# Ankur Agarwal v. State of U.P. & Anr

- **Citation:** (2024) 10 ILRA 926
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-10-21
- **Case number:** Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 2090 of 2024
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ankur-agarwal-v-state-of-u-p-anr-51163
- **Pages:** 11

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973 - Section 438 -Indian
Penal Code,1860 - Sections 419, 420, 467,
468, 471 & 120-B - anticipatory bail in
F.I.R. No.817 of 2023 - Maintainability
when proclamation under Section 82 CrPC
issued - Scope and applicability of law
explained
-
Held,
issuance
of
10 All. Ankur Agarwal Vs. State of U.P. & Anr.
927
proclamation under Section 82 CrPC does
not create an absolute bar to grant of
anticipatory bail - Case to be judged on
its own facts and merits - Subsequent
authoritative
decision
of
Constitution
Bench in Sushila Aggarwal v. St. (NCT of
Delhi) holds the field, overruling earlier
narrower views.

Criminal Jurisprudence - Anticipatory bail
- Discretion of court - Must be exercised
judiciously - No blanket rule barring
grant of bail in cases where applicant is
proclaimed
offender
-
Courts
must
consider
totality
of
circumstances,
including whether accusation is aimed at
humiliating
or
injuring
applicant
-
Judicial discretion cannot be fettered by
procedural
technicalities-application
allowed. (Paras 16, 17, 18, 20 and 25)
HELD:
Apparently, the judgment in the case of Srikant
Upadhyay has been passed after following the
law laid down in the overruled judgment in the
case of HDFC Bank (Supra) that anticipatory bail
can be granted only in exceptional cases. The
law laid down by the five Judge Bench of the
Supreme Court in the subsequent judgment in
the case of Sushila Aggarwal (Supra) will govern
the field but it has not been considered in
Srikant Upadhyay (Supra. (para 18)

Therefore, even as per the law laid down by the
Hon'ble Supreme Court in the case of Srikant
Upadhyay
(Supra),
there
is
no
absolute
prohibition against considering an application for
anticipatory bail after issuance of warrant of
arrest or a proclamation under Section 82 Cr.P.C.
and the court is empowered to consider the
merits of the case in extreme exceptional cases
in the interest of justice. (Para 20)

Having considered the aforesaid peculiar facts
and circumstances of this case, this court is of
the considered opinion that the aforesaid facts
make
out
a
case
warranting
grant
of
anticipatory bail to the applicant in order to
secure the interest of justice. (Para 25)

Application allowed. (E-14)

List of Cases cited:

## Text

926 INDIAN LAW REPORTS ALLAHABAD SERIES
mental illness was such that she cannot lead
a normal life. Therefore, looking to
evidence available on record, learned
Family Court decided additional issue No.1
against appellant/husband.

(20) After considering entire
evidence available on record, this Court has
no hesitation in accepting findings and
approach of learned Family Court, which
appears to be valid and practical. Though,
appellant/ husband was able to prove that
respondent/wife
is
suffering
from
schizophrenia, but he failed to prove that
disease is of such a kind and degree, which
may be accepted for dissolution of
marriage in terms of Section 13 (1) (iii) of
H.M. Act. No sufficient material was
brought on record by husband except
prescriptions of Doctors, which do not
contain any specific finding that disease is
having grave consequences as is referred
under Section 13 (1) (iii) of the H.M. Act,
therefore, in considered opinion of this
Court, findings of the Family Court in this
regard are just, proper, legal and do not
suffer from any perversity and do not call
for any interference by this Court in this
appeal.
Point
no.III
is
answered
accordingly.

(21) As regard the contention of
the appellant's counsel that the trial Court
omitted to consider that the ground of
divorce was concealment of material fact
considering
the
mental
condition
of
respondent-wife, we are of the opinion that
the suit was filed under Section 13 of the
H.M. Act and not under Section 12 of the
H.M. Act. This ground is not available
under Section 13 of the H.M. Act but under
Section 12 (1) (c) of the H.M. Act. No
objection was raised nor any application
was given for framing any issue in terms of
Section 12 (1) (c) of the H.M. Act,
therefore, this plea is rejected.

