# Banti Sharma @ Brahm Prakash Sharma v. State of U.P. & Anr

- **Citation:** (2023) 11 ILRA 17
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-01
- **Case number:** Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 11952 of 2023
- **Bench:** Krishan Pahal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/banti-sharma-brahm-prakash-sharma-v-state-of-u-p-anr-49417
- **Pages:** 4

## Headnote

Criminal Law -Code of Criminal Procedure,
1973 - Sections 438, 482, 397, 239 & 41A - Indian Penal Code, 1860 - Sections
420 & 406 - Anticipatory Bail - Cheating and
Criminal Breach of Trust - Forum Shopping -
Pending Regular Bail Application

The applicant, Banti Sharma @ Brahm Prakash
Sharma, sought anticipatory bail in Case Crime
No. 02 of 2019 under Sections 420 and 406 IPC,
alleging false implication in a case where he, as
a company supervisor, was accused of usurping
money deposited as policy bonds. He claimed
cooperation during investigation, compliance
with Section 41-A Cr.P.C., and no criminal
history, noting prior unsuccessful challenges to
the charge sheet and discharge application. The
St.
opposed,
citing
the
applicant's
nonappearance, issuance of a non-bailable warrant
(NBW), and a pending regular bail application,
arguing
forum
shopping.
Held:
(1)
The
anticipatory bail application was rejected as
devoid of merit. (2) Filing an anticipatory bail
application while a regular bail application was
pending constituted misuse of the court's
process. (3) The applicant's multiple prior
petitions (two under Section 482 Cr.P.C. and
one revision under Section 397 Cr.P.C.) and
failure to appear before the trial court despite
an NBW indicated forum shopping, per K.
Jayaram Vs BDA and Shivam Vs St. of U.P.. (4)
The
court
found
no
grounds
to
grant
anticipatory bail, clarifying that observations
were limited to the bail application and would
not affect the trial's merits.

Case Law Cited:

## Text

11 All. Banti Sharma @ Brahm Prakash Sharma Vs. State of U.P. & Anr.
17

(6) In case, the applicant misuses
the liberty of bail, the Court concerned may
take appropriate action in accordance with
law and judgment of Apex Court in the
case of Sushila Aggarwal vs. State (NCT of
Delhi)- 2020 SCC Online SC 98.

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

16. In default or misuse of any of the
conditions,
the
Public
Prosecutor/
Investigating
Officer/
first
informantcomplainant is at liberty to file appropriate
application for cancellation of anticipatory
bail granted to the applicant.

17. With the aforesaid observations/
directions, the application stands disposed
of.
----------
(2023) 11 ILRA 17
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.11.2023

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Criminal Misc. Anticipatory Bail Application U/S
438 Cr.P.C. No. 11952 of 2023

Banti Sharma @ Brahm Prakash Sharma
 ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Ravi Pandey

Counsel for the Opposite Parties:
G.A.

Criminal Law -Code of Criminal Procedure,
1973 - Sections 438, 482, 397, 239 & 41A - Indian Penal Code, 1860 - Sections
420 & 406 - Anticipatory Bail - Cheating and
Criminal Breach of Trust - Forum Shopping -
Pending Regular Bail Application

The applicant, Banti Sharma @ Brahm Prakash
Sharma, sought anticipatory bail in Case Crime
No. 02 of 2019 under Sections 420 and 406 IPC,
alleging false implication in a case where he, as
a company supervisor, was accused of usurping
money deposited as policy bonds. He claimed
cooperation during investigation, compliance
with Section 41-A Cr.P.C., and no criminal
history, noting prior unsuccessful challenges to
the charge sheet and discharge application. The
St.
opposed,
citing
the
applicant's
nonappearance, issuance of a non-bailable warrant
(NBW), and a pending regular bail application,
arguing
forum
shopping.
Held:
(1)
The
anticipatory bail application was rejected as
devoid of merit. (2) Filing an anticipatory bail
application while a regular bail application was
pending constituted misuse of the court's
process. (3) The applicant's multiple prior
petitions (two under Section 482 Cr.P.C. and
one revision under Section 397 Cr.P.C.) and
failure to appear before the trial court despite
an NBW indicated forum shopping, per K.
Jayaram Vs BDA and Shivam Vs St. of U.P.. (4)
The
court
found
no
grounds
to
grant
anticipatory bail, clarifying that observations
were limited to the bail application and would
not affect the trial's merits.

