# Manish Yadav v. State of U.P. Opp. Party

- **Citation:** (2022) 8 ILRA 449
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-14
- **Case number:** Crl. Misc. Anticipatory Bail Appl. No. 4645 of 2022
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manish-yadav-v-state-of-u-p-opp-party-48796
- **Pages:** 7

## Headnote

450 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 82 & 83 -If any
person has filed any anticipatory bail application
before the learned court below showing his
reasonable apprehension of arrest in a case
where the allegations of the prosecution prima
facie do not corroborate with the material
available on record and his/her anticipatory bail
application is rejected, he or she has got a right
to approach the High Court for such anticipatory
bail and if the interregnum period any
proclamation u/S 82 and 83 Cr.P.C. is issued it
may be considered as a circumventive exercise
being taken by the Investigating Officer. No one
can be restrained from taking legal course
strictly in accordance with law and such legal
right may not be prevented even if any process
is adopted by any authority which is not
permissible under the law.

B. The court concerned must ensure before
taking any coercive steps u/Ss 82, 83 Cr.P.C.
that the summons, bailable warrants and nonbailable warrants have been duly served upon
the person and he/she is deliberately avoiding
the same. Mere issuing of summons, bailable
warrants and non-bailable warrants would not
suffice but what is most important is it's service
upon the person because unless and until such
process is served no further coercive step
should be taken. Therefore, if the aforesaid
process
is
avoided
by
the
person
any
appropriate application for seeking proclamation
u/Ss 82,83 Cr.P.C. can be filed by the I.O.
supported with an affidavit to apprise the court
concerned as to how despite the summons,
bailable warrants and non-bailable warrants
having been duly served upon the person he or
she is deliberately avoiding to cooperate with
the investigation and the court after having
proper satisfaction on the averments of such
application may issue proclamation. Only under
these circumstances that person may be
declared as proclaimed offender and his or her
anticipatory bail application should not be
heard.

Application allowed. (E-12)

List of Cases cited:-

## Text

8 All. Manish Yadav Vs. State of U.P.
449

15. Let the applicant Ram Sajeevan
@ Babu involved in case crime no. 0499 of
2021, under Sections 376,504,506 IPC and
section 3/4 POCSO Act, 2012, Police
Station Fatehpur, District Barabanki be
enlarged on bail on his executing a personal
bond and two sureties each in the like
amount to the satisfaction of the court
concerned on the following conditions :-

(1) The applicant will not make any
attempt to tamper with the prosecution
evidence in any manner whatsoever.

(2) The applicant will personally appear
on each and every date fixed in the court
below and his personal presence shall not be
exempted unless the court itself deems it fit to
do so in the interest of justice.

(3) The applicant shall cooperate in
the trial sincerely without seeking any
adjournment.

(4) The applicant shall not indulge in
any criminal activity or commission of any
crime after being released on bail.

(5) In case, the applicant misuses the
liberty of bail and in order to secure his
presence proclamation under Section 82
Cr.P.C. is issued and the applicant fails to
appear before the court on the date fixed in
such proclamation, then, the trial court
shall initiate proceedings against him, in
accordance with law, under Section 174-A
of the Indian Penal Code.

(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 him
in accordance with law.

(7) The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad or certified copy issued from the
Registry of the High Court, Allahabad.

(8) The concerned Court/ Authority/
Official shall verify the authenticity of such
computerized copy of the order from the
official website of High Court Allahabad
and shall make a declaration of such
verification in writing.

16. It may be observed that in the
event of any breach of the aforesaid
conditions, the court below shall be at
liberty to proceed for the cancellation of
applicant's bail.

17. It is clarified that the observations,
if any, made in this order are strictly
confined to the disposal of the bail
application and must not be construed to
have any reflection on the ultimate merit of
the case.
----------
(2022) 8 ILRA 449
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.07.2022

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Crl. Misc. Anticipatory Bail Appl. No. 4645 of
2022

Manish Yadav ...Applicant
Versus
State of U.P. ...Opp. Party

Counsel for the Applicant:
Sri Ramesh Chandra Yadav, Sri Ramashray
Tripathi

Counsel for the Opp. Party:
G.A.
450 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 82 & 83 -If any
person has filed any anticipatory bail application
before the learned court below showing his
reasonable apprehension of arrest in a case
where the allegations of the prosecution prima
facie do not corroborate with the material
available on record and his/her anticipatory bail
application is rejected, he or she has got a right
to approach the High Court for such anticipatory
bail and if the interregnum period any
proclamation u/S 82 and 83 Cr.P.C. is issued it
may be considered as a circumventive exercise
being taken by the Investigating Officer. No one
can be restrained from taking legal course
strictly in accordance with law and such legal
right may not be prevented even if any process
is adopted by any authority which is not
permissible under the law.