(22) In view of the aforesaid facts,
we set-aside the judgment and decree dated
29.04.2023 passed by the Principal Judge,
Family Court-II, Pratapgarh in Suit No. 787
of 2019. Marriage between the parties is
dissolved. Suit No. 787 of 2019 is decreed
accordingly.

(23) Appeal is allowed in the
above terms.

(24) There shall be no order as to
cost.
----------
(2024) 10 ILRA 926
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 21.10.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Misc. Anticipatory Bail Application U/S
438 Cr.P.C. No. 2090 of 2024

Ankur Agarwal ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Awadhesh Kumar Singh, Akhilesh Kumar
Kalra, Rajesh Chandra Mishra

Counsel for the Opposite Parties:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 438 -Indian
Penal Code,1860 - Sections 419, 420, 467,
468, 471 & 120-B - anticipatory bail in
F.I.R. No.817 of 2023 - Maintainability
when proclamation under Section 82 CrPC
issued - Scope and applicability of law
explained
-
Held,
issuance
of
10 All. Ankur Agarwal Vs. State of U.P. & Anr.
927
proclamation under Section 82 CrPC does
not create an absolute bar to grant of
anticipatory bail - Case to be judged on
its own facts and merits - Subsequent
authoritative
decision
of
Constitution
Bench in Sushila Aggarwal v. St. (NCT of
Delhi) holds the field, overruling earlier
narrower views.

Criminal Jurisprudence - Anticipatory bail
- Discretion of court - Must be exercised
judiciously - No blanket rule barring
grant of bail in cases where applicant is
proclaimed
offender
-
Courts
must
consider
totality
of
circumstances,
including whether accusation is aimed at
humiliating
or
injuring
applicant
-
Judicial discretion cannot be fettered by
procedural
technicalities-application
allowed. (Paras 16, 17, 18, 20 and 25)
HELD:
Apparently, the judgment in the case of Srikant
Upadhyay has been passed after following the
law laid down in the overruled judgment in the
case of HDFC Bank (Supra) that anticipatory bail
can be granted only in exceptional cases. The
law laid down by the five Judge Bench of the
Supreme Court in the subsequent judgment in
the case of Sushila Aggarwal (Supra) will govern
the field but it has not been considered in
Srikant Upadhyay (Supra. (para 18)

Therefore, even as per the law laid down by the
Hon'ble Supreme Court in the case of Srikant
Upadhyay
(Supra),
there
is
no
absolute
prohibition against considering an application for
anticipatory bail after issuance of warrant of
arrest or a proclamation under Section 82 Cr.P.C.
and the court is empowered to consider the
merits of the case in extreme exceptional cases
in the interest of justice. (Para 20)

Having considered the aforesaid peculiar facts
and circumstances of this case, this court is of
the considered opinion that the aforesaid facts
make
out
a
case
warranting
grant
of
anticipatory bail to the applicant in order to
secure the interest of justice. (Para 25)

Application allowed. (E-14)

List of Cases cited:

1. Lavesh Vs St. (NCT of Delhi): (2012) 8 SCC
730

2. Srikant Upadhyay & ors. Vs St. of Bihar &
anr.: 2024 SCC OnLine SC 282

3. Prem Shankar Prasad Vs St. of Bihar: (2022)
14 SCC 516

4. St. of M.P. Vs Pradeep Sharma, (2014) 2 SCC
171

5. HDFC Bank Ltd. Vs J.J. Mannan (2010) 1 SCC
679

6. Sushila Aggarwal Vs St. (NCT of Delhi):
(2020) 5 SCC 1

7. Dharmapal Gautam Vs St. of U.P., 2023 SCC
OnLine All 3648

8. Vipin Kumar Dhir Vs St. of Pun.: (2021) 15
SCC 518

9. St. of Har. Vs Dharamraj: 2023 SCC OnLine
SC 1085

10. Parasa Raja Manikyala Rao Vs St. of A.P.,
(2003) 12 SCC 306

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Akhilesh Kumar Kalra,
the learned counsel for the applicant as well
as Sri Punit Kumar Yadav, the learned
counsel appearing on behalf of the State
and perused the records.

