# Kusum Devi & Anr v. State of U.P. & Anr

- **Citation:** (2023) 9 ILRA 6
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-24
- **Case number:** Criminal Misc. Anticipatory Bail Application U/S 438 CR.P.C. No. 1907 of 2023
- **Bench:** Krishan Pahal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kusum-devi-anr-v-state-of-u-p-anr-50711
- **Pages:** 5

## Headnote

Law
-Criminal
Procedure
Code,1973-Section 438 - Indian Penal
Code,
1860-Section
306-applicationrejection- the deceased has committed
suicide within the precincts of the house
of the applicants, as such this case law
also does not hold good to the present
case and the exception cannot be drawn
here. The applicants are named in the FIRIn
the
present
case,
already
the
proceedings under Sections 82 and 83
Cr.P.C. are complete and applicants have
also failed in the application filed u/s 482
Cr.P.C. - The judgment of Apex Court
passed in the case of Kamlesh does not
apply to the present case as in the said
case, the F.I.R. was challenged in the
petition under Section 482 Cr.P.C. as is the
practice at Rajasthan High Court, as such
even after the petition challenging the
F.I.R. is concerned, the application under
Section 438 Cr.P.C. is very much taken up
and decided by this Court-Herein, the
applicants had challenged the final report
(charge-sheet) and failed- the application
under
Section
438
Cr.P.C.
is
not
maintainable. (Para 1 to 23)

B.
The
eminent
jurist
Benjamin
N.
Cardozo, a former Judge of Supreme Court
of America, in his book 'The Nature of
the Judicial Process', has stated that the
precedents cannot be applied in any
given dispute without some element of
discretion, for which Judges must take
responsibility. He says 'most Judges are
inclined to say that what was once
thought to be the exception is the rule,
and what was the rule is the exception
now'. The relationship between logic
and experience is important in the
context of invoking precedents. (Para
22)

The application is rejected. (E-6)

List of Cases cited:

## Text

6 INDIAN LAW REPORTS ALLAHABAD SERIES
(2023) 9 ILRA 6
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.08.2023

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Criminal Misc. Anticipatory Bail Application U/S
438 CR.P.C. No. 1907 of 2023

Kusum Devi & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Ghanshyam Das Mishra, Sri Abhishek
Kumar Mishra, Sri Chandrakesh Mishra, Sri
Umesh Pandey, Sri Daya Shankar Mishra
(Sr. Advocate)

Counsel for the Opposite Parties:
G.A., Sri Ved Prakash Shukla

A.
Criminal
Law
-Criminal
Procedure
Code,1973-Section 438 - Indian Penal
Code,
1860-Section
306-applicationrejection- the deceased has committed
suicide within the precincts of the house
of the applicants, as such this case law
also does not hold good to the present
case and the exception cannot be drawn
here. The applicants are named in the FIRIn
the
present
case,
already
the
proceedings under Sections 82 and 83
Cr.P.C. are complete and applicants have
also failed in the application filed u/s 482
Cr.P.C. - The judgment of Apex Court
passed in the case of Kamlesh does not
apply to the present case as in the said
case, the F.I.R. was challenged in the
petition under Section 482 Cr.P.C. as is the
practice at Rajasthan High Court, as such
even after the petition challenging the
F.I.R. is concerned, the application under
Section 438 Cr.P.C. is very much taken up
and decided by this Court-Herein, the
applicants had challenged the final report
(charge-sheet) and failed- the application
under
Section
438
Cr.P.C.
is
not
maintainable. (Para 1 to 23)

B.
The
eminent
jurist
Benjamin
N.
Cardozo, a former Judge of Supreme Court
of America, in his book 'The Nature of
the Judicial Process', has stated that the
precedents cannot be applied in any
given dispute without some element of
discretion, for which Judges must take
responsibility. He says 'most Judges are
inclined to say that what was once
thought to be the exception is the rule,
and what was the rule is the exception
now'. The relationship between logic
and experience is important in the
context of invoking precedents. (Para
22)

The application is rejected. (E-6)

List of Cases cited:

