# Ashish Kumar @ Rinku v. State of U.P. & Ors

- **Citation:** (2023) 12 ILRA 519
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-22
- **Case number:** Criminal Misc. Anticipatory Bail Application U/S 438 CR.P.C. No. 12759 of 2023
- **Bench:** Krishan Pahal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashish-kumar-rinku-v-state-of-u-p-ors-49621
- **Pages:** 4

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 82, 83, 156(3), 438 &
482 - Indian Penal Code, 1860 - Sections
498-A & 304-B - Dowry Prohibition
Act,1961 - Sections 3 & 4 - Anticipatory
Bail Application - seeking protection from arrest
- FIR - the informant alleged that his daughter
was subjected to cruelty and dowry demands,
eventually set ablaze, leading to her death -
the applicant argued that the dying declaration
St.d the burns were accidental, he sustained
8% burns trying to save her, and the FIR was
delayed without explanation - He also claimed
malicious prosecution and irregularities in
investigation, including non-consideration of
the dying declaration - Court finds that, the
case appeared to involve blatant misuse of
dowry laws and false implication, noted that
the informant was a Panch witness yet did not
name the applicant in the inquest, and found
merit
in
granting
anticipatory
bail
-
consequently, anticipatory bail was allowed -
with specific conditions ensuring cooperation in
the trial and no tampering with evidence,
making it clear that these observations made in
granting anticipatory bail to the applicant shall
not in any way affect the merits of the trial -
Accordingly, Bail Application is allowed.(Para -
13, 14, 15, 16)
Application allowed. (E-11)

List of Cases cited:

Shivam Vs St. of U.P. & anr., reported in AIR
Online 2021 All 484.

## Text

12 All. Ashish Kumar @ Rinku Vs. State of U.P. & Ors.
519
(2023) 12 ILRA 519
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.11.2023

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Criminal Misc. Anticipatory Bail Application U/S
438 CR.P.C. No. 12759 of 2023

Ashish Kumar @ Rinku ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Ashwini Kumar Ojha

Counsel for the Opposite Party:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 82, 83, 156(3), 438 &
482 - Indian Penal Code, 1860 - Sections
498-A & 304-B - Dowry Prohibition
Act,1961 - Sections 3 & 4 - Anticipatory
Bail Application - seeking protection from arrest
- FIR - the informant alleged that his daughter
was subjected to cruelty and dowry demands,
eventually set ablaze, leading to her death -
the applicant argued that the dying declaration
St.d the burns were accidental, he sustained
8% burns trying to save her, and the FIR was
delayed without explanation - He also claimed
malicious prosecution and irregularities in
investigation, including non-consideration of
the dying declaration - Court finds that, the
case appeared to involve blatant misuse of
dowry laws and false implication, noted that
the informant was a Panch witness yet did not
name the applicant in the inquest, and found
merit
in
granting
anticipatory
bail
-
consequently, anticipatory bail was allowed -
with specific conditions ensuring cooperation in
the trial and no tampering with evidence,
making it clear that these observations made in
granting anticipatory bail to the applicant shall
not in any way affect the merits of the trial -
Accordingly, Bail Application is allowed.(Para -
13, 14, 15, 16)
Application allowed. (E-11)

List of Cases cited:

Shivam Vs St. of U.P. & anr., reported in AIR
Online 2021 All 484.

(Delivered by Hon'ble Krishan Pahal, J.)

1. List has been revised.

2. Heard Sri Ashwini Kumar Ojha,
learned counsel for the applicant and Sri
Pranshu Kumar, learned A.G.A. for the
State and also perused the record.

3. The present anticipatory bail
application has been filed on behalf of the
applicant in F.I.R./Case Crime No. 1053 of
2007, under Sections 498-A, 304-B of IPC
and Sections 3/4 of Dowry Prohibition Act,
Police Station - Prem Nagar, District -
Jhansi, with a prayer to enlarge him on
anticipatory bail.

PROSECUTION STORY:-

4. Brief facts of the case in a nutshell
are that the marriage of the daughter of the
informant was solemnized with the applicant
as per Hindu Rites on 10.12.2005. The
applicant and other family members are
stated to have subjected her to cruelty for a
demand of dowry. It is also alleged in the FIR
that the electronic shop of the applicant got
closed due to loss, as such, he is stated to
have demanded an amount of Rs.50,000/- for
business as dowry. The inability of the
informant to provide them with Rs.50,000/-
again impelled them to start committing
cruelty to her and are even stated to have
threatened the deceased that they shall kill her
by sprinkling kerosene oil over her.

5. On 10.04.2007 at about 06:00 PM,
the applicant and other family members are
520 INDIAN LAW REPORTS ALLAHABAD SERIES
stated to have set the daughter of the
informant afire whereby she sustained 85
per cent burn injuries and was admitted at
Medical College in a serious condition. The
applicant and other family members did not
inform the informant about the incident.
Somehow on 17.04.2007, he was informed
telephonically by an anonymous neighbour
regarding the incident. The informant
reached the Medical College and was told
by his daughter that she has been set afire
by sprinkling kerosene over her by the
applicant and his family members. The FIR
of the informant could not be instituted at
Prem Nagar, Jhansi on 19.04.2007. The
same day, the victim started bleeding and
she gave birth to a pre-mature four months
old child who was also disposed of by her
mother-in-law by burning him. The victim
succumbed to her injuries the same day at
about 05:00 PM.

RIVAL SUBMISSIONS:-

6. Learned counsel for the applicant
has stated that the applicant is maliciously
being prosecuted in the present case due to
ulterior motive and has apprehension of his
arrest. He has nothing to do with the said
offence as alleged by the prosecution.
Learned counsel has further stated that the
dying declaration was recorded the same
day of incident i.e. on 10.04.2007 itself
whereby she has stated that she sustained
burn injuries by accident while cooking
food. Learned counsel has further stated
that the applicant himself had sustained
about 8 per cent burn injuries in an attempt
to save the victim (his wife) and the said
medical report of the victim and the
applicant have been annexed as Annexure3 to the affidavit filed along with
anticipatory bail application. It is next
stated that the inquest proceedings of the
deceased
person
was
taken
up
on
20.04.2007 itself and the informant herein
is panch witness no.1 in the said inquest
proceedings. Had the applicant or any other
person committed the said offence, the
name of the applicant would have come up
at the stage of recording of inquest
proceedings itself.

7. Learned counsel for the applicant
has next stated that the FIR is delayed by
about three months and there is no
explanation of the said delay caused. Even
the application u/s 156(3) Cr.P.C. was
moved before the concerned Magistrate on
23.04.2007 which itself is delayed. Learned
counsel has further stated that despite
knowing the fact that in the dying
declaration, the victim has not levelled any
charge of causing her death to the
applicant, the final report (charge-sheet)
has been submitted against him by the
Investigating Officer which is unfair.

8. Learned counsel for the applicant
has next stated that the cognizance was
taken by the Magistrate vide order dated
17.09.2010 and the same along with
another order dated 21.10.2013 challenged
by the applicant and other co-accused
persons by filing a petition u/s 482 Cr.P.C.
No.21346 of 2022 and this Court was
pleased to allow the said petition and the
cognizance
order
and
consequential
proceedings were quashed vide order dated
29.08.2022. Subsequent to it, learned
C.J.M., Jhansi again passed an order taking
cognizance
against
the
applicant
on
26.06.2023. The said cognizance taking
order was also challenged by filing another
petition u/s 482 Cr.P.C. No.32340 of 2023,
whereby the said petition was dismissed by
this Court vide order dated 13.10.2023.

9. On this count, learned AGA has
stated that the dying declaration is not a
12 All. Ashish Kumar @ Rinku Vs. State of U.P. & Ors.
521
part of case diary, as such, cognizance
order is proper as before taking cognizance
to summon the accused persons, learned
Magistrate is to consider the evidence
collected during investigation and on the
evidence, learned Magistrate has to apply
his judicial mind.

10. In rebuttal, learned counsel for the
applicant has stated that the said averments
of learned AGA in the aforesaid petition
are false as the dying declaration was very
much on record and the applicant had taken
certified copy of the same, which has been
filed as Annexure-8 to the affidavit
annexed with anticipatory bail application.
It is next stated that the Investigating
Officer did not care to open the dying
declaration received in sealed cover by the
concerned C.J.M. and get it recorded in his
case diary, which was his utmost duty. The
said callous approach of the Investigating
Officer speaks volume of his acting in
collusion with the informant, as such,
complete investigation is tainted one.

11. Learned counsel for the applicant
has further stated that subsequent to it, nonbailable warrants have been issued against
the applicant on 07.08.2022. The applicant
had applied for anticipatory bail before the
Sessions Judge, Jhansi which was rejected
on 01.11.2023 on the wrong averment that
the proceedings u/s 82 & 83 Cr.P.C. are
complete. In case, the anticipatory bail
application of the applicant is allowed, he
will not misuse the liberty and shall
cooperate with trial.

12. On the other hand, learned A.G.A.
has vehemently opposed the prayer for grant
of anticipatory bail on the ground that the
applicant is running from pillar to post and
has stalled the trial for 16 long years and he is
not cooperating in trial. Learned AGA has
fairly conceded the fact that only non-bailable
warrants have been issued against the
applicant and that too on 07.08.2022,
subsequent to fresh cognizance taking order
dated 26.06.2023. Learned AGA has further
stated that the arguments tendered at bar
pertain to regular bail application u/s 439
Cr.P.C. and cannot be agitated u/s 438
Cr.P.C.. However, learned AGA has also not
disputed the fact that the informant is the
panch
witness
no.1
in
the
inquest
proceedings.

CONCLUSION:-

13. The present case seems to be blatant
misuse of dowry laws and the exception has
to be drawn in such cases. It seems to be clear
cut case of false implication, as such, the
provision of Section 438 Cr.P.C. are attracted
in it. The paragraph no.41 of the judgement
of this Court passed in Shivam Vs. State of
U.P. and Another, reported in AIROnline
2021 All 484 is applicable to the present case
as the most potent and relevant piece of
evidence i.e. dying declaration has not been
taken into account earlier on.

14. After taking into consideration the
fact that the dying declaration, the deceased
had sustained burn injuries on account of
accident and also taking into consideration
the fact that the applicant himself had
sustained 8 per cent burn injuries in trying to
extinguish the fire sustained by the deceased
person coupled with the fact that the
informant was panch witness in the inquest
proceedings, I find it a fit case to enlarge the
applicant on anticipatory bail.

15. Without expressing any opinion
upon ultimate merits of the case either
ways which may adversely affect the trial
of the case, the anticipatory bail application
of the applicant is allowed.
522 INDIAN LAW REPORTS ALLAHABAD SERIES

16. In the event of arrest of the
applicant, Ashish Kumar @ Rinku
involved in the aforesaid case crime
number, shall be released on anticipatory
bail till the conclusion of trial on furnishing
a personal bond with two sureties each in
the like amount to the satisfaction of the
Presiding Officer/Court Concerned, with
the conditions that:-

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 previous permission of
the court;

iv. that the applicant shall not
tamper with the evidence during the trial;

v. that the applicant shall not
pressurize/
intimidate
the
prosecution
witness;

vi. that the applicant shall appear
before the trial court on each date fixed
unless personal presence is exempted;

17. In case of breach of any of the
above conditions, the court concerned shall
have the liberty to cancel the bail granted to
the applicant.

18. It is made clear that observations
made in granting anticipatory bail to the
applicant shall not in any way affect the
learned
trial
Judge
in
forming
his
independent
opinion
based
on
the
testimony of the witnesses.
----------
(2023) 12 ILRA 522
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.11.2023
BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE ANISH KUMAR GUPTA, J.

Criminal Misc. Writ Petition No. 10247 of 2023

Jitendra Singh @ Bablu & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Vinay Kumar Jaiswal, Sri Man Singh
Chauhan

Counsel for the Respondents:
G.A.,Sri Santosh Kumar Singh

(A) Criminal Law - Indian Penal Code,
1860 - Sections 147, 148, 323, 324, 325,
308, 504 & 506 - The Code of criminal
procedure, 1973 - Section 173 (8) -
Further investigation - Police has a right
to further investigate the matter even
after the submissions of the charge
sheet/report
before
the
learned
Magistrate and even after the Magistrate
had
taken
cognizance
of
the
report/charge sheet (settled principles of
law)
-
doctrine
of
"contemporanea
expositio" - no statutory requirement that
before initiating further investigation,
investigation
agency
must
take
permission
of
the
concerned
Magistrate.(Para - 32, 34)

(B) Criminal Law - The Code of criminal
procedure, 1973 - Further investigation is
distinct from the re-investigation/de novo
investigation or fresh investigation - It is
the continuance of the investigation,
which has already been done and on