2. The instant application has been
filed by the applicant seeking anticipatory
bail in F.I.R. No.817 of 2023, under
Sections 419, 420, 467, 468, 471 & 129-B
I.P.C., registered at Police Station Kotwali
Nagar, District Gonda.

3. The aforesaid case has been
registered on the basis of an F.I.R. lodged
by a Lekhpal on 15.09.2023 against 7
persons, including the applicant, stating
928 INDIAN LAW REPORTS ALLAHABAD SERIES
that the co-accused Jawahar Lal had
executed two registered agreements in
favour of co-accused Amit Agarwal to sell
a piece of government land which is
recorded as banjar in the revenue records.
Another co-accused Rajmangal Mishra
executed a registered agreement dated
11.03.2022 to sell a part of the aforesaid
land to the applicant. The applicant's
anticipatory bail application was rejected
by the learned Sessions Court by means of
an order dated 16.11.2023.

4. In the affidavit filed in support of
the anticipatory bail-application it has been
contended that the applicant is innocent, he
has falsely been implicated in the present
case and he has no criminal history. A
copy of the plaint dated 03.10.2023 filed in
the Court of Civil Judge, Junior Division,
Gonda for a decree of cancellation of the
agreement dated 11.03.2022 has been
annexed with the affidavit filed in support
of the application. It has been stated that
the co-accused Jawahar Lal has been
granted bail in this case and all the other
co-accused persons have been granted
anticipatory bail.

5. The learned counsel for the State
has
opposed
the
anticipatory
bail
application and on the basis of instructions
provided to the learned State Counsel he
has submitted that proceedings under
Section 82 Cr.P.C. have already been
initiated
against
the
applicant
on
16.08.2023 and, therefore, the application
for anticipatory bail is not maintainable in
view of the law laid down by Hon'ble
Supreme Court in the case of Lavesh
versus State (NCT of Delhi): (2012) 8
SCC 730 and Srikant Upadhyay and
others versus State of Bihar and
another: 2024 SCC OnLine SC 282.

6. In reply to the aforesaid submission,
the learned counsel for the applicant
submitted
that
the
anticipatory
bail
applications of co-accused persons were
pending and the applicant was waiting for
its outcome and that is the reason for the
delay in filing this application.

7. In Lavesh (supra), the wife of
younger brother of the appellant had
committed suicide after 1 year and 8
months of her marriage, while she was
pregnant. An FIR under Section 304-B, 306
and 498 I.P.C. was lodged in this regard.
There were definite allegations against the
appellant and other family members that
they had subjected the deceased to cruelty
with a view to demand dowry right from
the date of marriage and also immediately
before date of her death. It was stated in the
counter affidavit filed before the Supreme
Court that "efforts were made to arrest the
petitioner but he absconded as such he was
got declared a Proclaimed Offender. The
case is pending trial". In this background, a
two Judge Bench of the Hon'ble Supreme
Court held in Lavesh (Supra) that:-

"From
these
materials
and
information, it is clear that the present
appellant
was
not
available
for
interrogation and investigation and was
declared as "absconder". Normally,
when the accused is "absconding" and
declared as a "proclaimed offender",
there
is
no
question
of
granting
anticipatory bail. We reiterate that when
a person against whom a warrant had
been issued and is absconding or
concealing himself in order to avoid
execution of warrant and declared as a
proclaimed offender in terms of Section
82 of the Code he is not entitled to the
relief of anticipatory bail."
10 All. Ankur Agarwal Vs. State of U.P. & Anr.
929

8. Even after making the aforesaid
observations
in
Lavesh
(Supra),
the
Hon'ble Supreme Court considered the
merits of the case and recorded that another
circumstance against the appellant was that
even though the Hon'ble Supreme Court
had granted interim protection to the
appellant, he did not cooperate and visit the
said
police
station.
In
this
factual
background, the Hon'ble Supreme Court
held that:-

"15. Taking note of all these
aspects, in the light of the conditions
prescribed in Section 438 of the Code and
conduct of the appellant immediately after
the incident as well as after the interim
protection granted by this Court on 23-12012, we are of the view that the appellant
has not made out a case for anticipatory
bail. Unless free hand is given to the
investigating agency, particularly, in the
light of the allegations made against the
appellant and his family members, the truth
will not surface."

