# Brijesh v. State of U.P. & Anr

- **Citation:** (2023) 8 ILRA 703
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-20
- **Case number:** Crl. Misc. Anticipatory Bail Application No. 7420 of 2023
- **Bench:** Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brijesh-v-state-of-u-p-anr-50704
- **Pages:** 6

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 82, 83, 161, 164, 173(2)
& 438 - Indian Penal Code, 1860 -
Sections 174(A), 323, 328, 376, 504 & 506
- Scheduled Castes And Scheduled Tribes
Prevention Of Atrocities Act, 1989 -
Sections 3(2)(v), 18, 18-A & 18-A(2) -
Application for Anticipatory Bail - offence of
rape and threat - FIR - the applicant sought
protection from arrest - allegations include
serious
offenses
such
as
rape,
criminal
intimidation, and administering intoxicants -
prosecution
argued
that
anticipatory
bail
application was not maintainable due to the bar
created by Sections 18 and 18A of the Act, 1989
which prohibits the application of Section 438 in
cases involving offenses under this Act - The
applicant contended that the alleged offense
was not committed on account of the victim's
caste and that he was unaware of her belonging
to the SC/ST community - applicability of the
provisions - charge sheet - cognizance has
been taken by trial court - court finds that,
prima facie from perusal of contents of the FIR
and St.ment of prosecutrix u/s 161 & 164 there
is no allegations to constitute any offence under
the Act, 1989 - charge sheet submitted by the
IO also does not reveals as to on what basis the
said Police report u/s 173(2) Cr.P.C. was
submitted under the provisions of Act, 1989 -
held - there is no bar to move such an
application before this court in view of the law
laid down by the Apex Court - However,
anticipatory bail granted can, depending on the
conduct and behaviour of the accused, continue
after filing of the Charge sheet till end of trial -
Moreso, courts ought to be generally, guided by
considerations such as the nature and gravity of
the offences - Hence, considering the role
attributed to the applicant and the facts of the
case, and taking into account the enormity of
the crime, it is not a fit case to grant
anticipatory bail - accordingly, application is
rejected. (Para - 9, 19, 20, 21)

Application Rejected. (E-11)

List of Cases cited:

## Text

8 All. Brijesh Vs. State of U.P. & Anr.
703
that he cannot go outside India without
prior permission of the Court.

52. In case of breach of any of the
above conditions, the prosecution shall be
at liberty to move an application for
cancellation of the bail.
----------
(2023) 8 ILRA 703
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.07.2023

BEFORE

THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Crl. Misc. Anticipatory Bail Application No. 7420
of 2023
(U/s 438 Cr.P.C)

Brijesh ...Applicant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicant:
Ms. Mamta Singh

Counsel for the Respondent:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 82, 83, 161, 164, 173(2)
& 438 - Indian Penal Code, 1860 -
Sections 174(A), 323, 328, 376, 504 & 506
- Scheduled Castes And Scheduled Tribes
Prevention Of Atrocities Act, 1989 -
Sections 3(2)(v), 18, 18-A & 18-A(2) -
Application for Anticipatory Bail - offence of
rape and threat - FIR - the applicant sought
protection from arrest - allegations include
serious
offenses
such
as
rape,
criminal
intimidation, and administering intoxicants -
prosecution
argued
that
anticipatory
bail
application was not maintainable due to the bar
created by Sections 18 and 18A of the Act, 1989
which prohibits the application of Section 438 in
cases involving offenses under this Act - The
applicant contended that the alleged offense
was not committed on account of the victim's
caste and that he was unaware of her belonging
to the SC/ST community - applicability of the
provisions - charge sheet - cognizance has
been taken by trial court - court finds that,
prima facie from perusal of contents of the FIR
and St.ment of prosecutrix u/s 161 & 164 there
is no allegations to constitute any offence under
the Act, 1989 - charge sheet submitted by the
IO also does not reveals as to on what basis the
said Police report u/s 173(2) Cr.P.C. was
submitted under the provisions of Act, 1989 -
held - there is no bar to move such an
application before this court in view of the law
laid down by the Apex Court - However,
anticipatory bail granted can, depending on the
conduct and behaviour of the accused, continue
after filing of the Charge sheet till end of trial -
Moreso, courts ought to be generally, guided by
considerations such as the nature and gravity of
the offences - Hence, considering the role
attributed to the applicant and the facts of the
case, and taking into account the enormity of
the crime, it is not a fit case to grant
anticipatory bail - accordingly, application is
rejected. (Para - 9, 19, 20, 21)

