# Javed Ahmad v. State of U.P. & Anr. 1096 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2023) 3 ILRA 1095
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-13
- **Case number:** Criminal Misc. Anticipatory Bail Application No. 1379 of 2023
- **Bench:** Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/javed-ahmad-v-state-of-u-p-anr-1096-indian-law-reports-allahabad-series-49778
- **Pages:** 5

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 Section 438 - Direction
for grant bail to person apprehending
arrest - filing of first information report
(F.I.R.) is not a condition precedent to
exercise the power under Section 438(1)
Cr.P.C. - Section 438 Cr.P.C. does not
compel or oblige 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. - "Reason to believe" which is
something more serious than a mere
apprehension of arrest - Mere "fear" is
not "belief" - law does not permit to
knock at the door of the Court for grant
of anticipatory bail on merely vague
assertions in the absence of any relevant
material and certainly the Court will not
grant anticipatory bail in such a case.
(Para - 6,7,9,10,14)

Opposite Party No.2 gave some money to
applicant - financial help for construction of his
house - friends - asked for repayment of total
outstanding money - abused and threatened
him to repay the same - otherwise implicated in
false and fabricated case - No F.I.R. lodged in
the matter. (Para - 3,4)

HELD:- Applicant's apprehension of arrest not
well founded, as he failed to explain how he has
reasonable
belief
of
being
arrested.
No
justification to allow the present anticipatory bail
application moved by the applicant for want of
essential ingredients which are necessary for
grant of anticipatory bail under Section 438
Cr.P.C. to any person.(Para -13,15)

Anticipatory bail application rejected. (E-7)

List of Cases cited:

## Text

3 All. Javed Ahmad Vs. State of U.P. & Anr.
1095
2021 on the basis of non-apprehension to
arrest. Thereafter, the second anticipatory
bail application was not presented before
that Court but before the Hon'ble High
Court, by means of Criminal Misc.
Anticipatory Bail Application U/S 438
Cr.P.C. No. 4527/2022. From perusal of the
numbers of the first anticipatory bail
application filed before the court below as
well as from the anticipatory bail application
filed before this Court, it is clear that the
anticipatory bail application was presented
before the Hon'ble High Court in the year
2022 while the first anticipatory bail
application was rejected by that court below
on 19.10.2021. Therefore, the court below
has opined that either the applicant/accused
should have appeared before the learned
lower court according to his own statement
recorded in the order of this Court or the
second anticipatory bail application should
have been presented before the Hon'ble High
Court, again, where his first anticipatory bail
application was rejected due to his noncoercion. Since the statements regarding the
submission
of
the
anticipatory
bail
application before the Hon'ble High Court
were material statements in the facts and
circumstances of this case, which were not
mentioned in the bail application, the court
below has come to the conclusion that not
mentioning in the second anticipatory bail
application was omission/concealment of
material facts. On the basis of the aforesaid
findings, the court below has passed the order
impugned cancelling the anticipatory bail
granted earlier to the applicant.

43. On examination of the order
impugned, this Court finds that the court
below has recorded categorical finding of fact
and has rightly cancelled the anticipatory bail
granted earlier to the applicant, which
warrants no interference by this Court in
exercise of powers under Section 482
Cr.P.C., as there is no illegality or infirmity in
it.

44. In view of the deliberations and
discussions made above, this Court holds
that a accused-applicant who conceals facts
and files a false affidavit in the High Court
and who has made a mockery of the orders
of the lower court by avoiding process of
summon, bailable warrant, non-bailable
warrant and the proceedings under Section
82 Cr.P.C. is not entitled to get leniency,
mercy and justice in any way and that too
from the Court which exercises inherent
power under Section 482 Cr.P.C.

45.

Accordingly,
the
present
application is dismissed with cost of Rs.
10,000/- to be paid by the applicant to the
High Court Legal Services Authority,
Allahabad within a month from today. In
case of default, the same shall be recovered
by the District Magistrate, Mirzapur from
his arrears of land revenue.

