# Lavink Tyagi (In Jail) v. State of U.P. & Anr - **Citation:** (2019) 3 ILRA 347 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2019-10-14 - **Case number:** Crl Misc.Anticipatory Bail Application No. 38181 of 2019 - **Bench:** Ram Krishna Gautam - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lavink-tyagi-in-jail-v-state-of-u-p-anr-44892 - **Pages:** 4 ## Headnote A. Criminal Law -Indian Penal Code,1860Sections420,376,493,494,495,496 & Code of Criminal Procedure,1973 -Section 438 - grant of anticipatory bail-neither evidence nor circumstances are to be meticulously analysed in hair splitting manner because it may prejudice investigation, enquiry and trial. B. While dealing with anticipatory bail, the nature and gravity of accusation, the antecedents of the applicants, possibility of the applicant to flee from justice and where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for grant of anticipatory bail.(Para 3 to 6) Application rejected (E-6) List of cases cited:- ## Text 3 All. Lavink Tyagi Vs. State of U.P. & Anr. 347 (2019)11ILR A347 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 14.10.2019 BEFORE THE HON'BLE RAM KRISHNA GAUTAM, J. Crl Misc.Anticipatory Bail Application No. 38181 of 2019 Lavink Tyagi ...Applicant (In Jail) Versus State of U.P. & Anr. ...Opposite Parties Counsel for the Applicant: Sri Harish Chandra Shukla, Sri Manoj Kumar Rai Counsel for the Opposite Parties: A.G.A., Sri Harish Kumar Yadav, Sri Akhilesh Kumar Singh A. Criminal Law -Indian Penal Code,1860Sections420,376,493,494,495,496 & Code of Criminal Procedure,1973 -Section 438 - grant of anticipatory bail-neither evidence nor circumstances are to be meticulously analysed in hair splitting manner because it may prejudice investigation, enquiry and trial. B. While dealing with anticipatory bail, the nature and gravity of accusation, the antecedents of the applicants, possibility of the applicant to flee from justice and where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for grant of anticipatory bail.(Para 3 to 6) Application rejected (E-6) List of cases cited:- 1. Seema(Smt.) Vs. Ashwani Kumar (2008) 1 SCC 180 2. Pramod Suryabhan Pawar Vs. State of Mah. & Anr.(2019) Law Suit (SC)1504 3. Joti Parshad Vs. State of Haryana, AIR 1993 SC 1167 4. State of U.P. Vs. Naushad,AIR 2014 SC 384 (Delivered by Hon'ble Ram Krishna Gautam, J.) 1. Vakalatnama filed today by Sri Akhilesh Kumar Singh and Sri Harish K. Yadav on behalf of O.P. No. 2 is taken on record. 2. Heard learned counsel for applicant, learned AGA for the State and learned counsel for O.P. No. 2 over this application under section 438 Cr.P.C. by Lavink Tyagi moved for grant of anticipatory bail in Case Crime No. 1290 of 2019, u/s 420, 376, 493, 494, 495, 496 I.P.C., P.S. Kotwali Shamli, District Shamli. 3. Learned counsel for applicant argued that accused applicant is innocent. He has been falsely implicated in this very case crime number, whereas the complainant herself is a Police Constable, well educated and law knowing lady. The alleged occurrence is said to be of the year 2014, whereas this report has been lodged in the year 2019. There was no misconception of fact regarding marriage entered in between nor there was any deception nor there was any unreasonable belief about the fact stated by the complainant. It has specifically been stated in the F.I.R. lodged upon her written report as well as in her statement recorded u/s 164 Cr.P.C. that she entered in marriage with applicant Lavink Tyagi and she was blessed with a son. Subsequently she was again blessed with 348 INDIAN LAW REPORTS ALLAHABAD SERIES a son. Then after this situation changed, when behaviour of applicant Lavink Tyagi was changed in changed circumstances. She made application before the S.P. concerned and the applicant Lavink Tyagi was put under suspension. Subsequently, this suspension was revoked as complainant could not establish the fact of misconception of fact or marriage under deception made by accused. She was entered with marital status of 'unmarried' in her service record, whereas the accused- applicant was shown with marital status of 'married' in his service record. The complainant, being a police constable and fully acquainted with legal procedure, was expected to go through marital status of applicant given in his service record and she did