# Gaurav Khanna & Anr v. State of U.P. & Anr. Opp. Parties - **Citation:** (2022) 8 ILRA 432 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2021-03-19 - **Case number:** Crl. Misc. Anticipatory Bail Appl. No. 340 of 2021 - **Bench:** Vivek Kumar Singh - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gaurav-khanna-anr-v-state-of-u-p-anr-opp-parties-47613 - **Pages:** 4 ## Headnote A. Criminal Law - Code of Criminal Procedure, 1973 - Section 438 - Anticipatory Bail is to continue only till the court summons the accused based on charge sheet. Hence, application u/S 438(1) Cr.P.C. is not maintainable and it is open for the applicants to seek regular bail u/S 439 Cr.P.C. 8 All. Gaurav Khanna & Anr. Vs. State of U.P. & Anr. 433 Application rejected. (E-12) List of Cases cited:- ## Text 432 INDIAN LAW REPORTS ALLAHABAD SERIES provision does not permit any of the parties to submit application for summoning the Court Commissioner along with instruments to make actual demonstration in the Court as regards the procedure adopted by him in conducting the survey. If any of the party is not satisfied with the survey report submitted by the Survey Commissioner, it may put a question in cross-examination regarding the manner and procedure adopted by him in conducting the survey. The issue can be very much determined from the reply of the Court Commissioner to the question put by any of the parties in cross-examination regarding the procedure adopted by the Court Commissioner in conducting the survey. 14. In the opinion of the Court, there is no requirement in law, nor the aforesaid provision permits any of the parties to ask for summoning of the Court Commissioner along with his instruments to make actual demonstration about the procedure followed by him in conducting the survey. 15. Learned counsel for the petitioners could not dispute that the crossexamination of the Court Commissioner is still continuing and has not yet closed. In such view of the fact, the petitioners have still an opportunity to put relevant question to the Court Commissioner to prove that the report of the Survey Commissioner is wrong or incorrect. 16. At this stage, it is pertinent to mention that the petitioners have instituted the suit in the year 2007 and first application for Survey Commissioner was filed in the year 2011 and uptill 2017 two more applications, i.e., total three applications for appointment of Survey Commissioner have been filed by the petitioners and more than 15 years have passed, yet the suit has not proceeded because of the lingering device adopted by the petitioners, so that the Court may not proceed to decide the suit. Thus, this Court finds that the finding of the revisional court that the application filed by the petitioners has been filed only to linger on the suit is based upon proper appreciation of facts on record. Accordingly, this Court does not find any infirmity in the order passed by the revional court as well as trial court. 17. Thus, for the reasons given above, the writ petition lacks merit. It is accordingly, dismissed with no order as to costs. ---------- (2022) 8 ILRA 432 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 19.03.2021 BEFORE THE HON'BLE VIVEK KUMAR SINGH, J. Crl. Misc. Anticipatory Bail Appl. No. 340 of 2021 Gaurav Khanna & Anr. ...Applicants Versus State of U.P. & Anr. ...Opp. Parties Counsel for the Applicants: Sri Mithilesh Kumar Shukla, Sri Avanish Kumar Shukla Counsel for the Opp. Party: G.A., Sri Sharad Kumar Srivastava, Sri Sharad Kumar Srivastava A. Criminal Law - Code of Criminal Procedure, 1973 - Section 438 - Anticipatory Bail is to continue only till the court summons the accused based on charge sheet. Hence, application u/S 438(1) Cr.P.C. is not maintainable and it is open for the applicants to seek regular bail u/S 439 Cr.P.C. 8 All. Gaurav Khanna & Anr. Vs. State of U.P. & Anr. 433 Application rejected. (E-12) List of Cases cited:- 1. Vinod Kumar Vs St. of U.P. 2010(1) JIC 1(Allahabad) 2. Satpal Singh Vs St. of Pun. (2018) SCC Online SC 415 (Delivered by Hon'ble Vivek Kumar Singh, J.) 1. Counter affidavit filed on behalf of opposite party no. 2, is taken on record. 2. Heard Sri Mithilesh Kumar Shukla, learned counsel on behalf of applicants, Sri Sharad Kumar Srivastava, learned counsel on behalf of opposite party and Sri Sanjay Singh, learned AGA-I for the State. 