Application Rejected. (E-11)

List of Cases cited:

1. Prathvi Raj Chauhan Vs U.O.I., 2020 Law Suit
(SC) 143

2. Subhash Kashinath Mahajan Vs St. of Mah.,
(2018) 6 SCC 454

3. Sushila Aggarwal & ors. Vs St. (NCT of Delhi)
& anr., (2020) 5 SCC 1

(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)

1. Heard learned counsel for the
applicant, Shri Pankaj Kumar Tripathi,
learned A.G.A. for the State and perused
the record.

2. Apprehending his arrest in Case
Crime No. 133 of 2022, under Sections
376, 323, 504, 506, 328 IPC and 3 (2) (V)
of Scheduled Castes and the Scheduled
704 INDIAN LAW REPORTS ALLAHABAD SERIES
Tribes (Prevention of Atrocities) Act, 1989
Police
Station-Civil
Lines,
District-
Prayagraj the present anticipatory bail
application has been moved by the
applicant Brijesh.

3. The prosecution story as unfolded in
the FIR is that the prosecutrix was intending
to marry with co-accused Vishal Gupta and in
this regard she was persuaded by the present
applicant to go to Allahabad High Court with
him and accordingly he took her to a hotel at
Allahabad and thereafter after administering
some intoxicant substance to her, in an
unconscious state he committed rape with the
prosecutrix and due to shame she did not
disclose this incident to anyone. When coaccused Vishal Gupta came out from jail and
the prosecutrix went to his home with the
present applicant they kept her there for two
days and again rape was committed to her.
Subsequently Vishal Gupta refused to marry
her and both of them threatened her for life.
FIR
was
lodged
on
30.3.2022
and
investigation started, which culminated into
charge sheet.

Applicability of Bar Created by
Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act,
1989 -

4. At the very outset learned A.G.A.
has made a preliminary objection that the
present anticipatory bail application moved
under Sections 376, 323, 504, 506, 328 IPC
and 3 (2) (V) of Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities)
Act, 1989 is not maintainable as Sections
18 & 18A (2) of Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities)
Act, 1989 specifically provide that :

"18. Section 438 of the Code not to
apply to persons committing an offence
under the Act- Nothing in section 438 of
the Code shall apply in relation to any case
involving the arrest of any person on an
accusation of having committed an offence
under this Act".

"18 A. (2) The provisions of Section
438 of the Code shall not apply to a case
under
this Act,
notwithstanding
any
judgment or order or direction of any
Court".

5. It is submitted that in view of the
provisions of Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities)
Act, 1989 above mentioned, the present
anticipatory
bail
application
is
not
maintainable.

6. Contending to that the learned
counsel for the applicant has vehemently
submitted that from perusal of the entire
record no where even any whisper is found
that the applicant at any stage of the case
was known to the fact that the victim
belongs to SC/ST community. It is further
submitted that the alleged offence was not
committed on account of the prosecutrix
being a member of SC/ST community.
Even in the statement of prosecutrix made
under sections 161 or 164 Cr.P.C. or of
other relevant witnesses made to the I.O
there is no such averment that the
prosecutrix belongs to SC/ST community
and the accused was aware of that, hence
the barring provisions of Scheduled Castes
and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 do not apply to this
case.

