# Dr. Rajni Tripathi v. State of U.P

- **Citation:** (2023) 8 ILRA 47
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-02
- **Case number:** Criminal Misc. Anticipatory Bail Application U/S 438 CR.P.C. No. 8059 of 2023
- **Bench:** Shekhar Kumar Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-rajni-tripathi-v-state-of-u-p-50676
- **Pages:** 10

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 419, 420, 467, 468, 471 & 204 -
Criminal Procedure Code, 1973 - Sections
313,
482,
438(6)(a)
&
(b)
&
439-
Anticipatory Application for Bail - the applicant,
48 INDIAN LAW REPORTS ALLAHABAD SERIES
a Principal at a Degree College, was accused of
misuse of funds allocated for a National Seminar
on Hindi and Economics - The seminar was
organized using financial aid from the University
Grants Commission (UGC), New Delhi, and
other sources - FIR - The allegations led to
her suspension from the position, and
further
criminal
proceedings
ensued
-
Examination of Accused - U/Section 313 of
CrPC - St.ment was recorded - the court
stipulated that, the applicant must file an
undertaking stating that she will not seek
adjournments when evidence and witnesses
are scheduled for examination - if the
applicant defaults, conditions deliberately or
without sufficient cause, the trial court may
treat this as abuse of bail liberty and take
appropriate
actions
-
Accordingly,
the
applicant's bail application is disposed of
with the directions - applicant shall ensure
her presence in court on dates fixed for
evidence and witness examination, - In case
of default on this condition, the trial court
may revoke bail and proceed in accordance
with the law. (Para - 24, 25, 26)

Application Disposed of. (E-11)

List of Cases cited:

## Text

8 All. Dr. Rajni Tripathi Vs. State of U.P.
47
return memo which is nothing but a mere
information given by the Banker of the due
holder of a cheque that the cheque has
been returned as unpaid. If the cheque
return memo is not bearing any official
stamp of the bank, it does not render the
cheque return memo as invalid or illegal.
The cheque return memo is not a document
which is not required to be covered under
Section 4 of the Bankers Book (Evidence)
Act, 1891. If there is any infirmity in the
cheque return memo, it does not render
entire trial under Section 138 of NI Act as
nullity."

13. From perusal of the same, it is
apparently clear that if the cheque return
memo is not bearing any official stamp of
the bank, it does not render the cheque as
invalid or illegal. Further, if there is any
infirmity in the cheque or letter, it does not
render entire trial under Section 138 of Act,
1881 as nullity.

14. After going through the provision
of Section 146 of Act, 1881, counter
affidavit filed on behalf of bank and
judgment of Delhi Court in the case of
Guneet Bhasin (Supra), this Court is of the
firm view that in case cheque return memo
is not having signature and stamp of the
bank, but it is validly issued by the bank,
that would not render the proceeding of
Section 138 of Act, 1881 as invalid or
illegal.

15. In view of above facts mentioned
hereinabove as well as law discussed
hereinabove, this Court finds no good
ground to entertain the application and
same lacks merit and is, dismissed. No
order as to costs.

16. So far as bank is concerned, there
is carelessness on its part, therefore, this
Court is issuing direction to Highest
Authority of Bank i.e. CEO/M.D. of
ICICI., Bank to issue order/letter/circular to
all Branch Managers for being more careful
while issuing such letters maximum within
two weeks from the date of production of
certified copy of this order. In case such
type of mistake is repeated by any officer
of the Bank, he is directed to take strict
action
against
the
erring
officer
or
employee in accordance with law.

17. Sri Manish Trivedi, learned
counsel for the ICICI-Bank is directed to
send the copy of this order to CEO/M.D. of
ICICI Bank forthwith for immediate
compliance.
----------
(2023) 8 ILRA 47
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.08.2023

BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV, J.

Criminal Misc. Anticipatory Bail Application U/S
438 CR.P.C. No. 8059 of 2023

Dr. Rajni Tripathi ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Ms. Kanchan Sharma, Sri Prashant Vyas, Sri
V.P. Srivastava (Sr. Adv.), Sri Virendra
Singh

Counsel for the Opposite Party:
G.A., Sri Prakash Dwivedi, Sri Amrendra
Nath Singh

Criminal Law - Indian Penal Code, 1860 -
Sections 419, 420, 467, 468, 471 & 204 -
Criminal Procedure Code, 1973 - Sections
313,
482,
438(6)(a)
&
(b)
&
439-
Anticipatory Application for Bail - the applicant,
48 INDIAN LAW REPORTS ALLAHABAD SERIES
a Principal at a Degree College, was accused of
misuse of funds allocated for a National Seminar
on Hindi and Economics - The seminar was
organized using financial aid from the University
Grants Commission (UGC), New Delhi, and
other sources - FIR - The allegations led to
her suspension from the position, and
further
criminal
proceedings
ensued
-
Examination of Accused - U/Section 313 of
CrPC - St.ment was recorded - the court
stipulated that, the applicant must file an
undertaking stating that she will not seek
adjournments when evidence and witnesses
are scheduled for examination - if the
applicant defaults, conditions deliberately or
without sufficient cause, the trial court may
treat this as abuse of bail liberty and take
appropriate
actions
-
Accordingly,
the
applicant's bail application is disposed of
with the directions - applicant shall ensure
her presence in court on dates fixed for
evidence and witness examination, - In case
of default on this condition, the trial court
may revoke bail and proceed in accordance
with the law. (Para - 24, 25, 26)

Application Disposed of. (E-11)

List of Cases cited:

1. Amrawati & anr.Vs St. of U.P., 2004 (57) ALR
290

2. Lal Kamlendra Pratap Singh Vs St. of U.P.,
2009 (3) ADJ 322

3. Hussain & anr.Vs U.O.I., (2017) 5 SCC 702

4. Brahm Singh & ors. Vs St. of U.P. & ors.,
Criminal Misc. Writ Petition No.15609 of 2016,
dated 08.07.2016

5. Arnesh Kumar v. St. of Bihar & anr., (2014) 8
SCR 128

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

7. Sunil Kallani Vs St. of Raj., 2022 0 Cr. L.J.
1378

8. Sunil Kallani Vs St. of Raj., 2021 SCC Online
Raj 1654
9. Shri Gurbaksh Singh Sibbia & ors. Vs St. of
Punjab, AIR 1980 SC 1632

10. Shri Gurbaksh Singh Sibbia & ors. Vs St. of
Punjab, AIR 1980 SC 1632

11. Rajesh Kumar Sharma Vs C.B.I., 2022 0
Supreme (All) 1331

12. Narinderjit Singh Sahni Vs U.O.I., (2002)2
SCC 210

13. Md Asfak Alam Vs The St. of Jharkhand &
anr.(Criminal Appeal Nos, 2207 of 2023 arising
out of Special Leave Petition (Criminal) No. 3433
of 2023 dated 31.07.2023

14. Vinod Kumar Sharma & anr.Vs St. of U.P.&
anr., 2022 1 Crimes (SC) 193

15. Sushila Aggarwal Vs St. (NCT of Delhi)-2020
SCC Online SC 98

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

1. Vakalatnama on behalf of applicant
has been filed by Mr Virendra Singh,
Advocate today, which is taken on record.

2. Heard Sri V. P. Srivastava, learned
Senior counsel assisted by Mr Prashant
Vyas and Mr Surendra Kumar, learned
counsel for the applicant, Sree Prakash
Dwivedi & Mr Amrendra Nath Singh,
learned counsels for the informant and Mr
Amrit Raj Chaurasiya, learned Additional
Government Advocate for the State.