B. The court concerned must ensure before
taking any coercive steps u/Ss 82, 83 Cr.P.C.
that the summons, bailable warrants and nonbailable warrants have been duly served upon
the person and he/she is deliberately avoiding
the same. Mere issuing of summons, bailable
warrants and non-bailable warrants would not
suffice but what is most important is it's service
upon the person because unless and until such
process is served no further coercive step
should be taken. Therefore, if the aforesaid
process
is
avoided
by
the
person
any
appropriate application for seeking proclamation
u/Ss 82,83 Cr.P.C. can be filed by the I.O.
supported with an affidavit to apprise the court
concerned as to how despite the summons,
bailable warrants and non-bailable warrants
having been duly served upon the person he or
she is deliberately avoiding to cooperate with
the investigation and the court after having
proper satisfaction on the averments of such
application may issue proclamation. Only under
these circumstances that person may be
declared as proclaimed offender and his or her
anticipatory bail application should not be
heard.

Application allowed. (E-12)

List of Cases cited:-
1. Nanha Vs State of U.P. 1993 Crl.L.J. 938
(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Ramesh Chandra Yadav,
learned counsel for the applicant and the
learned Additional Government Advocate
for the State.

2. By means of present anticipatory bail
application, the applicant has shown his
apprehension of arrest in Case Crime No. 240
of 2021 u/s 147, 323,354,504, 506, 376
I.P.C., P.S, Shadiyabad, District Ghazipur.

3. The attention has been drawn
towards the impugned F.I.R. wherein the
present applicant is not named and no
allegation of any kind whatsoever has been
leveled against him. Learned counsel for the
applicant has submitted that having ulterior
motive and extraneous design in her mind the
informant has deliberately and intentionally
not named the present applicant in the F.I.R.
as she has stated herself as wife of the present
applicant. At the time of lodging of F.I.R. she
has given impression that she is wife of the
present applicant.

4. The present applicant is an Army
personnel serving in Indian Army, presently
posted at Line of Control, China Border. He has
got married with one Priya Yadav as certificate
of marriage to that effect has been enclosed
with the application as Annexure no. 4.

5. The learned counsel has further
submitted that the present applicant is not
married to the informant / complainant. Since
the informant / complainant is not married
wife of the applicant, therefore, she could
have not entered into the house of the present
applicant in his absence showing herself as
his wife when his family members were fully
aware that he is married to Priya Yadav.
8 All. Manish Yadav Vs. State of U.P.
451

6. However, while recording her
statement u/s 164 Cr.P.C., as per para 10 of
the anticipatory bail rejection order passed
by the learned court below, the complainant
/ informant has stated that she was having
affair with present applicant since long and
they got married in one temple.

7. Sri Yadav has submitted that no
credible evidence has been provided to the
investigating officer by the informant /
complainant and the investigation is still
going on.

8. The present applicant is posted at
Line of Control, China Border and he could
not know about any investigation being
pending. As a matter of fact no summon to
cooperate with the investigation is served
upon the applicant nor any bailable or nonbailable warrant has been served upon the
present applicant to cooperate with the
investigation.

9. This Court in re: Vinod Kumar
Singh @ Vinod Singh vs. State of U.P. in
Case No. 5195 of 2021 vide order dated
10.12.2021 was pleased to set aside the
proclamation issued u/s 82 Cr.P.C. for the
reason that before seeking proclamation u/s
82 Cr.P.C. the investigating officer has not
taken prior steps and has not filed such
application before the learned court below
on affidavit. Therefore, in the aforesaid
case the direction was issued to Director
General of Police, U.P. to issue appropriate
circular fixing guidelines to the effect that
the investigating officer shall file affidavit
before the court concerned apprising that
he has taken all necessary steps seeking
cooperation of the accused but the accused
is not cooperating with the investigation.

10. In the present case no such
affidavit has been filed by the Investigating
Officer and no material was shown to the
court-below to convince that before issuing
proclamation all prior necessary measures
have been adopted by the Investigating
officer concerned.