7. In support of her contention learned
counsel for the applicant has relied upon
the judgement of the Hon'ble Apex Court
passed in Prathvi Raj Chauhan Vs.
Union of India 2020 Law Suit (SC)143
wherein the law propounded by the
8 All. Brijesh Vs. State of U.P. & Anr.
705
Hon'ble Apex Court is that if the complaint
does not make out a prima facie case for
applicability of the provisions of Scheduled
Castes
and
the
Scheduled
Tribes
(Prevention of Atrocities) Act, 1989 the bar
created by Sections 18 and 18 A of the said
Act does not apply. Likewise, observations
made in Subhash Kashinath Mahajan V.
State of Maharashtra (2018) 6 SCC 454
in almost similar background also expound
the same principle.

8. Section 3 (2)(v) Scheduled Castes
and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (as substituted by Act
1 of 2016) provides that:

"Section 3(2) whoever, not being a
member of the Scheduled Castes and
Schedule Tribes",- "(v) commits any
offence under the Indian Penal Code (45 of
1860) punishable with imprisonment for a
term of ten years or more against a person
or property knowing that such person is a
member of a Scheduled Caste or a
Scheduled Tribe or such property belongs
to such member, shall be punishable with
imprisonment for life and with fine".

9. In the present case although the
charge sheet has been submitted by the I.O.
before the Court and cognizance has been
taken under sections 376, 323, 504, 506,
328 IPC and 3 (2) (V) of Scheduled Castes
and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 but prima facie there
is no allegation to constitute any offence
under the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities)
Act, 1989. Even in the FIR there is no
mentioning of the fact that the prosecutrix
belongs to SC/ST community. This Court
finds
an
opportunity
to
peruse
the
statements made by the prosecutrix under
Sections 161 and 164 Cr.P.C. wherein
nowhere it has been stated by the
prosecutrix that she belongs to SC/ST
community and she has not even been
interrogated on this point. At the time of
her medical examination the prosecutrix
did not disclose this fact before the doctor
as well. The charge sheet submitted by the
I.O. also does not reveal as to on what basis
the said police report under Section 173 (2)
Cr.P.C. was submitted under the provisions
of Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989.
Whether
the
alleged
offence
was
committed by the applicant knowing this
fact that the prosecutrix belongs to SC/ST
community was the key question to bring
the case under the cover of the provisions
of Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989
but not even an iota of evidence is available
on record in this regard. In such a situation
in my view so far as the present
anticipatory bail application is concerned
there is no bar to move such an application
before this Court in view of the law laid
down in the cases of Prathvi Raj Chauhan
(supra) and Subhash Kashinath Mahajan
(supra).

Proclaimed
Offenders
Whether
entitled for Anticipatory Bail -

10. Another preliminary objection
raised by the learned counsel for the State
is to the effect that the accused has been
declared a proclaimed offender and on this
ground also his prayer for anticipatory bail,
can not be countenanced.

11. Expostulating this objection, the
learned counsel for the applicant has urged
that although a process under Section 82
Cr.P.C. was issued against the applicant and
he has been declared a proclaimed offender
by the Court and a process under Section
706 INDIAN LAW REPORTS ALLAHABAD SERIES
83 Cr.P.C. was also subsequently issued
against him but since he was engaged in
taking shelter of the Court of law by way of
several legal proceedings and in the
interregnum period such coercive processes
were issued against him, he cannot be
debarred from taking protection from arrest
by way of anticipatory bail.

