelihood of any early
conclusion of trial.
474 INDIAN LAW REPORTS ALLAHABAD SERIES

12. Learned A.G.A.-I as well as the
learned counsel for the opposite party No. 2
opposed the prayer for bail, but have not
disputed that applicant was not named in
the F.I.R. and his name surfaced for the
first time in the statements of P.W.1 and
P.W.2.

13. After perusing the record in the light
of the submissions made at the Bar and after
taking an overall view of all the facts and
circumstances of this case, the nature of
evidence, the period of detention already
undergone,
the
unlikelihood
of
early
conclusion of trial and also the absence of
any convincing material to indicate the
possibility of tampering with the evidence,
and considering the fact that the applicant is
not named in the F.I.R.; his name was taken
by P.W.1 and P.W.2 and he was summoned
on an application moved on behalf of
prosecution under Section 319 Cr.P.C.,
whereupon learned court below has not
applied its judicial mind and in a cursory
manner summoned the applicant to face the
trial; the medical report of the victim does not
support the allegation of rape, and the main
accused, Shivam, Suraj and Girdhar, have
already been granted bail; as well as
considering the larger mandate of the Article
21 of the Constitution of India and the law
laid down by the Hon'ble Apex Court in the
cases of Hardeep Singh (supra), Labhuji
Amratji Thakor (supra), Brijendra Singh
(supra), Periyasami and others (supra) and
Dataram Singh vs. State of U.P. and
another, reported in (2018) 3 SCC 22, this
Court is of the view that the applicant may be
enlarged on bail.

14. The prayer for bail is granted. The
application is allowed.

15. Let the applicant, Alok, involved
in F.I.R. No. 0261 of 2019, under Section
376-D I.P.C. read with Section 5(g)/6 of
Protection
of
Children
From
Sexual
Offences Act, Police Station Maholi,
District Sitapur, be enlarged on bail on his
executing a personal bond and two sureties
each in the like amount to the satisfaction
of the court concerned on the following
conditions :-

(1) The applicant will not make any
attempt to tamper with the prosecution
evidence in any manner whatsoever.

(2) The applicant will personally appear
on each and every date fixed in the court
below and his personal presence shall not be
exempted unless the court itself deems it fit to
do so in the interest of justice.

(3) The applicant shall cooperate in the
trial
sincerely
without
seeking
any
adjournment.

(4) The applicant shall not indulge in
any criminal activity or commission of any
crime after being released on bail.

(5) In case, the applicant misuses the
liberty of bail and in order to secure his
presence proclamation under Section 82
Cr.P.C. is issued and the applicant fails to
appear before the court on the date fixed in
such proclamation, then, the trial court shall
initiate
proceedings
against
him,
in
accordance with law, under Section 174-A of
the Indian Penal Code.

(6) The applicant shall remain present,
in person, before the trial court on the dates
fixed for (i) opening of the case, (ii) framing
of charge and (iii) recording of statement
under Section 313 Cr.P.C. If in the opinion of
the trial court default of this condition is
deliberate or without sufficient cause, then it
shall be open for the trial court to treat such
default as abuse of liberty of his bail and
proceed against him in accordance with law.

(7) The party shall file computer
generated copy of such order downloaded
from the official website of High Court
8 All. Yogendra Kumar Mishra Vs. State of U.P. & Anr.
475
Allahabad or certified copy issued from the
Registry of the High Court, Allahabad.

(8) 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.

16. It may be observed that in the
event of any breach of the aforesaid
conditions, the court below shall be at
liberty to proceed for the cancellation of
applicant's bail.

17. It is clarified that the observations,
if any, made in this order are strictly
confined to the disposal of the bail
application and must not be construed to
have any reflection on the ultimate merit of
the case.
----------
(2022) 8 ILRA 475
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.04.2022

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Crl. Misc. Anticipatory Bail Appl. No. 20357 of
2021

Yogendra Kumar Mishra ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Dharmendra Shukla, Sri Anil Tiwari(Sr. Adv.)

Counsel for the Opp. Party:
G.A., Sri Subhash Chandra Tiwari

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 82 -While
considering anticipatory bail application this
Court has to struck balance between two
factors namely, no prejudice should be
caused to the fair and free investigation
and accused should not be subjected to
harassment,
humiliation
and
unjustified
detention.

B.
If
anyone
has
been
declared
as
absconder/
proclaimed
offender
under
Section 82 Cr.P.C., he is not entitled for
relief of anticipatory bail.

C. The power exercisable Under Section 438
of the Code is somewhat extraordinary in
character and it is to be exercised only in
exceptional cases where it appears that the
person may be falsely implicated or where
there are reasonable grounds for holding
that a person Accused of an offence is not
likely to otherwise misuse his liberty.

Application rejected. (E-12)

List of Cases relied upon:-

1. Prem Shankar Prasad Vs St. of Bihar & anr.,
AIR 2021 SC 5125
(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1. Applicant-Yogendra Kumar Mishra
has approached this Court by way of filing
this Criminal Misc. Anticipatory Bail
Application under Section 438 Cr.P.C. after
rejection of his anticipatory bail application
vide order dated 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
Sections 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)