# Kapil Chanchal Gupta @ Lucky Gupta & Anr v. State of U.P. & Anr

- **Citation:** (2021) 9 ILRA 1141
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-16
- **Case number:** Crl. Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 6334 of 2021
- **Bench:** Chandra Dhari Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kapil-chanchal-gupta-lucky-gupta-anr-v-state-of-u-p-anr-47356
- **Pages:** 4

## Headnote

A. Criminal Law - Anticipatory Bail - Code
of Criminal Procedure,1973 - Section 438 -
Dowry Prohibition Act - Section 3 & 4 -
Indian Penal Code,1860 - Sections 498-A,
323, 504, 506, 313 & 377 - Charge sheet
has been filed by the investigating officer in
which offences levelled against the applicant no.
1142 INDIAN LAW REPORTS ALLAHABAD SERIES
2 u/ss. 313 and 377 IPC have been dropped as
no evidence has been gathered against the
applicant in that regard. Applicant has no
criminal history. Applicant no. 2 has been
cooperating and has not been arrested during
the investigation. (Para 12)

Accordingly, anticipatory bail application
allowed. (E-4)

Precedent cited:

## Text

9 All Kapil Chanchal Gupta @ Lucky Gupta & Anr. Vs. State of U.P. & Anr.
1141
instrumentality of the State, and not by
private persons or private bodies.

34. However, a perusal of the
F.I.R. shows that Swaran Singh did not not
use these offensive words in the public
view. There is noting in the F.I.R. to show
that any member of the public was present
when Swaran Singh uttered these words, or
that the place where he uttered them was a
place which ordinarily could be seen by the
public. Hence in our opinion no prima
facie is made out against appellant no.1."

12. Complainant Gajendra in his
statement recorded under Section 200 Cr.P.C.
has specifically stated that on 30.5.20219 at
4:00 PM, appellants forcibly entered into his
house and beaten him and uttered words
naming his caste and also threatened to kill him.
Accused Mahesh tried to strangulate him.

13. Witnesses C.W.-1 Sompal and C.W.-
2 Manipal have also deposed the same fact.

14. As in view of the authority of Hon.
Apex Court in Swaran Singh & Ors. Vs.
State Through Standing Counsel & Anr.
(2009 All. C.J. 751) alleged offences under
Section 3(1)(r) and 3(1)(s) of SC/ST Act have
been
committed
inside
the
house
of
complainant. So, I am of the considered opinion
that it cannot be said that offences were
committed within public view.

15. So far as the allegation of
strangulation is concerned, no injury report of
the complainant is on record. It has also been
admitted that one more case relating to SC/ST
Act is pending in the court between the parties.

16. Learned counsel for respondent no.2
and learned A.G.A. for the State could not give
satisfactory answer of the aforesaid argument
relating to commission of offence within public
view.

17. The upshot of the above discussion is
that the impugned order dated 9.2.2021 passed
by learned Special Judge, SC/ST Act, is not
within the four-corners of law, therefore cannot
be sustained.

18. Accordingly, appeal succeeds and is
allowed.

19. Order dated 9.2.2021 passed by
learned Special Judge, SC/ST Act is set aside.

20. Matter is remitted to the lower court
concerned to pass orders afresh, after providing
opportunity of hearing to both the parties, in the
light of observations made in the body of
judgment.
----------
(2021)09ILR A1141
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.09.2021

BEFORE

THE HON'BLE CHANDRA DHARI SINGH, J.

Crl. Misc. Anticipatory Bail Application U/S 438
Cr.P.C. No. 6334 of 2021

Kapil Chanchal Gupta @ Lucky Gupta &
Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Surya Prakash Singh

Counsel for the Opposite Parties:
G.A., Om Prakash Nag, Sonu Shukla

A. Criminal Law - Anticipatory Bail - Code
of Criminal Procedure,1973 - Section 438 -
Dowry Prohibition Act - Section 3 & 4 -
Indian Penal Code,1860 - Sections 498-A,
323, 504, 506, 313 & 377 - Charge sheet
has been filed by the investigating officer in
which offences levelled against the applicant no.
1142 INDIAN LAW REPORTS ALLAHABAD SERIES
2 u/ss. 313 and 377 IPC have been dropped as
no evidence has been gathered against the
applicant in that regard. Applicant has no
criminal history. Applicant no. 2 has been
cooperating and has not been arrested during
the investigation. (Para 12)

