# Jose Papachen & Anr v. State of U.P. & Anr

- **Citation:** (2023) 9 ILRA 23
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-06
- **Case number:** Criminal Appeal No. 877 of 2023
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jose-papachen-anr-v-state-of-u-p-anr-50796
- **Pages:** 7

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 82, 161, 309, 313 &
437(3) - Indian Penal Code, 1860 -
Sections 174-A & 229-A - Scheduled
Castes and Scheduled Tribes (Prevention
of
Atrocities)
Act,
1989
-
Sections
3(1)(dha) & 14-A(2) - U.P. Prohibition of
Unlawful Conversion of Religion Act,
2021 - Sections 3, 4 & 5(1) - Constitution
of India, 1950 - Article 21- Appeal - against
the rejection of Bail Application by the Special
Judge S.C./S.T. Act - FIR - Bail Application - St.
opposed the bail application - arguing that the
appellants were actively involved in mass
religious conversions through illicit means -
Appeal - the appellants argued that they
are
innocent
and
have
been
falsely
implicated due to political rivalry - and the
complainant is not competent to lodge the
F.I.R. since he is neither the aggrieved
person, nor his/her parents, brother, sister or
any other person, who is related to him/her
by blood, marriage or adoption is aggrieved
person as provided under Section 4 of Act,
2021 - Court finds that, there was no
material
evidence
to
show
that
the
appellants
used
undue
influence
or
allurement for mass conversion - the court
also observed that the F.I.R. was not lodged
by a competent person as required under
Section 4 of the Act, 2021 - consequently,
the court concluded that the appellants are
not involved in the alleged activities and
have been falsely implicated - thus, appeal is
allowed and the impugned order is reversed
and set-aside - let the appellants are to be
enlarged on bail under the conditions
specified in the judgment - further, direction
issued to trial court to expedite the trial
within a period of one year by following the
provisions of section 309 of Cr.P.C. (Para -
16, 17, 18, 19, 21)

Appeal Allowed. (E-11)

List of Cases cited:

Dataram Singh Vs St. of U.P. & anr., reported in
(2018) 3 SCC 22

## Text

9 All. Jose Papachen & Anr. Vs. State of U.P. & Anr.
23
was suffering from bipolar disorder that is why
she committed suicide.He also submitted that
the allegation of dowry demand is levelled and
the marriage has taken prior to four years
therefore, section 304-B and 113 of the
Evidence Act is attracted and the applicant is
not entitled for bail.

7. Without expressing any opinion on the
merits of the case and after hearing learned
counsel for the parties and looking into overall
facts and circumstances of the case as well as
the argument that the deceased was suffering
fromschizophrenia bipolar disorder and she
committed suicide, the argument that the
applicant himself got treated his wife
continuously for one year which is evident from
the medical papers annexed in the affidavit filed
in support of the bail application, the argument
that general allegation of dowry demand is
levelled and there was no prior information of
any harassment and dowry demand, therefore, I
am of the opinion that the applicant is entitled to
be released on bail on the ground of parity.

8. Let the applicant, namely, Mahesh
Kumar Yadav, be released on bail in the above
case crime number on his furnishing a personal
bond and two sureties each in the like amount
to the satisfaction of Court concerned with the
following conditions :-

(i) The applicant shall file an
undertaking to the effect that he shall not seek
any adjournment on the dates fixed for evidence
when 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.

(ii) The applicant shall remain
present before the trial court on each date fixed,
either personally or through his counsel. In case
of his absence, without sufficient cause, the trial
court may proceed against him under Section
229-A of the Indian Penal Code.

(iii) In case, the applicant misuses the
liberty of bail during trial and in order to secure
his presence proclamation under Section 82
Cr.P.C. is issued and the applicant fails to
appear before the court on the date fixed in such
proclamation, then the trial court shall initiate
proceedings against him, in accordance with
law, under Section 174-A of the Indian Penal
Code.

(iv) 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 absence of the
applicant is deliberate or without sufficient
cause, then it shall be open for the trial court to
treat such default as abuse of liberty of bail and
proceed against him in accordance with law.

