# Mohit Upadhyay & Ors v. State of U.P. & Anr

- **Citation:** (2023) 7 ILRA 1115
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-07
- **Case number:** Crl. Misc. Anticipatory Bail Application No. 5431 of 2023
- **Bench:** Krishan Pahal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohit-upadhyay-ors-v-state-of-u-p-anr-50497
- **Pages:** 4

## Headnote

Law-The
Code
of
Criminal
Procedure,
1973-Section
438---
The
applicants have approached this Court directly
u/s 438 CrPC without taking recourse to the
Sessions Court--- The applicants have been
granted anticipatory bail in Case Crime No.99 of
2017, P.S. Swaroop Nagar, District Kanpur
Nagar and they have already furnished their bail
bonds at the court concerned, the argument of
having apprehension of being assaulted at the
District
Court,
Kanpur
Nagar
pales
into
insignificance--- There is criminal history of
eleven cases assigned to the applicants. (Para
12 & 13)

Anticipatory bail application is found
devoid of merits and is accordingly
rejected. (E-15)

List of Cases cited:

Shivam Vs St. of U.P. & anr.2021 SCC OnLine All
264

## Text

7 All. Mohit Upadhyay & Ors. Vs. State of U.P. & Anr.
1115
compared to the year 2020. In cases of
rape,
the
conviction
in
year
2022,
compared to the year 2020, recorded a
jump of 280%. During 2022, altogether 16
mafias were convicted in 23 different cases.
There has been a significant increase in
examination of witnesses.

22. This Court would like to place on
record the empathy and appreciation it has
for devoted police officers who are
discharging their duties with creativity and
with holistic understanding of the ground
realities of prosecution. However, the
initiatives undertaken by the respondent
no.5, in purported exercise of jurisdiction
conferred under the O.M., evinces that he is
exercising the lofty and overarching
jurisdiction of a Director of Prosecution as
envisaged in Section 25-A of the Code. The
Parliament in its wisdom has framed
Section 25-A of the Code precisely to bring
about fundamental and comprehensive
changes in prosecution in the country to
uphold the rule of law. Alas! if only the
appointment of respondent no.5 was in
accordance with the provisions of Section
25-A of the Code.

23. Therefore, this Court cannot but
grant the relief as directed by my esteemed
brother.
----------
(2023) 7 ILRA 1115
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.07.2023

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Crl. Misc. Anticipatory Bail Application No. 5431
of 2023
(Under Section 438 Cr.P.C.)

Mohit Upadhyay & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicants:
Sri Krishna Kant Vishwakarma, Sri Rajesh Kumar
Singh

Counsel for the Respondents:
G.A., Sri B.N. Singh, Sri Manish Kumar Singh, Sri
Shakti Shanker Tiwari, Sri Subhash Chandra
Tiwari, Sri V.M. Zaidi (Sr. Advocate)

Criminal
Law-The
Code
of
Criminal
Procedure,
1973-Section
438---
The
applicants have approached this Court directly
u/s 438 CrPC without taking recourse to the
Sessions Court--- The applicants have been
granted anticipatory bail in Case Crime No.99 of
2017, P.S. Swaroop Nagar, District Kanpur
Nagar and they have already furnished their bail
bonds at the court concerned, the argument of
having apprehension of being assaulted at the
District
Court,
Kanpur
Nagar
pales
into
insignificance--- There is criminal history of
eleven cases assigned to the applicants. (Para
12 & 13)

Anticipatory bail application is found
devoid of merits and is accordingly
rejected. (E-15)

List of Cases cited:

Shivam Vs St. of U.P. & anr.2021 SCC OnLine All
264

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

1. List has been revised.

2. Heard Sri Rajesh Kumar Singh,
learned counsel for the applicants , Sri
V.M. Zaidi, learned Senior Counsel
assisted by Sri Subhash Chandra Tiwari,
learned counsel for the informant and
Sri
P.K.
Giri,
learned
Additional
Advocate General assisted by Sri V.K.S.
Parmar, learned A.G.A. for the State as
well as perused the material placed on
record.
1116 INDIAN LAW REPORTS ALLAHABAD SERIES

3. The applicants have approached
this Court directly without taking recourse
to the Sessions Court, Kanpur Nagar.

4. Learned counsel for the applicant
has stated that there is an exceptional
ground for the applicants as the brother-inlaw of the informant Radhey Krishna
Upadhyay is an practising advocate at
Kanpur Nagar and is an influential person
who alongwith his juniors pressurises the
applicants and there is every apprehension
of the applicants being assaulted by them.

