# Dr. Kartikeya Sharma & Ors v. State of U.P. & Anr

- **Citation:** (2023) 6 ILRA 58
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-09
- **Case number:** Criminal Misc. Anticipatory Bail Application U/S 438 CR.P.C. No. 3107 of 2023
- **Bench:** Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-kartikeya-sharma-ors-v-state-of-u-p-anr-50332
- **Pages:** 9

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 438 - Indian
Penal Code, 1860-Sections 498-A, 323,
354, 504 & 506 - 3⁄4 D.P. Act-Matrimonial
dispute-In the present case since the
offences alleged against the accused
applicants
were
punishable
with
imprisonment for a maximum period of
seven years, a notice under section 41-A
Cr.P.C.
was
given
to
them
by
the
Investigating Officer, which means that
their custodial interrogation was not
considered necessary by the Investigating
Officer of the case and their personal
liberty was protected till submission of
6 All. Dr. Kartikeya Sharma & Ors. Vs. State of U.P. & Anr.
59
police report under section 173(2) Cr.P.C.-
Even if the chargesheet is filed and
cognizance is taken by the court against
the accused, who has got an immunity
from being arrested during the course of
investigation either by way of order of a
competent court protecting him by grant
of anticipatory bail or by service of notice
under
section
41-A
Cr.P.C.
by
the
Investigating Officer, anticipatory bail
application moved by him is legally
maintainable and it can never be rejected
on the ground that now charge-sheet has
been filed and cognizance has been taken
by
the
court
concerned-Hence,
the
observation given by the learned Session
Court while rejecting the anticipatory bail
application of applicants is a misnomer
and the settled legal position cannot be
permitted
to
be
contorted
in
any
manner.(Para 1 to 25)

The bail application is allowed. (E-6)

List of Cases cited:

## Text

58 INDIAN LAW REPORTS ALLAHABAD SERIES

12. Legally, the Court cannot sit like
an appellate court/revisional court to
review the order of the anticipatory bail. In
this case, the first informant has applied for
cancellation of bail. As is quite clear from
the law on this point, the bail once granted
can only be cancelled where subsequent to
the grant of bail, the accused has
misconducted himself or has misused the
liberty or protection available to him or on
the ground that some new fact has surfaced
having important bearing on the case or
where the order is arbitrary or perverse or
without jurisdiction or is bad in law for
some reason of like nature. In this case,
though misuse of liberty is one of the
grounds for cancellation of bail but at the
same time, the burden lies on the State or
the party seeking it to prove the same by
bringing sufficient material before the
Court or to atleast show that allegation as
to misuse/misconduct has some substance
in it. As far as the present case is
concerned, there is an allegation that the
opposite party no.2, during the period he
was on interim bail/interim protection
threatened the victim and she moved a
complaint on two occasions i.e. before the
Police Commissioner, Kanpur Nagar and
before concerned Sessions Judge. In my
view, moving of the applications or even
filing of F.I.R. is not sufficient to draw the
conclusion that infact he threatened the
victim and that he misconducted himself.
The freedom made available by grant of
bail cannot be taken away on inadequate
grounds or mere assertions or allegation,
the veracity whereof remains to be tested.
The liberty, even though on bail is an
important fundamental right, which cannot
be taken away except by procedure
established by law. Moreover, these facts
occurred before grant of anticipatory bail
and those facts had already been brought to
the knowledge of the Sessions Judge before
he finally allowed the application. In my
view, the applicant has not been able to
substantiate the allegations that infact the
opposite party no.2 misused the liberty or
misconducted himself.

