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

- **Citation:** (2023) 11 ILRA 360
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-30
- **Case number:** J. Crl. Misc. Anticipatory Bail Application No. 10711 of 2023
- **Bench:** Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kusum-raghav-anr-v-state-of-u-p-anr-49466
- **Pages:** 6

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973 - Sections 438, 82, 83 &
482 - Indian Penal Code, 1860 - Sections
420, 467, 468 & 471 - Anticipatory Bail -
Proclaimed Offenders - Fraudulent Sale Deeds -
Non-Cooperation with Trial Court

The applicants, Kusum Raghav and Asha
Raghav, sought anticipatory bail in Case Crime
No. 70 of 2013 under Sections 420, 467, 468,
and 471 IPC, alleging false implication in a case
involving
fraudulent
sale
deeds
of
the
informant's land. They claimed to be bona fide
purchasers and cooperative during investigation,
citing a compromise deed dated 21.11.2022.
The St. opposed, noting the applicants' status as
proclaimed offenders under Section 82 Cr.P.C.
after failing to appear despite bailable and nonbailable warrants, and the rejection of their
discharge application and revision. Held: (1) The
anticipatory bail application was rejected as
non-maintainable. (2) The applicants, aware of
the trial proceedings, deliberately absconded,
leading to their declaration as proclaimed
offenders, disentitling them to anticipatory bail
per Lavesh Vs St. (NCT of Delhi), St. of
Madhya Pradesh Vs Pradeep Sharma, Prem
Shankar Prasad Vs St. of Bihar, and St. of
Haryana Vs Dharamraj. (3) No exceptional
circumstances justified granting anticipatory
bail. (4) The applicants' non-cooperation
with the trial court, despite prior legal
challenges (discharge application, revision,
and pending writ petition), and failure to
assail the proclaimed offender order, barred
relief. (5) The compromise deed did not alter
their absconding status, as they never
appeared before the trial court.

Case Law Cited:

## Text

360 INDIAN LAW REPORTS ALLAHABAD SERIES
ammunition have been recovered from the
applicant's premises at New Delhi. The
possibility of witnesses being influenced
and evidence being tampered can be
assessed from the fact that the applicant has
exercised such great influence upon jail
authorities in the past as has resulted into
frequent visits to the jail by his wife
without any permission or without any
checking, while she used to carry her
mobile phone inside the jail.

59. Having considered the nature of
allegations against the applicant and the
material relied upon by the prosecution, the
status of the applicant as an expert shooter
and a Member of Legislative Assembly, the
possibility of the applicant being able to
influence the witnesses in case of his
release on bail, I am of the considered view
that the aforesaid facts disentitle the
applicant to receive discretion of this Court
by enlarging him on bail.

60. Accordingly, the bail application
stands rejected.
----------
(2023) 11 ILRA 360
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.10.2023

BEFORE

THE HON'BLE NALIN KUMAR SRIVASTAVA,
J.

Crl. Misc. Anticipatory Bail Application No. 10711
of 2023
(under 438 CR.P.C.)

Kusum Raghav & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicants:
Sri Hemant Sharma

Counsel for the Respondents:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Sections 438, 82, 83 &
482 - Indian Penal Code, 1860 - Sections
420, 467, 468 & 471 - Anticipatory Bail -
Proclaimed Offenders - Fraudulent Sale Deeds -
Non-Cooperation with Trial Court

The applicants, Kusum Raghav and Asha
Raghav, sought anticipatory bail in Case Crime
No. 70 of 2013 under Sections 420, 467, 468,
and 471 IPC, alleging false implication in a case
involving
fraudulent
sale
deeds
of
the
informant's land. They claimed to be bona fide
purchasers and cooperative during investigation,
citing a compromise deed dated 21.11.2022.
The St. opposed, noting the applicants' status as
proclaimed offenders under Section 82 Cr.P.C.
after failing to appear despite bailable and nonbailable warrants, and the rejection of their
discharge application and revision. Held: (1) The
anticipatory bail application was rejected as
non-maintainable. (2) The applicants, aware of
the trial proceedings, deliberately absconded,
leading to their declaration as proclaimed
offenders, disentitling them to anticipatory bail
per Lavesh Vs St. (NCT of Delhi), St. of
Madhya Pradesh Vs Pradeep Sharma, Prem
Shankar Prasad Vs St. of Bihar, and St. of
Haryana Vs Dharamraj. (3) No exceptional
circumstances justified granting anticipatory
bail. (4) The applicants' non-cooperation
with the trial court, despite prior legal
challenges (discharge application, revision,
and pending writ petition), and failure to
assail the proclaimed offender order, barred
relief. (5) The compromise deed did not alter
their absconding status, as they never
appeared before the trial court.