11. The Apex Court in re: Inder
Mohan Goswami & another vs. State of
Uttaranchal & others reported in (2007)
12 SCC 1 has held that coercive process i.e.
N.B.W. should not be issued lightly and it
is incumbent upon the Court to verify such
fact as to whether all prior necessory steps
have been taken by the investigating officer
or not. Therefore, as per Sri Yadav unless
the prior necessary steps, so prescribed
under the Cr.P.C., have not been taken by
the investigating officer, the proclamation
u/s 82 and 83 Cr.P.C. should not have been
issued. The relevant paras of Inder Mohan
Goswami (supra) are being reproduced
herein below :

51. The issuance of non-bailable
warrants
involves
interference
with
personal liberty. Arrest and imprisonment
means deprivation of the most precious
right of an individual. Therefore, the courts
have to be extremely careful before issuing
non-bailable warrants.

52. Just as liberty is precious for an
individual so is the interest of the society in
maintaining law and order. Both are
extremely important for the survival of a
civilized society. Sometimes in the larger
interest of the Public and the State it
becomes absolutely imperative to curtail
freedom of an individual for a certain
period, only then the non-bailable warrants
should be issued.

54. As far as possible, if the court is of
the opinion that a summon will suffice in
getting the appearance of the accused in
the court, the summon or the bailable
warrants should be preferred. The warrants
452 INDIAN LAW REPORTS ALLAHABAD SERIES
either bailable or non-bailable should
never be issued without proper scrutiny of
facts and complete application of mind, due
to the extremely serious consequences and
ramifications which ensue on issuance of
warrants. The court must very carefully
examine whether the Criminal Complaint
or FIR has not been filed with an oblique
motive."

(Emphasis Supplied) .

12. Therefore, as per Sri Yadav the
proclamation, so issued against the present
applicant is nonest in the eyes of law in
view of the decision of Apex Court in re:
Inder Mohan Goswami (supra).

13. Sri Yadav has further submitted
that the present applicant has filed
anticipatory bail application before the
learned court-below prior to issuance of
proclamation issued u/s 82 and 83 Cr.P.C.
inasmuch
as
his
anticipatory
bail
application was filed in the month of April,
2022 and has been rejected on 30.4.2022.
The proclamation u/s 82 Cr.P.C. has been
issued by the court-below on 9.5.2022.
Therefore, Sri Yadav has submitted that the
bar so imposed by Apex Court to the effect
that if the proclamation u/s 82 and 83
Cr.P.C. is issued, no anticipatory bail
application can be entertained would not be
attracted in the instant case inasmuch as
when the present applicant has filed his
anticipatory bail application before the
court below, there was no proclamation u/s
82 Cr.P.C. Admittedly, such proclamation is
issued after rejection of his anticipatory
bail application by the learned court below.

14. The law is trite on the point that,
if any person has filed any anticipatory bail
application before the learned court below
seeking anticipatory bail showing his
reasonable apprehension of arrest in a case
where the allegations of the prosecution
prima facie do not corroborate with the
material available on record and his / her
anticipatory bail application is rejected, he /
she has got a right to approach the High
Court for such anticipatory bail and if in
the interregnum period any proclamation
u/s 82 & 83 Cr.P.C. is issued, it may be
considered as a circumventive exercise
being taken by the Investigating Officer.
No one can be restrained from taking legal
recourse strictly in accordance with law
and such legal right may not be prevented
even if any process is adopted by any
authority which is not permissible under
the law.

15. As per Sri Yadav since the present
applicant is an Army personnel and
presently posted at Line of Control, China
Border, so the investigating officer / police
concerned should have not harassed him
and his family members in an issue wherein
the
allegations
do
not
prima
facie
corroborate with the material available on
record. Therefore, the liberty of the present
applicant may be protected in view of
dictum of Apex Court in re: Sushila
Aggarwal Vs. State (NCT of Delhi)-2020
SCC online SC 98.

16. Per contra, learned AGA has
opposed the prayer of anticipatory bail but
could not dispute the factual and legal
submissions of Sri Yadav, learned counsel
for the applicant. Learned AGA has
submitted that the investigation is going on.