5. The present anticipatory bail
application has been filed on behalf of the
applicant in Criminal Case No.70490 of
2021 (State vs. Mohit Upadhyay) arising
out of Case Crime No.22 of 2021 registered
under Sections 308, 341, 504 and 506 IPC
at Police Station- Barra, District Kanpur
Nagar with a prayer to enlarge him on
anticipatory bail.

PROSECUTION STORY:

6. The applicants are stated to have
assaulted the wife of the informant on
10.08.2016 at about 10:00 PM by danda,
thereby caused grievous injuries to her.

RIVAL CONTENTIONS

(Arguments on behalf of applicants)

7. Learned counsel for the applicants
has stated that initially a case was instituted
under Section 323, 504 and 506 I.P.C. as an
NCR only and the said NCR is delayed by
three days and there is no explanation of
the said delay caused. Learned counsel has
further stated that after much delay of about
three years, an order under Section 155(2)
Cr.P.C. has been passed by the Special
Chief Judicial Magistrate, Kanpur Nagar on
16.11.2019 to investigate the matter. After
investigation, the final report (charge-sheet)
has been filed against the applicants in
added Section of 308 I.P.C. Learned
counsel has further stated that the injury
report is suspicious as initially the injured
person was admitted to a private hospital
and was treated there and was then referred
to a government hospital and at the
government hospital, it was observed that
there was a stitched wound on her left
parietal region of head and another injury
was abrasion which was simple in nature.

8. Learned counsel has further stated
that there is an observation made by the
Investigating Officer that the informant had
telephonically tried to pressurize him by
saying that he is a journalist, as such the
case may be transformed under Section 308
I.P.C. Despite, the said observation, under
the duress of the informant, the present
final report (charge-sheet) has been filed
under Section 308 I.P.C. The applicants and
the informant are having a long dispute
pending between them. Learned counsel
has further stated that in all eleven cases
have been instituted against the applicants
by the informant and his family members,
which stands explained as four of those
cases were instituted as an NCR, one is
complaint case and other six cases are
between the same parties. The applicants
have annexed the orders of two cases
mentioned in the criminal history. There is
no other criminal history of the applicants
except the said cases.

9. Learned counsel has further stated
that the applicants had challenged the said
final report (charge-sheet) before this Court
by filing a petition U/S 482 Cr.P.C.
No.15394 of 2021 and this Court was
pleased to grant interim protection to the
7 All. Mohit Upadhyay & Ors. Vs. State of U.P. & Anr.
1117
applicants, but later on, on 14.02.2023, the
said petition was dismissed on merits and
the interim protection was set aside.
Learned counsel has further stated that they
have challenged the said order of rejection
before the Apex Court by preferring S.L.P.
No.5848 of 2023, which is still pending.

(Arguments
on
behalf
of
informant/State)

10. Per contra, learned Senior
Counsel for the informant has vehemently
opposed the anticipatory bail application
on the ground that there is no exceptional
ground present before this Court to
entertain the present anticipatory bail
application as there is no FIR/medical
report to corroborate the allegations
against the relative of the informant.
Learned Senior Counsel has further stated
that the applicants are the criminals as
they have been involved in repeatedly
committing similar nature of crimes. The
victim herein is a lady and had sustained
grievous injuries to her head. The
applicants have criminal history of eleven
cases
and
they
have
not
property
explained the said criminal cases as they
have not annexed the bail orders of other
cases.

11. Learned Senior Counsel has
further stated that the petition U/S 482
Cr.P.C. has been decided once for all and
the case, being of assault, is squarely
covered with paragraph 43 of the
judgment of this Court passed in the case
of Shivam vs. State of U.P. and
Another1, as such the applicants are not
entitled for anticipatory bail. Learned
Senior Counsel has further stated that
there is no interim order in the said S.L.P.
and the pendency cannot be taken into
consideration at this point of time.

13. Learned A.G.A. has also
vehemently opposed the anticipatory bail
application on the ground that there is
criminal history of eleven cases assigned
to the applicants.