9. Thus it is not that the Hon'ble
Supreme Court had rejected the application
has not maintainable on the ground that
issuance of a proclamation under Section
82 Cr.P.C. without considering the merits
of the application.

10. Srikant Upadhyay (Supra) was an
appeal directed against an order passed by
the High Court of Judicature at Patna
whereby an application for anticipatory bail
in offences under Sections 341, 323, 354,
354-B, 379, 504, 506 and 149 I.P.C. and
Section 3/4 of Prevention of Witch (Daain)
Practices Act, 1999 had been dismissed.
The Hon'ble Supreme Court relied upon
the precedents in the case of Prem
Shankar Prasad versus State of Bihar:
(2022) 14 SCC 516, State of M.P. v.
Pradeep Sharma, (2014) 2 SCC 171 and
Lavesh versus State (NCT of Delhi):
(2012) 8 SCC 730.

11. Prem Shankar Prasad (Supra)
was an appeal decided by a Bench
consisting of two Hon'ble Judges of the
Supreme Court wherein the Hon'ble
Supreme Court followed the decision in
Pradeep Sharma and held that the High
Court has committed an error in granting
anticipatory bail to Respondent 2-accused
ignoring the proceedings under Sections
82/83CrPC.

12. In Pradeep Sharma (Supra) the
persons accused of offence under Section
302 read with Section 34 IPC had filed an
application for anticipatory bail, which was
rejected by the High Court of Madhya
Pradesh by means of an order dated
01.08.2012 on the ground that custodial
interrogation was necessary in the case.
The accused persons did not challenge the
order dated 01.08.2012 and they did not
appear before the Investigating Officer. A
charge-sheet was submitted against them
on 26.08.2012. Arrest warrants were issued
on 21.11.2012 but the same were returned
to
the
court
without
service.
On
29.11.2012, a proclamation under Section
82 Cr.P.C. was issued against them for
their appearance to answer the complaint.
Pradeep Sharma filed a second application
for anticipatory bail, which was allowed by
means of an order dated 10.01.2013. Other
co-accused persons were also granted
anticipatory bail by separate orders, which
were challenged before the Supreme Court.
In the meantime, the accused persons
approached the Chief Judicial Magistrate
for the grant of regular bail and they were
granted regular bail vide order dated
20.02.2013.
The
only
question
for
consideration of the Supreme Court was
930 INDIAN LAW REPORTS ALLAHABAD SERIES
whether the High Court is justified in
granting anticipatory bail under Section
438 of the Code to the respondent-accused
when the investigation was pending,
particularly, when both the accused had
been
absconding
all
along
and not
cooperating with the investigation. The
Hon'ble Supreme Court referred to Section
438 Cr.P.C. and held that: -

"The above provision makes it
clear that 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."

13. Following the decision in Lavesh
(Supra), the Hon'ble Supreme Court held in
Pradeep Sharma (Supra) that if anyone is
declared
as
an
absconder/proclaimed
offender in terms of Section 82 of the
Code, he is not entitled to the relief of
anticipatory bail.

14. Following the aforesaid decisions,
the two Judge Bench of the Hon'ble
Supreme Court held in Srikant Upadhyay
(Supra) that: -

"9. It is thus obvious from the
catena of decisions dealing with bail that
even while clarifying that arrest should be
the last option and it should be restricted to
cases where arrest is imperative in the facts
and circumstances of a case, the consistent
view is that the grant of anticipatory bail
shall
be
restricted
to
exceptional
circumstances. In other words, the position
is that the power to grant anticipatory bail
under Section 438, Cr. P.C. is an
exceptional power and should be exercised
only in exceptional cases and not as a
matter of course. Its object is to ensure that
a person should not be harassed or
humiliated in order to satisfy the grudge or
personal vendetta of the complainant. [See
the decision of this Court in HDFC Bank
Ltd. v. J.J. Mannan (2010) 1 SCC 679].

