# Kaushal Anand v. State of U.P. & Anr

- **Citation:** (2023) 9 ILRA 13
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-24
- **Bench:** Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kaushal-anand-v-state-of-u-p-anr-50755
- **Pages:** 9

## Headnote

Law-Criminal
Procedure
Code,1973-Section 438 - Indian Penal
Code,1860-Sections 323, 328, 376 & 506complainant had willingly been stayed
with the appellant and continued with the
relationship and since the relationship
was not working out, it was held that it
was no ground to lodge an F.I.R. for the
offence under Section 376 (2) (n) IPC, but
the elements of seducement, concealment
of marital status with ulterior motive on
the part of the accused and commission of
rape upon the victim by adopting deceitful
means present in the case in hand- As a
married person having his wife and two
children, the applicant was never in a
position to marry with the prosecutrix, but
the concealment of his marital status from
the victim of the case and making physical
relations with her is a discernible fact that
since
the
very
inception,
he
never
intended to marry with the prosecutix and
with
malafide
motives
he
was
only
fulfilling his lust-not only in her statement
14 INDIAN LAW REPORTS ALLAHABAD SERIES
under Section 161 Cr.P.C., but in the
statement under Section 164 Cr.P.C. as
well the prosecutrix, who is said to be a
model, has avowed consistently the whole
story and sequence of incidents in respect
of the commission of the crime alleged
against the applicant and has narrated
how rape was committed to her by the
applicant
after
administering
some
intoxicant in the cold drink to her and
pretending himself to be a bachelor- if it is
established and proved that from the
inception the accused who gave the
promise to the prosecutrix to marry, did
not have any intention to marry and the
prosecutrix gave the consent for sexual
intercourse on such an assurance by the
accused that he would marry her, such a
consent can be said to be a consent
obtained on a misconception of fact as per
Section 90 of the IPC and, in such a case,
such a consent would not excuse the
offender and such an offender can be said
to have committed the rape as defined
under Sections 375 of the IPC and can be
convicted for the offence under Section
376 of the IPC.(Para 1 to 22)

B. To summarise the legal position that
emerges from the above cases, the
"consent" of a woman with respect to
Section 375 must involve an active and
reasoned
deliberation
towards
the
proposed act. To establish whether the
"consent"
was
vitiated
by
a
"misconception of fact" arising out of a
promise to marry, two propositions must
be established. The promise of marriage
must have been a false promise, given in
bad faith and with no intention of being
adhered to at the time it was given. The
false promise itself must be of immediate
relevance, or bear a direct nexus to the
woman's decision to engage in the sexual
act. (Para 11)

C. The relief of Anticipatory Bail is aimed
at safeguarding individual rights. While it
serves as a crucial tool to prevent the
misuse of the power of arrest and protects
innocent individuals from harassment, it
also presents challenges in maintaining a
delicate balance between individual rights
and the interests of justice. The tight rope
we must walk lies in striking a balance
between safeguarding individual rights
and protecting public interest. While the
right
to
liberty
and
presumption
of
innocence are vital, the court must also
consider the gravity of the offence, the
impact on society, and the need for a fair
and
free
investigation.
The
court's
discretion in weighing these interests in
the facts and circumstances of each
individual case becomes crucial to ensure
a just outcome. (Para 20)
The application is rejected. (E-6)

List of Cases cited:

## Text

9 All. Kaushal Anand Vs. State of U.P. & Anr.
13
Court which resulted into issuance of
punitive process against him and for
making a declaration against him to bring
him under the category of a proclaimed
offender. Since no such exceptional ground
exists in favour of the applicant, he,
without adhering himself to the legal
process issued by the Court, is bereft of
protection provided by the statute by way
of anticipatory bail.

11. Recently, the Hon'ble Apex Court
in Abhishek Vs. State of Maharashtra,
(2022) 8 SCC 282 has reiterated the legal
dictum in respect of grant of anticipatory
bail to an absconder and held as hereunder :

"68. As regards the implication
of proclamation having been issued
against the appellant, we have no
hesitation in making it clear that any
person,
who
is
declared
as
an
"absconder" and remains out of reach of
the investigating agency and thereby
stands directly at conflict with law,
ordinarily, deserves no concession or
indulgence. By way of reference, we may
observe that in relation to the indulgence
of pre-arrest bail in terms of Section 438
CrPC, this Court has repeatedly said that
when an accused is absconding and is
declared as proclaimed offender, there is
no question of giving him the benefit of
Section 438 CrPC." (Prem Shankar
Prasad case (supra) referred to.)