12. A perusal of the record reveals
that the first anticipatory bail application
was moved by the applicant before the
Sessions Judge, Prayagraj on 21.10.2022
which was rejected by the said Court on
15.12.2022. In the charge sheet submitted
against
the
applicant,
the
I.O.
has
mentioned that on 25.11.2022 process
under Section 82 Cr.P.C. was ordered to be
initiated under the instructions of the Court
and it explicitly shows that process under
Section 82 Cr.P.C. was issued against the
applicant during pendency of the first
anticipatory bail application before the
Sessions Court, Prayagraj. The record
further
reveals
that
the
order
for
proclamation was passed by the Court on
2.12.2022 and the said order was also
challenged before this Court by way of Cr.
Appeal No. 9977 of 2022, which was filed
on 12.12.2022 but the same was withdrawn
on 20.12.2022. In the aforesaid appeal the
factum of issuance of process under
Section 82 Cr.P.C. was also disclosed.

13.

It
is
noteworthy
that
in
continuation of the aforesaid process under
Section 82 Cr.P.C. issued against the
applicant Case Crime No. 43 of 2023 under
Section 174 (A) I.P.C. was also registered
against him. It also reflects from perusal of
the record that after rejection of first
anticipatory bail application on 15.12.2022,
anticipatory bail was granted to the present
applicant in Cr. Misc. Anticipatory Bail
U/S 438 Cr.P.C. No. 234 of 2023 by the coordinate Bench of this Court vide order
dated 22.3.2023 although a process under
Section 83 Cr.P.C. was already issued
against the applicant on 24.02.2023 and
attachment of his property had also taken
place on 4.3.2023 as reflects from the
perusal of the record, whereas he was
already granted anticipatory bail till the
submission of the police report under
Section 173 (2) Cr.P.C. by the order dated
22.3.2023 above mentioned. The charge
sheet in this matter was filed and
cognizance was taken by the Court
concerned on 9.5.2023 and straightway
non-bailable warrant was issued on the
same day by the Court concerned but in the
meanwhile after submission of the charge
sheet anticipatory bail application was
moved before the Court concerned, which
was
rejected
on
12.6.2023
and
subsequently the present anticipatory bail
application was moved before this Court on
28.6.2023. Hence, it is discernible that the
applicant has been taking legal recourse
and he was not absconding from the
clutches of the Court or wilfully avoiding
the process of the Court but he was making
sincere efforts to get protection before
different legal forums.

14. The Hon'ble Apex Court in the
case of Lavesh vs. State (NCT of Delhi),
(2012) 8 Supreme Court Cases 730,
referred in Prem Shankar Prasad Versus
State of Bihar and Another, 2021 SCC
OnLine Supreme Court 955 and relied
upon by the learned counsel for the
applicant has laid down the relevant law on
this point and paragraph 12 of the said
decision is as under :

"12.
From
these
materials
and
information, it is clear that the present
appellant
was
not
available
for
interrogation
and
investigation
and
8 All. Brijesh Vs. State of U.P. & Anr.
707
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 is not entitled to the relief of
anticipatory bail."

15. From the aforesaid dictum of law,
it can safely be held that it is a normal rule
that when an accused is absconding and
declared as proclaimed offender, there is no
question of granting anticipatory bail to
him but it is not a universal rule because if
the bar is made absolute, it is thereby meant
that if an accused is absconding and has
been declared proclaimed offender, he has
no occasion to say anything to defend himself
as to in what compelling circumstances he
could not appear before the Court and was
declared as proclaimed offender and that is
the reason there is no bar to move
anticipatory bail application in case the
accused has been declared a proclaimed
offender but, however, if he is unable to
satisfy the Court regarding his bonafide, the
law on the point will be applicable to him and
anticipatory bail cannot be granted to him, as
he is a proclaimed offender. So far as the
present case is concerned, from the perusal of
the record it appears that to avoid summons
of the Court and to appear before the Court in
compliance thereof, was not a wilful default
on the part of the applicant and the coercive
processes were issued against him during the
interregnum period when he was engaged in
adopting legal recourse to defend himself.

16. In the peculiar facts and
circumstances, the applicant cannot be
debarred to move an application for
anticipatory bail and the coercive processes
issued against him also create no bar in
considering the same.