It is made clear that the observations
made in this order are limited to the purpose
of determination of this bail application and
will in no way be construed as an expression
on the merits of the case. The Trial Court
shall be absolutely free to arrive at its
independent conclusions on the basis of
evidence led unaffected by anything in this
order.
----------
(2023) 9 ILRA 23
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.09.2023

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 877 of 2023

Jose Papachen & Anr. ...Appellants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellants:
Vishva Nath Pratap Singh
24 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 82, 161, 309, 313 &
437(3) - Indian Penal Code, 1860 -
Sections 174-A & 229-A - Scheduled
Castes and Scheduled Tribes (Prevention
of
Atrocities)
Act,
1989
-
Sections
3(1)(dha) & 14-A(2) - U.P. Prohibition of
Unlawful Conversion of Religion Act,
2021 - Sections 3, 4 & 5(1) - Constitution
of India, 1950 - Article 21- Appeal - against
the rejection of Bail Application by the Special
Judge S.C./S.T. Act - FIR - Bail Application - St.
opposed the bail application - arguing that the
appellants were actively involved in mass
religious conversions through illicit means -
Appeal - the appellants argued that they
are
innocent
and
have
been
falsely
implicated due to political rivalry - and the
complainant is not competent to lodge the
F.I.R. since he is neither the aggrieved
person, nor his/her parents, brother, sister or
any other person, who is related to him/her
by blood, marriage or adoption is aggrieved
person as provided under Section 4 of Act,
2021 - Court finds that, there was no
material
evidence
to
show
that
the
appellants
used
undue
influence
or
allurement for mass conversion - the court
also observed that the F.I.R. was not lodged
by a competent person as required under
Section 4 of the Act, 2021 - consequently,
the court concluded that the appellants are
not involved in the alleged activities and
have been falsely implicated - thus, appeal is
allowed and the impugned order is reversed
and set-aside - let the appellants are to be
enlarged on bail under the conditions
specified in the judgment - further, direction
issued to trial court to expedite the trial
within a period of one year by following the
provisions of section 309 of Cr.P.C. (Para -
16, 17, 18, 19, 21)

Appeal Allowed. (E-11)

List of Cases cited:

Dataram Singh Vs St. of U.P. & anr., reported in
(2018) 3 SCC 22
(Delivered by Hon'ble Shamim Ahmed, J.)

1. This Court vide order dated
24.08.2023 had passed the following order:

"1.The case is being taken up in
the revised call.

2. Learned A.G.A. has already
filed the counter affidavit. In reply thereto
learned counsel for the appellant has filed
the rejoinder affidavit. The same are
available on record.

3. Vide order dated 31.07.2023
this Court had passed the following order:

"Learned A.G.A. has filed counter
affidavit today in Court. The same is taken
on record.

Learned
counsel
for
the
appellants prays for and is allowed ten
days' time to file rejoinder affidavit.

As per Office Report dated
28.07.2023, notice has already been served
upon opposite party no.2 but neither any
counter affidavit has been filed till date nor
any counsel is present to represent the
opposite party no.2.

As a last opportunity, ten days'
time is granted to the opposite party no.2
for filing counter affidavit.

Two days, thereafter, is allowed to
the learned counsel for the appellants to
file rejoinder affidavit.

Put up this case on 24.08.2023. "

4. Today, when the case is taken
up, neither any counsel has appeared on
behalf of opposite party No. 2 nor counter
affidavit has been filed on her behalf. It
appears that the opposite party No.2 is
interested to contest the case.

5. In the above circumstances, as
the matter pertains to bail, this Court has
no option but to proceed for final
arguments to decide the present appeal.

6. Heard Sri Vishva Nath Pratap
Singh, learned counsel for the appellants
9 All. Jose Papachen & Anr. Vs. State of U.P. & Anr.
25
and Ms. Shikha Sinha, learned A.G.A. for
the State.

7. Judgement reserved."

2. The present criminal appeal under
Section 14-A (2) Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities)
Act
has
been preferred
against
the
impugned order dated 03.03.2023 passed
by court of learned Special Judge S.C./S.T.
Act, Ambedkar Nagar, in Bail Application
No. 178/2023 (Jose Papachen and another
Vs. State of U.P.), arising out of Case
Crime No. 0031/2023, under Section 3 and
5 (1) of Uttar Pradesh Prohibition of
Conversion of Religion Act, 2021 (here-inafter referred to as "Act 2021") and Section
3 (1) (Dha) SC/ST Act, Police Station
Jalalpur,
District
Ambedkar
Nagar,
whereby the bail application of the
appellant has been rejected.

