# Bal Kumar Patel @ Raj Kumar v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2023) 1 ILRA 721
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-09
- **Case number:** Application u/s 482 No. 10778 of 2022
- **Bench:** Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bal-kumar-patel-raj-kumar-v-state-of-u-p-anr-opp-parties-49180
- **Pages:** 22

## Headnote

A. Criminal Law - Criminal Procedure
Code, 1973 - Sections 482 - Scope -
Quashing of charge-sheet and proceeding
- Inherent power, how can be exercised -
Questions of facts, how far can be
adjudicated - Held, exercise of inherent
power of the High Court u/s 482 Cr.P.C. is
an exceptional one. Great care should be
taken by the High Court before embarking
to scrutinize the complaint/FIR/chargesheet in deciding whether the rarest of the
rare case is made out to scuttle the
prosecution in its inception - At the stage
of quashing, only the material of the
prosecution has to be seen and the court
cannot delve into the correctness of the
allegations or the defence of the accused
and then proceed to examine the matter
on its merit by weighing the evidence so
produced - The disputed questions of
facts of the case cannot be adjudged and
adjudicated at this stage while exercising
powers under Section 482 Cr.P.C. and only
the prima facie prosecution case has to be
looked into as it is. Evidence needs to be
led to substantiate the defence of the
accused. (Para 20 and 24)
B. Criminal Law - Criminal Procedure
Code, 1973 - Sections 438 - Anticipatory
Bail - Scope - Transaction of money
through
the
Bank
-
Allegation
of
committing offence u/s 419, 420 and 406
I.P.C. - Earlier the applicant was a public
representative and he was involved in
722 INDIAN LAW REPORTS ALLAHABAD SERIES
many criminal cases, wherein he failed to
make himself available at the call of the
Investigating Officer during investigation
- Relevancy - Narinderjit Singh Sahni's
case relied upon - Accused facing a
charge u/s 406, 409, 420 and 120-B is
ordinarily not entitled to invoke the
provisions of section 438 of the Criminal
Procedure Code unless it is established
that such criminal accusation is not a
bonafide one - Rejecting the application,
the High Court also issued the direction to
the Principal Secretary (Home) regarding
disclosure of the criminal history of the
accused before the concern court. (Para
26, 28 and 31)
Applications rejected. (E-1)
List of Cases cited:-

## Text

_Characters 0–39,957 of 73,961. This is a partial read: ask again with offset=39957 for what follows._

1 All. Bal Kumar Patel @ Raj Kumar Vs. State of U.P. & Anr.
721
13(2) of the Act. The High Court found that
the order of the trial court to apply the
amended provisions of the Act was not
justified and remanded the matter back
observing that the offences were committed
prior to the amendments being carried out.
In the present case, the FIR was registered
on 9-11-2011 much before the Act was
amended in the year 2018. Whether any
offence has been committed or not has to
be examined in the light of the provisions of
the statute as it existed prior to the
amendment carried out on 26-7-2018."

21. This Court vide judgment and
order dated 22.10.2018 reported in 2018
SCC OnLine All 5546 (Kaushlesh Kumar
Sinha Vs. CBI) has also rejected the
contention that after the Amending Act
No.16 of 2018 came into force with effect
from 26.07.2018, the sanction in respect of
a public servant, who got retired, before
cognizance could be taken by the learned
trial Court is a must.

22. In view thereof, I do not find the
argument of Mr. Nandit Kumar Srivastava,
learned Senior Counsel, representing the
applicant impressive and, therefore, the
application is hereby rejected. However, the
applicant is granted four days time from
today to surrender and apply for regular bail
and if does so, his application for regular bail
shall
be
considered
and
decided
expeditiously, in accordance with law.
----------
(2023) 1 ILRA 721
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.12.2022

BEFORE

THE HON'BLE SAMIT GOPAL, J.

Application u/s 482 No. 10778 of 2022
with
Crl. Misc. Anticipatory Bail Application u/s 438
No. 8945 of 2020

Bal Kumar Patel @ Raj Kumar ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Satya Dheer Singh Jadaun, Sri Durgesh
Kumar Singh, Sri Bindeshwari Prasad Tiwari, Sri
Sankalp Narain, Sri Hemant Kumar Srivastava,
Sri Dhananjay Shukla

Counsel for the Opp. Parties:
Sri Sanjay Kumar Singh(A.G.A.), Sri Jitendra
Prasad Mishra