17. Heard learned counsel for the
parties and perused the material on record.

18. The Hon'ble Apex Court in re:
State of Madhya Pradesh vs. Pradeep
Sharma reported in (2014) 2 SCC 171 has
held that a person against whom a
8 All. Manish Yadav Vs. State of U.P.
453
proclamation has been issued u/s 82/83
Cr.P.C. would not be entitled for the benefit
of anticipatory bail.

19.

Considering
the
aforesaid
judgment i.e.: Pradeep Sharma (supra) the
Apex Court in re: Prem Shanker Prasad
vs. State of Bihar (Criminal Appeal No.
1209 of 2021) vide judgment and order
dated October 21,2021 has observed that if
anyone is declared as an absconder /
proclaimed offender in terms of section 82
of the Code (Cr.P.C.), he is not entitled to
get the relief of anticipatory bail.

20. In view of the aforesaid decision
of Apex Court in re: Pradeep Sharma
(supra) and Prem Shankar Prasad (supra)
if any accused person is declared absconder
by the competent court, he would not be
entitled to get anticipatory bail.

21. In the present case the record
reveals that when the applicant has filed the
anticipatory bail application before the
learned
court
below
there
was
no
proclamation
u/s
82
Cr.P.C.
Such
proclamation has been issued after the
rejection of anticipatory bail application of
the present applicant by the learned court
below, therefore, the bar to entertain
anticipatory bail application after issuance
of proclamation u/s 82 Cr.P.C. would not be
attracted in the present case.

22. The anticipatory bail application
can be filed u/s 438 Cr.P.C. either before
the High Court or before the court of
sessions. However, normally a person
should approach the Court of sessions
and if the anticipatory bail application is
rejected,
the
High
Court
can
be
approached under same section i.e.
section 438 Cr.P.C. Therefore, for filing
anticipatory bail application both the
aforesaid courts have got concurrent
powers.

23. In the present case it appears
that
when
the
anticipatory
bail
application of the present applicant was
rejected on 30.4.2022, an application for
seeking proclamation order was filed by
the Investigating Officer and such order
has been issued on 9.5.2022. Further, the
proclamation order dated 9.5.2022 does
not disclose that the investigating officer
has filed an affidavit before the learned
court concerned to convince that all prior
steps which are required under the law
have been taken; as to whether the
summons, bailable warrant and nonbailable warrant have been served upon
the applicant or not; as to whether before
issuing the non-bailable warrant against
the present applicant the learned court
below has convinced itself about the
service
of
summons
and
bailable
warrants.

24. In the present case the informant
/ complainant has not leveled any
allegation against the present applicant in
the F.I.R. As a matter of fact, the present
applicant is not named in the F.I.R.. It is
beyond any comprehension that if the
informant / complainant was having any
grievance, more so genuine grievance
against the present applicant, any sort of
allegation would have been leveled in the
F.I.R., therefore, the allegations are
subject to the investigation which is
under progress and it is legitimately
expected that such investigation shall be
conducted and concluded strictly in
accordance with law.

25. The Apex Court has restrained the
proclaimed offender to seek anticipatory
bail. The person who is not following the
454 INDIAN LAW REPORTS ALLAHABAD SERIES
process of law and deliberately avoiding
the investigation despite all necessary steps
have been taken by the investigating officer
to apprise him to cooperate with the
process of investigation, e.g. summons
have been served but to no avail, thereafter
bailable warrants have been served but
again he / she is not cooperating with the
investigation for no plausible and cogent
reasons, lastly non-bailable warrant has /
have been served but there is no heed
thereon, then the investigation officer has
got no option except to seek proclamation
u/s 82 / 83 Cr.P.C. It is also relevant to note
here that the court concerned must ensure
before taking any coercive steps that all the
aforesaid proceed, i.e. summons, bailable
warrants and non-bailable warrants have
been duly served upon the person and he /
she is deliberately avoiding the same.
Issuing summons, bailable warrant and
non-bailable warrants would not suffice but
what is most important is its service upon
the person because unless and until such
process is served no further coercive step
should be taken in view of the dictum of
Apex Court in re: Inder Mohan Goswami
(supra) inasmuch as these coercive steps
are directly related with the liberty of the
person which is protected under Article 21
of the Constitution of India.

