# Krishna v. State of U.P. & Ors

- **Citation:** (2024) 5 ILRA 632
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-13
- **Case number:** Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 1135 of 2024
- **Bench:** Shekhar Kumar Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/krishna-v-state-of-u-p-ors-51931
- **Pages:** 7

## Headnote

A. Criminal Law-Criminal Procedure Code,
1973-Section
438-Indian
Penal
Code,
1860- - 3⁄4 POCSO Act, 2012 - Sections 363
& 376(3) - FIR lodged regarding the
incident
in
which
final
report
was
submitted at earlier point of time-Later a
5 All. Krishna Vs. State of U.P. & Ors.
633
complaint was filed by the informantstatement of the victim was recorded u/s
161 and 164 Crpc in which she has not
stated about rape but later after nine
months she changed her statement u/s
202 crpc-no credible evidence against
applicant-no criminal history-hence, the
applicant is liable to be enlarged on
bail.(Para 1 to 21)

The application is allowed. (E-6)

List of cases cited:

## Text

632 INDIAN LAW REPORTS ALLAHABAD SERIES
CrPC. Instead, if it is to be simply styled as
a Protest Petition without containing all
those necessary particulars that a normal
complaint has to contain, then, it cannot be
construed as a complaint for the purpose of
proceeding under Section 200 CrPC."

13. In the same sequel, it is necessary
to cite the observations of Hon'ble the Apex
Court in Mahmood UI Rehmand vs. Khazir
Mohd. Tund (2016) 1 SCC (Cri) 124, which
reads as under:

" That the cognizance of an
offence on complaint is taken for the
purpose of issuing process to the accused.
Since it is a process of taking judicial
notice of certain facts which constitute an
offence, there has to be application of
mind as to whether the allegations in the
complaint, when considered alongwith
the statement recorded or the inquiry
conducted thereon, would constitute
violation of law so as to call a person to
appear before the criminal court. It is
not a mechanical process or matter of
course to set in motion the process of
criminal law against a person in a
serious matter."

14. This Court is of the considered
opinion that the mandate of provisions of
Sections 200 and 202 Cr.P.C. has been
clearly violated. Learned Trial Court should
have carefully scrutinized the complete
material to find out the truthfulness of
allegations and the basis of prima facie
satisfaction
before
summoning
the
applicants at the time of recording of
preliminary evidence. Thus, the orders
impugned dated 25.01.2023 and 26.05.2023
are not tenable.

15.

Consequently,
the
present
Application U/S 482 Cr.P.C. is allowed.

16. The order dated 25.01.2023 passed
by Judicial Magistrate, Court No. 2, Kanpur
Dehat and the summoning order dated
26.05.2023 passed by the Chief Judicial
Magistrate, Kanpur Dehat in Complaint
Case No.803 of 2023 (Manju Shukla vs.
Shishupal Singh Katiyar) under Sections
147, 308, 323, 504, 506 IPC, (Case Crime
No.58 of 2022), Police Station Gajner,
District Kanpur Dehat, are hereby set-aside.

17. The matter is hereby remitted back
to the Court concerned to pass a fresh order
within a period of two months from the date
of production of a certified copy of this
order in the light of the observations made
herein above.
----------
(2024) 5 ILRA 632
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.05.2024

BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV, J.

Criminal Misc. Anticipatory Bail Application U/S
438 Cr.P.C. No. 1135 of 2024

Krishna ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Intekhab Alam Khan, Sri Vaibhav
Shandilya,
Sri
Vivek
Shandilya
(Sr.
Advocate)

Counsel for the Opposite Parties:
G.A., Sri Ajay Sengar, Sri R.K. Srivastava

A. Criminal Law-Criminal Procedure Code,
1973-Section
438-Indian
Penal
Code,
1860- - 3⁄4 POCSO Act, 2012 - Sections 363
& 376(3) - FIR lodged regarding the
incident
in
which
final
report
was
submitted at earlier point of time-Later a
5 All. Krishna Vs. State of U.P. & Ors.
633
complaint was filed by the informantstatement of the victim was recorded u/s
161 and 164 Crpc in which she has not
stated about rape but later after nine
months she changed her statement u/s
202 crpc-no credible evidence against
applicant-no criminal history-hence, the
applicant is liable to be enlarged on
bail.(Para 1 to 21)