it. Hence, it was never misconception of fact nor any deception by applicant. It was a bonafide marriage and it never converts the physical relation in definition of rape provided under section 375 I.P.C. and under exception (2) appended to the section. It was with conscience and consensual physical relation with wife and with no deception. There was no reason to believe deception. Hence the department did not lodge report for this offence. Rather this report was subsequently lodged by complainant. The judgment of Apex Court reported in (2008) 1 SCC 180, Seema (Smt.) Vs. Ashwani Kumar, makes a provision that marriage must be registered, even if there occurred some marriage. It was not got registered by complainant, who herself is a police constable and well known about law. Hence, it was lack on her part itself. Further judgment of Apex Court reported in 2019 Law Suit (SC) 1504, Pramod Suryabhan Pawar Vs. State of Maharashtra & another, has elaborately discussed 'misconception of fact' and 'reasonable belief', wherein the circumstances making conclusion about misconception of fact and ingredients of deception with circumstances creating a reason to believe has been elaborately discussed by their Lordships. In the present case too, there is no question of any misconception. Learned counsel for applicant pressed para 26 of the judgment reported in AIR 1993 SC 1167, Joti Parshad Vs. State of Haryana, wherein 'reason to believe' has been elaborately discussed. Hence, there is no offence punishable u/s 376 I.P.C. For rest of offences, mentioned as above, there is lack of ingredients for those offences. Hence, this anticipatory bail application with prayer for quashing the rejection order passed by learned Sessions Judge, who failed to appreciate the facts and law placed before it. Thereby for allowing application moved by applicant for grant of anticipatory bail. 4. Learned counsel for O.P. No. 2 has vehemently opposed above arguments with this contention that it was a sheer misconception of fact under which complainant entered in marriage with accused and cohabited. Accused was Sub Inspector of Police and complainant, being a police constable, was under control and supervision of accusedapplicant. Hence, the offence punishable u/s 376(3) I.P.C. will also come into play. Whereas argument advanced is regarding offence punishable u/s 376(2) I.P.C. itself. The previous marriage and blessing of two kids had been concealed by accused and upon his assurance and stating of facts, this second marriage was performed by the applicant. She was blessed with one son. But under connivance and deception this was reported to be dead, whereas he was alive. 3 All. Lavink Tyagi Vs. State of U.P. & Anr. 349 Again she was blessed with another son. Then after she was compelled to hide from the scene and to elope from the life of accused- applicant, for which threat was extended. In between, a telephonic call was received from the erstwhile wife of accused-applicant, who disclosed about previous marital status and two kids from the earlier marriage. Then after this report was got lodged and prior to it a complaint was made to the department i.e. Police Head of District Shamli, who initiated an enquiry and the accused-applicant was put under suspension. Subsequently, it was revoked. Hence, the offences, for which this case crime number has been registered, are of heinous nature particularly committed by a government servant. There is mandatory prohibition of bigamy by a U.P. State Government Servant. 5. Learned AGA has vehemently opposed bail with this contention that marital status, shown in service record, was of the time of entering in the service and at that time this complainant- constable was unmarried and that is why she entered her marital status 'unmarried'. But the disclosure of marital status of accused was not under her knowledge. Rather it was under knowledge of applicant that he was married and his marital status was of 'married'. But this fact was concealed by him and subsequent marriage was got entered. Hence this non-mentioning of marital status of complainant is of no avail. 