# Deepak Prakash Singh @ Deepak Singh v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2023) 10 ILRA 602
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-13
- **Case number:** Crl. Misc. Anticipatory Bail Application No. 10246 of 2023
- **Bench:** Shekhar Kumar Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deepak-prakash-singh-deepak-singh-v-state-of-u-p-anr-opp-parties-49487
- **Pages:** 5

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973 - Section 438 - Indian
Penal Code, 1860 - Sections 354 & 376 -
Protection
of
Children
from
Sexual
Offences Act, 2012 - Sections 7 & 8 _Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 -
Sections 3(2)(Va), 18 & 18A - The applicant,
Deepak Prakash Singh, a teacher, sought
anticipatory bail in Case Crime No. 0139 of
2023, under Sections 354, 376 IPC, Sections 7/8
POCSO Act, and Section 3(2)(Va) SC/ST Act,
registered at P.S. Jafarabad, Jaunpur - The FIR,
lodged
on
27.07.2023,
alleged
that
on
26.07.2023,
between
6:00-7:00
pm,
the
applicant molested the informant's minor
daughter (aged 14 years, 8 months, mentally
retarded, belonging to a Scheduled Caste)
while she was sent home to fetch water. He
allegedly dragged her into his house, forced
her to lie down, and molested her, pressing
her mouth to stifle her cries. Section 376 IPC
was added after the victim's St.ments under
Sections 161 and 164 Cr.P.C.-The victim,
unable to speak, gave St.ments through a
special educator, confirming the prosecution's
case.
Her
date
of
birth
(09.09.2008)
established her as a minor. The medical report
did not confirm rape but showed no injuries
on private parts.-The applicant claimed false
implication due to prior rivalry and pending
litigation with the informant's family, alleging
contradictions
in
the
FIR
and
victim's
St.ments, delayed FIR, and no credible
evidence. He denied inviting or molesting the
victim and claimed no criminal history.-The St.
and informant opposed bail, citing the victim's
minority, mental condition, and the serious
nature of the offence by a teacher, arguing
that absence of medical evidence of rape
does not negate the offence.

Case Law Cited:

## Text

602 INDIAN LAW REPORTS ALLAHABAD SERIES
follows from the subordinate position of the
Court of Session vis-a-vis the High Court."

7. It was laid down in this judgement that
even the complainant being an aggrieved person,
can move the bail cancellation application.
Learned counsel has stated that any party seeking
relief from a court has to come with clean hands
and as such, in light of the aforesaid judgements,
any order garnered by playing fraud with it, has no
sanctity in law and is thus, liable to be set aside.

CONTENTIONS
ON
BEHALF
OF
OPPOSITE PARTY NO. 2:

8. Per contra, learned counsel for the
opposite party no. 2 has vehemently opposed the
application on the ground that the applicant has no
knowledge of the said criminal history and he has
stated that he has explained three cases, in which
he has been acquitted, although he could not
dispute the fact that the said factum of criminal
history has not been mentioned in the said
anticipatory bail application No. 10933 of 2022. It
is also stated that in one case, the applicant is on
bail, in one other case, he is not wanted and the
remaining case is under U.P. Gangsters Act, in
which he is on bail, although the said order could
not be annexed to the rejoinder affidavit.

CONCLUSION:

9. A bare perusal of Section 44 of the Indian
Evidence Act is being reproduced as follows:-

"44. Fraud or collusion in obtaining
judgment, or incompetency of Court, may be
proved.-Any party to a suit or other proceeding
may show that any judgment, order or decree
which is relevant under section 40, 41 or 42 and
which has been proved by the adverse party, was
delivered by a Court not competent to deliver it, or
was obtained by fraud or collusion."

10. The opposite party no. 2 has not come
with clean hands to this Court and has obtained
the previous order dated 9.12.2022 by concealing
the fact of seven criminal antecedents of him.
Thus, he has played fraud in obtaining the
judgement, as enunciated in Section 44 of the
Indian Evidence Act.

11 . As such, the said order dated 9.12.2022
granting anticipatory bail to the opposite party no.
2 cannot be sustained in the eyes of law and is set
aside, as it has been garnered by misleading the
Court and committing fraud with it.

12. The present bail cancellation application
is allowed.

13. However, two weeks' time from the
date of pronouncement of this Judgment is
granted to opposite party no. 2 to surrender
before the concerned Trial Court and thereafter
it will be open for opposite party no. 2 to pray
for regular bail, which may be considered in
accordance with law laid down by the Apex
Court in the case of Satender Kumar Antil
vs. Central Bureau of Investigation and
another3.
----------
(2023) 10 ILRA 602
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.10.2023

BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV, J.