10.
When
a
Court
grants
anticipatory bail what it actually does is
only to make an order that in the event of
arrest, the arrestee shall be released on
bail, subject to the terms and conditions.
Taking note of the fact the said power is to
be exercised in exceptional circumstances
and that it may cause some hinderance to
the normal flow of investigation method
when called upon to exercise the power
under Section 438, Cr. P.C., courts must
keep reminded of the position that law
aides only the abiding and certainly not its
resistant. By saying so, we mean that a
person, having subjected to investigation
on a serious offence and upon making out a
case, is included in a charge sheet or even
after filing of a refer report, later, in
accordance with law, the Court issues a
summons to a person, he is bound to submit
himself to the authority of law. It only
means that though he will still be at liberty,
rather, in his right, to take recourse to the
legal
remedies
available
only
in
accordance with law, but not in its
defiance. We will dilate this discussion with
reference to the factual matrix of this case.
However, we think that before dealing with
the same, a small deviation to have a
glance at the scope and application of the
provisions under Section 82, Cr. P.C. will
not be inappropriate."

15. It appears that it was not placed
before the Hon'ble Supreme Court that the
judgment in the case of HDFC Bank
(Supra) has been overruled by a Five Bench
10 All. Ankur Agarwal Vs. State of U.P. & Anr.
931
judgment in the case of Sushila Aggarwal
v. State (NCT of Delhi): (2020) 5 SCC 1
and the relevant passage of the aforesaid
judgment is being reproduced below: -

"76. Therefore, this Court holds
that the view expressed in Salauddin
Abdulsamad
Shaikh
[Salauddin
Abdulsamad
Shaikh
v.
State
of
Maharashtra, (1996) 1 SCC 667], K.L.
Verma [K.L. Verma v. State, (1998) 9 SCC
348], Nirmal Jeet Kaur [Nirmal Jeet Kaur
v. State of M.P., (2004) 7 SCC 558], Satpal
Singh [Satpal Singh v. State of Punjab,
(2018) 13 SCC 813, Adri Dharan Das
[Adri Dharan Das v. State of W.B., (2005)
4 SCC 303, HDFC Bank [HDFC Bank
Ltd. v. J.J. Mannan, (2010) 1 SCC 679] ,
and Naresh Kumar Yadav [Naresh Kumar
Yadav v. Ravindra Kumar, (2008) 1 SCC
632] about the Court of Session, or the
High Court, being obliged to grant
anticipatory bail, for a limited duration, or
to await the course of investigation, so as
the "normal court" not being "bypassed"
or that in certain kinds of serious
offences, anticipatory bail should not be
granted
normally
-
including
in
economic offences, etc.-are not good
law. The observations which indicate that
such time related or investigative event
related conditions, should invariably be
imposed at the time of grant of anticipatory
bail are therefore, overruled. Similarly, the
observations
in
Mhetre
[Siddharam
Satlingappa
Mhetre
v.
State
of
Maharashtra, (2011) 1 SCC 694] that:

"105. ... the courts should not
impose restrictions on the ambit and scope
of Section 438 CrPC which are not
envisaged by the legislature. The court
cannot rewrite the provision of the statute
in the garb of interpreting it."

is too wide and cannot be
considered good law. It is one thing to say
that as a matter of law, ordinarily special
conditions not mentioned in Section 438(2)
read with Section 437(3) should not be
imposed; it is an entirely different thing to
say that in particular instances, having
regard to the nature of the crime, the role
of the accused, or some peculiar feature,
special conditions should not be imposed.
The judgment in Sibbia [Gurbaksh Singh
Sibbia v. State of Punjab, (1980) 2 SCC
565] itself is an authority that such
conditions can be imposed, but not in a
routine or ordinary manner and that such
conditions then become an inflexible
"formula" which the courts would have to
follow. Therefore, courts can use their
discretion, having regard to the offence, the
peculiar facts, the role of the offender,
circumstances
relating
to
him,
his
likelihood of subverting justice (or a fair
investigation), likelihood of evading or
fleeing justice - to impose special
conditions.
Imposing
such
conditions,
would have to be on a case-to-case basis,
and upon exercise of discretion by the court
seized of the application under Section 438.
In conclusion, it is held that imposing
conditions such as those stated in Section
437(2) while granting bail, are normal;
equally, the condition that in the event of
the police making out a case of a likely
discovery under Section 27 of the Evidence
Act, person released on bail shall be liable
to be taken in police custody for facilitating
the discovery. Other conditions, which are
restrictive, are not mandatory; nor is there
any invariable rule that they should
necessarily be imposed or that the
anticipatory bail order would be for a time
duration, or be valid till the filing of the
FIR, or the recording of any statement
under Section 161 CrPC, etc. Other
932 INDIAN LAW REPORTS ALLAHABAD SERIES
conditions may be imposed, if the facts of
the case so warrant.