A. Criminal Law - Criminal Procedure
Code, 1973 - Sections 482 - Scope -
Quashing of charge-sheet and proceeding
- Inherent power, how can be exercised -
Questions of facts, how far can be
adjudicated - Held, exercise of inherent
power of the High Court u/s 482 Cr.P.C. is
an exceptional one. Great care should be
taken by the High Court before embarking
to scrutinize the complaint/FIR/chargesheet in deciding whether the rarest of the
rare case is made out to scuttle the
prosecution in its inception - At the stage
of quashing, only the material of the
prosecution has to be seen and the court
cannot delve into the correctness of the
allegations or the defence of the accused
and then proceed to examine the matter
on its merit by weighing the evidence so
produced - The disputed questions of
facts of the case cannot be adjudged and
adjudicated at this stage while exercising
powers under Section 482 Cr.P.C. and only
the prima facie prosecution case has to be
looked into as it is. Evidence needs to be
led to substantiate the defence of the
accused. (Para 20 and 24)
B. Criminal Law - Criminal Procedure
Code, 1973 - Sections 438 - Anticipatory
Bail - Scope - Transaction of money
through
the
Bank
-
Allegation
of
committing offence u/s 419, 420 and 406
I.P.C. - Earlier the applicant was a public
representative and he was involved in
722 INDIAN LAW REPORTS ALLAHABAD SERIES
many criminal cases, wherein he failed to
make himself available at the call of the
Investigating Officer during investigation
- Relevancy - Narinderjit Singh Sahni's
case relied upon - Accused facing a
charge u/s 406, 409, 420 and 120-B is
ordinarily not entitled to invoke the
provisions of section 438 of the Criminal
Procedure Code unless it is established
that such criminal accusation is not a
bonafide one - Rejecting the application,
the High Court also issued the direction to
the Principal Secretary (Home) regarding
disclosure of the criminal history of the
accused before the concern court. (Para
26, 28 and 31)
Applications rejected. (E-1)
List of Cases cited:-
1. R.P. Kapur Vs St. of Punj.; AIR 1960 SC 866
2. St. of Har. & ors.. Vs Bhajan Lal & ors.; 1992
Supp (1) SCC 335
3. St. of Bihar Vs P. P. Sharma; 1992 Supp (1)
SCC 222
4. Trisuns Chemical Industry Vs Rajesh Agarwal
& ors..; (1999) 8 SCC 686
5. M. Krishnan Vs Vijay Singh & anr.; (2001) 8
SCC 645
6. Zandu Pharmaceuticals Works Ltd. Vs Mohd.
Sharaful Haque & anr.; (2005) 1 SCC 122
7. M. N. Ojha Vs Alok Kumar Srivastava; (2009)
9 SCC 682
8. Joseph Salvaraj A. Vs St. of Gujarat & ors..;
(2011) 7 SCC 59
9. Arun Bhandari Vs St. of Uttar Pradesh & ors..;
(2013) 2 SCC 801
10. Md. Allauddin Khan Vs St. of Bihar; (2019) 6
SCC 107
11. Anand Kumar Mohatta & anr. Vs St. (NCT of
Delhi), Department of Home & anr.; (2019) 11
SCC 706
12. Rajeev Kourav Vs Balasaheb & ors.; (2020)
3 SCC 317
13. Nallapareddy Sridhar Reddy Vs The St. of
Andhra Pradesh; (2020) 12 SCC 467
14. Priti Saraf & anr. Vs St. of NCT of Delhi &
anr.; 2021 SCC Online SC 206
15. Ramveer Upadhyay Vs St. of U.P.; 2002 SCC
Online SC 484
16. Bhadresh Bipinbhai Sheth Vs St. of Guj.;
(2016) 1 SCC 152
17. Narinderjit Singh Sahni Vs U.O.I.; (2002) 2
SCC 210
18. Adri Dharan Das Vs St. of W. B.l; (2005) 4
SCC 303
19. Balachand Jain Vs St. of M. P.; (1976) 4 SCC
572
(Delivered by Hon'ble Samit Gopal, J.)

1. Heard Sri Satya Dheer Singh
Jadaun, Advocate learned counsel for the
applicant, Sri Jitendra Prasad Mishra,
Advocate learned counsel for the first
informant and Sri Sanjay Kumar Singh,
Advocate learned Additional Government
Advocate for the State of U.P. and perused
the records.

2. These two petitions are connected
together as they relate to the same case and
are of the same accused and as such are
being decided by a common order.

3. Criminal Misc. Application U/S
482 Cr.P.C. (hereinafter referred to as "the
482 petition") has been filed by the
applicant- Bal Kumar Patel @ Raj
Kumar with the following prayers:-

"It is, therefore, most respectfully
prayed that this Hon'ble Court may kindly
be pleased to allow this application and
quash the proceedings of Criminal Case
No. 02 of 2022 arising out of Case Crime
No. 0831 of 2020 under Sections 419, 420
and 406 I.P.C. Police Station Kotwali
Nagar District Banda on which cognizance
was taken up on 2.11.2021 following the
submission of charge sheet against the
1 All. Bal Kumar Patel @ Raj Kumar Vs. State of U.P. & Anr.
723
applicant on 29.9.2021 by the police of
Police Station Kotwali Nagar District
Banda and also further be pleased to pass
an interim order in favour of the applicant,
granting protection from arrest by directing
the investigative authorities not to take any
coercive action against him; so that justice
be done.

3. That it is further prayed that during
the pendency of the present criminal misc.
application, the proceedings of Criminal
Case No. 02 of 2022 arising out of Case
Crime No. 0831 of 2020 under Sections
419, 420 and 406 I.P.C. Police Station
Kotwali Nagar District Banda on which
cognizance was taken up on 2.11.2021
following the submission of charge sheet
against the applicant on 29.9.2021 by the
police of Police Station Kotwali Nagar
District Banda may remain stayed and also
further be pleased to pass an interim order
in favour of the applicant, granting
protection from arrest by directing the
investigative authorities not to take any
coercive action against him and / or be
pleased fit and proper to pass such order as
the Hon'ble Court deem fit and proper in
the facts and circumstances of the present
case; so that justice be done."

4. Criminal Misc. Anticipatory Bail
Application U/S 438 Cr.P.C. (hereinafter
referred to as "the anticipatory bail
application") has been filed by the
applicant- Bal Kumar Patel @ Raj
Kumar with the following prayers:-

"It is, therefore, most respectfully
prayed that this Hon'ble Court may be
pleased to allow the application and direct
that in the event of the applicant's arrest in
Case Crime No. 831 of 2020 u/s 419, 420
and 406 I.P.C., registered at Police Station
Kotwali Nagar, District Banda, he may be
released on anticipatory bail.