Case Law Cited:

1. Purushottam Chaudhary Vs Central Bureau of
Investigation, Application U/S 482 No. 1974 of
2023, decided on 27.02.2023 (All. HC)

2. Prem Shankar Prasad Vs St. of Bihar & anr.,
2021
SCC
OnLine
SC
955
11 All. Kusum Raghav & Anr. Vs. State of U.P. & Anr.
361
3. Lavesh Vs St. (NCT of Delhi), (2012) 8 SCC
730

4. St. of Madhya Pradesh Vs Pradeep Sharma,
(2014) 2 SCC 171

5. St. of Haryana Vs Dharamraj, 2023 SCC
OnLine SC 1085

6. Abhishek Vs St. of Mah., (2022) 8 SCC 282

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

1. Apprehending their arrest in Case
Crime No. 70 of 2013, under Sections 420,
467, 468, 471 IPC, Police Station -
Anoopshahr, District - Bulandshahr, the
present anticipatory bail application has
been moved by the applicants - Kusum
Raghav and Asha Raghav.

2. Heard learned counsel for the
applicants, learned A.G.A. for the State and
perused the material available on record.

SUBMISSIONS
MADE
ON
BEHALF OF THE APPLICANTS:

3. It is submitted by learned counsel
for the applicants that the applicants are
innocent and have no concern with the
present matter. Allegations levelled against
the applicants are false. It is further
submitted that the applicants have been
falsely implicated in this case. It is
further submitted that the applicants
have apprehension of their arrest by
the police any time. It is also
submitted that the applicants are
ladies and they are the bonafide
purchasers. They have purchased the
land
after
payment
of
requisite
consideration amount and they have
not
played
any
fraud
with
the
informant at all.

4. It is further submitted that
throughout the investigation they have been
cooperative. It is also submitted that after
investigation, final report was submitted in
this matter, which was rejected by the
Court concerned and cognizance was taken.

5. It is also submitted that thereafter
an application U/S 482 No. 14954 of 2017
was preferred before this Court but no
relief was granted by the Court and it was
opined
that
the
applicants
have
an
alternative remedy by way of filing an
appropriate application before the Court
concerned and subsequently discharge
application
was
moved
before
the
Magistrate Court which was rejected vide
order dated 15.12.2018 and revision
preferred against the said order was also
dismissed on 5.9.2019 by the Sessions
Court. Subsequently Criminal Misc. Writ
Petition No. 6976 of 2019 was preferred
which is still pending.

6. It is further submitted that as a matter of
fact, a compromise took place between the
parties and they settled their disputes
amicably through compromise deed dated
21.11.2022 but meanwhile process under
Sections 82/83 CrPC was issued against the
applicants by the Court concerned on
3.2.2021. It is further submitted that the
applicants had been cooperative throughout
the investigation and with the trial court as
well and they had been engaged in taking
recourse
of
legal
forums
and
in
continuation of that discharge application
was also filed by them. It is also submitted
that
without
following
the
required
procedure for issuance of process under
Sections 82 and 83 CrPC, the punitive
processes
have been
issued
by the
Magistrate against the applicants and such
order is not tenable in the eyes of law.
Applicants have no criminal history to their
362 INDIAN LAW REPORTS ALLAHABAD SERIES
credit. In support of his submissions,
learned counsel for the applicants has
placed reliance upon a decision of this
Court in Application U/S 482 No. 1974 of
2023,
Purushottam
Chaudhary
vs.
Central Bureau of Investigation, decided
on 27.2.2023.

SUBMISSIONS
MADE
ON
BEHALF OF THE STATE :

7. Per contra, the learned A.G.A.
opposed the prayer and submitted that after
rejection of discharge application moved by
the
applicants
before
the
Court
of
Magistrate, revision filed against the said
order was also dismissed on 5.9.2019 and
thereafter Writ Petition No. 6976 of 2019
was preferred but no interim order was
granted in the aforesaid proceeding in
favour of the applicants. Since the
applicants deliberately kept themselves
absent from the proceedings of trial court,
the trial court had no option but to issue
punitive process against them.

8. It is also submitted that a perusal of
the order sheets reflects that after issuance
of
the
bailable
warrant
against
the
applicants, non-bailable warrants were also
issued
and
when
they
remained
absconding, process under Section 82 CrPC
was issued and the applicants were
declared as proclaimed offenders. It is also
submitted that a compromise petition was
filed by the informant before the Court
concerned but the present applicants never
appeared before the trial court.

9. It is further submitted that mere
filing a writ petition before the High Court
wherein no order for interim protection or
for stay of the proceedings of the case was
passed, does not preclude the applicants to
make their appearance in the proceedings
before the trial court. It is also submitted
that since the applicants have been
declared proclaimed offenders, before
entering into the merits of the case, at the
very outset they are not entitled for
anticipatory bail in view of the settled
law on the subject on account of nonmaintainability of the application for grant
of anticipatory bail.

10. I have considered the rival
submissions made by the learned counsel
for the parties and have gone through the
entire record carefully.

FACTS OF THE CASE :

11. The prosecution story as unfolded
in the F.I.R. is that the landed properties of
the informant were sold fraudulently by
way of execution of six sale deeds by some
of the named accused persons in favour
of co-accused persons including the
present applicants and thereby causing a
huge monetary loss to the informant
whereas the vendors had no title or
authority to execute the sale deed in
respect
of
the
properties
which
belonged to the informant. F.I.R. was
lodged
on
27.1.2013
and
after
investigation final report was submitted
which was rejected by the Court and
cognizance of the case was taken.

OBSERVATIONS :

12. It reflects from the perusal of the
record that after issuance of the
bailable
warrant
against
the
applicants, non-bailable warrants were
also issued and when they remained
absconding, process under Section 82
CrPC
was
also
issued
and
the
applicants
were
declared
as
proclaimed offenders.
11 All. Kusum Raghav & Anr. Vs. State of U.P. & Anr.
363

13. It also reveals from the perusal of
the record that the applicants were well
aware of the proceedings of the trial court
as they had already moved discharge
application before the Court concerned in
the light of the order passed by this Court
in application under section 482 CrPC No.
14954 of 2017. Hence, there was no need
to issue fresh summons to them. Suffice it
to say that after taking into account the
deliberate absence of the applicants if nonbailable warrant was issued by the Court
against them, there was no illegality in
issuing the same. It reveals that the
applicants did not cooperate with the trial
court and this fact finds support from the
material placed on record.

14. The conduct of the applicants
drags them under the umbrella of the law
promulgated by the Hon'ble Apex Court in
Prem Shankar Prasad Versus State of
Bihar and Another, 2021 SCC OnLine
Supreme Court 955. In the facts of that
case, charge-sheet was filed under Sections
406, 420 IPC against the accused and thus
it was explicit that a prima facie case
against the accused was found. From the
record, it revealed that the arrest warrant
was issued by the Magistrate against the
accused and thereafter proceedings under
Sections 82, 83 Cr.P.C. had been initiated
pursuant to the order passed by the
Magistrate. Only thereafter the accused
moved an application before the trial court
for anticipatory bail, which was rejected by
the Sessions Court. However, subsequently
anticipatory bail was granted to the
aforesaid accused by the High Court and
when the matter came before the Hon'ble
Apex Court, it was observed like this-

"19. Despite the above observations on
merits and despite the fact that it was
brought to the notice of the High Court that
respondent No. 2 - accused is absconding
and even the proceedings under sections
82-83 of Cr. P.C. have been initiated as far
as back on 10.01.2019, the High Court has
just ignored the aforesaid relevant aspects
and has granted anticipatory bail to
respondent No. 2 - accused by observing
that the nature of accusation is arising out
of a business transaction. The specific
allegations of cheating, etc., which came to
be considered by learned Additional
Sessions Judge has not at all been
considered by the High Court. Even the
High Court has just ignored the factum of
initiation of proceedings under sections 8283 of Cr. P.C. by simply observing that "be
that as it may". The aforesaid relevant
aspect on grant of anticipatory bail ought
not to have been ignored by the High Court
and ought to have been considered by the
High Court very seriously and not casually.
20. In the case of State of Madhya Pradesh
v. Pradeep Sharma (Supra), it is observed
and held by this court that if anyone is
declared
as
an
absconder/proclaimed
offender in terms of section 82 of Cr.P.C,
he is not entitled to relief of anticipatory
bail."

15. The Hon'ble Apex Court in
Lavesh Vs. State (NCT of Delhi)(2012) 8
SCC 730 has held that "Normally, when
the accused is "absconding" and declared as
a "proclaimed offender", there is no
question of granting anticipatory bail. We
reiterate that when a person against whom a
warrant had been issued and is absconding
or concealing himself in order to avoid
execution of warrant and declared as a
proclaimed offender in terms of Section 82
of the Code he is not entitled to the relief of
anticipatory bail."

16. Further, the judgment passed in
Lavesh (supra) was referred by the Hon'ble
364 INDIAN LAW REPORTS ALLAHABAD SERIES
Apex Court in State of Madhya Pradesh
vs. Pradeep Sharma, (2014) 2 Supreme
Court
Cases
171
and
referring
to
paragraph 12 of the judgment of Lavesh
(supra), in paragraph 16 of the said
judgment, it was observed, relevant portion
of which is as under :

"16.........It is clear from the above
decision that if anyone is declared as an
absconder / proclaimed offender in terms of
Section 82 of the Code, he is not entitled to
the relief of anticipatory bail."