26. Therefore, if the aforesaid process
is avoided by the person, any appropriate
application for seeking proclamation can be
filed by the investigating officer supporting
with an affidavit to apprise the court
concerned as to how despite the summon,
bailable warrant and non-bailable warrant
having been served upon the person he /
she is deliberately avoiding to cooperate
with the investigation and the court after
having proper satisfaction on the averments
of
such
application
may
issue
proclamation.
Only
under
these
circumstances that person may be declared
as proclaimed offender and his / her
anticipatory bail application should not be
heard. In other words, before filing
anticipatory bail that person should be
proclaimed
offender
and
his
/
her
anticipatory bail application will loose the
right of hearing on merits.

27. In the present case when the
applicant
filed
his
anticipatory
bail
application, he was not a proclaimed
offender. His right to file such application
before this court was consequential as he
could have approached the High Court u/s
438 Cr.P.C. after rejection of his application
by the sessions court which was also filed
u/s 438 Cr.P.C. Therefore, when the present
applicant filed his application u/s 438
Cr.P.C. he was not a proclaimed offender so
the bar imposed by the Apex Court
entertaining
anticipatory
bail
of
the
proclaimed offender would not attract in
the present case.

28. Therefore, in view of what has
been considered above and also in view of
dictum of Apex Court in re: Sushila
Aggarwal (supra), I find it appropriate that
the liberty of the present applicant be
protected till filing of the police report, u/s
173(2) Cr.P.C. and if any charge-sheet is
filed, the liberty of the present applicant
shall be protected till conclusion of trial.

29. Having heard learned counsel for
the parties and having perused the material
available on record, the present anticipatory
bail application is allowed.

30. Therefore, it is directed that in the
event of arrest, applicant- Manish Yadav
shall be released on anticipatory bail in the
aforesaid case crime number on his
furnishing a personal bond of Rs. 50,000/-
8 All. Amita Garg & Ors. Vs. State of U.P. & Ors.
455
with two sureties each in the like amount to
the satisfaction of the arresting authority/
court
concerned
with
the
following
conditions:-

1. that the applicant shall make himself
available for interrogation by a police officer
as and when required;

2. 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 him from
disclosing such facts to the court or to any
police officer or tamper with the evidence;

3. that the applicant shall not leave India
without the previous permission of the court;

4. that in default of any of the conditions
mentioned above, the investigating officer
shall be at liberty to file appropriate
application for cancellation of anticipatory
bail granted to the applicant;

5. that in case charge-sheet is submitted
the applicant shall not tamper with the
evidence during the trial;

6. that the applicant shall not pressurize/
intimidate the prosecution witness;

7. that the applicant shall appear before
the trial court on each date fixed unless
personal presence is exempted;

8. that in case of breach of any of the
above conditions the court below shall have
the liberty to cancel the bail.
----------
(2022) 8 ILRA 455
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.07.2022

BEFORE

THE HON'BLE SIDDHARTH, J.

Crl. Misc. Anticipatory Bail Application No. 5286
of 2022

Amita Garg & Ors. ...Applicants
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicants:
Sri Ram Kishore Pandey, Sri Ajay Kumar Bashist
Singh

Counsel for the Respondents:
G.A.

Transit Anticipatory Bail- Transit bail is
protection from arrest for a certain definite
period as granted by the Court granting such
transit bail. He mere fact that an accused has
been granted transit bail, does not mean that
the regular court, under whose jurisdiction the
case would fall, would extend such transit bail
and would convert such transit bail into
anticipatory bail. Upon the grant of transit bail,
the accused person who has been granted such
transit bail, has to apply for anticipatory bail
before the regular court. Thus, there is no fetter
on the part of the High Court in granting a
transit anticipatory bail to enable the applicants
to approach the Courts including High Courts
where the offence is alleged to have been
committed and case is registered.

Application allowed. (E-12)

List of Cases cited:-

1. Teesta Atul Seetalvad & anr. Vs State of Mah.
& ors., Anticipatory Bail Application No. 14 of
2014(Decided on 31.01.2014 by Bombay High
Court)

2. Nikita Jacob Vs State of Mah. & ors.,
Anticipatory
Bail
Application
No.
441
of
2021(Decided on 17.02.2021 by Bombay High
Court)
(Delivered by Hon'ble Siddharth, J.)

1. Heard Sri Ram Kishore Pandey and
Sri Ajay Kumar Bashist Singh, learned
counsels for the applicants and learned
A.G.A for the State.

2. The instant anticipatory bail
application has been filed on behalf of the
applicants, Amita Garg, Vashudev Garg,