16. The conclusion drawn by the
Hon'ble
Supreme
Court
in
Sushila
Aggarwal (Supra) are reiterated in para 92
of the judgment, which are as follows:-

"92. This Court, in the light of
the above discussion in the two judgments,
and in the light of the answers to the
reference,
hereby
clarifies
that
the
following need to be kept in mind by
courts, dealing with applications under
Section 438 CrPC:

92.1.
Consistent
with
the
judgment in Gurbaksh Singh Sibbia v. State
of Punjab [(1980) 2 SCC 565], when a
person complains of apprehension of arrest
and approaches for order, the application
should be based on concrete facts (and not
vague or general allegations) relatable to
one
or
other
specific
offence.
The
application
seeking
anticipatory
bail
should contain bare essential facts relating
to the offence, and why the applicant
reasonably apprehends arrest, as well as
his side of the story. These are essential for
the court which should consider his
application, to evaluate the threat or
apprehension, its gravity or seriousness
and the appropriateness of any condition
that may have to be imposed. It is not
essential 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.

92.2. It may be advisable for the
court, which is approached with an
application under Section 438, depending
on the seriousness of the threat (of arrest)
to issue notice to the Public Prosecutor and
obtain facts, even while granting limited
interim anticipatory bail.

92.3. Nothing in Section 438
CrPC, compels or obliges 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
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 need to impose other restrictive
conditions, would have to be judged on a
case-by-case 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.

92.4.
Courts
ought
to
be
generally guided by considerations such
as the nature and gravity of the offences,
the role attributed to the applicant, and
the facts of the case, while considering
whether to grant anticipatory bail, or
refuse 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.

92.5. Anticipatory bail granted
can, depending on the conduct and
10 All. Ankur Agarwal Vs. State of U.P. & Anr.
933
behaviour of the accused, continue after
filing of the charge-sheet till end of trial.

92.6. An order of anticipatory
bail should not be "blanket" in the sense
that it should not enable the accused to
commit further offences and claim relief of
indefinite protection from arrest. 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.

92.7. An order of anticipatory
bail does 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.

92.8. The observations in Sibbia
[Gurbaksh Singh Sibbia v. State of Punjab,
(1980) 2 SCC 565] 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 had observed that:

"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, AIR 1960 SC 1125."

92.9. It is open to the police or
the investigating agency to move the court
concerned, which grants anticipatory bail,
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.

92.10. The court referred to in
para 92.9 above is the court which grants
anticipatory bail, in the first instance,
according to prevailing authorities.

92.11. 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,
(2011) 6 SCC 189, Jai Prakash Singh v.
State of Bihar, (2012) 4 SCC 379, State of
U.P. v. Amarmani Tripathi, (2005) 8 SCC
21].)
This
does
not
amount
to
"cancellation" in terms of Section 439(2)
CrPC.

92.12.
The
observations
in
Siddharam Satlingappa Mhetre v. State of
Maharashtra, (2011) 1 SCC 694 (and other
similar judgments) that no restrictive
conditions at all can be imposed, while
granting anticipatory bail are hereby
overruled.
Likewise,
the
decision
in
Salauddin Abdulsamad Shaikh v. State of
Maharashtra, (1996) 1 SCC 667 and
subsequent decisions which lay down such
restrictive conditions, or terms limiting the
grant of anticipatory bail, to a period of
time are hereby overruled."