12. In view of the established law laid
down by the Hon'ble Apex Court, I deem it
not a fit case for grant of anticipatory bail
to the present applicant. Such a person,
who
does
not
cooperate
with
the
investigation / trial at all and has been a
willful defaulter, is not entitled for any
relief from this Court by way of granting
anticipatory bail.

13. Accordingly, and in view of the
above, this anticipatory bail application is
rejected.
----------
(2023) 9 ILRA 13
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.08.2023

BEFORE

THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Misc. Anticipatory Bail Application U/S
438 of CR.P.C. No. 9261 of 2023

Kaushal Anand ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Anshu Singh, Sri Hemendra Pratap Singh

Counsel for the Opposite Parties:
G.A., Sri Jitendra Pal Singh Jadaun, Seema
Singh Jadaun

A.
Criminal
Law-Criminal
Procedure
Code,1973-Section 438 - Indian Penal
Code,1860-Sections 323, 328, 376 & 506complainant had willingly been stayed
with the appellant and continued with the
relationship and since the relationship
was not working out, it was held that it
was no ground to lodge an F.I.R. for the
offence under Section 376 (2) (n) IPC, but
the elements of seducement, concealment
of marital status with ulterior motive on
the part of the accused and commission of
rape upon the victim by adopting deceitful
means present in the case in hand- As a
married person having his wife and two
children, the applicant was never in a
position to marry with the prosecutrix, but
the concealment of his marital status from
the victim of the case and making physical
relations with her is a discernible fact that
since
the
very
inception,
he
never
intended to marry with the prosecutix and
with
malafide
motives
he
was
only
fulfilling his lust-not only in her statement
14 INDIAN LAW REPORTS ALLAHABAD SERIES
under Section 161 Cr.P.C., but in the
statement under Section 164 Cr.P.C. as
well the prosecutrix, who is said to be a
model, has avowed consistently the whole
story and sequence of incidents in respect
of the commission of the crime alleged
against the applicant and has narrated
how rape was committed to her by the
applicant
after
administering
some
intoxicant in the cold drink to her and
pretending himself to be a bachelor- if it is
established and proved that from the
inception the accused who gave the
promise to the prosecutrix to marry, did
not have any intention to marry and the
prosecutrix gave the consent for sexual
intercourse on such an assurance by the
accused that he would marry her, such a
consent can be said to be a consent
obtained on a misconception of fact as per
Section 90 of the IPC and, in such a case,
such a consent would not excuse the
offender and such an offender can be said
to have committed the rape as defined
under Sections 375 of the IPC and can be
convicted for the offence under Section
376 of the IPC.(Para 1 to 22)

B. To summarise the legal position that
emerges from the above cases, the
"consent" of a woman with respect to
Section 375 must involve an active and
reasoned
deliberation
towards
the
proposed act. To establish whether the
"consent"
was
vitiated
by
a
"misconception of fact" arising out of a
promise to marry, two propositions must
be established. The promise of marriage
must have been a false promise, given in
bad faith and with no intention of being
adhered to at the time it was given. The
false promise itself must be of immediate
relevance, or bear a direct nexus to the
woman's decision to engage in the sexual
act. (Para 11)

C. The relief of Anticipatory Bail is aimed
at safeguarding individual rights. While it
serves as a crucial tool to prevent the
misuse of the power of arrest and protects
innocent individuals from harassment, it
also presents challenges in maintaining a
delicate balance between individual rights
and the interests of justice. The tight rope
we must walk lies in striking a balance
between safeguarding individual rights
and protecting public interest. While the
right
to
liberty
and
presumption
of
innocence are vital, the court must also
consider the gravity of the offence, the
impact on society, and the need for a fair
and
free
investigation.
The
court's
discretion in weighing these interests in
the facts and circumstances of each
individual case becomes crucial to ensure
a just outcome. (Para 20)
The application is rejected. (E-6)

List of Cases cited:

1. Pratibha Manchanda & anr. Vs St. of Har. &
anr. (2023) SCC OnLine SC 785

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

3. Mr. X Vs St. of Mah. & anr. (2023) 124 ACC
673

4. Naim Ahamed Vs St. (NCT of Delhi) (2023)
LiveLaw SC 66 CRLA No.257 of 2023, SLP (Crl.)
No.8586 of 2017

5. Yedla Srinivasa Rao Vs St. of A.P. (2006) 11
SCC 615 : (AIR Online 2006 SC 40, para 13)

6. Deepak Gulati Vs St. of Har. (2013) 7 SCC
675 : (AIR 2013 SC 2071)

7. Pramod Suryabhan Pawar Vs St. of Mah. &
anr. (2019) AIR SC 4010

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

1. Counter affidavit filed on behalf of
the informant / opposite party no.2 is taken
on record.

2. Apprehending his arrest in Case
Crime No.568 of 2023, under Sections 323,
328, 376, 506 IPC, Police Station Quarsi,
District Aligarh, the present anticipatory
9 All. Kaushal Anand Vs. State of U.P. & Anr.
15
bail application has been moved on behalf
of the applicant Kaushal Anand seeking
anticipatory bail.

3. Heard learned counsel for the
applicant, learned A.G.A. for the State as
well as learned counsel for the informant /
opposite party no.2 and perused the record.

4. Prosecution story as unfolded in the
F.I.R. is that the applicant developed family
relations with the prosecutrix and after
administering some intoxicant in the cold
drink, he committed rape with her on
19/20.4.2022 and subsequently on so many
occasions the prosecutrix was physically
exploited by the applicant. Concealing his
marital status, the applicant used to insist
the prosecutrix to get married with him and
during the sequence of events, he also
assaulted the prosecutrix as a result
whereof she sustained injuries and the
applicant also procured some obscene
photos
and
videos
relating
to
the
prosecutrix and used it as a tool to
blackmail her. An F.I.R. was lodged on
23.6.2023 and investigation started, which
is going on.

5. It has been submitted by the
learned counsel for the applicant that
applicant
is
innocent
and
he
has
apprehension of his arrest in the abovementioned case, whereas there is no
credible evidence against him. Allegations
levelled against the applicant are false. He
has been falsely implicated in this case. It is
further submitted that the F.I.R. of this case
has been lodged very belatedly without any
plausible explanation of delay.

It is further submitted that it is a
case of consensual relationship where the
major prosecutrix with her own will and
consent made physical relations with the
applicant and a huge monetary help was
also offered by the applicant to her. It is
further submitted that they have been in
sweet and close relations with each other
and only to grab the money from the
applicant, F.I.R. has been lodged on the
basis of false and fabricated facts.

It is further submitted that the
anticipatory bail application was moved
before the Sessions Court by the applicant
on 27.6.2023, which was rejected by the
Court on 18.7.2023, but in the meanwhile,
during the interregnum period, a process
under section 82 Cr.P.C. was also issued
against the applicant under the instructions
of the Court on 11.7.2023 and the
applicant, as such, was not a willful
defaulter.

It is further submitted that a
twisted story has been averred by the
prosecutrix in her statement under section
164 Cr.P.C. It is also submitted that on the
alleged
dates
of
rape
and
physical
exploitation, the applicant and prosecutrix
were staying happily together and relevant
photographs have been annexed with the
affidavit. It is also submitted that the
medical report of the prosecutrix is a
suspicious piece of evidence and she has
refused for her internal examination by the
doctor.

It is further submitted that as a
matter of fact, opposite party no.2 herself
has played fraud with the Government and
an F.I.R. was lodged against her as case
crime no.362 of 2021 under sections 177,
420
IPC
by
the
District
Program
Coordinator, District T.B. Disease Centre,
Aligarh. It is further submitted that during
the course of investigation, an application
along with affidavit was given to S.S.P.,
Aligarh by one Priyanka Chauhan, who is
said to be the friend of the prosecutrix,
wherein she has narrated the factum of a
friendly live-in relationship between the
16 INDIAN LAW REPORTS ALLAHABAD SERIES
applicant and the prosecutrix herself. It is
further submitted that the criminal history
of the applicant has been duly explained
and as such he is entitled for anticipatory
bail. In support of his submissions, reliance
has been placed upon the decision of the
Hon'ble
Apex
Court
in
Ansaar
Mohammad Vs. The State of Rajasthan
and Anr., 2022 LiveLaw (SC) 599, by the
applicant.