Accordingly, anticipatory bail application
allowed. (E-4)

Precedent cited:

1. Ankit Bharti Vs State of U.P. & anr. - 2020
(3) ADJ 575 (F.B.) (Para 5)

Precedent followed:

1. Siddharth Vs The St. of U.P. & anr., 2021 SCC
Online SC 615 and Aman Preet Singh Vs CBI
through Director CBI (Criminal Appeal No. 929
of 2021) (Para 7)

(Delivered by Hon'ble Chandra Dhari
Singh, J.)

1. Heard Sri S.P. Singh, learned counsel
for the applicant no. 2, Sri Om Prakash Nag,
learned counsel for the complainant and Sri
Rajesh Kumar Singh, learned Additional
Government Advocate for the State.

2. This anticipatory bail application has
been moved seeking bail in Case Crime No.
326 of 2020, under section 498-A, 323, 504,
506, 313, 377 IPC and 3/4 D.P. Act, Police
Station Choauk, District Lucknow, during the
pendency of trial.

3. Learned counsel for the applicant no.
2 submitted that applicant no. 2 is father-inlaw of the opposite party no. 2. It is submitted
in the F.I.R. that general allegation has been
levelled against the accused applicant no. 2. It
is submitted that the entire story has been
cooked up on the basis of false and fabricated
facts. He has been falsely implicated in the
said case. It is submitted that he has great
apprehension of imminent arrest in the instant
case by the police. Offences under Sections
498-A, 323, 504, 506, 313, 377 IPC and 3/4
D.P. Act are non-bailable offences. It is
submitted that there is matrimonial dispute
going on between the husband and wife i.e.
Kapil Chanchal Gupta and Smt. Shalinin
gupta
and
due
to
which,
complainant/opposite party no. 2 has falsely
implicated the entire family of the applicant
no. 1 including the applicant no. 2. It is
submitted
that
investigation
has
been
completed and charge sheet has been filed by
the investigating officer in which offences
levelled against the applicant no. 2 under
Sections 313 and 377 IPC have already been
dropped as no evidence has been gathered
against the applicant in that regard. Husband
of the opposite party no. 2 has filed the
divorce petition before the Family Court,
Shahjahanpur in which notice had been
issued to the opposite party no. 2 on 4.9.2020.
Thereafter, opposite party no. 2 has lodged a
false case against the applicant no. 1 and his
entire family on 11.9.2020. It is further
submitted that opposite party no. 2 has also
filed
a
transfer
petition
i.e. Transfer
Application No. 8 of 2021 in the High Court,
Allahabad in which vide order dated
18.1.2021, the Hon'ble High Court has stayed
the proceedings in the divorce petition
pending
before
the
Family
Court,
Shahjahanpur.

4. Learned counsel for the applicant
submitted that instant case has been
initiated against the applicant no. 2 is
nothing but a gross misuse of process of
law. The opposite party no. 2 has falsely
implicated the applicant no. 2 as well as
entire family of the applicant in this case
for creating pressure to settle the entire
matrimonial dispute.

5. It is submitted that applicant has
approached
this
Court
directly
in
9 All Kapil Chanchal Gupta @ Lucky Gupta & Anr. Vs. State of U.P. & Anr.
1143
extraordinary
circumstances
that
the
present application has been filed before
the court below when the learned court
below was not functioning properly
during Covid-19 pandemic. It is also
submitted that applicant no. 2 is the
resident of District Shahjahanpur, as
such, he was under threat of arrest and in
such circumstances he has approached
this Court directly. It is vehemently
submitted that there is no violation of
conditions which has been made by the
Full Bench of this Court in the case of
Ankit Bharti v. State of U.P. & Anr. -
2020 (3) ADJ 575 (F.B.) for filing the
anticipatory bail directly before this
Court.

