# Kuldeep Yadav v. State of U.P. & Ors

- **Citation:** (2023) 3 ILRA 1006
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-16
- **Case number:** Crl. Misc. Writ Petition No. 1948 of 2023
- **Bench:** Rajiv Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kuldeep-yadav-v-state-of-u-p-ors-49762
- **Pages:** 5

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 323, 376, 504 & 506 - The
Protection
of
Children
from
Sexual
Offences Act, 2012 - Section 3/4 , The
Code
of
criminal
procedure,
1973
-
Section 73 - Warrant me be directed any
person - If during investigation, the
Investigating Officer intends to arrest the
person accused of the offence, he has to
seek for and obtain a warrant of arrest
from the Magistrate - Magistrate is fully
competent to issue non-bailable warrant
to apprehend recalcitrant person who is
accused of non-bailable offence and is
evading arrest. (Para - 10)

Investigation pending - I.O. filed an application
before Special Judge (POCSO Court) - petitioner
is wanted accused in F.I.R. - accused/petitioner
evading arrest - not appearing before police
for getting his statement recorded - not cooperating with investigation - Special Judge
(POCSO Court) issued a non-bailable warrant
against petitioner - hence petition for quashing
of order.(Para - 3,8)

HELD:-Special Court (POCSO Act) rightly
exercised his power in issuing non-bailable
warrant against the petitioner. Impugned order
issuing a non-bailable warrant against the
3 All. Kuldeep Yadav Vs. State of U.P. & Ors.
1007
petitioner is not illegal enough to persuade the
Court to exercise its inherent jurisdiction under
Section 226 of the Constitution of India. (Para -
7,12 )

Petition dismissed. (E-7)

List of Cases cited:

St. through C.B.I. Vs Dawood Ibrahim Kaskar &
ors. , (2000) 10 SCC 438

## Text

1006 INDIAN LAW REPORTS ALLAHABAD SERIES
Act, 2015, birth certificate issued by the
Panchayat shall be considered. But the
learned trial court rejected the birth
certificate of the revisionist issued by the
Panchayat in a cursory manner without
passing any appropriate order. It is also
submitted that learned trial court in the
judgement mentioned that in 313 CrPC
statement, the revisionist himself stated that
he was about 20-21 years. The matter
pertains to year 2017, which itself shows
that six years ago, the age of the revisionist
was less than 18 years. Moreover, in
pariwar register issued by the Gram
Panchayat, the date of birth of the
revisionist is 2001. The counsel further
submitted that juvenility can be claimed at
any stage even pendency of the appeal.

5. Learned AGA vehemently opposed
and submitted that the trial court rejected
the application of the revisionist after
applying judicial mind. Thus, the impugned
order passed by the trial court is not liable
to be quashed.

6. Considering the entire facts and
circumstances of the case, learned trial
court is directed to decide the application to
claim the juvenility of the revisionist within
one month as per sections 9 and 94 of the
Act, 2015. Till determination of claim of
the juvenility, no final order shall be
passed.
The
impugned
order
dated
28.2.2023 passed by the trial court is
hereby quashed.

7. Accordingly, the instant revision is
hereby allowed.

8. Let this order be communicated to
the
court
concerned
for
necessary
compliance.
----------
(2023) 3 ILRA 1006
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.02.2023

BEFORE

THE HON'BNLE RAMESH SINHA, J.
THE HON'BLE RAJIV GUPTA, J.

Crl. Misc. Writ Petition No. 1948 of 2023

Kuldeep Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Brij Raj, Agarwal Archi Piyush

Counsel for the Respondents:
G.A., Sri Susheel Kumar Singh, Sri Ugrasen
Kumar Pandey

(A) Criminal Law - Indian Penal Code,
1860 - Sections 323, 376, 504 & 506 - The
Protection
of
Children
from
Sexual
Offences Act, 2012 - Section 3/4 , The
Code
of
criminal
procedure,
1973
-
Section 73 - Warrant me be directed any
person - If during investigation, the
Investigating Officer intends to arrest the
person accused of the offence, he has to
seek for and obtain a warrant of arrest
from the Magistrate - Magistrate is fully
competent to issue non-bailable warrant
to apprehend recalcitrant person who is
accused of non-bailable offence and is
evading arrest. (Para - 10)