1. Shivam Vs St. of U.P. & anr.

2. Kamlesh & anr. Vs St. of Raj. & anr. (2019)
SCC OnLine SC 1822

3. Vijay Pal Prajapati Vs St. of U.P. ABAIL u/s
438 Cr.P.C. No.57 of 2023

4. Vinod Kumar Sharma & anr. Vs St. of U.P. &
anr. SLP (Crl.) No.6057 of 2021

5. Dr. Rajni Tripathi Vs St. of U.P. ABAIL u/s
438 Cr.P.C. No.8059 of 2023

6. Udit Arya Vs St. of U.P. ABAIL u/s 438 Cr.P.C
No.4560 of 2023

7. Prem Shankar Prasad Vs St. of Bih. & anr.

(Delivered by Hon'ble Krishan Pahal, J.)

1. List has been revised.

2. Heard Sri Daya Shankar Mishra,
learned Senior Counsel assisted by Sri
Abhishek Kumar Mishra, learned counsel for
the applicants, Sri Ved Prakash Shukla,
learned counsel for the informant and Sri
9 All. Kusum Devi & Anr. Vs. State of U.P. & Anr.
7
Sunil Kumar, learned A.G.A. for the State as
well as perused the material placed on record.

3. The present anticipatory bail
application has been filed on behalf of the
applicants in Case Crime No.75 of 2022,
under Section 306 IPC at Police Station-
Naini, District Prayagraj with a prayer to
enlarge them on anticipatory bail.

PROSECUTION STORY:

4. The deceased, who happens to be
the husband of the informant, is stated to be
a Marine Engineer and had left his job and
started doing the contract job at Prayagraj
as his father had fallen ill and was bed
ridden, but the said money earned used to
be transferred to the account of his ailing
father,
as
such
his
family
was
dependent on the money being given to
them by his father Balram Mishra, who
has subsequently expired. Out of the
said wedlock, there is a five year old
daughter. The deceased is stated to have
committed suicide in the night of
5/6.01.2022 and the informant could
reach the house of her in-laws on
07.01.2022
from
Ahmedabad.
The
behaviour of her in-laws was not
proper, as such she left her in-laws
house after Terahawi of her husband
and she received a WhatsApp message
from the mobile of the father-in-law
which was being used by her husband,
whereby a suicide note was sent to her.
The FIR was instituted on 19.02.2022 at
Police Station Naini at Prayagraj as
such.

RIVAL CONTENTIONS:

(Arguments on behalf of applicants)

5. Learned Senior Counsel has argued
that
the
applicants
were
granted
anticipatory bail till the submission of
report under Section 173(2) Cr.P.C. by the
Sessions Judge, Prayagraj and have not
misused the opportunity granted earlier on.

6. Learned Senior Counsel has
vehemently
argued
at
Bar
that
no
ingredients of Section 306 I.P.C. are
fulfilled as there is no overt act assigned to
the applicants and even Section 107 I.P.C.
is not attracted in the present case as the
applicants, who are the ladies, have not
abetted the deceased to commit suicide.
Learned Senior Counsel has further stated
that the co-accused Manohar Mishra has
been granted regular bail by this Court vide
order dated 17.07.2023 passed in Criminal
Misc. Bail Application No.29923 of 2023
and the very said order categorically
indicates that the ingredients of Section 306
I.P.C. are not fulfilled. Learned Senior
Counsel
has
further
stated
that
the
applicants, being ladies, are also entitled
for anticipatory bail as no purpose shall be
fulfilled by sending them behind the bars.

7. Their reputation in the society shall
stand tarnished and there is no likelihood of
them tampering the evidence as the final
report (charge-sheet) has already been
submitted. They are ready to cooperate in
the trial as they have already cooperated
during investigation.

8. Learned Senior Counsel has further
stated that there is no eye-witness of the
said incident. The said FIR has been lodged
after a delay of more than a month, as such
the said inordinate delay is also a valid
ground for grant of anticipatory bail to the
applicants.
8 INDIAN LAW REPORTS ALLAHABAD SERIES

9. Learned Senior Counsel has further
stated that the judgment of this Court
passed in Shivam vs. State of U.P. and
Another1, is per-incuriam as it has not laid
down any law as it is not a ratio that has to
be relied, rather the reference of paragraph
43(8) is only obiter-dicta.