17. Hence, the law is discernible on
the point that as per normal rule,
anticipatory bail cannot be granted to an
accused who is absconding or concealing
himself in order to avoid execution of the
process of the Court without offering any
legal or plausible justification for his
abscondence and consequently has been
declared a proclaimed offender. Albeit a
compromise petition was filed by the
informant before the Court concerned but
the present applicants never appeared
before the Trial Court after rejection of
discharge application and after adopting the
lawful procedure, punitive processes were
issued against them.

18. The ratio of law promulgated in
Purushottam Chaudhary case (supra)
relied upon by the learned counsel for the
applicants is that the Courts while sending
process to an accused to procure his
presence before the Court must take into
account that firstly summons should be sent
which must be served in accordance with
law, particularly in the light of Section 64
CrPC and after service of summons in case
the accused fails to appear before the
Court, bailable warrant and in that
sequence non-bailable warrant and then
punitive process under Section 82 CrPC
may be issued by the Courts but the factual
matrix of the matter in hand differs in the
sense that the present is not a case where
the accused persons were not at all aware
about the case pending against them before
the Court. They had already moved
discharge application before the Court
concerned in light of the order passed by
this Court in application U/S 482 CrPC No.
14954 of 2017 and after rejection of the
same, Criminal Revision was also preferred
by them, hence, since the applicants before
this Court were very well aware about the
case pending against them before the Court,
there was no need to issue summons
against them to bring the fact of pendency
of case against them to their knowledge.
The applicants, though having knowledge
about the pendency of the case against
them, deliberately avoided their presence
before the Court, the Court concerned
committed no legal error in issuing punitive
process against them and therefore in these
circumstances the law relied upon by the
applicants in Purushottam Chaudhary
case (supra) does not provide any help to
them.

19.

Further,
in
the
recent
pronouncement of the Hon'ble Apex Court
in State of Haryana vs. Dharamraj, 2023
SCC Online SC 1085, decided on
29.8.2023 the legal position regarding
maintainability of an application for grant
of anticipatory bail to a proclaimed
offender has been elucidated, which reads
as under (paragraph 17 of the said
judgment):

"17. The respondent, without first
successfully assailing the order declaring
him as a proclaimed offender, could not
have proceeded to seek anticipatory bail.
Looking to the factual prism, we are clear
that the respondent's application under
11 All. Narendra Kumar Vs. State of U.P. & Ors.
365
Section 438, CrPC should not have been
entertained, as he was a proclaimed
offender. We may note that in Lavesh v.
State (NCT of Delhi), (2012) 8 SCC 730,
this Court was categoric against grant of
anticipatory bail to a proclaimed offender.
In the same vein, following Lavesh (supra)
is the decision in State of Madhya Pradesh
v. Pradeep Sharma, (2014) 2 SCC 171,
where this Court emphasised that a
proclaimed offender would not be entitled
to anticipatory bail. Of course, in an
exceptional and rare case, this Court or the
High Courts can consider a plea seeking
anticipatory bail, despite the applicant
being a proclaimed offender, given that the
Supreme Court and High Courts are
Constitutional
Courts.
However,
no
exceptional situation arises in the case at
hand. Following Pradeep Sharma (supra),
in Prem Shankar Prasad v. State of Bihar,
2021 SCC OnLine SC 955, this Court was
unequivocal that the High Court therein
erred in granting anticipatory bail ignoring
proceedings under Sections 82 and 83,
CrPC. In Abhishek v. State of Maharashtra,
(2022) 8 SCC 282, this Court concluded:

'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. [For example, Prem Shankar
Prasad v. State of Bihar, (2022) 14 SCC
529, 2021 SCC OnLine SC 955] ?'"

20. The deliberate oblivion to the
process issued by the Court on the part of
the applicants denudes their claim to treat
their application for grant of anticipatory
bail as maintainable under the roof of a
'rare and exceptional case' and thereby to
grant anticipatory bail to them.

21. In view of the above, declaring
the present application for grant of
anticipatory bail as not maintainable, I
deem it not a fit case to grant anticipatory
bail to the present applicants. The wilful
defaulters, who do not cooperate with the
trial court at all, are not entitled to get any
relief
from this
Court
by
way
of
anticipatory bail.

22. The anticipatory bail application
is, accordingly, rejected.
----------
(2023) 11 ILRA 365
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.10.2023

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE VINOD DIWAKAR, J.

Crl. Misc. Writ No. 15487 of 2023

Narendra Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Mohammad Khalid, Sri Satish Tamta (Sr.
Advocate)

Counsel for the Respondents:
G.A.

A. Criminal Law - Constitution of India,1950Article 226 - U.P. Gangsters and Anti-Social
Activities (Prevention) Act, 1986- Sections 2 &
3(1)- One of the main basic principles of