Investigation pending - I.O. filed an application
before Special Judge (POCSO Court) - petitioner
is wanted accused in F.I.R. - accused/petitioner
evading arrest - not appearing before police
for getting his statement recorded - not cooperating with investigation - Special Judge
(POCSO Court) issued a non-bailable warrant
against petitioner - hence petition for quashing
of order.(Para - 3,8)

HELD:-Special Court (POCSO Act) rightly
exercised his power in issuing non-bailable
warrant against the petitioner. Impugned order
issuing a non-bailable warrant against the
3 All. Kuldeep Yadav Vs. State of U.P. & Ors.
1007
petitioner is not illegal enough to persuade the
Court to exercise its inherent jurisdiction under
Section 226 of the Constitution of India. (Para -
7,12 )

Petition dismissed. (E-7)

List of Cases cited:

St. through C.B.I. Vs Dawood Ibrahim Kaskar &
ors. , (2000) 10 SCC 438

(Delivered by Hon'ble Ramesh Sinha, J.)

1. This petition seeks issuance of a
writ in the nature of Certiorari quashing the
impugned order dated 15.10.2022 passed
by the Special Judge (POCSO Court),
Allahabad, whereby non-bailable warrant
has been issued against the petitioner in
F.I.R. No. 0136 of 2022, under Sections
323, 376, 504, 506 I.P.C. and Section 3/4 of
the Protection of Children from Sexual
Offences
Act,
2012,
Police
Station
Phaphamau, District Allahabad.

2. Heard Ms. Archi Piyush, learned
Counsel for the petitioner, Shri J.K.
Upadhyaya,
learned
Additional
Government
Advocate
for
the
State/respondents no. 1 to 3 and perused
the impugned F.I.R. as well as material
brought on record.

3. It appears that the proceedings
were commenced pursuant to an FIR dated
18.05.2022, registered as FIR No.0136 of
2022, under Sections 354 (k), 323, 504, 506
I.P.C. and Section 3/4 of the Protection of
Children from Sexual Offences Act, 2012,
Police
Station
Phaphamau,
District
Allahabad,
against
the
petitioner,
whereupon the case was investigated. The
aforesaid F.I.R. was challenged by the
petitioner by filing Criminal Misc. Writ
Petition No. 6443 of 2022 before this
Court, which was dismissed as withdrawn
by means of the order dated 31.05.2022.
Thereafter,
the
petitioner
has
filed
anticipatory bail application, bearing No.
7475 of 2022, which was rejected by the
learned Single Judge vide order dated
31.08.2022. During the pendency of the
investigation, the Investigating Officer of
the case has filed an application before the
Special Judge (POCSO Court), Allahabad,
stating that the petitioner is the wanted
accused in F.I.R. No. 0136 of 2022 but in
spite of his best efforts, he could not secure
the arrest of petitioner and the petitioner is
absconding and there is an apprehension
that the petitioner could commit heinous
crime, therefore, non-bailable warrant be
issued against the petitioner. The Special
Judge (POCSO Court), Allahabad, took
cognizance of the aforesaid application of
the
Investigating
Officer
and
upon
examining the assertions of the application
as well as the case diary, the Special Judge
(POCSO
Court)
issued
non-bailable
warrant against the petitioner by means of
the order dated 15.10.2022. It is at this
stage that the present writ petition under
Article 226 of the writ petition has been
filed by the petitioner, seeking quashing of
the aforesaid order dated 15.10.2022 passed
by the Special Judge (POCSO Court),
Allahabad.

4. Learned counsel for the petitioner
has submitted that the Special Judge
(POCSO Court), Allahabad has passed the
impugned order on the basis of the
application moved by the Investigating
Officer that the petitioner is not cooperating with the investigation. She
argued that the investigation is still
continuing
and no
report
has
been
submitted under Section 173 (2) Cr.P.C.
She also argued that informant Shri Hari
Shanker Tiwari and the petitioner are the
1008 INDIAN LAW REPORTS ALLAHABAD SERIES
residents of Nai Basti Rangpura, Banaras
Road, Phaphamau, Prayagraj and they have
amicably settled the dispute by means of
compromise deed dated 16.01.2023, a copy
of which has been annexed as Annexure
no.6 to the writ petition. Therefore,
issuance of non-bailable warrant against the
petitioner during pendency of invesigation
is liable to be quashed. In support of her
submission, she has relied upon the
judgment of the Apex Court in State
through CBI Vs. Dawood Ibrahim
Kaskar and others : (2000) 10 SCC 438,
wherein the Apex Court has held that the
power of issuance of non-bailable warrant
can be exercised by the learned Magistrate
for appearance of accused before the Court
and not before the police in aid of
investigation.