13. I do not find sufficient ground to
interfere in the impugned order granting
anticipatory bail to the opposite party no.2
and
therefore
this
bail
cancellation
application is hereby dismissed.
----------
(2023) 6 ILRA 58
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.05.2023

BEFORE

THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Misc. Anticipatory Bail Application U/S
438 CR.P.C. No. 3107 of 2023

Dr. Kartikeya Sharma & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Surya Bhan Singh

Counsel for the Opposite Parties:
G.A., Sri Ajay Kumar Shukla

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 438 - Indian
Penal Code, 1860-Sections 498-A, 323,
354, 504 & 506 - 3⁄4 D.P. Act-Matrimonial
dispute-In the present case since the
offences alleged against the accused
applicants
were
punishable
with
imprisonment for a maximum period of
seven years, a notice under section 41-A
Cr.P.C.
was
given
to
them
by
the
Investigating Officer, which means that
their custodial interrogation was not
considered necessary by the Investigating
Officer of the case and their personal
liberty was protected till submission of
6 All. Dr. Kartikeya Sharma & Ors. Vs. State of U.P. & Anr.
59
police report under section 173(2) Cr.P.C.-
Even if the chargesheet is filed and
cognizance is taken by the court against
the accused, who has got an immunity
from being arrested during the course of
investigation either by way of order of a
competent court protecting him by grant
of anticipatory bail or by service of notice
under
section
41-A
Cr.P.C.
by
the
Investigating Officer, anticipatory bail
application moved by him is legally
maintainable and it can never be rejected
on the ground that now charge-sheet has
been filed and cognizance has been taken
by
the
court
concerned-Hence,
the
observation given by the learned Session
Court while rejecting the anticipatory bail
application of applicants is a misnomer
and the settled legal position cannot be
permitted
to
be
contorted
in
any
manner.(Para 1 to 25)

The bail application is allowed. (E-6)

List of Cases cited:
1. Prem Shankar Prasad Vs St. of Bih. & anr.
(2021) SCC OnLine SC 955

2. Manish Yadav Vs St. of U.P. (2022) 0
Supreme (All) 629

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

4. Gurbaksh Singh Sibbia Vs St. of Punj. (1980)
2 SCC 565

5. Ravindra Saxena Vs St. of Raj. (2010) 1 SCC
684

6. Bharat Chadhary Vs St. of Bih.(2003) 8 SCC
77
(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)

1. Rejoinder affidavit filed today is
taken on record.

2.
Apprehending
their
arrest
in
criminal case no.29542 of 2022 arising out
of case crime no.1306of 2021 under
Sections 498-A, 323, 354, 504, 506 IPC
and 3/4 Dowry Prohibition Act, Police
Station
Quarsi,
District
Aligarh,
the
applicants - Dr. Kartikeya Sharma, Ajaya
Kumar Sharma and Smt. Sangeeta
Sharma have moved this anticipatory bail
application after submission of the chargesheet before this Court.

3.
The
two
anticipatory
bail
applications moved by the applicants have
been rejected by the Court of Sessions
Judge, Aligarh vide order dated 28.2.2023.

4. Heard Sri Surya Bhan Singh,
learned counsel for the applicants, Sri Ajay
Kumar Shukla, learned counsel for the
complainant / opposite party no.2 and Sri
Devesh Kumar Singh, learned A.G.A. for
the State.

5. It is alleged in the F.I.R. that the
informant Dr. Pallavi Sharma was married
to applicant no.1 Dr. Kartikeya Sharma on
27.11.2015 and since after the marriage, the
informant was being subjected to cruelty
and harassment on account of demand of
Rs.2 Crore as additional dowry and she was
being mentally and physically exploited by
her in-laws. Her father-in-law also used
criminal force to her with intent to outrage
her modesty. Accused applicant no.1 is the
husband, applicant no.2 is the father-in-law
and applicant no.3 is the mother-in-law of
the informant / opposite party no.2. F.I.R.
was
lodged
on
28.12.2021
and
investigation started.