3. Learned counsel for the appellants
submits that on 24.01.2023 an F.I.R. was
lodged under Section 3 and 5 (1) of Uttar
Pradesh Prohibition of Unlawful Conversion
of Religion Act, 2021(herein after called as
the Act, 2021) and Section 3(1) (dha) of
Schedule
Caste
and
Schedule
Tribe
(Prevention
of
Atrocities)
Act,
1989
(Amendment 2015) against the appellants at
Police Station Jalalpur bearing F.I.R. No.
0031 by the complainant, who is Zila Manti
of Bhartiya Janta Party Ambedkar Nagar,
alleging therein that the appellants are
engaged for conversion of religion by various
allurement amongst the communities of
Scheduled Caste and Scheduled Tribe since
three months. Consequently, the members of
Scheduled Caste and Scheduled Tribe are
annoyed with the activities of conversion of
Religion by the appellants.

4. Learned counsel for the appellants
further submits that the appellants are
innocent and has been falsely implicated in
the present case due to political rivalry. The
appellants are not involved in any such type
of activities, as alleged in the F.I.R. and the
F.I.R. has been lodged only to defame the
image of the appellants and their entire
family in the society.

5. Learned counsel for the applicant
has placed emphasis on Section 3 of the
Act, 2021 which provides prohibition of
conversion from one religion to another
religion by misrepresentation, force, fraud,
undue influence, coercion and allurement,
clearly specifying that conversion on the
aforesaid grounds from one religion to
another
religion
is
prohibited.
False
allegations regarding allurement and undue
influence for the purposes of mass
conversion have been made. It has also
been alleged that free treatment was being
provided to patients in the hospital which
can not be said to be a temptation for
purposes of mass conversion.

6. Learned counsel for the applicant
has also placed emphasis on Section 4 of
the Act, 2021 which is being quoted herein-below:

"4. Person competent to lodge
First Information Report-Any aggrieved
person, his/her parents, brother, sister, or
any other person who is related to him/her
by blood, marriage or adoption may lodge a
First
Information
Report
of
such
conversion
which
contravenes
the
provisions of Section 3."

7. Learned counsel for the appellants
further submits that the embargo under
Section 4 as to who can lodge an F.I.R.
regarding an offence under Section 3 of the
Act, 2021 is absolute. The complainant is
neither the aggrieved person, nor his/her
26 INDIAN LAW REPORTS ALLAHABAD SERIES
parents, brother, sister or any other person,
who is related to him/her by blood,
marriage or adoption is aggrieved person as
provided under Section 4 of the Uttar
Pradesh
Prohibition
of
Unlawful
Conversion
of
Religion
Act,
2021.
Complainant just being the Zila Mantri of
ruling party has lodged the instant first
information report for gaining his political
goodwill amongst the members of society,
although he is not competent to lodge the
present FIR as per the provisions of Section
4 of the Act 2021.

8. Learned counsel for the appellants
further submits that the appellants are not
involved in activity of attempt to convert,
either directly or otherwise, any other
person from one religion to another by use
or practice of misrepresentation, force,
undue influence, coercion, allurement or by
any fradulent means and they have been
falsely implicated in the present case and
the complainant has no locus to lodge the
present F.I.R. as provided under Section 4
of the Act, 2021.

9. Learned counsel for the appellants
further relied on the statements of villagers
recorded under Section 161 Cr.P.C. and
submits that villagers have stated in their
statements that the appellants used to give
them good teachings and even distribute
Holy Bible books to them and even
encourage them to get their children
educated and it was further stated by the
villagers that appellants used to organize
assembly of villagers and used to perform
"Bhandara" and they also implant amongst
the
children
the knowledge
to
live
peacefully. They even instructed the
villagers not to enter into altercation and
also not to take liquor.

10. Learned counsel for the applicant
emphasized
upon
the
definition
of
''allurement'. He submits that providing
good teachings, distributing Holy Bible
books,
encouraging
children
to
get
education, organizing assembly of villagers
and performing "Bhandara" and instructing
the villagers not to enter into altercation
and also not to take liquor do not amount to
allurement, rather it would be a failure on
the part of the State to provide basic
facilities to individuals in need of the same.

11. Learned counsel for the appellant
further submits that accused/appellant is
languishing in jail since 24.01.2023, who
has no previous criminal history, and in
case the appellant is enlarged on bail, he
shall not misuse the liberty of bail and he
shall also fully cooperate with the trial. He
has further submitted that there is no
possibility of the appellant to intimidate or
pressurize the witnesses or any other
persons acquainted with the facts of the
present case.

12. For the aforesaid reasons, learned
counsel for the appellants submits that the
instant criminal appeal deserves to be
allowed and the order dated 03.03.2023
passed by court of learned Special Judge
S.C./S.T. Act, Ambedkar Nagar, in Bail
Application No. 178/2023 (Jose Papachen
and another Vs. State of U.P.), arising out
of Case Crime No. 0031/2023, under
Section 3 and 5 (1) of Uttar Pradesh
Prohibition of Conversion of Religion Act,
2021 and Section 3 (1) (Dha) SC/ST Act,
Police Station Jalalpur, District Ambedkar
Nagar, deserves to be set aside and
consequently,
the
accused/appellants
deserve to be enlarged on bail during
pendency of the trial.
9 All. Jose Papachen & Anr. Vs. State of U.P. & Anr.
27

13. Several other submissions in order
to demonstrate the falsity of the allegations
made against the appellant have also been
placed
forth 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
appellant that he is ready to cooperate with
the process of law and shall faithfully make
himself available before the court whenever
required and is also ready to accept all the
conditions which the Court may deem fit to
impose upon him. It has also been pointed
out that the accused is not having any
criminal history and he is in jail since
24.01.2023 and that in the wake of heavy
pendency of cases in the Court, there is no
likelihood of any early conclusion of trial.

14. Per contra, learned A.G.A. has
vehemently
opposed
the
prayer
by
submitting that there is active participation
of accused/appellant in the crime. He states
that the present case concerns mass
religious conversions within the State of
Uttar Pradesh from Hindu religion to
Christianity through illicit means. The
appellants
are
allegedly
using
psychological
pressure
for
forceful
conversions, as part of their plan to set up
an Christianity state. Learned AGA further
submits that appellants use to allure people
by undue influence just to convert people
from other religions to Christianity to carry
out mass conversions. Therefore, the
accused/ appellant is not entitled to be
enlarged on bail and the instant criminal
appeal deserves to be dismissed. However,
he has been unable to dispute the other
factual submissions advanced by the
learned counsel for the accused/appellants
that the complainant is Zila Manti of a
ruling partyis neither the aggrieved person,
his/her parents, brother, sister or any other
person, who is related to him/her by blood,
marriage or adoption, as provided under
Section 4 of the Uttar Pradesh Prohibition
of Unlawful Conversion of Religion Act,
2021, thus he is not competent to lodge the
present F.I.R.

15. In the considered opinion of this
Court, after a detailed discussion and
evaluation of the material on record it is to
be taken into consideration by this Court
that
primary
allegation
against
the
appellants is of having contravened the
provisions of Section 3 of the Act of 2021,
which prohibits conversion or attempt of
conversion either directly or otherwise
from one religion to another by use of
practice of misrepresentation, force, undue
influence, coercion, allurement or by any
fraudulent means. But there does not
appear to be any material as to show that
appellants had used any undue influence or
allurement to the said villagers for mass
conversion.
Rather
appellants
were
involved in providing good teachings to
children and promoting the spirit of
brotherhood amongst the villagers and
there does not appear to be existence of any
material which would suggest conversion
by use of force.

16. It also requires to be noted that the
instant first information was not lodged by
the competent person as required under
Section 4 of the Act of 2021. The various
categories of person enumerated in Section
4, who are competent to lodge the first
information report are any aggrieved
person. The words "any aggrieved person"
at the very start of the said section can be
interpreted to mean any person, especially
since there is no provision under the I.P.C.
or Cr.P.C., which bars or prohibits any
person from lodging a first information
report
regarding
cognizable
offence.
28 INDIAN LAW REPORTS ALLAHABAD SERIES
However, the words " any aggrieved
person" is qualified by the subsequent
categories and the words his, her parents,
brother, sisters or blood relations by
marriage and adoption included. Therefore,
the words "any aggrieved person", if taken
by themselves are extremely wide. The
scope of the said term is completely
whittled down by subsequent categories
and therefore, it has to be said that any
aggrieved person would be a person but is
personally
aggrieved by
his or her
fraudulent conversion be it an individual or
in a mass conversion ceremony. Any
interpretation to the contrary would render
the remainder of Section 4 after the words
"any aggrieved person " wholly redundant
and
also
render
the
Section
itself
completely meaningless. Under the said
circumstances the first information report
dated 24-01-2023 was not lodged by a
competent person.