3. Supplementary affidavit filed today
is taken on record.

4. This anticipatory bail application
(under section 438 Cr.P.C.) has been moved
seeking bail in Case Crime No. 676 of
2013, under sections 419,420,467,468,471
IPC, P.S. Civil Lines, District Prayagraj,
during the pendency of trial.
8 All. Dr. Rajni Tripathi Vs. State of U.P.
49

5. In short, the prosecution allegation
is that the applicant, who is said to be
Principal of Prayag Mahila Vidyapeeth
Degree
College,
was
placed
under
suspension since February, 2013. It is
alleged that a National Seminar on Hindi
and Economics was organized on 21, 22
and 23 February 2009 in the College with
funds received from University Grant
Commission, New Delhi and other sources.
Dr. Madhu Tandon was the co-ordinator of
National Seminar and the applicant was its
director. Dr. Madhu Tandon, through her
complaint dated 20.04.2009 informed that
she had spent Rs. 12,500/- in the printing of
souvenirs in the said Economics Seminar at
the behest of the Principal, but the payment
has
not
been
made
by
the
Principal/applicant. It is further alleged that
in the meeting of the Managing Committee
dated 16.07.2009, the Principal assured to
pay the expenses incurred by Dr. Madhu
Tandon and to present the details of the
income expenditure of the Seminar, but
neither she made the expenditure incurred
by Dr. Madhu Tandon nor presented the
details of income-expenditure and kept on
procrastinating the matter on one pretext or
the other, due to which the matter is said to
be pending since long. Meanwhile, Dr.
Madhu Tandon is said to be transferred to
DAV College, Lucknow and from there she
also sent several requests but the Principal
did not reply. It is further alleged that in the
audit from year 2008-09 up to year 201112, objection was raised that in the seminar
held in the year 2008-09, money was
withdrawn by opening a new account by
Principal but neither the expenditure
certificate nor the proceedings register were
presented at the time of inspection/audit
and the Principal is said to have withdrawn
money from the annual festival fund in the
year 2009, 2010 and 2011, but its
expenditure certificates were not presented
at the time of audit. Thereafter, the
Principal
informed
the
Managing
Committee in its meeting on 05.10.2012
that she has received the bills / vouchers /
documents of the Seminar 2009 and in
compliance with the decision taken in the
previous meeting of the Management
Committee, she is presenting it to the
Chairman. It is also alleged that after the
meeting
was
over,
the
Managing
Committee produced the photocopies of
Bill Vouchers to the clerk in the college
office. It is further alleged that again, in the
meeting of the Management Committee
dated 24.11.2012, Principal was directed to
produce the original bill vouchers of
Seminar 2009 then the Principal on
29.11.2012 is said to have produced the
original bill vouchers of Seminar 2009 and
Annual Festival year 2009 and 2011 in the
college
office.
Thereafter,
due
to
expenditure on items other than those
prescribed by U.G.C. New Delhi and cash
memos of more than Rs.20,000/-, the
Management committee instructed the
Manager
to
submit
a
report
after
preliminary investigation on the vouchers
produced by Principal. After preliminary
investigation, the Manager, found various
vouchers suspicious, thereafter, a threemember inquiry committee was constituted
by the Management Committee of the
college to investigate the matter and the
Principal was placed under suspension. It is
also alleged that the Inquiry Committee
issued the charge sheet to the Principal on
12.03.2013 which was replied by the
applicant/Principal. The inquiry committee
after conducting inquiry submitted its
inquiry
report
dated
17.08.2013.
In
compliance of the decision taken in the
meeting of the Managing Committee on
05.09.2013, a copy of the investigation
report was sent to the applicant/Principal as
well as the Vice Chancellor of Chhatrapati
50 INDIAN LAW REPORTS ALLAHABAD SERIES
Sahu Ji Maharaj University, Kanpur for
information. It is also alleged that the
Principal submitted her written statement
on 20.09.2013 in the office and also got her
oral statement recorded in the meeting of
the
Management
Committee
dated
21.09.2013 and after considering the
submissions of the applicant, the inquiry
report was accepted. It is alleged that after
investigation by the Inquiry Committee, it
was duly found that the UGC account of
the College has already been opened in
UCO
Bank
Civil
Line,
but
the
applicant/Principal voluntarily opened a
new account in the same bank and
deposited a sum of Rs. 90,000/- received
from UGC, New Delhi and on 03.02.2009,
without
the
consent/approval
of
the
Management
Committee,
and
in
connivance with the Bank Officials is said
to have withdrawn a sum of Rs.90,000/-
and misappropriated it and also concealed
the entry of payment received in the UGC
Cash book. It is also alleged that the
vouchers submitted by the applicant in the
office for different sums were found forged
and fabricated. It is thus alleged that the
applicant/Principal
by
misusing
her
position grabbed the entire money.