Crl. Misc. Anticipatory Bail Application No. 10246
of 2023
(under Section 438 Cr.P.C.)

Deepak Prakash Singh @ Deepak Singh
 ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel
for
the
Applicant:
10 All. Deepak Prakash Singh @ Deepak Singh Vs. State of U.P. & Anr.
603
Sri Arun Kumar Tripathi, Sri V.P. Srivastava (Sr.
Advocate)

Counsel for the Opp. Parties:
G.A., Sri Babu Lal Ram, Sri Gyanendra Kumar

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 438 - Indian
Penal Code, 1860 - Sections 354 & 376 -
Protection
of
Children
from
Sexual
Offences Act, 2012 - Sections 7 & 8 _Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 -
Sections 3(2)(Va), 18 & 18A - The applicant,
Deepak Prakash Singh, a teacher, sought
anticipatory bail in Case Crime No. 0139 of
2023, under Sections 354, 376 IPC, Sections 7/8
POCSO Act, and Section 3(2)(Va) SC/ST Act,
registered at P.S. Jafarabad, Jaunpur - The FIR,
lodged
on
27.07.2023,
alleged
that
on
26.07.2023,
between
6:00-7:00
pm,
the
applicant molested the informant's minor
daughter (aged 14 years, 8 months, mentally
retarded, belonging to a Scheduled Caste)
while she was sent home to fetch water. He
allegedly dragged her into his house, forced
her to lie down, and molested her, pressing
her mouth to stifle her cries. Section 376 IPC
was added after the victim's St.ments under
Sections 161 and 164 Cr.P.C.-The victim,
unable to speak, gave St.ments through a
special educator, confirming the prosecution's
case.
Her
date
of
birth
(09.09.2008)
established her as a minor. The medical report
did not confirm rape but showed no injuries
on private parts.-The applicant claimed false
implication due to prior rivalry and pending
litigation with the informant's family, alleging
contradictions
in
the
FIR
and
victim's
St.ments, delayed FIR, and no credible
evidence. He denied inviting or molesting the
victim and claimed no criminal history.-The St.
and informant opposed bail, citing the victim's
minority, mental condition, and the serious
nature of the offence by a teacher, arguing
that absence of medical evidence of rape
does not negate the offence.

Case Law Cited:

1. Prithvi Raj Chauhan Vs U.O.I., (2020) 4
SCC 727 (Para 5).

2.Rinku Vs St. of U.P., Crl. Misc. Bail
Application No. 17348 of 2018 (Para 6).

3. Sharat Babu Digumarti Vs Govt. of NCT of
Delhi, 2017 (1) PLJR (SC) 382 (Para 7).

(Delivered by Hon'ble Shekhar Kumar
Yadav, J.)

1. Heard Mr V. P. Srivastava,
learned Senior Counsel assisted by Mr
Arun Kumar Tripathi, learned counsel for
the
applicant,
learned
Additional
Government Advocate for the State of
U.P. and perused the record. Learned
counsel for the informant is also present.

2. This Criminal Misc. Anticipatory
Bail Application has been filed seeking
anticipatory bail in Case Crime No. 0139
of 2023, under Sections 354,376 IPC and
Section 7/8 of POCSO Act and Section
3(2)(Va) of SC/ST Act, P.S. Jafarabad,
District Jaunpur, during the pendency of
present application.

3. A preliminary objection has been
raised by learned A.G.A. as well as learned
counsel for the informant with regard to the
maintainability of the instant application
under Section 438 Cr.P.C. by virtue of bar
contained under Section 18 and 18A of the
S.C./S.T. Act and Section 438(6) Cr.P.C. as
it is applicable in the State of U.P.
contending anticipatory bail application
moved by applicant is not maintainable by
virtue of bar contained under Section 438
(6) Cr.P.C.

4. In reply to the above contention, it
is submitted by learned senior counsel for
the applicant that comparative analysis of
the objects, scheme and scope of Protection
of Children from Sexual Offences Act,
2012 and SC/ST Act, 1989 shows that, in
604 INDIAN LAW REPORTS ALLAHABAD SERIES
any case, involving both the offences
punishable under the protection of Child
from Sexual Offences Act, 2012 and SC/ST
Act, the procedure laid down under the
provisions of Protection of Child from
Sexual Offences Act, 2012 shall be
applicable. Hence, it is submitted that the
instant anticipatory bail application under
Section 438 Cr.P.C. is maintainable.

5. Learned counsel for the applicant
has also drawn the attention of this Court
towards the judgement of Hon'ble Supreme
Court passed in Prithvi Raj Chauhan Vs.
Union of India and others; 2020 4 SCC
727 and vehemently submitted that though
a bar has been created by virtue of Section
18 and 18A of the SC/ST Act and Section
438(6) Cr.P.C. pertaining to the anticipatory
bail
of
an
accused
person
seeking
anticipatory bail pertaining to the offences
provided in SC/ST Act, however, in the
above judgment passed by the Supreme
Court, it has been categorically laid down
that if the allegations in the F.I.R. are prima
facie appearing to be misconceived and not
appearing truthful and the case appears to
have been lodged only for the purpose of
harassment with malafide and prima facie
the provisions of S.C./S.T. act are not
attracting, in that case the jurisdiction of
anticipatory bail is not barred for an
accused person, who is charged with
offences pertaining to SC/ST Act.

6. Further, in the case of Rinku Vs
State
of
UP,
Criminal
Misc
Bail
Application No. 17348 of 2018, it has been
held by co-ordinate Bench of this Court
that the provision of the POCSO Act will
prevail over the SC/ST Act and whenever
an offence under the POCSO Act is alleged,
along with the provisions of SC/ST Act, the
accused is entitled to take recourse of the
procedure contemplated under the POCSO
Act for bail. I am in complete agreement
with the concurrent view expressed by the
co-ordinate Bench of this Court.

7. Further, Supreme Court of India in
the case of Sharat Babu Digumarti
Versus Govt. of NCT of Delhi, 2017 (1)
PLJR (SC) 382 has held that where there
are two special statutes which contain non
obstante clauses the later statute must
prevail because at the time of enactment of
the later statute, the Legislature was aware
of the earlier legislation and it's non
obstante clause and the Legislature still
confers the later enactment with a non
obstante clause, means that the Legislature
wanted that the later enactment to prevail.
If the Legislature does not want the later
enactment to prevail then it could and
would provide in the later enactment that
the provisions of the earlier enactment
which in other words means that in case of
conflict between two enactments the earlier
enactment shall prevail.

8. In this bail application, offences
under the SC/ST Act and the POCSO Act
are both charged against the applicant.
Special Court under the POCSO Act, would
have jurisdiction to determine the bail plea
in the present crime, where offences under
the SC/ST Act are also charged. Further an
appeal under Section 14(A) of SC/ST Act,
will lie only when the orders granting or
refusing bail to an accused is passed by the
Special Court or the Exclusive Special
Court constituted under the provisions of
the SC/ST Act,1989, but in this case the
order refusing bail has been passed by the
Special Court constituted under the POCSO
Act and not by the Special Court under the
SC/ST Act, therefore, in my considered
view, the objection of the learned AGA
regarding maintainability of the presnet
anticipatory
bail
application
is
not
10 All. Deepak Prakash Singh @ Deepak Singh Vs. State of U.P. & Anr.
605
sustainable in the eyes of law and is
accordingly overruled.

9. Now the merits of the case:-

10. In short, as per contents of the
FIR, applicant is said to have molested the
minor daughter of the informant on
26.7.2023 at about 6 to 7 pm in the
evening. It is alleged that while the
informant along with his daughter was
grazing goats in the neighborhood and
when the informant sent her retarded
daughter to home to get water, there the
applicant called her daughter and dragged
her
daughter
inside
the
house
and
forcefully made her lie down on the ground
without her consent and when her daughter
made noise, he forcibly pressed her hand
on her mouth and molested her.

11. Initially, FIR was lodged on
27/7/2023 under Sections 354 IPC and
Section 7/8 of POCSO Act and Section
3(2)(Va) of SC/ST Act. It is after the
statement of the victim said to have been
recorded under Sections 161, 164 Cr.P.C.
Section 376 IPC has been added in the
case.

12.

Learned
counsel
for
the
applicant/accused contended that he is
innocent and has been falsely implicated by
the informant. He has committed no
offence as alleged by the prosecution. He
has neither molested the victim nor invited
her to his house. The First Information
Report has been filed with a delay without
any proper explanation. It is further
contended that there was a rivalry between
him and the informant's family and
litigation in the revenue and civil courts is
pending
and
with
the
intention
of
pressurizing for settlement in the said case,
the above fake case was registered against
the applicant on the basis of wrong, untrue,
false, fabricated and false facts. It is further
submitted that there are contradictions
among the first information report and the
victim's statements said to have been
recorded under Section 161 & 164 Cr.P.C.
The applicant has no criminal history.
There is no credible evidence to connect
the applicant with the crime in question.
The applicant is under apprehension of
imminent arrest. In case, the applicant is
released on bail, he would not misuse the
liberty of bail and would cooperate with the
trial.

13. Learned Additional Government
Advocate as well as learned counsel for the
informant, have opposed the prayer for
granting anticipatory bail to the applicant.
It is further submitted that looking to the
statement of the victim under Section 164
Cr.P.C. no case for bail is made out. They
have also drawn the attention of the Court
towards the statements of the victim
recorded under Section 161 and 164 Cr.P.C.
in which she has supported the prosecution
case. It is further submitted that the victim
was unable to speak, hence her statement
has been recorded through a special
educator. The age of the victim girl is only
14 years and eight months and she is
mentally retarded child. It is further
submitted that the date of birth of the
victim is mentioned in the educational
certificate as 09.09.2008 and on the date of
incident, the victim was a minor. It is also
submitted by the learned AGA that though
medical report does not support the factum
of rape, but whether rape has occurred or
not is legal conclusion and not medical.
Absence of injuries on private part or other
part of body of victim would not rule out
her being subjected to rape. The applicant
is accused of raping a minor victim
belonging to Scheduled Caste. The matter
606 INDIAN LAW REPORTS ALLAHABAD SERIES
is of very serious nature, hence the
anticipatory bail application submitted by the
accused deserves to be cancelled.

14. In this case, a heinous crime has been
committed with a minor retarded girl aged
about 14 years and eight months, by the
applicant, who is said to be a Teacher. In our
society, "A Teacher plays a very important role
in shaping the future of their students" and
such conduct of the teacher would certainly
create an atmosphere of fear in the minds of
people of society and such perpetrator should
not go unpunished and should get just
punishment from the Courts of law to curb
such incidents in future.

15. In the light of above, looking to the
facts and circumstances of this case,
submissions of learned counsel for the parties
as mentioned above, taking into consideration
the role assigned to the applicant as per
prosecution case, gravity and nature of
accusation, medical report and the statement
under Sections 161 & 164 Cr.P.C., this Court
is of the view that no case for exercising its
discretionary power under Section 438 Cr.P.C.
is made out in favour of applicant.

16. Accordingly, this application under
Section 438 Cr.P.C. is rejected.
----------
(2023) 10 ILRA 606
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 11.10.2023

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Crl. Misc. Bail Application No. 12106 of 2023

Sushil Kumar Verma ...Applicant
Versus
State of U.P. ...Respondent

Counsel for the Applicant:
Desh Deepak Singh, Avinash Singh Vishen, Pradeep
Pandey

Counsel for the Respondent:
G.A., Girdhari Lal Yadav

Criminal Law - Indian Penal Code, 1860 -
Sections 406, 420, 467, 468, 471, 504 & 506
- Negotiable Instruments Act, 1881 -
Sections 138 & 142 - Code of Criminal
Procedure, 1973 - Section 438 - The applicant,
Sushil Kumar Verma, an Assistant Engineer in the
U.P. St. Construction Cooperative Union, sought bail
in Case Crime No. 52/2022 under Sections 406,
420, 467, 468, 471, 504, 506 IPC, registered at P.S.
Indiranagar, Lucknow (Commissionerate Lucknow) -
The FIR, lodged on 15.02.2022 by the complainant
(owner of Lucknow Construction), alleged that the
applicant borrowed Rs.34,40,000 for personal use
and issued four cheques, which were dishonored by
the bank. Additionally, the applicant allegedly
assigned departmental work worth Rs.19,00,000 to
the complainant without a work order, and no
payment was made. The applicant promised
repayment within two weeks at the police station
but failed to comply (Paras 3-5) - The applicant
claimed innocence, no criminal history, and filed an
affidavit stating the allegations were false. He
disclosed involvement in six cases, five under
Section 138 of the Negotiable Instruments Act and
one under Sections 406, 420 IPC (Case Crime No.
130/2023, P.S. Aliganj, Lucknow), registered after
the present case (Para 8) - The St. opposed bail,
citing the applicant's criminal history and an
additional case under Section 138 NI Act (Case No.
61650/2021). The complainant's counsel argued
that the applicant defrauded Rs.34,40,000 and
Rs.19,00,000 and suggested referring the matter to
mediation for recovery (Paras 7, 9-10) - The
applicant's counsel contended that the dispute was
civil in nature, misused as a criminal case to
pressure settlement, and no criminal offence was
made out beyond Section 138 NI Act.

Case Law Cited:

1. Indian Oil Corporation Vs NEPC India Ltd.,
(2006) 6 SCC 736 (Para 11).

2. G. Sagar Suri Vs St. of U.P., (2000) 2 SCC 636
(Para 11).