It is further prayed that during the
pendency of this application before this
Hon'ble Court the interim order be issued
directing the P.S. Kotwali Nagar, District
Band (or any other investigating agency of
the State of U.P.) not to apprehend the
applicant in Case Crime No. 831 of 2020
u/s 419, 420 and 406 I.P.C., And/or may
pass such other & further order as this
Hon'ble Court, may deem, just and proper
in the facts and circumstances of the case."

5.
 A
counter
affidavit
dated
21.05.2021
has
been
filed
in
the
anticipatory bail application which has
been sworn by Mohammad Akram SubInspector, Police Station Kotwali Nagar,
District Banda. In the said counter
affidavit paragraph 10 & 12 referred to the
applicant having criminal history and
thereby stating in both the paragraphs that
he is a habitual criminal. Paragraph 10 &
12 of the said counter affidavit is quoted
herein-below:-

"10. That the contents of paragraph
No. 14 of the affidavit are wrong and as
such are denied. The true fact is that the
applicant is named accused and man of
habitual criminal and has long criminal
history. Photostat copy of the criminal
history of the applicant is being filed
herewith and marked as Annexure No.
C.A.1 to this affidavit.

12. That the contents of paragraph No.
16, 17, 18 & 19 of the affidavit are wrong
and as such are denied. The true fact is that
the applicant is named accused and he
taken money from the informant on the
false pretext of sand business and he did
not return the money of the informant and
has committed fraud. It is further submitted
that the applicant is habitual criminal and
has long criminal history."
724 INDIAN LAW REPORTS ALLAHABAD SERIES

6. Annexure-CA-1 to the said counter
affidavit is stated to be the criminal history
of the applicant. A perusal of the same
shows that there are 18 criminal cases
against him. Annexure-CA-1 to the said
counter affidavit is extracted herein-below:-

"प्राथी अग्रभयुक्त बालकुमार पट्ेल उफि
राजकुमार पट्ेल शाग्रतर ग्रकस्म का अपरािी है और
राजनीग्रत का सोंरक्षण लेकर आपराग्रिक गग्रतग्रवग्रिय ों
में सग्रिय रहा है ग्रजसके ग्रवरूद्ध आपराग्रिक इग्रतहास
की सूिी ग्रनम्नवत् हैः-

1.
अ०सों०-61/79
िारा-147,148,149,302
आई०पी०सी० थाना- रैपुरा।

2. अ०सों०-05/84 िारा-399,402 आई०पी०सी०
थाना- रैपुरा।

3. अ०सों०- 68/84 िारा- 216ए आई०पी०सी
थाना- रैपुरा।

4.
अ०सों०-155/85
िारा-3
यूपी
गुण्डा
एक्ट,थाना- रैपुरा।

5. अ०सों०-158/85 िारा - 506 आई०पी०सी०
थाना- रैपुरा।

6.
अ०सों०-70/84
िारा-364,395,120
आई०पी०सी० थाना- माग्रनकपुर।

7.
अ०सों०-147/06
िारा-142,504
आई०पी०सी० थाना- माग्रनकपुर।

8. अ०सों०-245/84 िारा-216ए आई०पी०सी०
थाना- कवी।

9.
अ०सों०-652/07
िारा-
419,420,467,468,147 आई०पी०सी० थाना- कवी।

10.
अ०सों०-653/07
िारा-
419,420,467,468,147
आई०पी०सी०
थाना-
कवी।

11. अ०सों०- 654/07 िारा-25,27,30ए एक्ट
थाना-कवी।

12. अ०सों०- 655/07 िारा-25,27,30ए एक्ट
थाना-कवी।

13. अ०सों०- 656/07 िारा-25,27,30ए एक्ट
थाना-कवी।

14.
अ०सों०-
658/07
िारा-
147,148,447,448,504,506 आई०पी०सी० व 2/3
गैंगेस्टर एक्ट, थाना-कवी।

15.
अ०सों०-
728/07
िारा-
147,148,467,468,471 आई०पी०सी० थाना- कवी।

16. अ०सों०- 860/07 िारा-406 आई०पी०सी०,
थाना- कवी।

17.
मु०अ०सों०-46/07
िारा-
147,148,349,364,302,120 आई०पी०सी० थाना-
रैपुरा।

18. मु०अ०सों०- 173/09 िारा- 2/3 गैंगेस्टर
एक्ट, थाना- रैपुरा।"

7. A rejoinder affidavit dated
20.08.2022 to the counter affidavit dated
21.05.2022 of the State has been filed in
the anticipatory bail application explaining
the criminal history of the applicant.

8. In the 482 petition a counter
affidavit of the State dated 10.06.2022 has
been filed which is sworn by Brahmdev
Goswami, Sub-Inspector, Police Station
Kotwali Nagar, District Banda. In para
no.12 of the said affidavit which is in reply
to para 19 and 20 of the affidavit in support
of the 482 petition, it is stated that the
accused applicant has no criminal history to
his credit. The said para is quoted hereinbelow:-

"12. That the contents of paragraph
no.19 & 20 of the affidavit are wrong and
denied. In reply, it is stated that accused
applicant and co-accused in premeditated
manner committed collusive fraud and
cheating with the informant and during the
course
of
investigation,
investigating
officer recorded statement of informant and
witnesses who have supported prosecution
story beyond all reasonable doubts and the
investigating
officer
after
thorough
investigation
collected
credible
and
concrete evidence and submitted charge
sheet dated 21.09.2021 against the accused
applicant under Section 419, 420, 406 IPC
and the learned Magistrate has taken
cognizance on the charge sheet vide order
1 All. Bal Kumar Patel @ Raj Kumar Vs. State of U.P. & Anr.
725
dated 02.11.2021 and the case was
registered as Criminal Case No.02 of 2022
and the case was pending in the court of
Chief Judicial Magistrate, Banda.