46. A copy of this order shall be given
to
the
learned
A.G.A.
who
shall
communicate
the
District
Magistrate,
Mirzapur for necessary compliance of this
order.
----------
(2023) 3 ILRA 1095
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.02.2023

BEFORE

THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Misc. Anticipatory Bail Application No.
1379 of 2023
(U/s 438 Cr.P.C.)

Javed Ahmad ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties
1096 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Applicant:
Sri Anurag Kumar

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 Section 438 - Direction
for grant bail to person apprehending
arrest - filing of first information report
(F.I.R.) is not a condition precedent to
exercise the power under Section 438(1)
Cr.P.C. - Section 438 Cr.P.C. does not
compel or oblige 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. - "Reason to believe" which is
something more serious than a mere
apprehension of arrest - Mere "fear" is
not "belief" - law does not permit to
knock at the door of the Court for grant
of anticipatory bail on merely vague
assertions in the absence of any relevant
material and certainly the Court will not
grant anticipatory bail in such a case.
(Para - 6,7,9,10,14)

Opposite Party No.2 gave some money to
applicant - financial help for construction of his
house - friends - asked for repayment of total
outstanding money - abused and threatened
him to repay the same - otherwise implicated in
false and fabricated case - No F.I.R. lodged in
the matter. (Para - 3,4)

HELD:- Applicant's apprehension of arrest not
well founded, as he failed to explain how he has
reasonable
belief
of
being
arrested.
No
justification to allow the present anticipatory bail
application moved by the applicant for want of
essential ingredients which are necessary for
grant of anticipatory bail under Section 438
Cr.P.C. to any person.(Para -13,15)

Anticipatory bail application rejected. (E-7)

List of Cases cited:

1. Gurbaksh Singh Sibbia Vs St. of Punj.,
(1980) 2 SCC 565
2. Sushila Aggarwal & ors. Vs St. (NCT of Delhi)
& anr., (2020) 5 SCC Page 1 (106)

3. Adri Dharan Das Vs St. of W.B., (2005) 4
SCC 303

4. Rajasekhara Reddy Vs The St. of A.P.,
(1998) (2) A.P.L.J. 462 (A.P. High Court)

(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)

1.

Present
Anticipatory
Bail
Application has been filed with the prayer
to grant anticipatory bail to the applicant -
Javed Ahmad in Case Crime No. Nil, under
Sections Nil, Police Station - Mariyahun,
District Jaunpur.

2. Heard learned counsel for the
applicant, learned A.G.A. for the State and
perused the material available on record.

3. It is submitted by the learned
counsel for the applicant that the opposite
party no.2 had given Rs.17,50,000/- to the
applicant as financial help for construction
of his house, as they were friends and
subsequently Rs.1 lakh on respective dates
were paid by the applicant to him.
However, on 5.1.2023, opposite party no.2
asked
for
repayment
of
the
total
outstanding
money
and
abused
and
threatened him to repay the same till
20.1.2023 otherwise he could be implicated
in false and fabricated case. The applicant
informed the incident to the S.P., Jaunpur
on 7.1.2023 through registered post and till
date he has already paid an amount of
Rs.3,20,000/- to opposite party no.2 in his
bank account on respective dates, but the
applicant has apprehension of his arrest by
the police any time after lodging of the
F.I.R.
against
him.
There
is
every
likelihood that the applicant may be
implicated after foisting of false case
3 All. Javed Ahmad Vs. State of U.P. & Anr.
1097
against him. It is further submitted that the
applicant has no criminal antecedents. If
the applicant is enlarged on anticipatory
bail, he will not misuse the liberty of the
same.