6. Record would further reveal that
applicant after filing of the FIR approached
this Court by filing Criminal Misc Writ
Petition (being CMWP No. 9412 of 2014),
in which applicant has been granted interim
protection till the submission of the charge
sheet vide order dated 2.6.2014. Thereafter,
charge sheet in the matter was submitted on
19.01.2015, whereupon the court below
took
cognizance
on
7.2.2020
and
summoned the applicant to face the trial.
The applicant again approached this Court
by way of filing Criminal Misc Application
u/s 482 No. 10577 of 2023 challenging the
charge sheet and the summoning order,
which came to be disposed of vide order
dated
6.4.2023
with
the
following
observation:-

"...........However, this application
stands disposed of with the direction that
the court below would extend the benefit of
interim bail (if the court concerned deems
it fit according to the merit of each case) as
contemplated in the law laid down by this
Court in the case of Amrawati and another
Vs. State of U.P. reported in 2004 (57)
ALR 290 as well as judgement passed by
Hon'ble Apex Court reported in 2009 (3)
ADJ 322 (SC) Lal Kamlendra Pratap
Singh Vs. State of U.P. after the applicant
surrenders within two weeks before the
court and if her bail application is filed, the
same shall be adjudicated and decided by
the courts below with speaking and
reasoned order, strictly in accordance with
law, in the light of the judgment given by
Hon'ble Apex Court in the case of Hussain
and another Vs. Union of India reported
in (2017) 5 SCC Page-702, relevant extract
of which reads as under :-

"?.......Judicial service as well as
legal service are not like any other
services. They are missions for serving the
society. The mission is not achieved if the
litigant who is waiting in the queue does
not get his turn for a long time".......
"Decision of cases of under-trials in
custody is one of the priority areas. There
are
obstructions
at
every
level
in
enforcement of right of speedy trial;
vested interests or unscrupulous elements
try to delay the proceedings"....... "In spite
of all odds, determined efforts are
required at every level for success of the
mission"..... "The Presiding Officer of a
court
cannot
rest
in
a
state
of
helplessness. This is the constitutional
responsibility of the State to provide
necessary infrastructure and of the High
8 All. Dr. Rajni Tripathi Vs. State of U.P.
51
Courts to monitor the functioning of
subordinate courts to ensure timely
disposal of cases."

To satiate speedy disposal of the
cases,
the
courts
below
are
issued
following directions in accordance with the
observations made in the case of Hussain
and another (Supra):

(i)Bail applications be disposed
of normally within one week :

(ii) Magisterial trials, where
accused are in custody, be normally
concluded within six months and sessions
trials where accused are in custody be
normally concluded within two years.

(iii)........................................................
...............................................;

(iv)........................................................
..............................................."

The above timelines may be the
touchstone for assessment of judicial
performance in annual confidential reports.

For the period of two weeks from
today, no coercive action shall be taken
against the applicant in the aforementioned
case.

It is made clear that no time
extension application would be entertained
for extending the period of two weeks.

The ratio mentioned above is the
last word for every judicial officers for
abiding with the directions of the Hon'ble
Apex Court. In the aforesaid scenario, it
would be pertinent to refer the case of
Brahm Singh and others Vs. State of U.P.
and others decided on 08.07.2016 in
Criminal Misc. Writ Petition No.15609 of
2016 whereby co-ordinate Bench of this
Court, while taking into account the
concerns of most of the counsels with
regard
to
the
long
pending
bail
applications at lower courts' stage has
expressed their anguish and concern.