According to DCRB and CCTNS
reports, the accused applicants has no
criminal history to his credit. Copies of the
DCRB and CCTNS reports are being file
herewith and marked as Annexure No.C.A.-
1 to this affidavit."

9. Phased with the averment in the
482 petition with regards to the criminal
history of the applicant particularly the fact
that the applicant states to be having
criminal history but the counter affidavit of
the State stating that he has no criminal
history to his credit, this Court passed an
order on 28.07.2022 with regards to the
same. The same is extracted herein below:-

"Heard Sri Durgesh Kumar Singh,
learned counsel for the applicant, Sri
Jitendra Prasad Mishra, learned counsel
for the first informant and Sri Gyan
Prakash Singh, learned counsel for the
State.

Learned counsel for the applicant has
provided copy of the petition and counter
affidavit filed by State to learned counsel
for the State today in Court as due to
unfortunate incident of fire on 17.07.2022
in the office of the Advocate General, many
files have been burnt and it was impossible
to locate the file due to the extensive fire in
the record rooms.

Learned counsel for the first informant
states that the applicant has criminal
history of 11 cases to which learned
counsel for the applicant states that the
present case is a case in which the
applicant has been falsely implicated. He
states that although in para no.20 of the
affidavit filed in support of present
application under Section 482 Cr.P.C. it is
stated that the applicant has criminal
history and it has been disclosed in his
anticipatory bail application but in the
counter affidavit filed on behalf of the
State, in para no.12, there is a specific
recital that the applicant has no criminal
history. Para no.20 of the affidavit filed in
support of present application under
Section 482 Cr.P.C is quoted here-inbelow:-

"20. That, the applicant has dutifully
explained his criminal history in his
anticipatory bail application which is
already pending before this Hon'ble Court.
It is irrelevant for the purpose of deciding
the present petition."

The counter affidavit of the State dated
10.06.2022 is on record which has been
sworn by Brahmdev Goswami in the
capacity of Sub-Inspector, Police Station
Kotwali Nagar, District Banda. In para
no.12 of the said affidavit which is in reply
to para 19 and 20 of the affidavit in support
of the application under Section 482
Cr.P.C., it is stated that the accused
applicant has no criminal history to his
credit. The said para is quoted here-inbelow:-

"12. That the contents of paragraph
no.19 & 20 of the affidavit are wrong and
denied. In reply, it is stated that accused
applicant and co-accused in premeditated
manner committed collusive fraud and
cheating with the informant and during the
course
of
investigation,
investigating
officer recorded statement of informant and
witnesses who have supported prosecution
story beyond all reasonable doubts and the
investigating
officer
after
thorough
investigation
collected
credible
and
concrete evidence and submitted charge
sheet dated 21.09.2021 against the accused
applicant under Section 419, 420, 406 IPC
and the learned Magistrate has taken
cognizance on the charge sheet vide order
726 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 02.11.2021 and the case was
registered as Criminal Case No.02 of 2022
and the case was pending in the court of
Chief Judicial Magistrate, Banda.

According to DCRB and CCTNS
reports, the accused applicants has no
criminal history to his credit. Copies of the
DCRB and CCTNS reports are being file
herewith and marked as Annexure No.C.A.-
1 to this affidavit."

This Court is at loss to appreciate the
contents of para no.12 of the counter
affidavit as on the own pleadings of the
applicant, he has his criminal history which
has been explained in his anticipatory bail
application which is stated to be pending
before this Court. The first impression
which the Court gets from the said counter
affidavit is that the deponent of the counter
affidavit is trying to conceal the criminal
history for the reasons best known to him,
he is trying that the accused may not
disclose his entire criminal history in the
matter and to the contrary, prima-facie is
giving a wrong statement in para no.12 of
the same in which he states that the
applicant has no criminal history to his
credit.

In these circumstances, let the matter
be taken up by Superintendent of Police,
Banda forthwith who shall file his personal
affidavit in the matter within seven days
from today disclosing the criminal history
of the applicant and also disclosing as to
why the same has not been disclosed in the
counter affidavit filed earlier in the matter.
He is free to initiate any action against the
deponent of the counter affidavit for the
contents of para 12 if he finds it to be
untrue. If any action is taken, the same
shall also be disclosed in his personal
affidavit. If the said personal affidavit is
not filed, Superintendent of Police, Banda
shall be personally present before this
Court on the next date.

If the criminal history of the applicant
is found, the Court may further consider to
proceed against the deponent of the counter
affidavit for filing false affidavit.

Let the matter be listed on 06.08.2022
as fresh.

The Registrar General of this Court
and learned counsel for the State shall
communicate this order by tomorrow to
Superintendent of Police, Banda."