4. Learned A.G.A. opposed the
prayer.

5. It is admitted that no F.I.R. has
been lodged so far in the matter.

6. It is true that filing of first
information report (F.I.R.) is not a
condition precedent to exercise the power
under Section 438(1) Cr.P.C., as held in
Gurbaksh Singh Sibbia Vs. State of
Punjab, (1980) 2 SCC 565, but at the same
time it is also to be kept in mind, as held in
the aforesaid case by the Hon'ble Apex
Court, that "when a person apprehends
arrest
and
approaches
a
court
for
anticipatory bail, his apprehension (of
arrest), has to be based on concrete facts
(and not vague or general allegations)
relatable to a specific offence or particular
offences. Applications for anticipatory bail
should contain clear and essential facts
relating to the offence, and why the
applicant reasonably apprehends his or her
arrest, as well as his version of the facts.
These are important for the court which is
considering the application, the extent and
reasonableness
of
the
threat
or
apprehension, its gravity or seriousness and
the appropriateness of any condition that
may have to be imposed. It is not a
necessary condition 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."

7. In the landmark case of Sushila
Aggarwal and others vs. State (NCT of
Delhi) and another, (2020) 5 SCC Page 1
(106), it has been emphasized that Section
438 Cr.P.C. does not compel or oblige 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.

8. Prior to the touching of the merit of
present application, a perusal of the relevant
provisions of Section 438 Cr.P.C. is
desirable.

"438. Direction for grant bail to
person apprehending arrest. ? (1) Where
any person has reason to believe that he may
be
arrested
on
accusation
of
having
committed a non-bailable offence, he may
apply to the High Court or the Court of
Session for a direction under this section that
in the event of such arrest he shall be released
on bail; and that Court may, after taking into
consideration,
inter-alia,
the
following
factors, namely?

(i) the nature and gravity of the
accusation;

(ii) the antecedents of the applicant
including the fact as to whether he has
previously
undergone
imprisonment
on
conviction by a Court in respect of any
cognizable offence;

(iii) the possibility of the applicant
to flee from justice; and

(iv) where the accusation has been
made with the object of injuring or
humiliating the applicant by having him so
arrested;

either
reject
the
application
forthwith or issue an interim order for the
grant of anticipatory bail:
1098 INDIAN LAW REPORTS ALLAHABAD SERIES

Provided that where the High
Court or, as the case may be, the Court of
Session, has not passed any interim order
under this sub-section or has rejected the
application for grant of anticipatory bail, it
shall be open to an officer in-charge of a
police station to arrest, without warrant, the
applicant on the basis of the accusation
apprehended in such application."

9. The condition to be focused upon is
"Reason to believe" which is something
more serious than a mere apprehension of
arrest.

10. The Hon'ble Apex Court in Adri
Dharan Das Vs. State of West Bengal,
(2005) 4 SCC 303 has emphasized over
this requirement and held as under.

"Section 438 is a procedural
provision which is concerned with the
personal liberty of an individual who is
entitled to plead innocence, since he is not
on the date of application for exercise of
power under Section 438 CrPC convicted
for the offence in respect of which he seeks
bail. The applicant must show that he has
"reason to believe" that he may be arrested
in a non-bailable offence. Use of the
expression "reason to believe" shows that
the belief that the applicant may be arrested
must be founded on reasonable grounds. A
belief can be said to be founded on
reasonable grounds only if there is
something tangible to go by on the basis of
which it can be said that the applicant's
apprehension that he may be arrested is
genuine. Mere "fear" is not "belief" for
which reason it is not enough for the
applicant to show that has some sort of
vague apprehension that some one is going
to make an accusation against him in
pursuance of which he may be arrested.
Grounds on which the belief on the
applicant is based that he may be arrested
in non-bailable offence must be capable of
being examined. If an application is made
to the High Court or the Court of Session, it
is for the court concerned to decide whether
a case has been made out of for granting of
the relief sought. (Para 16)"

11. The aforesaid theory makes the
legal position explicit that Section 438 (1)
of Cr.P.C. applies not only at post FIR
stage, but it does not require that the
offence must have been registered. It is
contemplated by this section that if a
person is going to apply for anticipatory
bail, he must have a reasonable belief that
he may be arrested on accusation of having
committed a non-bailable offence.