6. Per contra, learned A.G.A. as well as
learned counsel for the informant / opposite
party no.2 opposed the prayer for anticipatory
bail and it has been submitted that by
concealing his marital status, the accused
applicant started making physical relations
with the prosecutrix, which shows his
fraudulent intention towards the victim of the
case. Being a family person, he could not
legally marry with the prosecutrix, but
concealing the material facts, the accused
applicant made an insistence upon the
prosecutrix to marry with him and developed
physical relations and committed rape upon
her after administering some intoxicant to her.

It is further submitted that since
the very inception of the relationship the
accused applicant had never any intention
to marry with the prosecutrix. It cannot be
termed as a case of consensual physical
relationship between two major persons of
opposite sex. It is further submitted that on
few occasions, the applicant transferred
some money in the bank account of the
prosecutrix to show a different colour of his
relationship with her, but as soon as this
fact came to the knowledge of the
prosecutrix, she immediately transferred
the same amount in the bank account of the
applicant and statement of account in this
respect has been annexed with the counter
affidavit filed by the opposite party no.2
herself.

It is also submitted that as the
applicant has been a willful defaulter and a
process under section 82 Cr.P.C. was issued
against him under the instructions of the
Court, an F.I.R. under section 174-A IPC
was also lodged against the applicant by
reason of his abscondence. It is further
submitted that after rejection of the
anticipatory
bail
application
by
the
Sessions Court, Aligarh, the prosecutrix
was threatened by the applicant and he also
made some obscene photographs relating to
the prosecutrix viral on social media and an
F.I.R. as case crime no.719 of 2023 under
section 507 IPC and section 67 of
Information Technology Act was also
lodged against him on 23.7.2023.

It is also submitted that when the
prosecutrix was bitterly beaten by the
applicant, she was medically examined and
injuries were found over her body. It is
further submitted that the proceedings in
pursuance to the F.I.R. dated 3.4.2021
lodged against the opposite party no.2 are
stayed by the Hon'ble Apex Court in S.L.P.
No.7636
of
2021
vide
order
dated
8.10.2021. It is further submitted that the
offence is very heinous in nature and on the
basis of the evidence collected during the
course of investigation so far, active role in
the commission of the offence on the part
of the applicant is established and he is not
entitled for anticipatory bail.

7. It is in the backdrop of the
aforesaid
factual
scenario
and
the
consideration of the rival submissions made
by both the sides, the present matter has to
be looked into.

8. The statement made by the victim
under Section 164 Cr.P.C. recorded before a
Magistrate on a sexual offence undoubtedly
stands on a different footing than that of
recorded under Section 161 Cr.P.C. by the
9 All. Kaushal Anand Vs. State of U.P. & Anr.
17
Investigating Officer of the case. The
sanctity of the statement recorded under
Section 164 Cr.P.C. has been emphasized
by a coordinate Bench of this Court in
Dharmendra @ Patra Vs. State of U.P.
(Order
dated
1.10.2021
passed
in
Criminal Misc. Bail Application No. -
31695 of 2021) by holding as follows :

"11. The statement made by the
prosecutrix/victim under Section 164 of the
Code before the Magistrate stands on a
high pedestal and sanctity during the
course of investigation than that of her
statement recorded under section 161 of the
Code by the Investigating Officer."

9. In the light of the aforesaid
observation, it is found that in the case in
hand, not only in her statement under
Section 161 Cr.P.C., but in the statement
under Section 164 Cr.P.C. as well the
prosecutrix, who is said to be a model, has
avowed consistently the whole story and
sequence of incidents in respect of the
commission of the crime alleged against
the applicant and has narrated how rape
was committed to her by the applicant after
administering some intoxicant in the cold
drink to her and pretending himself to be a
bachelor
he,
subsequently
on
many
occasions,
physically
and
mentally
exploited her and also made an assault
upon
her
and
his
marital
status
subsequently came to the knowledge of the
prosecutrix. As a married person having his
wife and two children, the applicant was
never in a position to marry with the
prosecutrix, but the concealment of his
marital status from the victim of the case
and making physical relations with her is a
discernible fact
that since the very
inception, he never intended to marry with
the prosecutix and with malafide motives
he was only fulfilling his lust.