10. In compliance of the order dated
28.07.2022, a personal affidavit dated
05.08.2022 sworn by Sri Abhinandan, the
Superintendent of Police, Banda has been
filed containing 11 paragraphs in all. The
said paragraphs are quoted herein-below:-

"1. That the deponent is presently
posted as Superintendent of Police, District
Banda and in compliance of the Hon'ble
Court's order dated 28.07.2022, he is filing
the instant personal affidavit in the abovenoted matter. The deponent has perused the
record as available to him and as such, he
is well acquainted with the facts deposed
herein below. The deponent is enclosing his
photograph and the photocopy of his
identity card according to the provisions of
Rules of Court, 1952.

2. That this Hon'ble Court had been
pleased to direct, vide order dated
28.07.2022, the Superintendent of Police,
Banda shall file his personal affidavit
disclosing as to why the same has not been
disclosed in the counter affidavit filed
earlier in the matter. Further the Hon'ble
Court has been pleased to direct that he is
free to initiate any action against the
deponent of the counter affidavit for the
contents of para 12 if he finds it to be
untrue. If any action is taken, the same
shall also be disclosed in his personal
affidavit. If the said personal affidavit is
not filed, Superintendent of Police, Banda
1 All. Bal Kumar Patel @ Raj Kumar Vs. State of U.P. & Anr.
727
shall be personally present before the
Hon'ble Court on the next date.

3. That in compliance of the aforesaid
order (supra), the deponent is filing the
instant personal affidavit and prays this
Hon'ble Court may kindly be pleased to
permit the instant affidavit to be taken on
record.

4. That at the very outset, the deponent
tenders her unconditional, unqualified,
unfettered and sincere apology for the
inconvenience caused to this Hon'ble
Court, though the same was inadvertent.

5. That the deponent noted the
justified concern expressed by the Hon'ble
High Court as to why, when the applicant
himself had indicated that he had some
criminal history (although explained) yet, it
was stated in the paragraph no. of the
counter affidavit sworn by Sub-Inspector
Brahmdev Goswami at Police Station
Kotwali Nagar, District Banda that the
applicant
had
no
criminal
history
according to the reports of DCRB and
CCTNS. Admittedly, if the knowledge of the
deponent was confined to criminal history
of the applicant or lack of it, in District
Banda, the correct averment should have
read that to the best of his knowledge, he
had no criminal history in District Banda.

6. That stating the DCRB and CCTNS
records did not contain any criminal
history gives the impression of a clean chit
to the applicant and appears to state that
he has no criminal history. Since the
applicant does have a criminal history, the
aforesaid averment, even if it is a bonafide
example of unhappy drafting but, it cannot
be condoned.

7. That however, the applicant has
criminal history of long criminal cases in
different districts viz. 01 criminal case in
District Banda (criminal case in question),
10 criminal cases in District Chitrakoot, 10
criminal cases in District Raibareli, 04
criminal cases in District Pratapgarh, 01
criminal case in District Mirzapur and 01
criminal case in District Prayagraj. A copy
of the chart reflecting the entire criminal
history of the applicant is being enclosed
herewith and marked as annexure no. 1 to
this affidavit.

8. That it is humbly submitted that the
deponent took a serious note of the lapse
aforesaid committed by the Sub-Inspector
and passed an order dated 30.07.2022 to
conduct a preliminary inquiry by the
Additional
Superintendent
of
Police,
District
Banda,
into
the
apparently
arbitrary,
negligent
and
irresponsible
manner, in which the counter affidavit
dated 10.06.2022 had been filed by the
Sub-Inspector
Brahmdev
Goswami
at
Police Station Kotwali Nagar, District
Banda. A copy of the order dated
30.07.2022 passed by the deponent is being
enclosed herewith and marked as annexure
no. 2 to this affidavit.

9. That the deponent assures this
Hon'ble Court that the most stringent
action as per the relevant and extant law
and rules, will be taken against the
delinquent police officer.

10.
That
the
deponent
humbly
reiterates his unconditional, unfettered and
unqualified apologies to this Hon'ble Court
for the inconvenience caused, and he is
sincerely sorry for the same, though the
same was inadvertent.

11. That in view of the aforesaid facts
and circumstances, stated above, it is
humbly prayed that this Hon'ble Court may
pass such other or further order, which this
Hon'ble Court may deem fit and proper
under the facts and circumstances of the
present case, so that the justice may be
done."

11. Annexure-1 to the said personal
affidavit is a chart showing the criminal
728 INDIAN LAW REPORTS ALLAHABAD SERIES
history of the applicant. The same has been
referred to in paragraph 7 of the said
personal affidavit. The criminal history as
stated in the said chart is of 27 criminal
cases. The case mentioned at Serial No. 27
being Case Crime No. 831 of 2020, under
Sections 419, 420, 406 I.P.C., Police
Station Kotwali Nagar, District Banda is
the case which is the subject matter in the
482 petition and the anticipatory bail
application also. The list of 27 cases
distributed in five columns in the said chart
is extracted herein-below:-

आपराग्रिक इग्रतहास बालकुमार पट्ेल उफि
राजकुमार पट्ेल पुत्र श्री रामप्यारे ग्रनवासी पता-
01 िाम देवकली थाना रैपुरा जनपद ग्रित्रकूट्
02- ए-42 आवास ग्रवकास इखन्द्ररानगर काल नी
जनपद रायबरेली।