3. The instant anticipatory bail application has been filed on behalf of the applicants, Gaurav Khanna and Saurabh Khanna, with a prayer to grant them anticipatory bail in Case Crime No. 0038 of 2019, under Sections 406, 420, 467, 468, 471, 120-B I.P.C., Police Station- Kotwali, District- Kanpur Nagar, during pendency of trial. 4. It has been contended by learned counsel on behalf of applicants that applicants have not committed any offence as mentioned in the first information report lodged by the opposite party no. 2. The applicants and opposite no. 2 both are the partners of the firm in the name and style of M/s Khas Polymer. The applicants tried to get loan from the concern bank namely Punjab National Bank, the concern bank after verification of the documents and consent with the partners of the firms granted the loan of Rs. 16,85,840/- in favour of the firm on 20.11.2017. 5. The applicants as partners of the aforesaid firm have deposited installments of the loan amount continuously in the concern bank, thereafter some dispute arose between the applicants and opposite party no. 2, both are the partners of the aforesaid firm and had resigned from the partnership vide letter dated 06.08.2018, a copy of resignation letter dated 06.08.2018 has been annexed as Annexure no. 5 to the affidavit filed in support of bail application. 6. It is next contended that only on account of some dispute of partnership of the aforesaid firm opposite party no. 2 illegally lodged the first information report against the applicants with the malafide intention only to harass them. The applicant nos. 1 and 2 being aggrieved with the first information report approached this Hon'ble Court by way of the Criminal Misc. Writ Petition No. 5230 of 2019 (Gaurav Khanna Vs. State of U.P. and others) and Criminal Misc. Writ Petition No. 5280 of 2019 (Saurabh Khanna Vs. State of U.P. and others), and the Hon'ble court disposed off the petition providing that the investigation shall continue and be brought to its logical conclusion but, subject to petitioner's cooperation in the investigation, he shall not be arrested in the aforesaid case till submission of police report under section 173(2) Cr.P.C. 7. The matter was investigated by Investigating Officer, charge sheet submitted against the applicants and other co-accused persons and learned Magistrate has taken cognizance vide order dated 26.08.2019. It is further submitted that opposite party no. 2 after lodging the first information report on 09.02.2019 against the applicants again filed a complaint against the applicants and other accused persons on similar circumstances under section 406/420 IPC before the Special Chief Judicial Magistrate, Kanpur Nagar. Thereafter, the learned Magistrate recorded the statement u/s 200 and 202 Cr.P.C. and 434 INDIAN LAW REPORTS ALLAHABAD SERIES summoned the applicants. Against the summoning order dated 06.04.2019 the applicants have approached this Hon'ble Court by way of Criminal Misc. Application under section 482 Cr.P.C. and this Hon'ble Court vide its order dated 21.01.2020 stayed the further proceedings of complaint case. The applicants have also moved anticipatory bail application under section 438 Cr.P.C. for grant of anticipatory bail before the learned Additional Sessions Judge which was rejected on 07.03.2020 in an arbitrary manner. Being aggrieved with charge sheet dated 18.08.2019 the applicants approached this Hon'ble Court by way of Criminal Misc. Application No. 1614 of 2020 (Gaurav Khanna and another Vs. State of U.P. and another) and the same was disposed off vide order dated 14.01.2020. After rejection of the anticipatory bail application of the applicants by the learned Additional Sessions Judge, the applicants approached this Hon'ble court by way of Anticipatory Bail Application No. 3857 of 2020 which was dismissed as not pressed vide order dated 08.07.2020. It is also submitted that the aforesaid first information report was lodged only due to malafide intention, ulterior motive and to blackmail the applicants. There is no criminal history against the applicants. Several other submissions in order to demonstrate the falsity of the allegations made against the applicants have also been placed before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the applicants that they are ready to cooperate with the process of law and shall faithfully make themselves available before the court whenever required. 