6. Learned counsel for the applicants
submits that the applicants are innocent and
they have apprehension of their arrest in the
above-mentioned case, whereas there is no
credible evidence against him. Allegations
levelled against the applicants are false. It
60 INDIAN LAW REPORTS ALLAHABAD SERIES
is further submitted that the applicant no.1
and opposite party no.2 are well educated
persons and doctor by profession. No
dowry demand was ever made by the
applicants and the informant / opposite
party no.2 was never subjected to cruelty
and harassment by them. Since the opposite
party no.2 was pressurizing the applicant
no.1 to leave his parents, she started to live
separately with applicant no.1 and his son.
Both husband and wife are working as
Doctor and they have very good income.
The opposite party no.2 was continuously
pressurizing the applicant no.1 to settle at
Aligarh and to manage the Nursing Home
of her father leaving his old aged parents at
Ghaziabad, but when the applicant no.1
was not ready to fulfill her demand, the
present F.I.R. was lodged with false facts.
It is further submitted that the applicant
nos. 2 & 3 are senior citizens and are
suffering from the diseases of old age and
are also unable even to walk properly
without any support. It is further submitted
that the applicants have preferred criminal
misc. writ petition no.1529 of 2022 before
this Court and same was disposed of in
view of the scope and objective of Section
41 and 41-A Cr.P.C. in the light of the
decision of the Hon'ble Apex Court in
Arnesh Kumar vs. State of Bihar and
another, (2014) 8 SCC 273. It is further
submitted that in this matter, the chargesheet has been filed under Sections 498-A,
323, 354, 504, 506 IPC and 3/4 Dowry
Prohibition Act wherein the maximum
period of imprisonment is prescribed upto
seven years. Under these circumstances, the
applicants deserve for grant of anticipatory
bail till end of the trial.

7. Per contra, learned A.G.A. as well
as learned counsel for the informant
vehemently opposing the anticipatory bail
application have submitted that during the
course of investigation, sufficient evidence
has been collected against the accused
applicants. It is further submitted that the
applicants have moved an application u/s
482 Cr.P.C. No. - 35236 of 2022 before
this Court, but the same was withdrawn and
vide order dated 8.12.2022, this Court
disposed of the aforesaid application as
withdrawn with liberty given to them to
appear before the court concerned and file
appropriate application for bail. However,
instead of moving bail application, another
application u/s 482 Cr.P.C. No. - 42203 of
2022 was moved before this Court by the
applicants but the same was dismissed vide
order dated 28.1.2023. It is further
submitted that after filing of the chargesheet, several processes were issued against
the
accused
applicants,
but
they
deliberately avoided the service of the
processes sent by the Court of Magistrate
and subsequently, on 18.4.2022, the court
of Magistrate at Aligarh passed an order to
issue process under Section 82 Cr.P.C.
against the accused applicants. Attention of
the Court has drawn to the fact that the
process of the court has not been honoured
by the accused applicants. After filing of
the charge-sheet, when process was issued
to summon them, they did not appear
before the court and the court then
proceeded to issue non-bailable warrant
against them and subsequently process
under section 82 Cr.P.C. was also issued
against them, which means that they have
been declared proclaimed offenders by the
court. It is further submitted that since the
applicants are not obeying the orders
passed by the court and they are in the
category of proclaimed offenders, they are
not entitled for any relief in the form of
anticipatory bail.

8. Reliance has been placed on the
decision of the Hon'ble Supreme Court in
6 All. Dr. Kartikeya Sharma & Ors. Vs. State of U.P. & Anr.
61
Prem Shankar Prasad Versus State of
Bihar and Another, 2021 SCC OnLine
SC 955. In the facts of the aforesaid case,
charge-sheet was filed under Sections 406,
420 IPC against the accused and thus it was
explicit that a prima facie case against the
accused was found. From the record, it
revealed that the arrest warrant was issued
by the Magistrate against the accused and
thereafter proceedings under Sections 82,
83 Cr.P.C. had been initiated pursuant to
the order passed by the Magistrate. Only
thereafter the accused moved an application
before the trial court for anticipatory bail,
which was rejected by the Sessions Court.
However, subsequently anticipatory bail
was granted to the aforesaid accused by the
High Court and when the matter came
before the Hon'ble Apex Court, it was
observed like this.

"19.
Despite
the
above
observations on merits and despite the
fact that it was brought to the notice of
the High Court that respondent No. 2 -
accused is absconding and even the
proceedings under sections 82-83 of Cr.
P.C. have been initiated as far as back on
10.01.2019, the High Court has just
ignored the aforesaid relevant aspects
and has granted anticipatory bail to
respondent No. 2 - accused by observing
that the nature of accusation is arising
out of a business transaction. The specific
allegations of cheating, etc., which came
to be considered by learned Additional
Sessions Judge has not at all been
considered by the High Court. Even the
High Court has just ignored the factum of
initiation of proceedings under sections
82-83 of Cr. P.C. by simply observing
that "be that as it may". The aforesaid
relevant aspect on grant of anticipatory
bail ought not to have been ignored by
the High Court and ought to have been
considered by the High Court very
seriously and not casually.