ि०
स०
मु०अ०सों
०
िारा
थाना
जनपद
1.
61/79
147/148/14
9/302
भा.द.ग्रव.
रैपुरा
ग्रित्रकूट्
2.
05/83
399/402
भा.द.ग्रव.
रैपुरा
ग्रित्रकूट्
3.
68/84
216ए
भा.द.ग्रव.
रैपुरा
ग्रित्रकूट्
4.
70/84
364/395/12
0 भा.द.ग्रव.
माग्रनक
पुर
ग्रित्रकूट्
5.
245/84
216ए
भा.द.ग्रव.
क त०
कवी
ग्रित्रकूट्
6.
155/85
03
यूपी
गुण्डा एक्ट
रैपुरा
ग्रित्रकूट्
7.
158/85
504/506भा.
द.ग्रव.
क त०
कवी
ग्रित्रकूट्
8.
147/06
142/504
माग्रनकग्रित्रकूट्
भा.द.ग्रव.
पुर
9.
6014/06 147/506
भा.द.ग्रव.
माग्रनक
पुर
ग्रित्रकूट्
10. 46/07
147/148/14
9/364/302/
120
भा.द.ग्रव.
रैपुरा
ग्रित्रकूट्
11. 652/07
420/467/46
8/471
भा.द.ग्रव.
क तवा
ली
रायवरे
ली
12. 653/07
420/467/46
8/471
भा.द.ग्रव.
क तवा
ली
रायवरे
ली
13. 654/07
25/27/30
आर्म्ि एक्ट
क तवा
ली
रायवरे
ली
14. 655/07
25/27/30
आर्म्ि एक्ट
क तवा
ली
रायवरे
ली
15. 656/07
25/27/30
आर्म्ि एक्ट
क तवा
ली
रायवरे
ली
16. 658/07
147/148/14
9/447/448/
504/506
भा.द.ग्रव.
क तवा
ली
रायवरे
ली
17. 728/07
419/420/46
7/468/471
भा.द.ग्रव.
क तवा
ली
रायवरे
ली
18. 860/07
406
भा.द.ग्रव
क तवा
ली
रायवरे
ली
19. 49/07
188
भा.द.ग्रव
पट्टी
प्रतापगढ़
20. 73/07
188
भा.द.ग्रव.
पट्टी
प्रतापगढ़
21. 173/09
2/3 गैंगस्टर
एक्ट
क तवा
ली
रायवरे
ली
22. 470/09
147/332/35 क तवाग्रमजािपुर
1 All. Bal Kumar Patel @ Raj Kumar Vs. State of U.P. & Anr.
729
3/188
भा.द.ग्रव. व
3⁄4
ल ०सों०क्ष०
ग्रन०
अग्रिग्रनयम
ली
ग्रसट्ी
23. 341/16
147/148/50
4/506/420
भा.द.ग्रव.
क तवा
ली
रायवरे
ली
24. 129/18
419/420/40
6/504/506
भा.द.ग्रव. व
66 डी आई
ट्ी एक्ट
उतराोंव प्रयागरा
ज
25. 432/20
153/500/50
5 भा.द.ग्रव.
व
66
डी
आई
ट्ी
एक्ट
क त०
ग्रसट्ी
प्रतापगढ़
26. 133/20
269/188
भादग्रव
व
51क
आपदा
प्रबोंिन
अग्रि०
पट्टी
प्रतापगढ़
27. 831/20
419/420/40
6 भा.द.ग्रव.
क त०
नगर
बाोंदा

12. An affidavit dated 16.08.2022 in
the 482 petition has been filed on behalf of
the applicant in response to the personal
affidavit of the Superintendent of Police,
Banda in which an explanation has been
given about the criminal history of the
applicant as detailed in Annexure-1 to the
said personal affidavit from paragraph nos.
8 to 22 of it stating therein that the cases
from Serial Nos. 1 to 5 have ended in
acquittal as per the Goshwara register, but
the lawyer of the applicant is making an
effort to obtain the certified copies of the
judgements of the said cases, the case at
Serial No. 6 is a punitive proceeding, the
cases at Serial Nos. 7, 8 and 9 are non
cognizable offences, the case at Serial No.
10 has ended in acquittal, the cases at Serial
Nos. 11 to 17 related to obtaining firearm
licences by the applicant from the places
where he was living at that time, the said
weapons were seized which were then
released in his favour on the orders of the
concerned District Magistrate, the case
mentioned at Serial No. 18 also ended in
acquittal, the case at Serial No. 19 though a
charge-sheet has been sent to the concerned
court in which cognizance has been taken
but the applicant has not received any
summons or notices till date, the cases at
Serial Nos. 20 & 21 are the cases in which
the applicant is not named in the first
information report, no charge-sheet has
been submitted against him and he has
neither been summoned nor has received
any notice till date, the case at Serial No.
22 has been withdrawn under Section 321
Cr.P.C., the case at Serial No. 23 has ended
in Final Report in favour of the applicant,
for the cases at Serial Nos. 24 & 25 the
applicant has no knowledge of any chargesheet being submitted against him and
neither has he received any summon or any
notice till date and the case at Serial No. 26
is a case simple in nature.

13. An affidavit of compliance dated
06.09.2022
has
been
filed
by
Sri
Abhinandan, the Superintendent of Police,
Banda in the anticipatory bail application
containing 12 paragraphs in all. The same
are extracted herein-below:-

"1. That the deponent is presently
Superintendent of Police, Banda, and he is
filing the instant affidavit in the above
730 INDIAN LAW REPORTS ALLAHABAD SERIES
noted matter. The deponent has perused the
record as available to him and as such, he
is well acquainted with the facts deposed
herein below. The deponent is enclosing his
photograph and the photocopy of his
identity card according to the provisions of
Rules of Court, 1952.