Factual Matrix of the matter-

17. So far as the factual aspect of the
matter is concerned, the prosecutrix in her
statement under Section 161 and 164
Cr.P.C. has categorically stated about the
guilt of the applicant. It is noteworthy that
co-accused Vishal Gupta has already been
exonerated in the matter and no charge sheet
has been submitted against him as the
Investigating Officer found no evidence
against him but at the same time sufficient
evidence was collected against the present
applicant. It is a case of rape with the poor
prosecutrix by the applicant by taking
advantage of her belief and trust. The
applicant cannot be given benefit of this fact
that since charge sheet has been submitted
and he was already been granted anticipatory
bail till submission of the police report under
Section 173 (2) Cr.P.C. and now no custodial
interrogation is required, hence he is entitled
for anticipatory bail because the active role of
the accused in the commission of the henious
offence has been established by cogent and
reliable evidence collected during course of
investigation.

18. No doubt anticipatory bail can be
extended and granted after submission of
the charge sheet. In Sushila Aggarwal and
others vs. State (NCT of Delhi) and
another, (2020) 5 SCC 1, the Hon'ble
Apex Court has settled the controversy
finally by holding the anticipatory bail need
not be of limited duration invariably. In
appropriate case, it can continue upto
conclusion of trial.

19. It has been further held therein
that
anticipatory
bail
granted
can,
708 INDIAN LAW REPORTS ALLAHABAD SERIES
depending on the conduct and behavior of
the accused, continue after filing of the
charge sheet till end of trial.

20. It has been further held by the
Hon'ble Apex Court that 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,
llikelihood of fleeing justice, such as
leaving the country, etc. It has further been
held that 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.

21. In view of the law laid down by
the Hon'ble Apex Court and taking into
account the enormity of the crime, I deem it
not a fit case to grant anticipatory bail to
the present applicant. Prayer made in the
application is refused.

22. The anticipatory bail application
is rejected.

23. However, it is clarified that the
views expressed in this order are limited
strictly only to the extent of grant of
anticipatory bail and are not concerned in
any way with the merits of the case and the
Court concerned is always at liberty to take
a different view of its own, as per law.
----------
(2023) 8 ILRA 708
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.08.2023

BEFORE
THE HON'BLE VIKRAM D. CHAUHAN, J.

Crl. Misc. Bail Application No. 30337 of 2023

Mohammad Ubaid ...Applicant
Versus
State of U.P. ...Respondent

Counsel for the Applicant:
Sri Imran Ullah, Sri Mohammad Daud

Counsel for the Respondent:
G.A., Mrs. Swati Agarwal Srivastava

Criminal Law - Criminal Procedure Code,
1973 - Sections 107 & 116 - Constitution
of India,1950 - Article 21 - Indian Penal
Code,1860 - Sections 147, 148, 323, 385,
386, 504 & 506- Bail Application - FIR -
charges under Sections 147, 148, 323, 504, 506,
386 of IPC - the allegations included extortion
and threats for payment of ₹2 crore - court
finds that, - no case beyond section 385 IPC
is made out - for punishment under Section
386 IPC, it has to be shown by prosecution
that there was delivery to any person any
property or valuable security or anything
signed or sealed, which may be converted
into a valuable security - Long drawn
previous enmity between the parties as both
parties have contested election for and both
belong to same village - and the applicant
had been in jail since April 9, 2023, and
there was no evidence of misuse of bail in
previous cases - held, offence u/Section 386
IPC has been slapped against applicant even
though ingredients of the same are not
available in FIR - counsel for informant has
failed to show as to how offence under
Section 386 IPC is made out against
applicant, demonstrate overreaching of the
police authorities by slapping cases of nonbailable in nature under Section 386 IPC
when only Section 385 IPC can at the best
be found against applicant, which is bailable
offence - Bail application is allowed -
directions issued, accordingly.(Para - 27, 28,
29)

Application Allowed. (E-11)

List of Cases cited: