# Dharmapal Gautam @ Bhikhari Gautam v. State of U.P. & Anr

- **Citation:** (2023) 8 ILRA 668
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-18
- **Case number:** Crl. Misc. Anticipatory Bail Application No. 1703 of 2023
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dharmapal-gautam-bhikhari-gautam-v-state-of-u-p-anr-50698
- **Pages:** 7

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 437(3), 438, 438(2),
438(I)(Iv) & 439(2) - Indian Penal Code,
1860 - Sections 120(B), 255, 259, 260,
272, 273, 419, 420, 467, 468 & 471 --
Constitution Of India,1950 - Article - 21 -
Excise Act, 1910- Section 60 - Prevention
Of Corruption Act, 1988 - Sections -
13(1)(D) & 13(2) - Prevention Of Money
Laundering Act, 2002- Sections 3 & 4 -
Indian Evidence Act, 1872 - Section 27-
Anticipatory Bail Application - FIR - allegations
are involved the recovery of illicit liquor and
certain injections from the applicant's premises
- investigation - charge-sheet - applicant taken
grounds
that
custodial
interrogation
was
unnecessary - court finds that, no independent
person has witnessed the alleged recovery
proceedings, - there is serious conflict in the
narration made by the police itself in the
recovery memo and in the FIR - no exceptional
grounds existed to deny the bail - hence,
applicant's application for granting anticipatory
bail is allowed - however, in the event of
arrest/appearance of applicant, before the trial
court, he shall be released on bail on his
furnishing a personal bond and two sureties,
each in the like amount, to the satisfaction of
8 All. Dharmapal Gautam @ Bhikhari Gautam Vs. State of U.P. & Anr.
669
the SHO/court concerned - directions issued
accordingly. (Para - 11, 12, 13)

Application Allowed. (E-11)

List of Cases cited:

## Text

668 INDIAN LAW REPORTS ALLAHABAD SERIES
discretionary relief, would depend upon the
facts and circumstances of each case.
Material fact would mean material for the
purpose of determination of the lis, the
logical corollary whereof would be that
whether the same was material for grant or
denial of the relief. If the fact suppressed is
not material for determination of the lis
between the parties, the court may not
refuse
to
exercise
its
discretionary
jurisdiction. It is also trite that a person
invoking the discretionary jurisdiction of
the court cannot be allowed to approach it
with a pair of dirty hands."

19. A similar view has been taken in
Prestige Lights Ltd. v. State Bank of
India, (2007) 8 SCC 449 wherein
denuding the claim of a person not coming
before the Court with clean hands, it was so
observed by the Hon'ble Apex Court :

"35. ............If the applicant does not
disclose full facts or suppresses relevant
materials
or
is
otherwise
guilty
of
misleading the court, the court may dismiss
the action without adjudicating the matter."

20. Hence, in view of the settled law,
there is no justification to proceed with the
present anticipatory bail application as it is
legally not maintainable and has been
moved with suppression of material facts.

21. With these observations and
without making any comment upon the
lackadaisical
approach
of
the
court
concerned which has been cavalier to
entertain the anticipatory bail application
which was legally not maintainable before
it, it is held that the present application is
not maintainable, and is accordingly,
rejected.
----------
(2023) 8 ILRA 668
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.08.2023

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Crl. Misc. Anticipatory Bail Application No. 1703
of 2023
(U/s 438 Cr.P.C)

Dharmapal Gautam @ Bhikhari Gautam
 ...Applicant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicant:
Shakti Krishna Chaube, Praveen Tripathi

Counsel for the Respondents:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 437(3), 438, 438(2),
438(I)(Iv) & 439(2) - Indian Penal Code,
1860 - Sections 120(B), 255, 259, 260,
272, 273, 419, 420, 467, 468 & 471 --
Constitution Of India,1950 - Article - 21 -
Excise Act, 1910- Section 60 - Prevention
Of Corruption Act, 1988 - Sections -
13(1)(D) & 13(2) - Prevention Of Money
Laundering Act, 2002- Sections 3 & 4 -
Indian Evidence Act, 1872 - Section 27-
Anticipatory Bail Application - FIR - allegations
are involved the recovery of illicit liquor and
certain injections from the applicant's premises
- investigation - charge-sheet - applicant taken
grounds
that
custodial
interrogation
was
unnecessary - court finds that, no independent
person has witnessed the alleged recovery
proceedings, - there is serious conflict in the
narration made by the police itself in the
recovery memo and in the FIR - no exceptional
grounds existed to deny the bail - hence,
applicant's application for granting anticipatory
bail is allowed - however, in the event of
arrest/appearance of applicant, before the trial
court, he shall be released on bail on his
furnishing a personal bond and two sureties,
each in the like amount, to the satisfaction of
8 All. Dharmapal Gautam @ Bhikhari Gautam Vs. State of U.P. & Anr.
669
the SHO/court concerned - directions issued
accordingly. (Para - 11, 12, 13)

Application Allowed. (E-11)

List of Cases cited:

1. Gurbaksh Singh Sibbia Vs St. of Pun., (1980)
2 SCC 565 : 1980 SCC (Cri) 465

2. Jai Prakash Singh Vs St. of Bihar, (2012) 4
SCC 379

3. Mahdoom Bava Vs C.B.I., 2023 SCC Online SC 299

4.
P.
Chidambaram
Vs
Directorate
of
Enforcement, (2019) 9 SCC 24

5. Prakash Kadam Vs Ramprasad Vishwanath
Gupta, (2011) 6 SCC 189

6. St. of U.P.Vs Amarmani Tripathi, (2005) 8 SCC
21

7. St. of U.P.Vs Deoman Upadhyaya, AIR 1960
SC 1125

8. Sushila Aggarwal Vs St. (NCT of Delhi),
(2020) 5 SCC 1

9. Salauddin Abdulsamad Shaikh Vs St. of Mah.,
(1996) 1 SCC 667

10. Siddharam Satlingappa Mhetre Vs St. of
Mah., (2011) 1 SCC 694

(Delivered by Hon'ble Subhash Vidyarthi, J)

1. Heard Sri Praveen Tripathi, the
learned counsel for the applicant, Sri Rao
Narendra Singh, the learned counsel forthe
State and perused the records.

2. The instant application has been
filed by the applicant seeking anticipatory
bail in Case Crime No. 277 of 2016, under
Sections 60 Excise Act and Sections 255,
259, 260, 419, 420, 467, 468, 471, 272, 273
IPC, Police Station Karnailganj, District
Gonda.

3. The aforesaid case has been
registered on the basis of an F.I.R. lodged
on 19.07.2016 against two persons -
Ramesh Verma and Dharam Pal Gautam
alias Bhikhari Gautam (the applicant) by a
Senior Sub Inspector of Police, alleging
that on the basis of information received
from a mukhbir, a police party reached the
polisher (small scale rice mill) of the
applicant. As per FIR case, co-accused
Ramesh Verma was arrested another person
escaped and the person arrested told that
the person who ran away, was the applicant
and he is the owner of the polisher. The
F.I.R. states that about 25 litres illicit liquor
kept in a jerry-can, some bottles containing
illicit liquor and some injections were
recovered from the premises.

4. The learned AGA has raised a
preliminary objection on the ground that
the allegations leveled in the FIR are of a
serious nature and it is settled law that an
application under Section 438 Cr.P.C. for
grant of anticipatory bail should be
entertained
only
in
exceptional
circumstances. In support of his submission
Sri. Rao Narendra Singh, the learned AGAI has relied upon the judgment in the case
of P. Chidambaram v. Directorate Of
Enforcement, (2019) 9 SCC 24. The
aforesaid judgment was passed in an appeal
against an order passed by the High Court
of Delhi rejecting the appellant's plea for
anticipatory bail in a case registered by
Central Bureau of Investigation (CBI)
being under Section 120-B IPC read with
Section 420 IPC, Section 8 and Section
13(2) read with Section 13(1)(d) of the
Prevention of Corruption Act, 1988 and in
the case registered by the Enforcement
Directorate in ECIR No. 07/HIU/2017
punishable under Sections 3 and 4 of the
Prevention of Money-Laundering Act, 2002
in an offence relating to the alleged
670 INDIAN LAW REPORTS ALLAHABAD SERIES
irregularities
in
Foreign
Investment
Promotion Board (FIPB) clearance given to
INX
Media
for
receiving
foreign
investment to the tune of Rs 305 crores
against approved inflow of Rs 4.62 crores.
In this context, the Hon'ble Supreme Court
had observed that: -

"69. Ordinarily, arrest is a part of
procedure of the investigation to secure not
only the presence of the accused but several
other purposes. Power under Section 438
CrPC is an extraordinary power and the
same has to be exercised sparingly. The
privilege of the pre-arrest bail should be
granted only in exceptional cases. The
judicial discretion conferred upon the court
has to be properly exercised after application
of mind as to the nature and gravity of the
accusation; possibility of the applicant fleeing
justice and other factors to decide whether it is
a fit case for grant of anticipatory bail. Grant
of anticipatory bail to some extent interferes in
the sphere of investigation of an offence and
hence, the court must be circumspect while
exercising
such
power
for
grant
of
anticipatory bail. Anticipatory bail is not to be
granted as a matter of rule and it has to be
granted only when the court is convinced that
exceptional circumstances exist to resort to
that extraordinary remedy."

5. However, in a later judgment
rendered by a Larger Bench of the Hon'ble
Supreme Court, consisting of five Hon'ble
Judges in Sushila Aggarwal v. State (NCT
of Delhi), (2020) 5 SCC 1, the Hon'ble
Supreme
Court,
after
taking
into
consideration
numerous
previous
judgments, including the judgment in the
case
of
P.
Chidambaram
(supra),
specifically held that:-

"53. It is quite evident, therefore, that
the predominant thinking of the larger
Constitution Bench, in Sibbia [Gurbaksh
Singh Sibbia v. State of Punjab, (1980) 2
SCC 565 : 1980 SCC (Cri) 465] , was that
given the premium and the value that the
Constitution and Article 21 placed on
liberty-and given that a tendency was
noticed,
of
harassment-at
times
by
unwarranted arrests, the provision for
anticipatory bail was made. It was not
hedged with any conditions or limitations
- either as to its duration, or as to the kind
of alleged offences that an applicant was
accused of having committed. The courts
had
the
discretion
to
impose
such
limitations
(like
cooperation
with
investigation, not tampering with evidence,
not leaving the country, etc.) as were
reasonable and necessary in the peculiar
circumstances of a given case. However,
there was no invariable or inflexible rule
that the applicant had to make out a special
case, or that the relief was to be of limited
duration, in a point of time, or was
unavailable for any particular class of
offences."

6. The conclusion drawn by the
Hon'ble
Supreme
Court
in
Sushila
Aggarwal (supra) are reiterated in para 92
of the judgment which are as follows:-

"92. This Court, in the light of the
above discussion in the two judgments, and
in the light of the answers to the reference,
hereby clarifies that the following need to
be kept in mind by courts, dealing with
applications under Section 438 CrPC:

92.1. Consistent with the judgment in
Gurbaksh Singh Sibbia v. State of Punjab
[(1980) 2 SCC 565], when a person
complains of apprehension of arrest and
approaches for order, the application
should be based on concrete facts (and not
vague or general allegations) relatable to
one
or
other
specific
offence.
The
8 All. Dharmapal Gautam @ Bhikhari Gautam Vs. State of U.P. & Anr.
671
application
seeking
anticipatory
bail
should contain bare essential facts relating
to the offence, and why the applicant
reasonably apprehends arrest, as well as
his side of the story. These are essential for
the court which should consider his
application, to evaluate the threat or
apprehension, its gravity or seriousness
and the appropriateness of any condition
that may have to be imposed. It is not
essential that an application should be
moved only after an FIR is filed; it can be
moved earlier, so long as the facts are clear
and
there
is
reasonable
basis
for
apprehending arrest.

92.2. It may be advisable for the court,
which is approached with an application
under Section 438, depending on the
seriousness of the threat (of arrest) to issue
notice to the Public Prosecutor and obtain
facts, even while granting limited interim
anticipatory bail.

92.3. Nothing in Section 438 CrPC,
compels or obliges courts to impose
conditions limiting relief in terms of time,
or upon filing of FIR, or recording of
statement of any witness, by the police,
during investigation or inquiry, etc. 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), likelihood of fleeing justice
(such as leaving the country), etc. The
courts would be justified - and ought to
impose conditions spelt out in Section
437(3) CrPC [by virtue of Section 438(2)].
The need to impose other restrictive
conditions, would have to be judged on a
case-by-case basis, and depending upon
the materials produced by the State or the
investigating agency. Such special or other
restrictive conditions may be imposed if the
case or cases warrant, but should not be
imposed in a routine manner, in all cases.
Likewise, conditions which limit the grant
of anticipatory bail may be granted, if they
are required in the facts of any case or
cases; however, such limiting conditions
may not be invariably imposed.

92.4. 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; equally whether and if so, what
kind of special conditions are to be imposed
(or not imposed) are dependent on facts of
the case, and subject to the discretion of the
court.

92.5. Anticipatory bail granted can,
depending on the conduct and behaviour of
the accused, continue after filing of the
charge-sheet till end of trial.

92.6. An order of anticipatory bail
should not be "blanket" in the sense that it
should not enable the accused to commit
further offences and claim relief of
indefinite protection from arrest. It should
be confined to the offence or incident, for
which apprehension of arrest is sought, in
relation to a specific incident. It cannot
operate in respect of a future incident that
involves commission of an offence.

92.7. An order of anticipatory bail
does not in any manner limit or restrict the
rights
or
duties
of
the
police
or
investigating agency, to investigate into the
charges against the person who seeks and
is granted pre-arrest bail.

92.8. The observations in Sibbia
[Gurbaksh Singh Sibbia v. State of Punjab,
(1980) 2 SCC 565 : 1980 SCC (Cri) 465]
regarding "limited custody" or "deemed
custody" to facilitate the requirements of
the investigative authority, would be
672 INDIAN LAW REPORTS ALLAHABAD SERIES
sufficient for the purpose of fulfilling the
provisions of Section 27, in the event of
recovery of an article, or discovery of a
fact, which is relatable to a statement made
during such event (i.e. deemed custody). In
such event, there is no question (or
necessity) of asking the accused to
separately surrender and seek regular bail.
Sibbia had observed that :

"19. ... if and when the occasion
arises, it may be possible for the
prosecution to claim the benefit of Section
27 of the Evidence Act in regard to a
discovery of facts made in pursuance of
information supplied by a person released
on bail by invoking the principle stated by
this Court in State of U.P. v. Deoman
Upadhyaya, AIR 1960 SC 1125."

92.9. It is open to the police or the
investigating agency to move the court
concerned, which grants anticipatory bail,
for a direction under Section 439(2) to
arrest the accused, in the event of violation
of any term, such as absconding, noncooperating during investigation, evasion,
intimidation or inducement to witnesses
with a view to influence outcome of the
investigation or trial, etc.

92.10. The court referred to in para
92.9 above is the court which grants
anticipatory bail, in the first instance,
according to prevailing authorities.