Case Law Cited:

1. K. Jayaram Vs BDA, (2022) 12 SCC 815

2. Shivam Vs St. of U.P. & anr., AIROnline 2021
All 484

3. Satender Kumar Antil Vs Central Bureau of
Investigation & anr., Special Leave to Appeal
(Crl.)
No(s)
5191
of
2021,
decided
on
07.10.2021
18 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Krishan Pahal, J.)

1. List has been revised.

2. Heard Sri Ravi Pandey, learned
counsel for the applicant, Sri Pranshu
Kumar, learned A.G.A. for the State and
perused the material placed on record.

3. The present application for
anticipatory bail has been filed for
anticipatory bail in Case Crime No.02 of
2019, under Sections 420, 406 I.P.C.,
Police Station Harduaganj, District Aligarh,
during the pendency of trial.

PROSECUTION STORY:

4. As per prosecution story, the
applicant,
who
happens
to
be
the
Supervisor in the company, alongwith other
co-accused persons is stated to have
usurped the money of several persons who
had deposited their money in the company
as policy bond.

RIVAL CONTENTIONS:

(Arguments on behalf of applicant)

5. Learned counsel for the applicant
has submitted that the applicant has been
falsely implicated in the present case. The
applicant is not named in the FIR and his
name has come up later on during
investigation, although it is referred in the
FIR that unknown Supervisor was also
involved in the said crime. Learned counsel
has stated that the applicant is a bona fide
person
and
has
cooperated
during
investigation
and
complied
with
the
provisions of Section 41-A Cr.P.C. Learned
counsel has further stated that subsequently
the
final
report
(charge-sheet)
was
submitted against the applicant and he had
challenged the same before this Court by
filing an Application U/S 482 Cr.P.C.
No.20556 of 2022, which was disposed of
vide order dated 31.8.2022 and the
applicant was directed to file discharge
application before the court concerned
under Section 239 Cr.P.C. The order dated
31.8.2022 is reproduced herein as under:-

"Heard
learned
counsel
for
applicant and learned A.G.A. representing
opposite party No. 1.

This application under section
482 Cr. P. C. has been filed to quash the
charge-sheet dated 9.7.2020 arising out of
Case Crime No.02 of 2019 under Sections
420, 406 IPC, P.S.-Harduaganj, DistrictAligarh and also the cognizance and
summoning order passed by ACJM, Court
No.6 in Case No.1167 of 2021 (State vs.
Deshraj).

It is well settled that charge sheet
can be challenged only on limited grounds
namely criminal proceedings are not
maintainable before the Court concerned
or Court has no jurisdiction to entertain the
same. Grounds urged by learned counsel
for applicant in challenging to the
impugned charge sheet relate to disputed
defence of applicant, which cannot be taken
into consideration in proceedings under
Section 482 Cr. P. C.

In view of above, no case for
interference is made out. Consequently,
prayer for quashing the charge sheet is
refused.

So far as direction to Court below
to consider the discharge application of
applicant in terms of Section 239 Cr. P. C.
is concerned, it is provided that in case any
discharge application is filed by applicant
before Court below, same shall be
considered in accordance with law.

With the aforesaid direction, the
application is finally disposed of."
11 All. Banti Sharma @ Brahm Prakash Sharma Vs. State of U.P. & Anr.
19

6. Learned counsel for the applicant
has further stated that the said discharge
application was rejected vide order dated
13.9.2022 by the trial court, as such, the
applicant had challenged the said order
before this Court by filing Criminal
Revision No.4149 of 2022, which was
dismissed vide order dated 6.4.2023 by this
Court. Subsequent to it, the applicant had
filed another petition under Section 482
Cr.P.C. for quashing the entire proceedings
and
the
orders
dated
1.5.2023
and
12.4.2023, which was also disposed of vide
order dated 11.7.2023 of this Court passed
in Application U/S 482 Cr.P.C. No.22332
of 2023. The order dated 11.7.2023 is
reproduced herein as under:-

"Heard learned counsel for the
applicant, learned A.G.A. for the State-
opposite party and perused the record.

This application under Section
482 Cr.P.C. has been filed by the applicant
with the prayer to quash the orders dated
01.05.2023 and 12.04.2023 as well as
entire proceedings of Case No. 1167 of
2021, (State v. Deshraj and others) arising
out of Case Crime No. 02 of 2019, under
Sections 406, 420 I.P.C., Police Station
Hardua Ganj, District Aligarh.