6. Learned counsel for the applicant
submitted that vide order dated 9.8.2021
of this Court, applicant had been granted
interim relief and since then he is
cooperating
in
the
investigation,
therefore, charge sheet has been filed and
during investigation, he has not been
arrested.

7. Learned Senior Counsel has
contended that during the course of
investigation, the applicant was not
arrested by the CBI and now the chargesheet has been filed, therefore, the
applicant is entitled for anticipatory bail
in view of the law laid down by Hon'ble
Supreme Court in the cases of Siddharth
vs The State of Uttar Pradesh and
another; 2021 SCC Online SC 615 and
Aman Preet Singh vs. CBI through
Director CBI (Criminal Appeal No.929
of 2021).

8. Learned Additional Government
Advocate has opposed the prayer for
anticipatory bail but has not contradicted
the aforesaid facts as stated by learned
counsel for the applicant.

9.

Learned
counsel
for
the
complainant has vehemently opposed the
prayer for grant of anticipatory bail and
has submitted that applicant no. 2 has
committed grievous offence, therefore,
anticipatory bail should not be granted.

10. Heard learned counsel for the
parties and perused the record.

11. I have perused the F.I.R.,
contentions made in bail application,
counter affidavit filed by the State &
complainant as well as rejoinder affidavit
filed by the applicant.

12. Considering the facts and
circumstances of the case and without
entering into the merits of the case and
material available on record, It is
admitted fact that charge sheet has been
filed by the investigating officer in which
offences levelled against the applicant no.
2 under Sections 313 and 377 IPC have
been dropped as no evidence has been
gathered against the applicant in that
regard. Applicant has no criminal history.
It is not disputed by the learned counsel
for the complainant as well as learned
A.G.A. that applicant no. 2 is cooperating
in the investigation. Applicant no. 2 has
not
been
arrested
during
the
investigation.

13.

Accordingly,
the
present
anticipatory bail application is allowed.

14. In the event of arrest, the
applicant no. 2- Vijay Gupta @ Vijay
Kumar Gupta involved in the aforesaid
case, shall be released on anticipatory bail
1144 INDIAN LAW REPORTS ALLAHABAD SERIES
on furnishing a personal bond with two
sureties each in the like amount to the
satisfaction of the court concerned with the
following conditions:-

(i) That the accused-applicant no.
2 shall not leave India during pendency of
the
investigation/trial
without
prior
permission from the concerned Court and
shall also surrender his passport, if any,
before the concerned Court forthwith;

(ii) That the accused-applicant
no. 2 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

(iii) The applicant no. 2 shall file
an undertaking to the effect that he 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.

(iv) The applicant no. 2 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.

(v) In case, the applicant no. 2
misuses the liberty of bail 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.

(vi) The applicant no. 2 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 him in accordance with law.
----------
(2021)09ILR A1144
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.09.2021

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.

Arbitration Application No. 10 of 2019

F.C.I. & Ors. ...Applicants
Versus
M/s P. Roy & Co. & Anr. ...Opposite Parties

Counsel for the Applicants:
Anurag Verma, Apoorva Tewari, Brijesh
Kumar

Counsel for the Applicants:
Dhirendra Kumar Srivastav, Rajnish Ojha,
Rakesh Dwivedi, Rao Narendra Singh,
Sormi Dutta, Vinay Kumar Yadav

A. Arbitration Law - Appointment of
arbitrator - Arbitration and Conciliation
Act, 1996 - Section 11(6) & 15(2) -
Procedure after termination of mandate
for
appointment
of
the
substitute
arbitrator - The parties are free to choose
and save the purpose of arbitration clause
by their own conduct failing which the
judicial
forum
for
appointment
of
arbitrator
once
resorted
to
assumes
certainty and the substitute arbitrator is
to be appointed by the same forum so as
to avoid adjudicatory delays and that is
why the special mechanism is recognised
by law. The Court may explore an opportunity
of mutual consent at the very first opportunity
which in the event of failure, as is the case at