17. In Dharmapal Gautam v. State
of U.P., 2023 SCC OnLine All 3648, this
Court considered the judgments of the
Hon'ble Supreme Court in the cases of
Lavesh v. State (NCT of Delhi): (2012) 8
SCC 730, State of M.P. v. Pradeep
Sharma: (2014) 2 SCC 171, Vipin Kumar
934 INDIAN LAW REPORTS ALLAHABAD SERIES
Dhir v. State of Punjab: (2021) 15 SCC
518 and State of Haryana v. Dharamraj:
2023 SCC OnLine SC 1085 and held that: -

"7. The later judgment rendered
by five Hon'ble Judges of the Hon'ble
Supreme Court will obviously prevail over
the former judgment of two Hon'ble
Judges and the law, as it now stands, is
that there is no restriction that the
discretion of grant of pre-arrest bail under
Section 438 Cr. P.C. can be exercised only
in exceptional circumstances. The factors
to be considered for grant of anticipatory
bail to the applicant are somewhat similar
to the considerations to be kept in mind for
granting bail to an accused person. The
only additional consideration to be kept in
mind while deciding the application under
Section 438 Cr. P.C. is contained in clause
(iv) of Sub-section (i) of Section 438, as per
which the Court has also to take into
consideration whether the accusation has
been made with object of injuring or
humiliating the applicant by having him so
arrested."

18. Apparently, the judgment in the
case of Srikant Upadhyay has been passed
after following the law laid down in the
overruled judgment in the case of HDFC
Bank (Supra) that anticipatory bail can be
granted only in exceptional cases. The law
laid down by the five Judge Bench of the
Supreme Court in the subsequent judgment
in the case of Sushila Aggarwal (Supra)
will govern the field but it has not been
considered in Srikant Upadhyay (Supra).

19.
However,
even
in
Srikant
Upadhyay (Supra), the Hon'ble Supreme
Court has held as under: -

"25. 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 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."

20. Therefore, even as per the law laid
down by the Hon'ble Supreme Court in the
case of Srikant Upadhyay (Supra), there is
no absolute prohibition against considering
an application for anticipatory bail after
issuance of warrant of arrest or a
proclamation under Section 82 Cr.P.C. and
the court is empowered to consider the
merits of the case in extreme exceptional
cases in the interest of justice.
10 All. Ankur Agarwal Vs. State of U.P. & Anr.
935

21. In Parasa Raja Manikyala Rao
v. State of A.P., (2003) 12 SCC 306, the
Hon'ble Supreme Court held that: -

"9. Each case, more particularly
a criminal case, depends on its own facts
and a close similarity between one case
and another is not enough to warrant like
treatment because a significant detail may
alter the entire aspect. In deciding such
cases, one should avoid the temptation to
decide cases (as said by Cordozo) by
matching the colour of one case against the
colour of another. To decide, therefore, on
which side of the line a case falls, the
broad resemblance to another case is not at
all decisive."

(Emphasis added)

22. When this court examines the facts
of the present case in the light of law laid
down by Hon'ble Supreme Court in the
above mentioned cases, what comes to light
is that the only allegation against the
applicant is that a co-accused had executed
an agreement dated 11.03.2022 to sell a
certain piece of land to the applicant, which
is claimed to be government land recorded
in the revenue records as banjar. A copy of
aforesaid
agreement
to
sell
dated
11.03.2022 annexed with the application
indicates that out of the agreed sale
consideration
of
Rs.10,00,000/-,
the
applicant had paid Rs.5,00,000/- to the seller
and he had paid stamp duty amounting to
Rs.20,000/-. The sale agreement does not
state that possession of the land was handed
over to the applicant. The applicant has
already filed a suit for cancellation of
agreement in the Court of Civil Judge (Junior
Division), Gonda, wherein he has stated that
after execution of the agreement, the
applicant came to know that the seller was
not the recorded tenure holder of the land in
question and he has executed the agreement
in a fraudulent manner. Jawahar Lal, the
executant of the agreement dated 11.03.2022,
has been granted bail and all the other coaccused
persons
have
been
granted
anticipatory bail.