10. The Hon'ble Supreme Court in Dr.
Dhruvaram Murlidhar Sonar Vs. The
State of Maharashtra & Ors., 2019 0
AIR (SC) 327 had an occasion to deal with
the subject under consideration and it was
held:

"20. Thus, there is a clear
distinction between rape and consensual
sex. The court, in such cases, must very
carefully examine whether the complainant
had actually wanted to marry the victim or
had mala fide motives and had made a
false promise to this effect only to satisfy
his lust, as the later falls within the ambit
of cheating or deception. There is also a
distinction between mere breach of a promise
and not fulfilling a false promise. If the accused
has not made the promise with the sole
intention to seduce the prosecutrix to indulge in
sexual acts, such an act would not amount to
rape. There may be a case where the
prosecutrix agrees to have sexual intercourse
on account of her love and passion for the
accused and not solely on account of the
misconception created by accused, or where an
accused, on account of circumstances which he
could not have foreseen or which were beyond
his control, was unable to marry her despite
having every intention to do. Such cases must
be treated differently. If the complainant had
any mala fide intention and if he had
clandestine motives, it is a clear case of rape.
The
acknowledged
consensual
physical
relationship be- tween the parties would not
constitute an offence under Section 376 of the
IPC."

11. The same view was reiterated by
the Hon'ble Supreme Court in Pramod
Suryabhan
Pawar
Vs.
State
of
Maharashtra
and
Anr.,
AIR
2019
Supreme Court 4010 wherein the legal
dictum on the subject was affirmed by
holding that :
18 INDIAN LAW REPORTS ALLAHABAD SERIES

"14. In the present case, the
"misconception of fact" alleged by the
complainant is the appellant's promise to
marry her. Specifically in the context of a
promise to marry, this Court has observed
that there is a distinction between a false
promise given on the understanding by the
maker that it will be broken, and the breach
of a promise which is made in good faith
but subsequently not fulfilled. In Anurag
Soni v State of Chhattisgarh, (2019) SCC
OnLine SC 509 : (AIR 2019 SC 1857) this
Court held:

"37. The sum and substance of
the aforesaid decisions would be that if it is
established and proved that from the
inception the accused who gave the
promise to the prosecutrix to marry, did not
have any intention to marry and the
prosecutrix gave the consent for sexual
intercourse on such an assurance by the
accused that he would marry her, such a
consent can be said to be a consent
obtained on a misconception of fact as per
Section 90 of the IPC and, in such a case,
such a consent would not excuse the
offender and such an offender can be said
to have committed the rape as defined
under Sections 375 of the IPC and can be
convicted for the offence under Section 376
of the IPC."

Similar observations were made
by this Court in Deepak Gulati v State of
Haryana, (2013) 7 SCC 675 : (AIR 2013
SC 2071) :

"21. ... There is a distinction
between the mere breach of a promise, and
not fulfilling a false promise. Thus, the
court must examine whether there was
made, at an early stage a false promise of
marriage by the accused..."

15. In Yedla Srinivasa Rao v State
of Andhra Pradesh, (2006) 11 SCC 615 :
(AIR Online 2006 SC 40, para 13), the
accused
forcibly
established
sexual
relations with the complainant. When she
asked the accused why he had spoiled her
life, he promised to marry her. On this
premise, the accused repeatedly had sexual
intercourse with the complainant. When the
complainant became pregnant, the accused
refused to marry her. When the matter was
brought to the panchayat, the accused
admitted to having had sexual intercourse
with the complainant but subsequently
absconded. Given this factual background,
the court observed:

"10. It appears that the intention
of the accused as per the testimony of PW 1
was, right from the beginning, not honest
and he kept on promising that he will marry
her, till she became pregnant. This kind of
consent obtained by the accused cannot be
said to be any consent because she was
under a misconception of fact that the
accused intends to marry her, therefore, she
had submitted to sexual intercourse with
him. This fact is also admitted by the
accused that he had committed sexual
intercourse which is apparent from the
testimony of PWs 1, 2 and 3 and before the
panchayat of elders of the village. It is
more than clear that the accused made a
false promise that he would marry her.
Therefore, the intention of the accused right
from the beginning was not bona fide and
the poor girl submitted to the lust of the
accused, completely being misled by the
accused who held out the promise for
marriage. This kind of consent taken by the
accused with clear intention not to fulfil the
promise and persuading the girl to believe
that he is going to marry her and obtained
her consent for the sexual intercourse
under total misconception, cannot be
treated to be a consent...."