20. In the case of State of
Madhya Pradesh v. Pradeep Sharma
(Supra), it is observed and held by this
court that if anyone is declared as an
absconder/proclaimed offender in terms
of section 82 of Cr. P.C., he is not
entitled to relief of anticipatory bail."

9. In rejoinder, learned counsel for the
applicants further submits that the present
anticipatory bail application on behalf of
the applicants has been filed before this
Court prior to issuance of proclamation
under section 82 Cr.P.C. The proclamation
u/s 82 Cr.P.C. has been issued by the court
concerned on 18.4.2022, as such, meaning
thereby that when the present applicants
filed this application u/s 438 Cr.P.C. on
18.3.2023, they were not declared as
proclaimed offenders so the bar imposed by
the Hon'ble Apex Court entertaining
anticipatory bail of the proclaimed offender
would not attract in the present case. In
support of his contention, learned counsel
for the applicants has placed reliance on the
decision of this Court in Manish Yadav
Vs. State of U.P., 2022 0 Supreme (All)
629. In that matter, anticipatory bail
application was filed in the month of April,
2022 before the Sessions Court and was
rejected on 30.4.2022 and proclamation
under section 82 Cr.P.C. was issued by the
court concerned on 9.5.2022 and it was
held therein that after rejection of the
anticipatory bail application, the aggrieved
person has got a right to approach the High
Court for such anticipatory bail and if in
the interregnum period any proclamation
under section 82 or section 83 Cr.P.C. is
issued, it may be considered as a
circumventive exercise being taken by the
Investigating Officer. It was further held by
the Division Bench of this Court that when
62 INDIAN LAW REPORTS ALLAHABAD SERIES
the application for anticipatory bail was
filed before the Sessions Court, there was
no proclamation under section 82 Cr.P.C.
and such proclamation was issued after the
rejection of anticipatory bail application.
Hence it was held that the bar to entertain
anticipatory bail application after issuance
of proclamation under section 82 Cr.P.C.
would not be attracted in that case.

10.
In
the
present
case,
the
anticipatory bail application was rejected
by the Sessions Court on 28.2.2023 and a
perusal of the rejection order reveals that
since then no proceedings under section 82
or 83 Cr.P.C. were started against the
accused applicants after rejection of the
anticipatory bail application from the
Sessions Court, on 18.3.2023 the present
anticipatory bail application has been
moved before this Court for anticipatory
bail. It reveals from the perusal of the
record that process under section 82
Cr.P.C. has been issued on 18.4.2022,
which means that pending application for
anticipatory bail before this Court, the said
proclamation was made by the court
concerned. Hence, it is clear that the
present applicants were not proclaimed
offenders at the time of making their
application for anticipatory bail before this
Court. So the bar imposed by the Hon'ble
Supreme Court in Prem Shankar Prasad
(supra) for not entertaining the anticipatory
bail application of a proclaimed offender is
not attracted in the present case.

11.
The
alleged
offences
are
punishable with the imprisonment of
maximum
period
of
seven
years.
Admittedly, proclamation u/s 82 Cr.P.C. is
issued
after
filing
of
the
present
anticipatory
bail
application
u/s
438
Cr.P.C. Charge-sheet has been filed in the
matter. Applicants have been cooperative
during the course of investigation and there
is nothing on record to show otherwise.
The investigating officer did not find any
ground to arrest them during the course of
investigation. They have not misused the
liberty granted to them. Their custodial
interrogation was also considered as not
required by the investigating officer.

12. 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.

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

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, likelihood
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.

13. Hence, considering the settled
principles of law regarding anticipatory
bail, submissions of the learned counsel for
the parties, nature of accusation, role of
6 All. Dr. Kartikeya Sharma & Ors. Vs. State of U.P. & Anr.
63
applicants and all attending facts and
circumstances
of
the
case,
without
expressing any opinion of the merits of the
case, in my view, it is a fit case for
anticipatory bail to the applicants till end of
the trial in the matter.