10. Learned Senior Counsel has
placed reliance on the judgment of Apex
Court passed in the case of Kamlesh &
Anr. vs. The State of Rajasthan & Anr.2,
whereby it has been opined that a petition
U/s 438 Cr.P.C. is very much maintainable
even after dismissal of an application filed
U/S 482 Cr.P.C.

11. Learned Senior Counsel has
further placed reliance on paragraph nos.10
and 11 of the judgment of this Court passed
in Criminal Misc. Anticipatory Bail
Application U/S 438 Cr.P.C. No.57 of
2023 (Vijay Pal Prajapati vs. State of
U.P.), whereby much reliance has been
placed on the judgment of Kamlesh
(supra), which are quoted as under:-

"10. In Kamlesh and another
versus State of Rajasthan and another,
2019 SCC OnLine SC 1822, the Hon'ble
Supreme Court was deciding a Criminal
Appeal filed against an order passed by
Rajasthan
High
Court
whereby
an
application for grant of anticipatory bail
was rejected by the High Court only on the
ground that petition under Section 482
Cr.P.C. praying for quashing of FIR, has
already
been
rejected.
The
Hon'ble
Supreme Court held that: -

"5. We are of the view that the
order of the High Court cannot be
sustained. High Court ought to have
considered the application on merits. The
fact that petition under Section 482 Cr.P.C.
was dismissed for quashing was not
conclusive and could not be the reason for
rejecting the application."

11. Therefore, the law is clear
that the dismissal of the applicant's
application under Section 482 Cr.P.C.
would not be a bar against consideration of
the
merits
of
his
application
for
anticipatory bail."

12. Learned Senior Counsel has
further placed reliance on the judgment of
Apex Court passed in Petition(s) For
Special Leave to Appeal (Crl.) No.6057
of 2021 (Vinod Kumar Sharma & Anr.
vs. State of Uttar Pradesh & Anr.),
whereby it is stated that the order to the
accused to surrender and apply for regular
bail includes anticipatory bail also.

13. Learned Senior Counsel has also
placed reliance on paragraph nos.11 and 12
of the judgment of this Court passed in
Criminal
Misc.
Anticipatory
Bail
Application U/S 438 Cr.P.C. No.8059 of
2023 (Dr. Rajni Tripathi vs. State of
U.P.), whereby the anticipatory bail was
granted to the delinquent therein even after
the application under Section 482 Cr.P.C.
was disposed of and much reliance was
made on the judgment of Vinod Kumar
Sharma and Another vs. State of Uttar
Pradesh and Another3.

14. Learned Senior Counsel has also
placed reliance on the judgment of this
Court
passed
in
Criminal
Misc.
Anticipatory Bail Application U/S 438
Cr.P.C. No.4560 of 2023 (Udit Arya vs.
State of U.P.), whereby even after the
proceedings under Section 82 Cr.P.C. were
taken up against the delinquent therein, the
anticipatory bail of the accused was
allowed.
9 All. Kusum Devi & Anr. Vs. State of U.P. & Anr.
9

(Arguments
on
behalf
of
informant/State)

15. Per contra, learned counsel for the
informant
and
learned
A.G.A.
have
vehemently opposed the anticipatory bail
application
on
the
ground
that
the
applicants have not come with clean hands
as they have already relinquished the
opportunity granted under Section 482
Cr.P.C. and the present case is squarely hit
by paragraph 43(2), (8) and (10) of the
judgment of this Court passed in Shivam
(supra).

16. Learned counsel for the informant
has also placed reliance on the judgment of
Apex Court passed in the case of Prem
Shankar Prasad vs. State of Bihar &
Anr.4, whereby it is categorically opined
that after the proceedings under Sections 82
and 83 Cr.P.C. have been undertaken
against the delinquent, the application
under
Section
438
Cr.P.C.
is
not
maintainable.

17. Learned counsel for the informant
has further stated that in the present case,
already the proceedings under Sections 82
and 83 Cr.P.C. are complete on 18.01.2023
and they have also failed in the application
filed under Section 482 Cr.P.C. No.3934 of
2023, as such the applicants are not entitled
for anticipatory bail.