In
the
aforesaid
backdrop,
learned Sessions Judge/the concerned Trial
Judge is directed to ensure that the
guidelines given in the case of Hussain and
another (supra) as well as in Brahm Singh
and others (Supra) has to be carried out in
its letter and spirit, failing which an
adverse inference would be drawn against
the erring officers and this Court would be
compelled to take appropriate action
against them, if found that there is laxity in
adhering the above directions.

In the event, the bail application
is not decided within seven days as
contemplated above, the learned Judge will
have to spell out the justifiable reasons and
record the same on the order sheet of such
cases."

7. Thereafter, applicant is said to have
approached the court below by filing
anticipatory bail application, which came to
be rejected vide order dated 31.05.2023,
hence
the
present
anticipatory
bail
application before this Court.

8. Learned senior counsel for the
applicant submits that applicant has been
falsely implicated in the present case. She
is a lady and is aged about 61 years. It is
also submitted that in the alleged matter a
disciplinary proceeding was also initiated
by the Management of the Institution and
the matter went up to the Vice Chancellor
of the Chhatrapati Sahu Ji Maharaj
University,
Kanpur
wherein
certain
favourable observations were made with
regard to the applicant. It is further
submitted that the involvement of the
applicant in the present false criminal case
is nothing but just to harass the applicant at
the fag end of her retirement, whereas
prima facie the nature of dispute appears to
be a 'Service Dispute.'
52 INDIAN LAW REPORTS ALLAHABAD SERIES

9. It is strenuously submitted by
learned Senior counsel for the applicant
that
the
applicant
has
joined
the
investigation as and when required by the
Investigating Officer. He further submitted
that there is not even an iota of admissible
evidence against the applicant and she has
been
falsely
implicated.
He
further
submitted that now the charge sheet stands
filed, so there is no requirement of any sort
of custody or custodial interrogation of the
applicant. It is further submitted by the
learned Senior Counsel for the applicant
that the applicant has also not misused the
interim protection granted to her by the
Court. There is definite apprehension that
she might be arrested in the present case. In
support of his argument, learned senior
counsel relied upon the judgements of Shri
Gurbaksh Singh Sibbia and others Vs
state of Punjab, AIR 1980 SC 1632;
Sushila Aggarwal and others Vs State
(NCT of Delhi) and another, (2020) 5
SCC 1.

10. On the other hand, learned
counsel for the informant as well as learned
counsel for the State have vehemently
opposed the prayer for bail by contending
that applicant has been taken into custody
in another case being Case Crime No. 158
of
2004,
under
Sections
468,
467,
471,420,379 IPC, and in Case Crime No.
38 of 2004, under Sections 204,506 IPC,
P.S.
Civil
Lines,
District
Prayagraj,
therefore, the present anticipatory bail
application is not maintainable. In this
regard, learned counsels have placed
reliance on the case of Narinderjit Singh
Sahni Vs Union of India, (2002)2 SCC
210; Sunil Kallani Vs State of Rajasthan,
2021 SCC Online Raj 1654 (Rajasthan
High Court). It is further submitted by
learned counsel for the informant and
learned AGA for the State that while
disposing of the application u/s 482 Cr.P.C.,
the applicant was directed to surrender and
apply for bail before the court below within
two weeks but the said order has not been
complied with by the applicant.

11. Refuting the said contention,
learned Senior counsel submitted that
merely because it was directed by this
Court while disposing of the application
under Section 482 Cr.P.C. to the applicant
to surrender and apply for bail does not
dilute
the
applicant's
right
to
file
anticipatory bail under Section 438 Cr.P.C.
In support of his argument learned counsel
relied upon the case of Vinod Kumar
Sharma and Another Vs State of Uttar
Pradesh and another, 2022 1 Crimes
(SC) 193.

12. In the case of Vinod Kumar
Sharma (supra), the Hon'ble Supreme
Court observed that "Merely because it was
kept open for the petitioners to surrender
and apply for Regular Bail after filing of
the charge sheet, the same does not
preclude the petitioners to apply for
anticipatory bail under Section 438 Cr.P.C.
after filing of the charge sheet".