After arguing the matter at some
length, learned counsel for the applicant
prays for withdrawal of this application
with liberty to the applicant to file bail
application before the court of competent
jurisdiction.

Learned A.G.A. has no objection
to such request.

In view of the above, the instant
application is disposed of as withdrawn
with liberty to the applicant to appear
before court concerned and file appropriate
application for bail, which shall be decided
in the light of the judgment of the Hon'ble
Supreme Court in Satender Kumar Antil v.
Central Bureau of Investigation and
another, Special Leave to Appeal (Crl.) No
(s) 5191 of 2021, decided on 07.10.2021.

For a period of three weeks no
coercive action shall be taken against the
applicant."

7. Learned counsel for the applicant
has further stated that subsequent to it in
compliance of the aforesaid order dated
11.7.2023 of this Court, the applicant had
filed regular bail application on 28.7.2023
but the same has not been decided by the
court concerned. In the meantime, the said
regular bail application being pending the
applicant
had
filed
anticipatory
bail
application before the Sessions Judge,
Aligarh on 1.8.2023 which has been
rejected
by
the
Special
Judge
(EC
Act)/Additional Session Judge, Aligarh
vide order dated 28.8.2023, as such, the
applicant has applied for anticipatory bail
before this Court. Learned counsel has
further stated that the applicant has no
criminal history to his credit and is entitled
for anticipatory bail.

(Arguments on behalf of opposite
party)

8. Per contra, learned A.G.A. has
vehemently opposed the anticipatory bail
application on the ground that the applicant
had twice agitated the provisions of Section
482 of Cr.P.C. and once the provisions of
Section 397 Cr.P.C. before this Court by
filing criminal revision and failed in it, and
subsequently,
filed
anticipatory
bail
application pending regular bail application
filed in the court concerned on 28.7.2023,
as such, the matter tantamounts to forum
shopping.

9. Learned A.G.A. has also placed
reliance on the judgment of the Apex Court
20 INDIAN LAW REPORTS ALLAHABAD SERIES
passed in the case of K. Jayaram vs. BDA,
(2022) 12 SCC 815, whereby it has been
held as follows:-

"In order to check multiplicity of
proceedings pertaining to the same subjectmatter and more importantly to stop the
menace of soliciting inconsistent orders
through
different
judicial
forums
by
suppressing
material
facts
either
by
remaining silent or by making misleading
statements in the pleadings in order to
escape the liability of making a false
statement, the parties have to disclose the
details of all legal proceedings and
litigations
either
past
or
present
concerning any part of the subject-matter
of dispute which is within their knowledge.
In case, according to the parties to the
dispute, no legal proceedings or court
litigations was or is pending, they have to
mandatorily state so in their pleadings in
order to resolve the dispute between the parties
in accordance with law."

10. Learned A.G.A. has further stated that
NBW has been issued against the applicant on
18.11.2022 and he is not appearing before the
court concerned. The present application is just
misuse of process of Court and law. Learned
A.G.A. has further stated that the applicant is
not entitled for anticipatory bail in the light of
paragraph-43 of the settled law of this Court in
the case of Shivam vs. State of U.P. and
Another reported in AirOnline 2021 All 484.

CONCLUSION:

11. Filing of an anticipatory bail
application, while there being a regular bail
application pending, is misuse of process of
Court. The applicant is used to filing multiple
applications and petitions at various forums
including the High Court. These acts are a
classic example of forum shopping and it
cannot be permitted to keep on going so
eternally.

12. After taking into consideration the
rival contentions, the fact that applicant had
filed several petitions before this Court thrice
and failed and there is pending regular bail
application of the applicant before the court
concerned and coupled with the said arguments
tendered at Bar in the light of the judgment in
Shivam (supra), I do not find it a fit case for
grant of anticipatory bail to the applicant.

13. The present anticipatory bail
application is hereby found devoid of merits
and is accordingly rejected.

14. It is clarified that the observations
made herein are limited to the facts brought in
by the parties pertaining to the disposal of
anticipatory bail application and the said
observations shall have no bearing on the
merits of the case during trial.
----------
(2023) 11 ILRA 20
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.09.2022

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Misc. First Bail Application No. 37420 of
2020

Rakesh Kumar ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Pradeep Singh, Sri Anjani Kumar Rai, Sri
Manu Pathak, Sri Tarun Kumar Gupta

Counsel for the Opposite Party:
G.A., Sri Nityanand Srivastava, Sri Pramod
Kumar
Srivastava