The application is allowed. (E-6)

List of cases cited:

1. Hoechst Pharma. Ltd Vs St. of Bih. (1983) 4
SCC 45

2. C.S. Gopalakrishnan Etc Vs St. of T.N. & ors.
(2023) LiveLaw SC 413

3. M. Karunanidhi Vs U.O.I. (1979) AIR SC 898

4. Prathvi Raj Chauhan Vs U.O.I. & ors. [(2020)
4 SCC 727

5. Sushila Aggarwal Vs St. (NCT of Delhi) &
anr.(2020) AIR SC 831

6. Bhadresh Bipinbhai Sheth Vs St. of Guj.
(2015)AIR SC 3090

7. Hema Mishra Vs St. of U.P. & ors.(2014) 4 SCC
453

8. Sushila Aggarwal Vs St. (NCT of Delhi) (2020)
5 SCC 1

(Delivered by Hon'ble Shekhar Kumar
Yadav, J.)

1. Heard Sri Vivek Shandilya, learned
Senior counsel assisted by Mr Vaibhav
Shandilya, learned counsel for the applicant,
Mr Ajay Sengar, learned counsel for the
informant, Mr R. K. Srivastava, learned
counsel appearing for the State and perused
the record.

2. The applicant seeks anticipatory bail
in Complaint Case No. 03 of 2023,under
Sections 363, 376(3) IPC and Section of
POCSO Act, 2012, P.S. Kuthaundh, District
Jalaun, during the pendency of trial.

3. At the outset, learned AGA for the
State raised preliminary objection that subsection (4) of Section 438 of Cr.P.C,
explicitly excludes the application of the
provision relating to pre-arrest bail in
relation to any case involving the arrest of
any person on accusation of having
committed an offence under subsection (3)
of Section 376 IPC as such the application
for pre-arrest bail is not maintainable.

4. Section 438 of the Cr.P.C. provides
for issuing directions for granting bail to a
person apprehending arrest. The amendment
[Code of Criminal Procedure Amendment
Act, 2018] introduced to Section 438 (4)]
reads as follows:

"438(4). Nothing in this section
shall apply to any case involving the arrest
of any person on accusation of having
committed an offence under sub-section (3)
of Section 376 or Section 376-AB or Section
376-DA or Section 376-DB of the Indian
Penal Code."

5. In reply to the said argument,
learned counsel for the applicant has
submitted that the new section (438 Cr.P.C.)
inserted in the State of Uttar Prdesh vide
Uttar Pradesh Act No. 4 of 2019, (assented
by the President on June 1, 2019), does not
exclude the person seeking pre-arrest bail
for an offence committed under Section 376
(3) IPC. Section 438(6) reads as follows:-

438 (6) Provision of this section
shall not be applicable-

(a) to the offences arising out of,--

(i)
the
Unlawful
Activities
(Prevention) Act, 1967;
634 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) the Narcotic Drugs and
Psychotropic Substances Act, 1985;

(iii) the Official Secret Act, 1923;

(iv) the Uttar Prdesh Gangsters
and Anti-Social Activities (Prevention) Act,
1986.

(b) in the offences, in which death
sentence can be awarded.

6. Learned counsel for the applicant
has further drawn attention of the court
towards Article 254(2) of the Constitution of
India to contend that in case of repugnancy,
if any, between the State Act and Central
Legislation on a subject in the concurrent
list, would stand cured if the State Act
receives the assent of the President under
Article 245(2) of the Constitution of India
and such repugnancy cannot therefore be a
ground to invalidate the State Act. It is
further submitted that the whole purpose of
the Article 254(2) is to protect the State
enactment when it ran contrary to the central
legislation. In support of his argument,
learned counsel for the applicant has relied
upon
the
cases
of
Hoechst
Pharmaceauticals Ltd Vs State of Bihar,
1983 4 SCC 45; and C.S. Gopalakrishnan
Etc Vs The State of Tamil Nadu and
others, 2023 LiveLaw (SC) 413.