13. So far as the question of
maintainability of the present anticipatory
bail application is concerned, this issue has
not been addressed by the Hon'ble Apex
Court as yet although a co-ordinate Bench
of this Court in Rajesh Kumar Sharma
Vs CBI, 2022 0 Supreme (All) 1331, has
examined the issue of maintainability of
anticipatory bail where the accused was
already arrested in another case and hold
that the anticipatory bail would not lie and
would not be maintainable, if a person is
already arrested and is in custody of police
or judicial custody in relation to another
criminal case, which may be for similar
8 All. Dr. Rajni Tripathi Vs. State of U.P.
53
offence or for different offences. Similar
view has also been expressed in the case of
Sunil Kallani Vs State of Rajasthan,
2022 0 Cr. L.J. 1378 by the Rajasthan
High Court.

14. Section 438 Cr.P.C. provides an
opportunity to a person to move an
application for direction that if he is to be
arrested in a case and the said person has
reasons to believe that he shall be arrested
then he may be released on bail. It is
cardinal principle of law that every law is
designed to promote and further the ends of
justice. Statutory interpretation, purpose
and the spirit of the provision must be
gathered from its intendment. A plain
reading of the provision of Section 438
Cr.P.C. as amended in State of Uttar
Pradesh
would
show
that
the
only
restriction provided is under Section 438
(6) of the Cr. PC, which says that the
provision will not apply to accusations of
offences which are stated in Section 438 (6)
(a) & (b) of the Cr.P.C. and in absence of
any specific restrictions on the exercise of
the power to grant anticipatory bail clearly
indicates that the legislature intended to
confer and has in fact conferred a very
wide discretion on the High Court and the
Court of Sessions to grant anticipatory bail.
The Law Commission of India in the 41st
Report reitereated the principles concerning
bail. One of the relevant principles in this
regard is that "bail is a matter of discretion
if the offence is non-bailable''. Discretion in
Section 438 Cr.P.C. should not be exercised
with regard to an offence punishable with
death or imprisonment for life unless the
Court at that very stage is satisfied that
such a charge is false or groundless. Under
Section 438, Cr.P.C., discretionary power
has been conferred on the Court to grant
pre-arrest bail. The judicial discretion
vested in the Court requires it to be
appropriately exercised with the proper
application of mind in determining whether
a case is a fit case for grant of anticipatory
bail or not.

15. If the non-maintainability of the
application for the grant of anticipatory bail
is accepted as the correct position, then the
element of discretion, which is available
with the court, would be taken away. Even
if there may be multiple FIRs against the
accused, the court is very much within its
competence to consider those factors within
the existing statutory framework. Section
438(1) Cr.P.C., inter alia, provides the
nature and gravity of the accusation read
with the antecedents of the accused as
factors that have to be taken into
consideration by the court exercising its
discretion to grant anticipatory bail. And as
is true for any matter requiring the exercise
of discretion, the same ought to be done not
capriciously, but rather judiciously and
within
the
well-accepted
and
wellestablished parameters.

16. In the case of Shri Gurbaksh
Singh Sibbia and others Vs state of
Punjab, AIR 1980 SC 1632, the Hon'ble
Apex Court has made the following
observation:-

"39. Fifthly, the provisions of
Section 438 cannot be invoked after the
arrest of the accused. The grant of
"anticipatory bail" to an accused who is
under arrest involves a contradiction in
terms, insofar as the offence or offences for
which he is arrested, are concerned. After
arrest, the accused must seek his remedy
under Section 437 or Section 439 of the
Code, if he wants to be released on bail in
respect of the offence or offences for which
he is arrested"
54 INDIAN LAW REPORTS ALLAHABAD SERIES

17. As per the aforesaid decision of
Hon'ble Apex Court it is very much clear
that
anticipatory
bail
will
not
be
maintainable in case a person is in custody
in the same offence for which pre-arrest
bail is sought, the restriction, if any, upon
maintainability of pre-arrest bail will be
there only if a person is in custody in that
particular offence itself.