5. Learned Additional Government
Advocate,
on
the
other
hand, has
contended that the impugned order has
been passed by the Special Judge
(POCSO Court), Allahabad, issuing nonbailable warrant against the petitioner,
after taking into account the fact that
though the Investigating Officer has
raided the house of the petitioner, his
relative and other places for arrest of the
petitioner, but he is absconding, and is
also evading himself from arrest, as
indicated in the application moved by the
Investigating Officer before the Court
concerned,
hence,
under
compelling
circumstances, the Investigating Officer
has moved the application on 13.10.2022,
requesting the Court to issue non-bailable
warrant. Therefore, the Special Court
(POCSO Court), Allahabad, has rightly
passed the impugned order against the
petitioner. He also argued that the case of
Dawood Ibrahim Kaskar (supra) relied
upon by the learned counsel for the
petitioner is not applicable in the instant
case as the facts of the both cases are
entirely different.

6.

We
have
examined
the
submissions advanced by the learned
counsel for the parties and gone through
the record as well as material brought on
record.

7. Perusal of the impugned order
indicates that the Special Court (POCSO
Court), Allahabad has examined the
assertions of the application filed before
it that a raid was conducted at the house
of the petitioner as well as the house of
his relative and other places but he is
absconding and he is also trying to evade
himself from arresting here and there and
there
is
an
apprehension
that
the
petitioner could commit serious offence.
The Special Court (POCSO Court),
Allahabad has also examined the office
report to the effect that no application on
behalf of the petitioner/accused for
surrendering himself is pending in the
Court. After examining the aforesaid and
also going through the case diary, the
Special Court (POCSO Court) has issued
non-bailable
warrant
against
the
petitioner, who is an accused of Crime
No. 0136 of 2022, under Sections 323,
376, 504, 506 I.P.C. and Section 3/4 of
the Protection of Children from Sexual
Offences Act,
2012,
Police
Station
Phaphamau, District Allahabad. Thus, we
are of the considered view that the
Special Court (POCSO Act), Allahabad
has rightly exercised his power in issuing
non-bailable
warrant
against
the
petitioner.

8. The judgment of the Apex Court in
State through CBI Vs. Dawood Ibrahim
Kaskar and others (supra) relied by the
petitioner is distinguishable from the facts
3 All. Kuldeep Yadav Vs. State of U.P. & Ors.
1009
and circumstances of the case, as in
Dawood Ibrahim Kaskar (Supra), the
investigation was completed and chargesheet was submitted, whereas in the instant
case, the investigation is still continuing
and the accused/petitioner is evading arrest
and not appearing before the police for
getting his statement recorded and not cooperating with the investigation.

9. At this juncture, it would be
apposite to reproduce Section 73 of the
Code of Criminal Procedure, which reads
as under :-

"73. Warrant may be directed any
person. (1)The Chief Judicial Magistrate or
a Magistrate of the first class may direct a
warrant to any person within his local
jurisdiction for the arrest of any escaped
convict, proclaimed offender or of any
person who is accused of a non- bailable,
offence and is evading arrest.

(2)Such person shall acknowledge in
writing the receipt of the warrant, and shall
execute it if the person for whose arrest it
was issued, is in, or enters on, any land or
other property under his charge.

(3)When the person against whom
such warrant is issued is arrested, he shall
be made over with the warrant to the
nearest police officer, who shall cause him
to be taken before a Magistrate having
jurisdiction in the case, unless security is
taken under section 71."

10. Perusal of the aforesaid provision,
it is apparent that if during invesigation, the
Investigating Officer intends to arrest the
person accused of the offence, he has to
seek for and obtain a warrant of arrest from
the Magistrate. The Magistrate is fully
competent to issue non-bailable warrant to
apprehend recalcitrant person who is
accused of non-bailable offence and is
evading arrest.