7. Article 254 of the Constitution of
India provides for the method of resolving
conflicts between a law made by Parliament
and a law made by the Legislature of a State
with respect to a matter falling in the
Concurrent List and it reads:

"254 (1) If any provision of a law
made by the Legislature of a State is
repugnant to any provision of a law made by
Parliament which Parliament is competent
enact, or to any provision of an existing law
with respect to one of the matters
enumerated in the Concurrent List, then,
subject to the provisions of clause (2), the
law made by Parliament, whether passed
before or after the law made by the
Legislature of such State, or, as the case
may be, the existing law shall prevail and
the law made by the Legislature of the State
shall, to the extent of the repugnancy, be
void.

(2) Where a law made by the
Legislature of a State with respect to one of
the matters enumerated in the Concurrent
List contains any provision repugnant to the
provisions of an earlier law made by
Parliament or an existing law with respect
to that matter, then, the law so made by the
Legislature of such State shall if it has been
reserved for the consideration of the
President and has received his assent,
prevail in that State.

Provided that nothing in this
clause shall prevent Parliament from
enacting at any time any law with respect to
the same matter including a law adding to,
amending, varying or repealing the law so
made by the Legislature of the State."

8. In the case of M. Karunanidhi VS
Union of India, AIr 1979 SC 898, the
Supreme Court has laid down certain
guidelines with respect to matters in the
concurrent list:

1. Where the provisions of a
Central Act and a State Act in the
Concurrent List are fully inconsistent and
are absolutely irreconcilable, the Central
Act will prevail and the State Act will
become void in view of the repugnancy.

2. Where however a law passed by
the State comes into collision with a law
passed by Parliament on an Entry in the
Concurrent List, the State Act shall prevail
to the extent of the repugnancy and the
provisions of the Central Act would become
5 All. Krishna Vs. State of U.P. & Ors.
635
void provided the State Act has been passed
in accordance with clause (2) of Article 254.

3. Where a law passed by the State
Legislature while being substantially within
the scope of the entries in the State List
entrenches upon any of the Entries in the
Central List the constitutionality of the law
may be upheld by invoking the doctrine of
pith and substance if on an analysis of the
provisions of the Act it appears that by and
large the law falls within the four corners of
the State List an entrenchment, if any, is
purely incidental or inconsequential.

4. Where, however, a law made by
the State Legislature on a subject covered by
the Concurrent List is inconsistent with and
repugnant to a previous law made by
Parliament, then such a law can be
protected by obtaining the assent of the
President under Article 254(2) of the
Constitution. The result of obtaining the
assent of the President would be that so far
as the State Act is concerned, it will prevail
in the State and overrule the provisions of
the Central Act in their applicability to the
State only. Such a state of affairs will exist
only until Parliament may at any time make
a law adding to, or amending, varying or
repealing the law made by the State
Legislature under the proviso to Article 254.

9.

In
the
case
of
Hoechst
Pharmaceauticals Ltd (supra), wherein
under paragraph no. 66, it has been held has
under:-

" Article 254 of the Constitution
makes provision first, as to what would
happen in the case of conflict between a
Central and State law with regard to the
subjects enumerated in the Concurrent List,
and secondly, for resolving such conflict.
Article 254(1) enunciates the normal rule that
in the event of a conflict between a Union and
a State law in the concurrent field, the former
prevails over the latter. Cl. (1) lays down that
if a State law relating to a concurrent subject
is 'repugnant' to a Union law relating to that
subject, then, whether the Union law is prior
or later in time, the Union law will prevail and
the State law shall, to the extent of such
repugnancy, be void. To the general rule laid
down in cl. (1), cl. (2) engrafts an exception,
viz., that if the President assents to a State law
which has been reserved for his consideration,
it will prevail notwithstanding its repugnancy
to an earlier law of the Union, both laws
dealing with a concurrent subject. In such a
case, the Central Act will give way to the State
Act only to the extent of inconsistency between
the two, and no more. In short, the result of
obtaining the assent of the President to a State
Act which is inconsistent with a previous
Union law relating to a concurrent subject
would be that the State Act will prevail in that
State and override the provisions of the
Central Act in their applicability to that State
only. The predominance of the State law may
however be taken away if Parliament
legislates under the proviso to cl. (2). The
proviso to Article 254(2) empowers the Union
Parliament to repeal or amend a repugnant
State law, either directly, or by itself enacting
a law repugnant to the State law with respect
to the 'same matter'. Even though the
subsequent law made by Parliament does not
expressly repeal a State law, even then, the
State law will become void as soon as the
subsequent law of Parliament creating
repugnancy is made. A State law would be
repugnant to the Union law when there is
direct conflict between the two laws. Such
repugnancy may also arise where both laws
operate in the same field and the two cannot
possibly stand together."