The Hon'ble Apex Court further
held that -

"18. To summarise the legal
position that emerges from the above cases,
9 All. Kaushal Anand Vs. State of U.P. & Anr.
19
the "consent" of a woman with respect to
Section 375 must involve an active and
reasoned
deliberation
towards
the
proposed act. To establish whether the
"consent" was vitiated by a "misconception
of fact" arising out of a promise to marry,
two propositions must be established. The
promise of marriage must have been a false
promise, given in bad faith and with no
intention of being adhered to at the time it
was given. The false promise itself must be
of immediate relevance, or bear a direct
nexus to the woman's decision to engage in
the sexual act."

12. The same principle of law was
reiterated recently by the Hon'ble Supreme
Court in Naim Ahamed v State (NCT of
Delhi), 2023 LiveLaw (SC) 66 (Criminal
Appeal No.257 of 2023 arising out of SLP
(Crl.) No.8586 of 2017 dated 30.1.2023.

13. In almost similar matter wherein
the prosecutrix, who happened to be a
model by profession, was suppressed by
the masculine power of the accused
forcefully and rape was committed to her
and she was also assaulted under the
threatening to make a compromise with
the accused to get success in the
modelling profession, the Hon'ble Apex
Court in a recent judgment passed in Mr.
X versus State of Maharashtra and
another, 2023 (124) ACC 673, quashed
and
set-aside
the
orders
granting
anticipatory bail to the accused under
Sections 354, 354-B, 376, 506 IPC.

14. The legal dictum enumerated in
the aforesaid decisions of the Hon'ble
Supreme Court squarely applies in the facts
and circumstances of the case in hand,
which negates the prayer of the present
accused applicant for grant of anticipatory
bail to him.

15. Reliance has been placed upon
Ansaar Mohammad (supra) case on behalf
of the applicant, but the facts of the
aforesaid case differ from the present one,
as the aforesaid case was relating to a
relationship between two major persons of
opposite sex and it was held that the
complainant had willingly been stayed with
the appellant and continued with the
relationship and since the relationship was
not working out, it was held that it was no
ground to lodge an F.I.R. for the offence
under Section 376 (2) (n) IPC, but the
elements of seducement, concealment of
marital status with ulterior motive on the
part of the accused and commission of rape
upon the victim by adopting deceitful
means present in the case in hand, were
missing in the case above-mentioned.
Hence, the ratio of law enumerated in
Ansaar Mohammad (supra) is deducible
from the application of law applicable to
the peculiar facts and circumstances of the
present case.

16. The issuance of process under
Section 82 Cr.P.C. resulting into lodging of
the F.I.R. under Section 174-A IPC against
the present applicant on account of his
abscondence is another factum which the
learned A.G.A. has made a ground of
assailment to the present anticipatory bail
application.

17. Contending to that, counsel for the
applicant has made a specific but however,
oral submission that anticipatory bail was
moved by the applicant before the Court of
Session on 27.6.2023, which was rejected
by the Sessions Court on 18.7.2023, but
during
the
pendency
of
the
said
anticipatory bail application, a process
under Section 82 Cr.P.C. was issued against
him on 11.7.2023, which was certainly
against the provisions of law and the
20 INDIAN LAW REPORTS ALLAHABAD SERIES
scheme of personal liberty guaranteed to
him by the Constitution as well and lodging
of an F.I.R. under Section 174-A IPC in
furtherance of the punitive action taken
against the applicant was also a glaring
example of misuse of power by the
investigating agency which was fully aware
of the fact of pendency of anticipatory bail
application before the Court of law.

18. Further, it was submitted that in
view of pending application for grant of
anticipatory bail, it was not justified for the
court concerned to pass an order to issue a
process under Section 82 Cr.P.C. against
the applicant, but in my view even on this
ground
if
this
Court
considers
the
anticipatory bail application moved by the
applicant, the merits of this case restrict
this Court to lean its discretion in favour of
the applicant and to grant anticipatory bail
to him.

19. In Sushila Aggarwal and others
vs. State (NCT of Delhi) and another,
(2020) 5 SCC 1, the Hon'ble Apex Court
has
held
that while
considering
an
application for grant of anticipatory bail,
the court has to consider the nature of the
offence, the role of the person, the
likelihood of his influencing the course of
investigation, or tampering with evidence
including intimidating witnesses, likelihood
of fleeing justice, such as leaving the
country, etc. It has further been held that
Courts ought to be generally guided by
considerations such as the nature and
gravity of the offences, the role attributed
to the applicant, and the facts of the case,
while
considering
whether
to
grant
anticipatory bail, or refuse it. Whether to
grant or not is a matter of discretion.