11. In the instant case, the Special
Judge (POCSO Court), Allahabad has
exercised its judicial discretion considering
the gravity of the offence as well as taking
into account the fact that the petitioner is
not co-operating with the investigation as
succssively the police had raided his
premises so that he may be questioned in
details
regarding
various
facets
of
commission of crime. Hence, it was
necessary to curtail his freedom in order to
enable the Investigating Officer to proceed
without any hindrance.

12. Ordinarily, arrest is a part of
process of investigation. As the statement
of the victim has been recorded showing
the involvement of the petitioner in
commission of crime, in the opinion of the
Investigating Officer, it was necessary to
effectuate his arrest and in doing so, he has
committed no fault in moving before the
Court to obtain non-bailable warrant.
Furthermore, a plain reading of the FIR
discloses the age of the victim to be less
than 18 years.

13. So far as the plea of the petitioner
that a compromise entered into between the
informant and petitioner is concerned, we
find that the statement of the prosecutrix
under Section 164 Cr.P.C. has been
recorded, supporting the prosecution case,
at this stage, it cannot be said that no
offence prima facie is committed by the
petitioner. Therefore, the plea of the
petitioner in regard to the compromise does
not in any way help him because the said
compromise has been entered between the
petitioner and the informant and not with
the prosecutrix.
1010 INDIAN LAW REPORTS ALLAHABAD SERIES

14. For the aforesaid reasons, the
impugned
order
issuing
non-bailable
warrant against the petitioner by the
Special Judge, POCSO Court, Allahabad of
which quashment is sought, cannot be said
to suffer from any illegality so as to
persuade this Court to exercise its inherent
jurisdiction under Section 226 of the
Constitution of India.

15. The instant writ petition is,
accordingly, dismissed.
----------
(2023) 3 ILRA 1010
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.03.2023

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE KSHITIJ SHAILENDRA, J.

Crl. Misc. Writ Petition No. 7952 of 2022

Gaaurav Tripathi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sundeep Shukla, Sri Navin Kumar Sharma

Counsel for the Respondents:
G.A., Sri Bharat Singh

(A) Criminal Law - The Prevention of
Corruption Act, 1988 - Section 7 - Offence
relating to public servant being bribed -
The Code of criminal procedure, 1973 -
section 167(2) - Power of transferring
investigation
to
other
investigating
agency must be exercised in rare and
exceptional cases - where the Court finds
it necessary in order to do justice between
the parties to instil confidence in the
public mind - or where investigation by
the State Police lacks credibility - fair
investigation as well as fair trial is
fundamental right of the accused - An
accused person does not have a choice in
regard to the mode or manner in which
the investigation should be carried out or
in regard to the investigating agency.
(Para -11,12,20,)

Matter related to transfer of investigation from
Gorakhpur
Sector
to
Lucknow
Sector
of
Vigilance Department - based upon letters of
Ministers and representation of accused - non
disclosure of any cogent or valid reason for
transferring investigation - orders passed after
considering
representation
moved
by
respondent No. 10 - Political interference and
representation of respondent No. 10 are only
reasons for transfer - case not of exceptional or
rare nature.(Para -23,24)

HELD:-Order impugned dated 17.05.2022 and
the consequential order dated 02.06.2022
cannot
be
sustained
due
to
political
interference. No speaking reason or ground to
justify the transfer of investigation from one
agency
to
the
other.
Order
transferring
investigation quashed. (Para - 24,25,26)

Petition allowed. (E-7)

List of Cases cited:

1. Arnab Ranjan Goswami Vs U.O.I. & ors. ,
(2020) 14 SCC 12

2. Bimal Gurung & ors. Vs U.O.I. (UOI) & ors.
, (2018) 15 SCC 480

3. Omveer Vs St. of U.P. & ors. , 2008 (5) ADJ
698 (DB)

4. Kumari Aayasha Vs St. of U.P. & ors. ,
2018(1) ADJ 85 (DB)

5. Smt. Vandana Srivastava Vs St. of U.P. &
ors. , 2014 (7) ADJ 679 (DB)

6. Mohan Lal Vs St. of Punj. , AIR 2018 SC
3853

7. A.V. Bellarmin Vs Mr. V. Santhakumaran Nair
, Crl. O.P. (MD) No.12212 of 2013 & M.P. (MD)
Nos.1 & 2 of 2013

8. Nirmal Singh Kahlon Vs St. of Punj. & ors. ,
(2009) 1 SCC 441