10. Learned counsel for the applicant
has, however, further contended that there is
no absolute bar for the grant of bail, if a
prima facie case of commission of the
636 INDIAN LAW REPORTS ALLAHABAD SERIES
offences mentioned therein is not made out
against the applicant. Reliance was placed
on the three-Judge Bench decision of the
Apex Court in Prathvi Raj Chauhan v.
Union of India and Others [(2020) 4 SCC
727.

11. Learned AGA has further drawn
the attention of the Court to the Code of
Criminal
Procedure
(Uttar
Pradesh
Amendment) Act, 2022, which aims to
include offences under Protection of
Children
from
Sexual
Offences
Act
(POCSO) and offences relating to rape
enumerated in Sections 376, 376-A, 376AB, 376-B, 376-C,376-D, 376-DA, 376DB, 376-E of the IPC in the exceptions to
the provision of anticipatory bail. To the
contrary, learned counsel for the applicant
has submitted that the said bill is still
pending for assent of the President and as
such has no legal sanctity as yet.

12. In the light of the above quoted
provisions and after having considered the
arguments of the respective parties, the
argument of the learned counsel for the
applicant that the state amendment would
prevail over the Central Act find force as
there is no bar to exclude the application of
the provision relating to pre-arrest bail in
relation to any case involving the arrest of
any person on accusation of having
committed an offence under subsection (3)
of Section 376 IPC in view of the
amendment in the State of UP under Section
438 Cr.P.C. as amended vide UP Act No. 04
of 2019, as such the application for prearrest bail would be equally maintainable.

13. Moreover, it is no doubt true that
the provision of pre-arrest bail enshrined in
Section 438 of Cr.P.C. is conceptualised
under Article 21 of the Constitution of India,
which relates to personal liberty. The law
presumes an accused to be innocent till his
guilt is proven. As a presumably innocent
person, he is entitled to all the fundamental
rights, including the right to liberty
guaranteed under Article 21 of the
Constitution of India. In Sushila Aggarwal
v. State (NCT of Delhi) and Another (AIR
2020 SC 831), the Apex Court held that the
provision for pe-arrest bail was specifically
enacted as a measure of protection against
arbitrary arrests and humiliation by the
police, which Parliament itself recognised as
a widespread malaise on the part of the
police and inasmuch as the denial of bail
would amount to deprivation of personal
liberty, the court should lean against the
imposition of unnecessary restrictions on
the scope of Section 438 Cr.P.C.. In
Bhadresh Bipinbhai Sheth v. State of
Gujarat (AIR 2015 SC 3090), the Apex
Court held that the provision of pre-arrest
bail enshrined in Section 438 of Cr.P.C calls
for liberal interpretation in the light of
Article 21 of the Constitution of India. In
Hema Mishra v. State of Uttar Pradesh
and Others [(2014) 4 SCC 453], the Apex
Court emphasised the mandate of a
constitutional court to protect the liberty of
a person from being put in jeopardy on
account of baseless charges. It was held that
a writ court is even empowered to grant prearrest bail despite a statutory bar imposed
against the grant of such relief.

14. Now the merits of the case.

15. As per case of prosecution, on
14.10.2022, while minor daughter of the
informant, who is said to be a student of high
school, had gone to school at 8 in the
morning, the applicant is said to have
reached the college and seduced her
daughter and took her to Som Plaza Guest
house and kept her locked in a room for two
hours and did wrong things by molesting the
5 All. Krishna Vs. State of U.P. & Ors.
637
delicate parts of her body. It is also alleged
that even prior to this, the applicant also
molested her daughter many times and on
complaint to applicant's family but of no
avail.