18. While going through the various
pronouncements of the Hon'ble Apex Court
as well as plain reading of the provision of
Section 438 Cr.PC., there is no such bar in
Cr.P.C. or any statute which prohibits
Session
or
the
High
Court
from
entertaining and deciding an anticipatory
bail, when such person is already in judicial
or police custody in some other offence.
The restriction cannot be stretched to
include arrest made in any other offence as
that would be against the object and spirit
of the provision.

19. In the present case, the applicant
is in custody with respect to another case
crime as afore-stated and she is yet to be
arrested by police in the present case. As
per the judgment of the Hon'ble Apex Court
in the case of Shri Gurbaksh Singh
Sibbia and others (supra), the restriction
is only when the pre-arrest bail is sought
for the same offence in which arrest is
already made.

20. The case of Narinderjit Singh
Sahni and Another (supra) relied upon by
the learned counsel for the State as well as
informant was in respect of maintainability
of Article 32 wherein relief in the nature of
Section 438 was sought. Even, the said
judgment does not hold in very clear terms
that a person arrested in one offence cannot
seek the relief provided under Section 438
Cr.P.C. in another offence merely on the
ground that he has been taken into custody
in another offence.

21. A person apprehending arrest on
accusation of having committed a non
bailable offence has every right, even if he
is arrested in number of cases, to move in
each of offence registered against him
irrespective of the fact that he is already in
custody but for different offence, for the
reason that every such application will have
to be heard and decided on merits
independent of another crime in which he is
already in custody. Thus, the stand taken by
learned State counsel regarding nonmaintainability of the application cannot be
approved.

22. Learned Senior counsel has also
drawn attention of the Court towards a
recent
judgement of Hon'ble Apex Court in the
case of Md Asfak Alam Vs The State of
Jharkhand
and
another
(Criminal
Appeal Nos, 2207 of 2023 arising out of
Special Leave Petition (Criminal) No.
3433 of 2023 decided on 31.07.2023,
wherein the Apex Court emphasizes the
paramount importance of personal liberty
and issued landmark guidelines regarding
anticipatory bail. In the said case, the
appellant, Md. Asfak Alam, had sought
anticipatory bail after facing allegations
under various sections of the Indian Penal
Code and the Dowry Prohibition Act.
However, his plea was dismissed by the
High Court, and further directed him to
surrender before the Trial Court and seek
regular bail. The Apex Court has held that
arrest should not be made routinely, and the
exercise of this power must be guided by
the necessity of custodial investigation or
preventing the accused from tampering
with evidence or influencing witnesses. The
Apex Court, referring to various cases,
8 All. Dr. Rajni Tripathi Vs. State of U.P.
55
including Arnesh Kumar v. State of
Bihar and Another, (2014) 8 SCR 128, to
lay down the guidelines for granting
anticipatory bail, emphasizes that such bail
should be
granted
unless
there
are
exceptional circumstances.

23. Having considered the arguments
advanced by learned counsel for the parties,
judgements relied upon by the learned
counsel for the parties, and considering the
nature of accusations and antecedents of
applicant, since the charge sheet has been
filed without the arrest of the applicant all the
material evidence and documents have been
collected, the applicant was also granted
interim protection and there are no allegations
that during the period of interim protection
she ever tried to influence the witnesses or
tamper
with
the
evidence,
in
these
circumstances, the bail application is allowed.
She is directed to be enlarged on anticipatory
bail as per the Constitution Bench judgment
of the Apex Court in the case of Sushila
Aggarwal vs. State (NCT of Delhi)- 2020
SCC Online SC 98. The future contingencies
regarding anticipatory bail being granted to
applicant shall also be taken care of as per the
aforesaid judgment of the Apex Court.

24. In the event of arrest, the
applicant shall be released on anticipatory
bail. Let the applicant Dr. Rajni Tripathi,
involved in the aforesaid crime be released
on anticipatory bail on furnishing a
personal bond of Rs. 50,000/- with two
sureties each in the like amount to the
satisfaction of the trial court concerned
with the following conditions:-

(1) The applicant 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 from
disclosing such facts to the Court or to any
police officer; and

(2) The applicant shall not leave
the country during the currency of trial
without prior permission from the concerned
trial Court.