14. The anticipatory bail application is
allowed.

15. In the event of arrest of the
applicants in the aforesaid case, they shall
be released on anticipatory bail till end of
the trial on their furnishing a personal bond
of Rs. 50,000/- with two sureties each in
the like amount to the satisfaction of the
Court
concerned
with
the
following
conditions :-

(i) The applicants shall make
themselves available before the court
concerned on the date fixed in the matter;

(ii) The applicants shall not
directly
or
indirectly,
make
any
inducement, threat or promise to any
person acquainted with the facts of the case
so as to dissuade him / her from disclosing
such facts to the Court or to any police
officer;

(iii) The applicants shall not leave
India without the previous permission of
the Court and if they have passport, the
same shall be deposited by them before the
S.S.P./S.P. concerned.

16. In case of default of any of the
conditions, same may be a ground for
cancellation of protection granted to the
applicants.

17. Before parting, the Court owes it
as its duty to remind the Sessions Courts as
to what isthe actual scope of Section 438
Cr.P.C. and powers of the Sessions Court
thereunder and the Court has moved into
this direction, as the learned A.G.A. has
drawn the attention of the Court to the
anticipatory bail rejection order dated
28.2.2023 passed by the Sessions Court,
Aligarh. At page 3 of the said rejection
order, it is mentioned like this -

"अभियोजन पक्ष की ओर से अवगत कराया गया
भक इस प्रकरण में आवेदकगण के भवरुद्ध सक्षम न्यायालय में
आरोपपत्र प्रेभित भकया जा चुका है। आवेदकगण प्राथभमकी में
नामजद है तथा मुख्य अभियुक्त हैं । आवेदकगण के भवरुद्ध न्यायालय
में आरोपपत्र प्रेभित भकया जा चुका है भजस पर सक्षम न्यायालय द्वारा
प्रसंज्ञान भलया गया है, अतः आरोपपत्र प्रेभित भकए जाने व
आरोपपत्र पर न्यायालय द्वारा प्रसंज्ञान भलये जाने के उपरान्त अभिम
जमानत प्राथथना पत्र पोिणीय न होने के कारण भनरस्त भकए जाने
योग्य है। तदनुसार अभियुक्त / आवेदकगण डॉ. काभतथकेय शमाथ,
अजय शमाथ व संगीता शमाथ के अभिम जमानात प्राथथना पत्र भनरस्त
भकए जाते हैं।"

18. With utter surprise to this Court even
after so many directions issued by the
Hon'ble Apex Court with regard to the scope
of anticipatory bail, it appears that still their
exists a state of confusion amongst the
Sessions Courts. Right from the renowned
case of Gurbaksh Singh Sibbia Vs. State of
Punjab (1980) 2 SCC 565 upto the case of
Sushila Aggarwal and others vs. State
(NCT of Delhi) and another, (2020) 5 SCC
1
and
even
in
umpteen
subsequent
pronouncements, it has repeatedly been held
and reiterated that filing of the charge-sheet
into a criminal matter is never meant that the
scope of anticipatory bail comes to an end.

19. The Hon'ble Supreme Court in
Sushila Aggarwal (supra) case, considering
the observations made by the Constitution
Bench of Hon'ble Supreme Court in
Gurbaksh Singh Sibbia (supra) case held as
hereinunder.

"We are of the opinion that the
conditions
can
be
imposed
by
the
64 INDIAN LAW REPORTS ALLAHABAD SERIES
concerned court while granting pre-arrest
bail order including limiting the operation
of the order in relation to a period of time if
the
circumstances
so
warrant,
more
particularly
the
stage
at
which
the
"anticipatory bail" application is moved,
namely, whether the same is at the stage
before the FIR is filed or at the stage when
the FIR is filed and the investigation is in
progress or at the stage when the
investigation is complete and the chargesheet is filed. However, as observed
hereinabove, the normal rule should be not
to limit the order in relation to a period of
time."

It was also held in the aforesaid
case that to lay down strict, inflexible and
rigid rules for exercise of such discretion
under section 438 Cr.P.C. by limiting the
period for which an order under section 438
Cr.P.C. could be granted, is unreasonable
and
the
courts
should
not
impose
restrictions on the ambit and scope of
section
438
Cr.P.C.
which
are
not
envisaged by the legislature. The Court
cannot rewrite the provision of the statute
in the garb of interpreting it.