16. Learned counsel for the applicant
has contended that the applicant is innocent
of the offences alleged against him and he
has been falsely implicated in the case. The
counsel further submitted that no materials
are on record to connect the applicant with
the alleged crime; hence, he is entitled to get
pre-arrest bail. It is further submitted that in
the present case, the FIR was filed by the
informant in relation to the incident that
happened with his minor daughter, in which
the final report was presented in the court by
the Investigating Officer at earlier point of
time. It is further submitted that thereafter a
protest petition was filed by the informant
on which the order to register it as a
complaint was passed on 20.06.2023. After
this, the statement of the informant was
recorded under Section 200 Cr.P.C. and his
witnesses under Section 202 Cr.P.C. and on
the basis of evidence, the applicant was
summoned by the court in the said crime on
03.11.2023. It is further stated that thereafter
the applicant approached this Court by filing
application u/s 482 No. 43276 of 2023 to
quash the said summoning order, which
came to be disposed of vide order dated
16.12.2023 with a direction to the applicant
to appear and apply for bail before the court
below within three weeks.

17. It is further contended by learned
counsel for the applicant that relying on the
statement of the victim said to have been
recorded under Sections 161 & 164 Cr.P.C. as
well as the medical report, the incident was
found to be untrue by the Investigating Officer
and hence no offence under Section 376(3)
IPC is made against the applicant. It is further
submitted that the victim in her statement
under Section 164 Cr.P.C. has not stated about
rape but later on after nine months of the
incident she has given her statement under
Section 202 Cr.P.C. and changed her
statement that she was raped by the applicant.
The victim in her statement under Section 164
Cr.P.C. has herself admitted that she is 16
years of age and the applicant is aged about 17
years nine months. The applicant has no
criminal history. It is further submitted that the
entire allegation against the applicant is false
and concocted. There is no credible evidence
against him. The applicant undertakes to cooperate during proceedings before the Court
below and trial and he would appear as and
when required by the Court. It has been stated
that in case, the applicant is granted
anticipatory bail, he shall not misuse the
liberty of bail and will co-operate during
proceedings before the Court below and
would obey all conditions of bail.

18. Learned counsel for the informant as
well as learned AGA has opposed the prayer for
bail and submitted that the evidence on record
reveals that the accusation made against the
applicant therein is very serious in nature.

19. On due consideration to the arguments
advanced by learned counsel for the applicant as
well as learned A.G.A. and considering the
nature of accusations and antecedents of the
applicant, the applicant is liable to be enlarged on
anticipatory bail in view of the judgment of
Supreme Court in the case of Sushila Aggarwal
Vs. State (NCT of Delhi), (2020) 5 SCC 1. The
future contingencies regarding the anticipatory
bail being granted to applicant shall also be taken
care of as per the aforesaid judgment of the Apex
Court.

20. In view of the above, the
anticipatory
bail
application
of
the
applicants is allowed.
638 INDIAN LAW REPORTS ALLAHABAD SERIES

21.

Let
the
accused-applicant-
Krishna be released forthwith in the
aforesaid complaint case on anticipatory bail
till the conclusion of trial on furnishing a
personal bond and two sureties each in the
like amount to the satisfaction of the trial
court
concerned
with
the
following
conditions:-

1. The applicant shall not leave
India during the currency of trial without
prior permission from the concerned trial
Court.

2. The applicant shall surrender
his passport, if any, to the concerned trial
Court forthwith. His passport will remain in
custody of the concerned trial Court.

3. That the applicant 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;

4. The applicant 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 to ensure presence of
the applicants.

5. In case, the applicant misuses
the liberty of bail, the trial Court concerned
may take appropriate action in accordance
with law and judgment of Apex Court in the
case of Sushila Aggarwal and others Vs
State (NCT of Delhi) and another, (2020) 5
SCC 1.

6. 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 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 them in accordance
with law.

7. The trial court would make
every endeavor to conclude the trial of the
case within a period of six months in
accordance with law.

22. With the aforesaid directions, this
application stands disposed of finally.
----------
(2024) 5 ILRA 638
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.05.2024

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Writ-A No. 8517 of 2023
With
Other Connected Cases

Tirthraj ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Harsha Yadav

Counsel for the Respondents:
C.S.C.

(A) Service Law - Regularisation of
teachers
-
Uttar
Pradesh
Secondary
Education (Service Selection Boards) Act,
1982 - unamended Section 18 - new
Section 33-G - Regularisation of certain
more appointments against short term
vacancies - The UP Intermediate Education
Act, 1921 - An employee should not be
deprived of any benefit or the provisions of
law only because of the fact that some
error has been committed by the employer
including the State and if it is so, the same
must be rectified - every order either