17. After perusing the record in the
light of the submissions made at the bar
and after taking an overall view of all the
facts and circumstances of this case, the
nature of evidence, the period of detention
already undergone, unlikelihood of early
conclusion of trial and also in absence of
any convincing material to indicate the
possibility of tampering with the evidence
and considering the fact that there appears
force in the argument of learned counsel for
the appellants that the appellants are not
involved in activity of attempt to convert,
either directly or otherwise, any other
person from one religion to another by use
or practice of misrepresentation, force,
undue influence, coercion, allurement or by
any fradulent means and they have been
falsely implicated in the present case and
the complainant has no locus to lodge the
present F.I.R. as provided under Section 4
of the Act, 2021 and there also appears
force in the argument of learned counsel for
the
appellants
that
providing
good
teachings, distributing Holy Bible books,
encouraging children to get education,
organizing assembly of villagers and
performing "Bhandara" and instructing the
villagers not to enter into altercation and
also not to take liquor do not amount to
allurement and further considering that the
complainant is Zila Mantri of a ruling party
and is neither the aggrieved person, his/her
parents, brother, sister or any other person,
who is related to him/her by blood,
marriage or adoption, as provided under
Section 4 of the Uttar Pradesh Prohibition
of Unlawful Conversion of Religion Act,
2021,
thus
the
complainant
is
not
competent to lodge the present F.I.R. and
further considering the fact that appellant is
in jail since 24.01.2023 and has now by
done a substantial period of detention and
further considering the larger mandate of
the Article 21 of the Constitution of India
and the law laid down by the Hon'ble Apex
Court in the case of Dataram Singh Vs.
State of UP and another, reported in
(2018) 3 SCC 22, this Court is of the view
that the learned court below has failed to
appreciate the material available on record,
the impugned order passed by the trial
court is liable to be set aside.

18. Accordingly, the appeal is
allowed. Consequently, the order dated
03.03.2023 passed by court of learned
Special Judge S.C./S.T. Act, Ambedkar
Nagar, in Bail Application No. 178/2023
(Jose Papachen and another Vs. State of
U.P.), arising out of Case Crime No.
0031/2023, under Section 3 and 5 (1) of
Uttar Pradesh Prohibition of Conversion of
Religion Act, 2021 and Section 3 (1) (Dha)
SC/ST Act, Police Station Jalalpur, District
Ambedkar Nagar is hereby reversed and
set aside.
9 All. Dinesh Kumar Gupta & Ors. Vs. State of U.P. & Anr.
29

19. Let the appellants, Jose Papachen and
Sheeja, be enlarged on bail in Case Crime No.
0031/2023, under Section 3 and 5 (1) of Uttar
Pradesh Prohibition of Conversion of Religion
Act, 2021 and Section 3 (1) (Dha) SC/ST Act,
Police Station Jalalpur, District Ambedkar Nagar
with the following conditions:-

(i) The appellants shall furnish a
personal bond with two sureties each of like
amount to the satisfaction of the court concerned.

(ii) The appellants shall appear and
strictly comply following terms of bond executed
under section 437 sub section 3 of Chapter- 33 of
Cr.P.C.:-

(a) The appellants shall attend in
accordance with the conditions of the bond
executed under this Chapter.

(b) The appellants shall not commit an
offence similar to the offence of which they are
accused, or suspected, of the commission of
which they are suspected, and

(c) The appellants 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 them from disclosing such facts
to the Court or to any police officer or tamper with
the evidence.

(iii) The appellants shall cooperate with
investigation /trial.

(iv) The appellants shall file an
undertaking to the effect that they shall not seek
any adjournment on the dates fixed for evidence
when 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.

(v) The appellants shall remain present
before the trial court on each date fixed, either
personally or through their counsel. In case of their
absence, the trial court may proceed against them
under Section 229-A of the Indian Penal Code.

(vi) In case, the appellants misuse the
liberty of bail during trial, in order to secure their
presence, proclamation under section 82 Cr.P.C. is
issued and the appellants fail to appear before the
court on the date fixed in such proclamation, then,
the trial court shall initiate proceedings against
them, in accordance with law, under Section 174A of the Indian Penal Code.

(vii) The appellants shall remain
present, 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 absence
of the appellants is deliberate or without sufficient
cause, then it shall be open for the trial court to
treat such default as abuse of liberty of bail and
proceed against them in accordance with law.

20. It is clarified that the observations, if any,
made in this order are strictly confined to the
disposal of the prayer for bail and must not be
construed to have any reflection on the ultimate
merit of the case.

21. The trial court is also directed to
expedite the trial of the aforesaid case,
within a period of one year from today, by
following the provisions of Section 309
Cr.P.C., strictly without granting any
unnecessary adjournments to the parties, in
case there is no other legal impediment.
----------
(2023) 9 ILRA 29
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.09.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Appeal No. 2263 of 2023

Dinesh Kumar Gupta & Ors. ...Appellants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellants:
Pradeep Kumar Shukla, Skand Bajpai