20. Adverting to the peculiar facts and
circumstances of this case, the Court finds
that offences of such nature cannot be
confined to affect the life and dignity of the
prosecutrix of this very case only, but in
such type of cases, a larger public interest
is always involved. Highlighting the need
to analyze the matters of such type in this
perspective, the Hon'ble Apex Court in
Pratibha Manchanda & Anr. Vs. State of
Haryana & Anr., 2023 SCC OnLine SC
785 expressly held as under :

"19. The relief of Anticipatory
Bail is aimed at safeguarding individual
rights. While it serves as a crucial tool to
prevent the misuse of the power of arrest
and protects innocent individuals from
harassment, it also presents challenges in
maintaining a delicate balance between
individual rights and the interests of
justice. The tight rope we must walk lies in
striking a balance between safeguarding
individual rights and protecting public
interest. While the right to liberty and
presumption of innocence are vital, the
court must also consider the gravity of the
offence, the impact on society, and the need
for a fair and free investigation. The court's
discretion in weighing these interests in the
facts and circumstances of each individual
case becomes crucial to ensure a just
outcome."

21. Hence, considering the settled
principles of law regarding anticipatory
bail, submissions of the learned counsel for
the parties, nature of accusation, role of
applicant and all attending facts and
circumstances
of
the
case,
without
expressing any opinion of the merits of the
case, in my view, it is not a fit case for
anticipatory bail to the applicant.

22. The anticipatory bail application
is rejected.
----------
9 All. Mahesh Kumar Yadav Vs. State of U.P.
21
(2023) 9 ILRA 21
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.09.2023

BEFORE

THE HON'BLE BRIJ RAJ SINGH, J.

Criminal Misc. Bail Application No. 9465 of 2023

Mahesh Kumar Yadav ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Ashish Kumar Maurya, Vikas Vikram Singh

Counsel for the Opposite Party:
G.A.

A.
Criminal
Law-Criminal
Procedure
Code,1973-Section 439 - Indian Penal
Code,1860-Sections 498-A & 304-B -3/4
D.P. Act- the deceased was suffering from
schizophrenia bipolar disorder and she
committed suicide-the applicant himself
got treated his wife continuously for one
year which is evident from the medical
papers-
general
allegation
of
dowry
demand is levelled and there was no prior
information of any harassment and dowry
demand- the case of the applicant is
supported by the medical jurisprudence of
Modi and the deceased was suffering from
bipolar
disorder
that
is
why
she
committed suicide-prior to present case,
no
FIR
was
ever
lodged
by
the
complainant or the deceased against the
applicant or in-laws and after 3 years and
11 months when this incident occurred,
the allegation of dowry demand has been
levelled against the applicant and his
family members-The applicant has no
previous criminal history-Therefore, the
applicant is entitled to be released on bail
on the ground of parity.(Para 1 to 8)

The application is allowed. (E-6)
List of Cases cited:
Mariano Anto Burno & anr. Vs Insp. of Police
(2022) SCC Online SC 1387

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

1. Supplementary affidavit filed on
behalf of the applicant, is taken on record.

2. Heard Vikas Vikram Singh, learned
counsel for the applicant and Sri Rajesh
Kumar Singh learned A.G.A.-I for the
State.

3. The present bail application has
been filed by the applicant with a prayer to
enlarge him on bail in Case Crime No.180
of 2023 under Sections 498-A, 304-B IPC
and 3/4 Dowry Prohibition Act, Police
Station Bhadokhar District Raebareli

4. It has been submitted by learned
counsel for the applicant that the deceased
was missing alongwith her one year and
half month of child on 18.04.2023.The
dead body of child was recovered on
19.04.2023 and dead body of the deceased
was recovered on 20.04.2023 from Sharda
Canal. FIR was lodged by the father of the
deceased mentioning therein that his
daughter (deceased) was married with the
applicant on 23.05.2019. The applicant and
his family members used to harass his
daughter
and
they
were
demanding
additional dowry. The allegation levelled in
the FIR is to the effect that the complainant
was asked by the applicant to register the
agricultural land in his favour because the
complainant had no male issue. Learned
counsel for the applicant has submitted that
the
deceased
was
suffering
from
schizophrenia and schizoaffective disorderbipolar deceased. He has invited attention
of this Court towards Annexure no.6 to the
affidavit filed in support of the bail
application which is the papers of All India