CONCLUSION:

18. As far as the judgment of Apex
Court passed in the case of Kamlesh
(supra) is concerned, the said case law
does not apply to the present case as in the
said case, the F.I.R. was challenged in the
petition under Section 482 Cr.P.C. as is the
practice at Rajasthan High Court, as such
even after the petition challenging the
F.I.R. is concerned, the application under
Section 438 Cr.P.C. is very much taken up
and decided by this Court. Herein, the
applicants had challenged the final report
(charge-sheet) and failed.

19. As far as the judgment of Vijay
Pal Prajapati (supra) is concerned, the
said judgment also cannot be considered
applicable to the present case as it is based
on the judgment of the Apex Court passed
in Kamlesh (supra). The said judgment
also does not carry any force as far as the
case of the applicant is concerned and is
per-incuriam.

20. Learned Senior Counsel for the
applicants has also placed reliance on the
judgment of Vinod Kumar Sharma
(supra), whereby it has been opined that
the word 'regular bail' includes the
provisions of Section 438 Cr.P.C. The said
argument hold good and it is very true that
even if the order for regular bail is passed,
the anticipatory bail can be taken up, but
the said case law also do not apply to the
present case as we have to see the case on
his own merits and the said judgment of
this Court passed in the case of Dr. Rajni
Tripathi (supra) has been placed on the
said judgment of Apex Court passed in the
case of Vinod Kumar Sharma (supra).
Thus, they do not apply to the present case.

21. The judgment of this Court passed
in Udit Arya (supra) also does not apply
to the present case as in that case of dowry
death, the cause of death was chronic
illness and she had died in her parental
house. Only the order under Section 82
Cr.P.C. was issued that too a few days
before filing of the anticipatory bail
application. The proceedings were not
complete. No case under Section 304-B
I.P.C. was made out, as such an exception
10 INDIAN LAW REPORTS ALLAHABAD SERIES
was drawn. In the present case, the
proclamation under Sections 82 and 83
Cr.P.C. was completed on 18.01.2023 itself
and a period of more than six months have
passed and herein, the deceased has
committed suicide within the precincts of
the house of the applicants, as such this
case law also does not hold good to the
present case and the exception cannot be
drawn here. The applicants are named in
the FIR.

22. The eminent jurist Benjamin N.
Cardozo, a former Judge of Supreme Court
of America, in his book 'The Nature of the
Judicial Process', has stated that the
precedents cannot be applied in any given
dispute without some element of discretion,
for which Judges must take responsibility.
He says 'most Judges are inclined to say
that what was once thought to be the
exception is the rule, and what was the rule
is the exception now'. The relationship
between logic and experience is important
in the context of invoking precedents.

23. After hearing learned counsel for
the parties and taking into consideration
paragraph 43(2), (8) and (10) of the
judgment of this Court passed in Shivam
(supra) and also the facts of the case, I do
not find it a fit case to grant anticipatory
bail to the applicants.

24. The present anticipatory bail
application is hereby found devoid of
merits and is accordingly rejected.

25. However, it is provided that if the
applicants appear before the court below
and apply for regular bail, their prayer for
bail shall be considered and decided in
accordance to law as expeditiously as
possible.
----------
(2023) 9 ILRA 10
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.08.2023

BEFORE

THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Misc. Anticipatory Bail Application U/S
438 CR.P.C. No. 8564 of 2023

Neeru Kumar Yadav & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Padmaker Pandey

Counsel for the Opposite Parties:
G.A., Sri Anurag Shukla

A.
Criminal
Law-Criminal
Procedure
Code,1973-Section 438 - Indian Penal
Code, 1860-Sections 323 & 308- the
charge-sheet was filed in the matter and
cognizance was taken - Several processes
were sent to the accused applicant to
procure his appearance before the Court,
but since he was absconding, non-bailable
warrant was issued against him and
subsequently the Court found that he was
deliberately avoiding the service of the
process and his appearance before the
Court- the applicant has utterly failed to
show any valid reason for his abscondence
and also to put forth any compelling
circumstance under which he had been
unable to honour and comply with and to
submit himself to the process of the 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-The present applicant, against
whom process under Section 82 Cr.P.C.
has been issued and who has been
declared as a proclaimed offender, is not
entitled for the protection by way of
anticipatory bail in the light of the law laid