20. It is to be reminded that following
questions had been referred to the Larger
Bench of five Judges in Sushila Aggarwal
(supra) case.

(1)
Whether
the
protection
granted to a person under Section 438 Cr.
PC should be limited to a fixed period so as
to enable the person to surrender before the
Trial Court and seek regular bail.

(2) Whether the life of an
anticipatory bail should end at the time and
stage when the accused is summoned by
the court.

Regarding first question, it was
concluded that the protection granted under
section 438 Cr.P.C. should not always or
ordinarily be limited to a fixed period; it
should ensure in favour of the accused
without
any
restriction
as
to
time.
However, usual or standard conditions
under section 437 (3) read with section 438
(2) may be imposed having regard to the
peculiar features of a particular case.

The second question, which is
pertinent for the matter in hand was
answered by holding that the life of an
anticipatory bail does not end generally at
the time and stage when the accused is
summoned by the court, or after framing of
charges, but can also continue till the end
of the trial. However, if there are any
special or peculiar features necessitating
the court to limit the tenure of anticipatory
bail, it is open for it to do so.

It was further held explicitly that
"anticipatory bail granted can, depending
on the conduct and behavior of the accused,
continue after filing of the charge sheet till
end of trial. Also orders of anticipatory bail
should not be "blanket" in the sense that it
should not enable the accused to commit
further offences and claim relief. 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." and
the legal dictum is more specific when it
pronounces that "anticipatory bail granted
can, depending on the conduct and
behavior of the accused, continue after
filing of the charge-sheet till end of trial."

21. The same principle echoes in
Ravindra Saxena Vs. State of Rajasthan,
2010 (1) SCC 684, wherein the Hon'ble
Supreme Court reiterating the verdict of the
Constitutional Bench in Gurbaksh Singh
Sibbia (supra) case held that "anticipatory
bail can be granted at any time so long as
the applicant has not been arrested. When
6 All. Dr. Kartikeya Sharma & Ors. Vs. State of U.P. & Anr.
65
application is made to High Court or Court
of Sessions, it must apply its own mind on
the question and decide when the case is
made out for granting such relief. The High
Court ought not to have left the matter to
Magistrate only on the ground that challan
has
now
been
presented...............................Salutary
provision contained in Section 438 was
introduced to enable the court to prevent
deprivation of personal liberty. It cannot be
permitted to be jettisoned on technicalities
such as the challan having been presented,
anticipatory bail cannot be granted."

22. Earlier in Bharat Chadhary Vs.
State of Bihar, (2003) 8 SCC 77, it was
specifically held by the Hon'ble Supreme
Court that "The object of Section 438 is to
prevent undue harassment of the accused
persons by pre-trial arrest and detention.
The gravity of the offence is an important
factor to be taken into consideration while
granting such anticipatory bail so also the
need for custodial interrogation, but these
are only factors that must be borne in mind
by the courts concerned while entertaining
a petition for grant of anticipatory bail and
the fact of taking cognizance or filing of a
charge sheet cannot by itself be construed
as a prohibition against the grant of
anticipatory bail. The courts i.e. the Court
of Session, High Court or Supreme Court
have the necessary power vested in them to
grant anticipatory bail in non-bailable
offences under Section 438 Cr.P.C. even
when cognizance is taken or a charge sheet
is filed provided the facts of the case
require the court to do so."

23. So far as the present case is
concerned, since the offences alleged
against
the
accused
applicants
were
punishable
with
imprisonment
for
a
maximum period of seven years, a notice
under Section 41-A Cr.P.C. was given to
them by the Investigating Officer, which
means that their custodial interrogation was
not
considered
necessary
by
the
Investigating Officer of the case and their
personal
liberty
was
protected
till
submission of police report under Section
173 (2) Cr.P.C.

24. The legal consequences ensue the
same, whether an accused is granted
anticipatory bail till filing of police report
under Section 173 (2) Cr.P.C. by the Court
or a notice under section 41-A Cr.P.C. is
given to him by the Investigating Officer,
that the accused is not going to be arrested
during the course of investigation subject to
the conditions imposed upon him by the
Court or terms embodied in the said notice.