2. That this Hon'ble Court had been
pleased to direct, vide order dated
02.09.2022, the State to file a proper
affidavit about criminal history of the
applicant.

3. That in compliance of the aforesaid
order (supra), the deponent is filing the
instant affidavit, and humbly prays that this
Hon'ble Court may graciously be pleased
to permit the instant affidavit to be taken on
record.

4. That the deponent at the very outset
tenders his unconditional, unqualified,
unfettered and sincere apologies for the
inconvenience caused to this Hon'ble
Court, though the same was inadvertent.

5. That it is humbly prayed that this
Hon'ble Court may graciously be pleased
to permit the instant affidavit to be read in
conjunction with the affidavit sworn by
Superintendent of Police, Banda and filed
on 05.08.2022 in criminal misc. application
(under section 482 Cr.P.C.) no. 10778 of
2022.

6. That taking serious note of the
negligence and irresponsible manner in
which
the
counter
affidavit
dated
10.06.2022 had been filed by the SubInspector Brahm Dev Goswami of Police
Station Kotwali Nagar District Banda in
the aforesaid (supra) application under
section 482 Cr.P.C., the deponent had
ordered the Addl. Superintendent of Police,
Banda to conduct a preliminary inquiry
against him by order dated 30.07.2022. A
copy of the order dated 30.07.2022 passed
by the deponent is being enclosed herewith
and marked as annexure no. 1 to this
affidavit.

7. That it was prima-facie found that
the said Sub-Inspector named Brahm Dev
Goswami had been
guilty
of
gross
negligence and carelessness, therefore, a
show cause notice dated 24.08.2022 was
issued to him requiring him to submit a
reply within 15 days why action against
him be not taken under the relevant and
extant rules. A copy of the show cause
notice dated 24.08.2022 issued by the
deponent is being enclosed herewith and
marked as annexure no. 2 to this affidavit.

8. That considering the serious nature
of the allegations against the concerned
Sub-Inspector, the deponent invoked the
powers vested in him under rule 17(1)(Ka)
of
the
Non-Gazetted
Police
Officers
(Punishment & Appeal) Rules, 1991 and by
order dated 24.08.2022 suspended the
concerned
Sub-Inspector
Brahm
Dev
Goswami, and it was also communicated to
him that a departmental inquiry against
him was contemplated. A copy of the order
of suspension dated 24.08.2022 passed by
deponent is being enclosed herewith and
marked as annexure no. 3 to this affidavit.

9. That with regard to the incomplete
criminal history (showing only 18 cases),
which was attached as annexure no. CA-1
to the counter affidavit sworn by SubInspector Mohammad Akram of Police
Station Kotwali, District Banda dated
21.05.2021, the deponent took serious note
of this egregious lapse on the part of the
delinquent officer and by order dated
01.09.2022, the deponent ordered the Addl.
Superintendent of Police, Banda to conduct
a preliminary inquiry as permitted under
the relevant and extant rules. A copy of the
order dated 01.09.2022 passed by the
deponent is being enclosed herewith and
marked as annexure no. 4 to this affidavit.
1 All. Bal Kumar Patel @ Raj Kumar Vs. State of U.P. & Anr.
731

10. That the fact is that there are a
total of 27 criminal cases comprising the
history of the applicant. A list of the
complete criminal history is being enclosed
herewith and marked as annexure no. 5 to
this affidavit.

11.
That
the
deponent
humbly
reiterates his unconditional and unqualified
apologies to this Hon'ble Court for the
inconvenience caused, though the same
was inadvertent.

12. That in view of the facts and
circumstances of the case, stated above, it
is expedient in the interest of justice that
this Hon'ble Court may graciously be
pleased to reject the bail application of the
applicant."

14. Annexure-5 to the said affidavit
which is refereed to in paragraph 10 is the
criminal history of 27 cases against the
applicant which are the same as stated in
the personal affidavit filed in the 482
petition and have been quoted above and as
such are not being quoted as being
repetitive.