CONCLUSION:

12. Taking into consideration the
fact as mentioned by the counsel for the
applicant that there is apprehension in
their minds to the fact that they may be
assaulted at the premises of the District
Court, Kanpur Nagar, as already stated by
the counsel for the applicants that the
applicants have been granted anticipatory
bail in Case Crime No.99 of 2017, under
Sections 307, 504 and 506 I.P.C., P.S.
Swaroop Nagar, District Kanpur Nagar
and they have already furnished their bail
bonds at the court concerned, the said
argument of having apprehension of
being assaulted at the District Court,
Kanpur Nagar pales into insignificance.

13. After hearing learned counsel
for
the
parties
and
taking
into
consideration the judgment of this Court
passed in Shivam (supra) and also the
fact that there is criminal history of
eleven cases assigned to the applicants, I
do not find it a fit case for grant of
anticipatory bail to the applicant. The
present anticipatory bail application is
hereby found devoid of merits and is
accordingly rejected.

14. It is clarified that the observations
made herein are limited to the facts brought
in by the parties pertaining to the disposal
of anticipatory bail application and the said
observations shall have no bearing on the
merits of the case during trial.
----------
1118 INDIAN LAW REPORTS ALLAHABAD SERIES
(2023) 7 ILRA 1118
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.07.2023

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Crl. Misc. Anticipatory Bail Application No. 7760
of 2023
(U/s 438 Cr.P.C)

Sandeep Kumar Garg & Anr. ...Applicants
Versus
State of U.P. ...Respondent

Counsel for the Applicants:
Sri Abhinav Gaur, Sri Mohd. Rashid Siddiqui, Sri
Prateek Rai, Sri Anoop Trivedi (Sr. Advocate)

Counsel for the Respondent:
G.A., Sri Alok Ranjan Mishram, Sri Gopal
Swaroop Chaturvedi (Sr. Advocate)

Criminal
Law-The
Code
of
Criminal
Procedure,1973 - Section 438--- Applicant
has a criminal history of five cases and he has
not been enlarged in any of the cases, as such,
the said criminal history goes unexplained---
Applicant already agitated the provisions of
Section 482 Cr.P.C. without any success---
Anticipatory bail application is found
devoid of merits and is accordingly
rejected. (Para 23, 24 & 25) (E-15)

List of Cases cited:

1. Kamlesh & anr. Vs The St. of Raj. &
anr.Criminal Appeal No. 1006 of 2019 (Arising
out of SLP (Crl.) No. 1530 of 2018 decided on
9.7.2019

2. Ravindra Saxena Vs St. of Raj. (2010) 1 SCC
684

3. Bharat Chaudhary & anr.Vs St. of Bihar &
anr.(2003) 8 SCC 77

4. Vinod Kumar Sharma & anr.Vs St. of U.P. &
anr.SLP (Crl.) No. 6057 of 2021 decided on
16.11.2021
5. Shivam Vs St. of U.P. & anr.AirOnline 2021 All
484

6. Satender Kumar Antil Vs Central Bureau of
Investigation & anr.2022 SCC Online SC 825

7. Aman Preet Singh Vs C.B.I. through Director
AIR 2021 SC 4154

8. Siddharth Vs The St. of U.P. & anr.(2022) 1
SCC 676

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

1. Counter affidavit filed by learnd
counsel for the informant and rejoinder
affidavit and supplementary affidavit filed
by learned counsel for the applicants are
taken on record.

2. Heard Sri Anoop Trivedi, learned
Senior Advocate assisted by Sri Abhinav
Gaur, learned counsel for the applicants and
Sri Gopal Swaroop Chaturvedi, learned
Senior Advocate assisted by Sri Alok
Ranjan Mishra, learned counsel for the
informant as well as Sri V.K.S. Parmar,
learned A.G.A. for the State and also
perused the material available on record.

3. The present anticipatory bail
application has been filed on behalf of the
applicants in F.I.R./Case Crime No. 128 of
2018, under Sections 406, 409, 420, 467,
468, 471, 120(B) IPC, Police Station
Swarup Nagar, District Kanpur Nagar, with
a prayer to enlarge them on anticipatory
bail.

PROSECUTION STORY:

4. As per allegations in FIR, the
applicants and the informant are the
directors in MTG Infra Power Private Ltd.
Company. It was agreed upon by the
directors that the said company shall file