92.11. The correctness of an order
granting bail, can be considered by the
appellate or superior court at the behest of
the State or investigating agency, and set
aside on the ground that the court granting
it did not consider material facts or crucial
circumstances. [See Prakash Kadam v.
Ramprasad Vishwanath Gupta, (2011) 6
SCC 189, Jai Prakash Singh v. State of
Bihar, (2012) 4 SCC 379, State of U.P. v.
Amarmani Tripathi, (2005) 8 SCC 21] .)
This does not amount to "cancellation" in
terms of Section 439(2) CrPC.

92.12. The observations in Siddharam
Satlingappa
Mhetre
v.
State
of
Maharashtra, (2011) 1 SCC 694 (and other
similar judgments) that no restrictive
conditions at all can be imposed, while
granting anticipatory bail are hereby
overruled.
Likewise,
the
decision
in
Salauddin Abdulsamad Shaikh v. State of
Maharashtra, (1996) 1 SCC 667 and
subsequent decisions which lay down such
restrictive conditions, or terms limiting the
grant of anticipatory bail, to a period of
time are hereby overruled."

7. The later judgment rendered by
five Hon'ble Judges of the Hon'ble
Supreme Court will obviously prevail over
the former judgment of two Hon'ble Judges
and the law, as it now stands, is that there is
no restriction that the discretion of grant of
pre-arrest bail under Section 438 Cr.P.C.
can be exercised only in exceptional
circumstances. The factors to be considered
for grant of anticipatory bail to the
applicant are somewhat similar to the
considerations to be kept in mind for
granting bail to an accused person. The
only additional consideration to be kept in
mind while deciding the application under
Section 438 Cr.P.C. is contained in clause
(iv) of Sub-section (i) of Section 438, as
per which the Court has also to take into
consideration whether the accusation has
been made with object of injuring or
humiliating the applicant by having him so
arrested. Therefore, I find myself unable to
accept the aforesaid preliminary objection
raised by the learned AGA and the same is
rejected.

8. While advancing submissions on
the merit of the application, the learned
counsel for the applicant has submitted that
the
applicant
was
called
by
the
Investigating Officer and his statement
8 All. Dharmapal Gautam @ Bhikhari Gautam Vs. State of U.P. & Anr.
673
under section 161 Cr.P.C. was recorded on
30.12.2016.
After
conclusion
of
the
investigation, a charge sheet had been
submitted way back in the year 2017. The
investigation
already
having
been
concluded there appears to be no need of
custodial interrogation of the applicant.

9. A supplementary affidavit has been
filed on behalf of the applicant disclosing
his involvement in three other cases
bearing Nos. 106/2021, 202/2021 and
88/2020 all under Section 60 of the Excise
Act, Police Station Karnailganj, District
Gonda, which is a bailable offence and the
learned counsel of the applicant has
submitted that the applicant has been
granted bail in all the aforesaid three cases.

10. The learned counsel for the
applicant has also relied upon a judgment
of
the
Hon'ble
Supreme
Court
in
Mahdoom Bava v. Central Bureau of
Investigation, 2023 SCC OnLine SC 299,
wherein the Hon'ble Supreme Court
granted anticipatory bail to the appellant in
a case involving serious allegations against
him, on the following considerations: -

"On the strength of the aforesaid
allegations, which are certainly serious in
nature, the prayer of the appellants for
anticipatory bail is opposed vehemently by
the learned Additional Solicitor General.
But in our considered view there are at
least three factors which tilt the balance in
favour of the appellants herein. They are:-

(i) Admittedly, the CBI did not require
the
custodial
interrogation
of
the
appellants
during
the
period
of
investigation from 29.06.2019 (date of
filing of FIR) till 31.12.2021 (date of filing
of the final report). Therefore, it is difficult
to accept the contention that at this stage
the custody of the appellants may be
required;