15. The prosecution case as per the
first
information
report
lodged
on
11.10.2020 by Ramakant Tripathi as Case
Crime No. 0831 of 2020, under Sections
419, 420, 406 I.P.C., Police Station Kotwali
Nagar, District Banda against the applicant
and Bhanu Pratap Chaturvedi son of
Virendra Chaturvedi alleges therein that he
is a contractor in P.W.D. and lives in Gali
No. 9, Swaraj Colony, District Banda.
Bhanu Pratap Chaturvedi is his relative. He
is a Lekhpal in Banda. In March 2017,
Bhanu Pratap Chaturvedi came to his house
and told him that there is big work of sand
in which if he invests once then he would
have no tension any time. The first
informant told him that there is a marriage
in the house till 10th December and as such
he cannot invest money. On 14th December
he told that on 17.12.2017 "Sahab" will be
coming who will them make him a partner
of 10 percent. On 17.12.2017 the first
informant with Bhanu Pratap Chaturvedi
went to the Irrigation Inspection Bungalow,
Banda and then an information was sent to
Sahab who after 10 months called them on
which Chaturvedi introduced each other
and then he came to know that Sahab is
former M.P. Bal Kumar Patel after which
Chaturvedi told him to give money. Then
Bal Kumar Patel former M.P. told him that
he will be in Rai Bareilly and Rs. 5 lakhs
be
deposited
in
his
Account
No.
06122800100031928 in Punjab National
Bank.
The
first
informant
then
on
20.12.2017 through RTGS transferred Rs. 5
lakhs in the said account. Whenever he
used to call Bal Kumar Patel and ask him
for getting the agreement done he used to
say for getting it done in a day or two. One
day Chaturvedi called the first informant
and said that on 28.05.2018 the Member of
Parliament Bal Kumar Patel is coming and
will be meeting in the Inspection Bungalow
as there is lot of sand and there will be a
requirement of about 50-60 lakhs for which
he is trying to make arrangement through
his friends. Then contractor Rudra Prakash,
contractor Satendra Shukla and his relative
Yogesh Pandey agreed to invest money and
on 28th May they reached Inspection
Bungalow where Bal Kumar Patel told
them that a lease has been granted in favour
of his son Sudheer and a required rawanna
is to be filled. On believing the same,
Rudra Prakash gave Rs. 10 lakhs, Satendra
Shukla gave Rs. 20 lakhs and Yogesh
Pandey gave Rs. 9 lakhs to which Yogesh
was told that he would be a partner of only
9 percent on which he said that he would
send the money or get it transferred through
RTGS after which he transferred Rs. 16
lakhs through RTGS in the account of Bal
732 INDIAN LAW REPORTS ALLAHABAD SERIES
Kumar Patel. Bal Kumar Patel used to
delay the talks and then on 27.12.2018 the
first informant through RTI requested for
information as to whether any file has been
approved for lease of sand in the name of
Sudheer, Rama Shanker Patel and Dev
Sharan Patel for Manpur Khurd Naraini to
which he did not get any reply and then he
himself went to the concerned department
and inquired from there and came to know
that there is no file for the said names. He
then tried to contact Bal Kumar Patel
former M.P. on phone on which he used to
say sometimes he is in Delhi, sometimes in
Rae Bareilly and sometimes in Pratapgarh
and later on in the year 2019 he left
Samajwadi Party and joined Congress Party
and contested the elections from Banda
Chitrakoot Loksabha constituency but lost
it. The first informant and his persons have
a belief that Bhanu Pratap Chaturvedi and
Bal Kumar Patel former M.P. have together
committed cheating and fraud with him and
his associates Rudra Prakash, Satendra
Shukla and Yogesh Pandey. The first
informant and his associates then went 2-3
times to the house of Bal Kumar Patel in
Chitrakoot and asked about the partnership
to which he tried to mislead them and then
they demanded their money back which is
also being avoided by him. He has not
returned Rs. 65 lakhs due on the first
informant and his associates and is neither
responding to their phone calls. Bal Kumar
Patel @ Raj Kumar former M.P. was called
repeated times and then on 07.07.2020 he
promised to return the money in September
2020 but now is not responding to the
phone calls. Some unknown people came to
the house of the first informant and gave a
threat that he should forget the money
given to Bal Kumar Patel otherwise it will
not be good for him. He and his family is
under threat of life. He prays that a first
information report be lodged. Along with
the first information report enclosures
being RTGS receipts, the application and
receipt of registry of RTI have been
enclosed. The first information report has
thus been lodged.

16. Learned counsel for the applicant
argued that the first information report has
been lodged under misconception. The deal
between the first informant and his friends
and relatives with the applicant and coaccused was a business transaction. There
was no offer and assurance given by the
applicant either to the first informant or his
associates. The offence is petty in nature.
The statements of the first informant and
the witnesses recorded during investigation
are stereo typed statements. The present
dispute is a private dispute. It is argued
while placing Annexure-4 to the paperbook of the 482 petition that an application
under Section 156 (3) Cr.P.C. was filed by
Bal Kumar Patel @ Raj Kumar (the
applicant) against Ramakant Tripathi (the
first informant), Yogesh Pandey, Rudra
Prakash and Satendra Shukla alleging
therein that the accused persons had given
money for purchase of land but some
dispute arose between the parties and as
such the applicant gave an application
dated 17.11.2020 to the Superintendent of
Police, Chitrakoot to the said effect and
since there was no action on it an
application under Section 156 (3) Cr.P.C.
has been moved by him. Paragraph 4 of the
affidavit and Annexure-4 being the said
application
dated
17.11.2020
(page
numbers 62 and 63 of the paper-book) and
the application under Section 156 (3)
Cr.P.C. (page numbers 64 to 67 of the
paper-book) have been placed before the
Court. It is argued that the same is the
reason
for
false
implication
of
the
applicant. It is argued that the present
dispute if any is a private dispute arising
1 All. Bal Kumar Patel @ Raj Kumar Vs. State of U.P. & Anr.
733
out of business transaction and as such the
proceedings deserve to be quashed. There
is no criminality in the allegations. It is
argued that subsequent to lodging of the
first information report the investigation
concluded
and
a
charge-sheet
dated
21.09.2021 has been submitted against the
applicant and co-accused Bhanu Pratap
Chaturvedi under Sections 419, 420, 406
I.P.C. on which vide order dated 02.11.2021
they have been summoned to face trial
which is totally illegal. While placing the
anticipatory
bail
application,
learned
counsel argued that if this Court is not of
the view of allowing the 482 petition then
the applicant may be granted anticipatory
bail till conclusion of trial, the arguments
and grounds are the same as argued.

17. Learned counsel for the first
informant while opposing the prayers of the
482 petition and the anticipatory bail
application argued that the intention of the
applicant to cheat was right from the very
inception
as
is
apparent
from
the
allegations itself. Money was taken on false
assurance. The applicant has not only
cheated the first informant but many other
people.