12. This Court takes note of what
their Lordship held in K. Rajasekhara
Reddy Vs. The State of Andhra Pradesh,
(1998) (2) A.P.L.J. 462 (Andhra Pradesh
High Court) ?

"The filing of a first information
report is not a condition precedent to the
exercise of the power under Section 438.
The imminence of a likely arrest founded
on a reasonable belief can be shown to
exist even if an FIR is not yet filed."

13. If the aforesaid legal theory is
translated into the facts and circumstances
of the case in hand, the Court finds that the
apprehension of arrest on the part of the
applicant is not well founded. The applicant
has failed to explain as to how he has
reasonable belief of being arrested by the
police. He has mentioned in his application
that from the total money due to Sahab Lal,
an amount of Rs.3,20,000/- has been paid
by him in his bank account on respective
dates. A statement of account has also been
filed by the applicant. It also appears from
3 All. Maneesh Pathak Vs. State of U.P.
1099
the perusal of the record that no complaint
has been moved by the said Sahab Lal to
any authority against the present applicant
in connection with the recovery of his
money given to the applicant. Further, no
application before any court has been
moved so far by opposite party no.2 to
prosecute
the
applicant.
Thus,
no
reasonable belief of being arrested exists
there.

14. It is also noteworthy that no
material in support of his plea of
entertaining reasonable belief that he is
likely to be arrested in connection with the
commission of a non-bailable offence, has
been produced on record by the applicant.
The law does not permit to knock at the
door of the Court for grant of anticipatory
bail on merely vague assertions in the
absence of any relevant material and
certainly
the
Court
will
not
grant
anticipatory bail in such a case.

15. In view of that, I find no
justification
to
allow
the
present
anticipatory bail application moved by the
applicant for want of essential ingredients
which
are
necessary
for
grant
of
anticipatory bail under Section 438 Cr.P.C.
to any person.

16. The anticipatory bail application
is accordingly rejected.
----------
(2023) 3 ILRA 1099
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.02.2023

BEFORE

THE HON'BLE AJAY BHANOT, J.

Criminal Misc. Ist Bail Application No. 18536 of
2020

Maneesh Pathak ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Amaresh Yadava, Sri Jitendra Singh, Sri
Omar Zamin (A.C.)

Counsel for the Opposite Party:
G.A.

(A) Criminal Law - The Legal Services
Authorities Act, 1987 - Chapter IV -
Entitlement to legal services - Section 12
- criteria for giving legal services , Section
12(e) - "undeserved want" - right to bail
is derived from statute but cannot be
isolated from constitutional oversight -
Legal aid is an indispensable instrument
to secure the preambled objective of
justice to all citizens - distinction between
a lis - where civil rights are adjudicated &
a criminal case in which the prisoner's
personal liberty is engaged - Absence of
the counsel at a bail hearing deprives the
prisoner-applicant
of
all
ability
to
influence the outcome of a proceeding
where his personal liberty is at stake -
While deciding bails the courts have to be
cognizant of the entitlement of prisoners
to legal aid, and also alert to their right of
hearing - In the event of non appearance
of a prisoner's counsel the court may
appoint an amicus curiae to represent the
prisoner and proceed with the hearing of
the bail.(Para - 5,8,9,14,15 ,20)

FIR lodged to rationalise a fake encounter -
staged by police authorities - No one from the
police has suffered life threatening injury -
recovered items cannot be linked to the crime -
Applicant always cooperated with investigations
and is innocent - trial moving at a snail's pace -
applicant cannot be faulted for delay - applicant
not a flight risk - always cooperated with
investigation - explained his criminal history -
convenient scapegoat for the police authorities -
Bail application - dismissed for non prosecution
- on account of absence of counsel. (Para -
28)