(ii) In the reply/counter filed before
the High Court, the CBI had taken a
categorical stand that the Court had merely
issued summons and not warrant for the
appearance of the accused. In the case of
Shri Deepak Gupta, CBI had taken a stand
before the Special Court that "the presence
of the accused is not required for the
investigation but it is certainly required for
trial" and that therefore he needs to be
present. Therefore, all that the CBI wanted
was the presence of the accused before the
Trial Court to face trial.
In such
circumstances, to oppose the anticipatory
bail request at this stage may not be
proper; and

(iii) All transactions out of which the
complaint had arisen, seem to have taken
place during the period 2009-2010 to
2012-2013 and all are borne out by
records. When the primary focus is on
documentary
evidence,
we
fail
to
understand as to why the appellants should
now be arrested."

11. Although the FIR states that
several persons of the public were present
at the spot, but when they were asked to
witness the proceedings, nobody agreed for
the same. Apparently, the FIR has been
lodged after conclusion of the recovery
proceedings when the police party reached
the police station. Although in the F.I.R.
lodged subsequently, it is recorded that
nobody
had
witnessed
the
recovery
proceedings, two persons have put their
signatures at the bottom of the recovery
memo regarding whom the learned AGA
states that they are independent witnesses.
Thus there is a serious conflict in the
narration made by the police itself in the
recovery memo and in the FIR registered
674 INDIAN LAW REPORTS ALLAHABAD SERIES
subsequently
regarding
presence
of
independent witnesses.

12. Having considered the aforesaid
facts and circumstances of the case and
keeping in view the fact that the FIR was
lodged on 19.07.2016 alleging that certain
recoveries made from the applicant's
polisher in furtherance of an information
received from a mukhbir; that although the
FIR mentions that a large crowd had
gathered at the time of recovery, no
independent person has witnessed the
alleged recovery; that the investigation
already stands concluded and the charge
sheet has been submitted way back in the
year 2017, I am of the view that the
aforesaid facts are sufficient for grant of
anticipatory bail to the applicant.

13. In view of the above, the
anticipatory
bail
application
of
the
applicant is allowed. In the event of arrest /
appearance of applicant - Dharmapal
Gautam Alias Bhikhari Gautam before
Station House Officer / the learned Trial
Court in the aforesaid case, he shall be
released on bail on his furnishing a
personal bond and two sureties, each in the
like
amount,
to
the
satisfaction
of
S.H.O./Court concerned on the following
conditions and subject to any other
conditions that may be fixed by the Trial
Court:

(i) the applicant shall not tamper with
the prosecution evidence;

(ii) the applicant shall not pressurize
the prosecution witnesses;

(iii) the applicant shall appear on each
and every date fixed by the trial court.
----------
(2023) 8 ILRA 674
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW10.08.2023

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Crl. Misc. Anticipatory Bail Application No. 1775
of 2023
(U/s 438 Cr.P.C)

With
Crl. Misc. Anticipatory Bail Application No. 1777
of 2023
(U/s 438 Cr.P.C)

Somdev Sharma ...Applicant
Versus
State of U.P. ...Respondent

Counsel for the Applicant:
Amarjeet Singh Rakhra, Bashisth Muni Mishra

Counsel for the Respondent:
G.A.

Criminal
Law-The
Code
of
Criminal
Procedure,1973-Section- 438 -The Indian
Penal Code- 1860- Sections 409, 420, 467,
468,471 & 120B- An application for grant of
anticipatory bail cannot be rejected on the
ground that the applicant has failed to make out
any exceptional circumstance and the merits of
the application have to be examined so as to
ascertain whether the applicant is entitled to be
granted anticipatory bail or not- Section 46 of
the Cr.P.C., which lays down the procedure of
arrest of persons, does not contain any
provision mandating prior sanction of the St.
Government and an information of the sanction
being sent to the accused, so that he may
approach the Court for obtaining an order of
pre-arrest bail.

Interim anticipatory bail granted. (E-15)

List of Cases cited:

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

2. Prem Shankar Prasad Vs St. of Bihar & ors,
2021 SCC OnLine SC 955