23. From the fact that the applicant has
parted away with a sum of Rs.5,00,000/- for
execution of the agreement and he has not
acquired either possession or title in lieu
thereof, prima facie it appears that the
applicant is a victim of a fraud committed by
the executor of the agreement - the coaccused
Rajmangal
Mishra.
Rajmangal
Mishra has already been granted anticipatory
bail.

24. The agreement in question was
executed on 11.03.2022, the FIR was lodged
on 15.09.2023, the applicant filed a suit for
cancellation of the agreement on 03.10.2023
and he also an application under Section 156
(3) Cr.P.C. against the executant of the
agreement - Raj Mangal Mishra on the same
date. The anticipatory bail application of the
applicant was rejected by the Session Court
on 16.11.2023. As per instructions provided
to the learned State Counsel, a non-bailable
warrant of arrest was issued against the
applicant on 15.06.2024 and proceedings
under Section 82 Cr.P.C. have been initiated
against him on 16.08.2024 when all the coaccused persons had already been granted
anticipatory bail.

25. Having considered the aforesaid
peculiar facts and circumstances of this
case, this court is of the considered opinion
that the aforesaid facts make out a case
warranting grant of anticipatory bail to the
applicant in order to secure the interest of
justice.

26. In view of the above, the
anticipatory
bail
application
of
the
936 INDIAN LAW REPORTS ALLAHABAD SERIES
applicant is allowed. In the event of arrest/
appearance of applicant-Ankur Agarwal
before the learned Trial Court in the
aforesaid case crime, he shall be released
on anticipatory bail on his furnishing
personal bond and two solvent sureties,
each in the like amount, to the satisfaction
of
S.H.O./Court
concerned
on
the
following conditions and subject to any
other conditions that may be fixed by the
Trial Court:

(i). that the applicant shall make
himself available for interrogation by a
police officer as and when required;

(ii). that 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;

(iii). that the applicant shall not
leave India without the previous permission
of the court'

(iv). that the applicant shall
appear before the trial court on each date
fixed,
unless
personal
presence
is
exempted; and

(v). that the applicant shall not
pressurize/
intimidate
the
prosecution
witness.
----------
(2024) 10 ILRA 936
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.10.2024

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE VIKAS BUDHWAR, J.

Writ C No. 11108 of 2019
With
Writ C No. 41917 of 2018
Satya Home Pvt. Ltd. & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Nisheeth Yadav, Sri Pankaj Kumar
Shukla, Sri Prateek Sinha, Sri C.B. Yadav
(Sr. Advocate)

Counsel for the Respondents:
C.S.C., Sri Kaushalendra Nath Singh, Sri
Mahesh Chandra Chaturvedi (Sr. Advocate)

A. Land Law - Sanctioning of map to raise
construction
-
U.P.
Industrial
Area
Development Act, 1976 -Section 19 - The
bone of contention between the parties is
as to whether the request sought to be
made
by
the
writ
petitioners
for
sanctioning of the map can be turned
down
on
the
considerations
which
weighed
the
NOIDA
in
the
orders
impugned. A survey of the statutory provisions
shows that the basic object of engrafting the
1976, Act was to provide for constitution of the
authority for the development of certain areas
into industrial and urban townships and the
matter connected therewith. (Para 28)

Maintainability - As regards, the objection
raised by the NOIDA regarding maintainability of
the writ petition on the ground of existence of
an
alternative
efficacious
remedy
while
preferring an appeal under Regulation 14 of
2010, Regulations, there is no quarrel to the
said proposition, however, earlier an order
impugned came to be passed which was subject
matter of challenge in the earlier spell of
litigation and the NOIDA itself withdrew the
same and thereafter now the order impugned
has been passed and questioning the same the
writ petition is pending 2018-19 and responses
have been filed by the NOIDA disclosing their
stand, thus, it would be futile to dismiss the writ
petition on the ground of alternative remedy.
(Para 29)

B. The first and foremost question which
arises for consideration before us is
whether it is open for the NOIDA to pass a
blanket
order
forbidding
the
writ