(3) The applicant shall surrender
her passport, if any, to the concerned Court
forthwith. Her passport will remain in
custody of the concerned Court.

(4) The applicant shall file an
undertaking to the effect that she shall not
seek any adjournment on the dates fixed for
evidence and the witnesses are present in
court. In case of default of this condition, it
shall be open for the trial court to treat it as
abuse of liberty of bail and pass orders in
accordance with law to ensure presence of the
applicant.

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

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

25. In default or misuse of any of the
conditions,
the
Public
Prosecutor/
Investigating
Officer/
first
informantcomplainant is at liberty to file appropriate
application for cancellation of anticipatory
bail granted to the applicant.
56 INDIAN LAW REPORTS ALLAHABAD SERIES

26. With the aforesaid observations/
directions, the application stands disposed
of.
----------
(2023) 8 ILRA 56
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.08.2023

BEFORE

THE HON'BLE BRIJ RAJ SINGH, J.

Criminal Misc. Bail Application No. 10246 of
2022

Sandeep Kumar ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Bhoomika Bajpai, Chandra Bhanu Singh,
Prashant Singh, Rahul Kumar Shukla

Counsel for the Opposite Parties:
G.A., Dilip Kumar Pandey

Criminal Law - Indian Penal Code,1860 -
Sections 174-A, 229-A, 363, 366, 376(3) &
504 - Protection of Children from Sexual
offences (POCSO) Act,2012 - Sections 5 &
6 - Criminal Procedure Code,1973 -
Sections 82, 164 & 313 - Evidence Act,
1872 - Section 35- Bail Application - FIR -
offence of Kidnapping, abducting, inducing
women to compel her marriage as well as Rape
- Charge-sheet - Bail application - court finds
that, plea has been taken by complainant that
as per school leaving certificate, age of
prosecutrix is below 16 years therefore, it is
presumed that she is minor - held, without
expressing any opinion on merits of case and
after considering the argument that as per
medical report as well as Parivar register, age of
the prosecutrix is found to be 18 years and
St.ment of prosecutrix under section 164 Cr.P.C.
indicates that it is a case of consent and
argument that applicant having no criminal
history is languishing in jail since and looking to
law points cited above, Court of opinion that
applicant is entitled to be released on bail -
direction issued, accordingly. (Para - 7, 8, 9)

Bail Application disposed of. (E-11)

List of Cases cited:

1. Monish Vs St. of U.P. & ors., Criminal Misc.
Bail Application No.55026 of 2021

2. P. Yuvaprakash Vs St. Rep. by Inspector of
Police, 2023 LiveLaw (SC) 538.

(Delivered by Hon'ble Brij Raj Singh, J.)

1. Heard Shri Prabhat Kumar Mishra,
Advocate holding brief of Shri Rahul
Kumar Shukla, learned counsel for the
applicant, Shri Rajesh Kumar Singh,
learned AGA-I for the State and Shri Dilip
Kumar Pandey, learned counsel for the
complainant and perused the record.

2. The present bail application has
been filed by the applicant Sandeep Kumar
with a prayer to enlarge him on bail in Case
Crime No.055 of 2022, under Sections-363,
366, 376(3) I.P.C., and Section 5/6 of The
Protection
of
Children
from
Sexual
offences (POCSO) Act, Police Station -
Shivratanganj, District Amethi.

3. Learned counsel for the applicant
has submitted that the First Information
Report was lodged by mother of the
prosecutrix under Sections 363, 504 IPC on
06.04.2022. As per version of the First
Information Report, she has stated that her
daughter was missing. She further stated
that she had gone to the house of Kusma,
wife of Vinay Rawat and asked whereabout
of her daughter but she was scolded by her
and her family members.

4. Learned counsel submitted that the
prosecutrix was recovered after one month