8. Learned AGA vehemently opposed the prayer for bail and submitted that this is the second anticipatory bail application on behalf of the applicants before this court. The first anticipatory bail application was dismissed by this Hon'ble Court on 08.07.2020 (annexure no. 14) but in para 5 of the affidavit filed in support of anticipatory bail application, the applicants have deposed that 'this is the first anticipatory bail application before this court' as such the present anticipatory bail application is liable to be dismissed on this ground alone. Though the first anticipatory bail application was dismissed as withdrawn but no liberty was given to the applicants to file second anticipatory bail application. it is further submitted that anticipatory bail is to continue only till the court summons the accused based on charge sheet, it is open for the applicants to appear and seek the regular bail in accordance with the provisions made in section 439 Cr.P.C. in view of law laid down in the case of Vinod Kumar Vs. State of U.P. reported in 2010 (1) JIC 1(All) and Satpal Singh Vs. State of Panjab, reported in (2018) SCC online SC 415. Here in the present case charge sheet has been submitted on 18.08.2019, under section 406, 420, 467, 468, 471 & 120B IPC and on 26.08.2019, the learned Magistrate had taken cognizance of offence and summoned the applicants, hence application under section 438 Cr.P.C. is not maintainable and it is open for the applicants to seek regular bail under section 439 Cr.P.C. It is also submitted that applicants had obtained huge amount of loan from PNB Housing Finance Limited by preparing forged signature of the complainant as manufactured documents such as Declaration Demand, Promissory Note, Power of Attorney, Disbursement Request Form, Cheque Submission Form/receipt etc. as such the applicants committed grave offence and are not entitled for grant of anticipatory bail. 8 All. Ram Bahadur Sahani Vs. State of U.P. & Ors. 435 9. After hearing the learned counsel for the applicant and learned A.G.A., and after perusing the averments made in the present anticipatory bail application, this Court is of the opinion, that learned counsel for the applicants could not point out any good ground for grant of bail to the applicants. 10. Accordingly, the anticipatory bail application filed on behalf of the applicants is hereby rejected. ---------- (2022) 8 ILRA 435 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 14.06.2022 BEFORE THE HON'BLE SHEKHAR KUMAR YADAV, J. Crl. Misc. Anticipatory Bail Appl. No. 780 of 2022 Ram Bahadur Sahani ...Applicant Versus State of U.P. & Ors. ...Opp. Parties Counsel for the Applicant: Mrs. Shaili Ganguly, Sri R. Krishnamurti, Vijaylaxmi Krishnamorthi Counsel for the Opp. Parties: G.A., Sri Uma Nath Pandey, Sri Shiv Ram Dubey A. It is mandatory on the part of Investigating Officer to record reasons for making arrest as well as not making arrest in respect of a cognizable offence for which the maximum sentence is upto 7 years. Arrest is not required to be made under sub clause (1) of the amended section 41 of the code, the Police is bound to issue a notice of appearance to the accused person. Even in such a case, failure to comply with the notice of appearance or unwillingness to identify himself may be grounds for the Police to arrest a person to whom a notice under section 41-A of the Code has been issued. Application disposed of. (E-12) List of Cases cited:- 1. Arnesh Kumar Vs St. of Bihar (2014)8 SCC 273 (Delivered by Hon'ble Shekhar Kumar Yadav, J.) 1. Heard Mr. R. Krishnamurti, holding brief of Mrs. Shaili Ganguly, learned counsel for applicant, learned Additional Government Advocate for the State, Mr. Shiv Ram Dubey, holding brief of Mr. Uma Nath Pandey, learned counsel for opposite party no.3 and perused the material available on record. 2. The present anticipatory bail application under Section 438 Cr.P.C. has been filed for grant of anticipatory bail as the accused-applicant is apprehending her arrest in connection with Case Crime No.505 of 2021, under Sections 420, 406 IPC, Police Station Kasana, District Gautam Budh Nagar. 3. Learned counsel for the applicant has submitted that the applicant has been falsely implicated in the present case. Due to civil litigation pending between applicant and complainant, the complainant has lodged FIR through an application under Section 156 (3) Cr.P.C. just to create pressure upon the applicant. The applicant has no criminal antecedents. During arguments, learned counsel for the applicant has submitted that since all the offences are punishable with less than seven years of imprisonment, therefore, ratio of law laid down by Supreme Court in case of Arnesh Kumar Vs. State of Bihar, (2014) 8 SCC 273 should have been invoked.