6. Having heard learned counsel for the parties and gone through the material placed on record, it is apparent that this application is for grant of anticipatory bail. At this juncture, neither evidence nor circumstances are to be meticulously analysed in hair splitting manner by this court, because it may prejudice investigation, enquiry and trial. Hence, U.P. State amendment in Code of Criminal Procedure by Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 2018 has brought insertion in section 438 of Cr.P.C. with a provision of consideration by the court, while dealing with anticipatory bail application, the nature and gravity of the accusation; the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; the possibility of the applicant to flee from justice; and where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested; either reject the application forthwith or issue an interim order for the grant of anticipatory bail. There are certain exceptions in which the provisions of this section 438 Cr.P.C. is not applicable. The ingredients for grant or non- grant of anticipatory bail have been given in this amendment. Hence, this Court is to consider as to whether those ingredients for grant or for rejection of anticipatory bail is there? The Apex Court in State of U.P. Vs. Naushad, AIR 2014 SC 384 has propounded that if consent is given by the prosecutrix under a misconception of fact, it is vitiated. Accused committed sexual intercourse with the prosecutrix by giving false assurance that he would marry her, after she got pregnant, he refused to do so. From this it is evident that he never intended to marry her and procured her consent only for the reason of having sexual relationship with her consent, which was consent obtained under misconception of fact, as defined under section 90 of the I.P.C. In the present 350 INDIAN LAW REPORTS ALLAHABAD SERIES case, marriage in between is not denied, previous marriage and two kids are also not denied. The accused being a government servant is not denied. He being legally bound not to marry during lifetime of his wife under U.P. Government Servant Service Conduct Rule, 1956 is not denied. He entered in marriage with complainant is also not denied. He said himself to be unmarried and under his assurance and persuasion this marriage took place, has been said by prosecutrix in her report and in her statement recorded under section 164 Cr.P.C. She was blessed with a child, who was born alive, but was reported to be dead by accused-applicant. It has been said by her in her report. Subsequently, she was blessed with another child. Then after she was compelled to be away from the life of accused, for which threat was extended. This has been mentioned in the report as well as in her statement recorded u/s 164 Cr.P.C. Under all these facts and circumstances it seems a case in which no indulgence is required from this Court. 7. Accordingly, this application is rejected. 8. However, it is made clear that the trial court as well as Investigating Officer will not be influenced from any finding recorded in this order. ---------- (2019)11ILR A350 REVISIONAL JURISDICTION CRIMINAL SIDE DATED: LUCKNOW 30.10.2019 BEFORE THE HON'BLE DINESH KUMAR SINGH, J. Criminal Revision No. 123 OF 2007 Pawan Tewari ...Revisionist Versus State of U.P. ...Opposite Party Counsel for the Revisionist: Sri Karuna Shankar Rastogi Counsel for the Opposite Party: Government Advocate, Sri V.K. Shahi A. Criminal Law-Code of Criminal Procedure,1973 - Section-227/228 - Application - while considering an application for discharge, the court is required to consider the record of the case to decide whether the allegations against accused are made out or not-it is not required to weigh and sift all the evidence-if the material placed before the court discloses grave suspicion against the accused, the court is justified in framing the charge-application of discharge is dismissed-it is well settle that the confession of a co-accused is a substantive evidence against other coaccused persons in the same trial. (Para 31,32,33,34) Revision dismissed (E-6) List of cases cited:- 1. State of Tamilnadu Vs. Jayalalitha, (2000) 5 SCC 440 2. Param Hans Yadav and Sadanand Tripathi Vs. State of Bih. And Ors, (1987) 2 SCC 197 3. Satish Mehra Vs. Delhi Administration & Anr (1996) 9 SCC 766 4. State of Bih. Vs. Ramesh Singh, (1977) 4 SCC 39 5. Amit Kapoor Vs. Ramesh Chander,(2012) 9 SCC 460 6. State Vs. Selvi,(2018) 13 SCC 455 7. Asim Shariff Vs. NIA,(2019) 7 SCC 148 8. Tarun Jit Tejpal Vs. State of Goa and Ors, (2019) SCC OnLine SC 1053