25. From the above, it is explicitly
clear that even if the charge-sheet is filed
and cognizance is taken by the court
against the accused, who has got an
immunity from being arrested during the
course of investigation either by way of
order of a competent court protecting him
by grant of anticipatory bail or by service
of notice under Section 41-A Cr.P.C. by the
Investigating Officer, anticipatory bail
application moved by him is legally
maintainable and it can never be rejected
on the ground that now charge-sheet has
been filed and cognizance has been taken
by the court concerned. Hence, the
observation given by the learned Sessions
Court while rejecting the anticipatory bail
application of the applicants vide order
dated 28.2.2023 is a misnomer and the
settled legal position cannot be permitted to
be contorted in any manner.

26. Registry is directed to send a copy
of this order to the court concerned.
----------
66 INDIAN LAW REPORTS ALLAHABAD SERIES
(2023) 6 ILRA 66
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.05.2023

BEFORE

THE HON'BLE MAYANK KUMAR JAIN, J.

Criminal Misc. First Bail Application No. 30712 of
2021

Jay Kant Bajpai @ Jay ...Applicant
Versus
State of U.P. ...Opposite Parties

Counsel for the Applicant:
Sri Deepak Singh, Sri Nazrul Islam Jafri
(Senior Adv.), Sri Shiva Kant Dixit

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Bail - The Criminal Law
Amendment Act - Section 7 -The Explosive
Substance Act, 1908 - Section 3⁄4 - The
Evidence Act, 1872 - Section 32(3) - The
totality of the material gathered by the
investigating agency and presented along
with the report and including the case
diary, is required to be reckoned and not
by analysing individual pieces of evidence
or circumstance. In any case, the question
of discarding the document at this stage,
on the ground of being inadmissible in
evidence, is not permissible. For, the issue
of admissibility of the document/evidence would
be a matter for trial. The Court must look at the
contents of the document and take such
document into account as it is. (Para 18)

St.ments u/s 161 of Cr.P.C. may not be
admissible in evidence but are relevant in
considering the prima facie case against an
accused in an application for grant of bail in a
case of grave offence. (Para 20)

B. Section 32 of Evidence Act makes it
clear that the St.ment made by a dead
person has been legally recognized and
can be used in evidence even though it
does not relate to the cause of his death.
It is to be kept in mind that a final
decision cannot be taken at this stage
since it will be considered by the trial
court
when
making
appreciation
of
evidence available on record. (Para 25)

Therefore, the St.ment made by main accused
Vikas Dubey will be considered prima facie to
indicate
the
involvement
of
the
present
applicant in the Vikroo massacre. (Para 26)

C. While granting bail must focus on the
role of the accused in deciding the aspect
of parity. Parity cannot be the sole ground
to decide the bail application and the case
of each and every accused is to be
examined in accordance with the facts
circumstances of the case. Merely observing
that another accused who was granted bail was
armed with a similar weapon is not sufficient to
determine whether a case for the grant of bail
on the basis of parity has been established. In
deciding the aspect of parity, the role attached
to the accused, their position in relation to the
incident and to the victims is of utmost
importance. (Para 16, 34)

In the present case and the complicity of the
accused about his involvement in the crime, the
present applicant is not entitled for releasing
him on bail on the ground of parity. (Para 35)

D. Criminal antecedents of the accused
cannot be ignored while deciding bail
application,
discretionary
powers
of
Courts to grant bail must be exercised in a
judicious manner in case of a habitual
offender. (Para 39, 40)

The applicant has criminal history of as much as
14 cases to his credit from the year 2010
including the cases of the nature of heinous
offences including Ss. 395, 302, 307 I.P.C.,
Gangster Act, Explosive Act and N.S.A. had also
been
imposed
against
the
applicant.
It
demonstrates that the applicant has been
involved in certain heinous offences and he is a
hardened criminal. If he is released on bail it will
give him an opportunity to temper the
witnesses. The criminal history of the applicant
is to be taken into consideration while releasing
him on bail. (Para 37, 42)