# Mukesh & Ors v. State of U.P

- **Citation:** (2024) 11 ILRA 227
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-08
- **Bench:** Vikram D. Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mukesh-ors-v-state-of-u-p-51001
- **Pages:** 12

## Headnote

Criminal Law- The Code of Criminal
Procedure,1973 - Section 438- Power of
anticipatory bail is somewhat extraordinary in
character and it is to be exercised only in
exceptional cases where the person is falsely
implicated. Though in many cases it was held
that bail is said to be a rule, it cannot, by any
stretch of imagination, be said that anticipatory
228 INDIAN LAW REPORTS ALLAHABAD SERIES
bail is the rule--- Where from the material and
allegation against an accused, offence is made
out, the accused is required to show exceptional
circumstances warranting the protection of
liberty--- The Court is required to exercise
jurisdiction of anticipatory bail on sound judicial
principles. The court should be slow to grant
anticipatory bail to an accused who does not
abide by law and commits an offence--- No
extraordinary circumstances have been shown
by applicants that refusal to grant anticipatory
bail would lead to injustice.

Anticipatory bail applications lack merit
and are accordingly dismissed. (E-15)

List of Cases cited:

## Text

11 All. Mukesh & Ors. Vs. State of U.P.
227
(iv) A significant number of
witnesses remain to be examined,
and there is no likelihood that the
trial will conclude in the near
future;
(v) There is no indication
that the applicants have misused
the interim bail previously granted;
(vi)
The
applicants'
antecedents have been sufficiently
explained.
The Court finds it to be a
fit case for bail. Accordingly, the
bail
applications
are
hereby
allowed.

57. Let the applicants- Nandan
Singh Bisht, Latif Alias Kale, Satyam
Tripathi Alias Satya Prakash Tripathi,
Shekhar Bharti, Dharmendra Singh
Banjara, Ashish Pandey, Rinkoo Rana,
Ullas
Kumar
Trivedi
Alias
Mohit
Trivedi, Ankit Das, Lavkush, Sumit
Jaisawal and Shishupal involved in
aforementioned case crime number be
released on bail on furnishing a personal
bond and two sureties each in the like
amount to the satisfaction of the court
concerned subject to following conditions.

(i) The applicants shall not
tamper with evidence.

(ii) The applicants shall
remain present, in person, before
the Trial Court on dates fixed for
(1) opening of the case, (2) framing
of charge and (3) recording of
statement
under
Section
313
Cr.P.C. If in the opinion of the Trial
Court absence of the applicants is
deliberate or without sufficient
cause, then it shall be open for the
Trial Court to treat such default as
abuse of liberty of bail and proceed
against them in accordance with
law.

58. In case of breach of any of the
above conditions, it shall be a ground for
cancellation of bail. Identity, status and
residence proof of the applicants and
sureties be verified by the court concerned
before the bonds are accepted.

59.
It
is
made
clear
that
observations made in granting bail to the
applicants shall not in any way affect the
learned
trial
Judge
in
forming
his
independent
opinion
based
on
the
testimony of the witnesses.
----------
(2024) 11 ILRA 227
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.11.2024

BEFORE

THE HON'BLE VIKRAM D. CHAUHAN, J.

Criminal Misc. Anticipatory Bail Application Nos
6849 of 2024, 6901 of 2024, 6946 of 2024 &
7113 of 2024
(U/s 438 Cr.P.C.)

Mukesh & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Girijesh Kumar Gupta, Sri Shiv Shankar Pd.
Gupta, Sri Sunil Kumar

Counsel for the Respondent:
G.A., Sri Naveen Kumar Srivastava

Criminal Law- The Code of Criminal
Procedure,1973 - Section 438- Power of
anticipatory bail is somewhat extraordinary in
character and it is to be exercised only in
exceptional cases where the person is falsely
implicated. Though in many cases it was held
that bail is said to be a rule, it cannot, by any
stretch of imagination, be said that anticipatory
228 INDIAN LAW REPORTS ALLAHABAD SERIES
bail is the rule--- Where from the material and
allegation against an accused, offence is made
out, the accused is required to show exceptional
circumstances warranting the protection of
liberty--- The Court is required to exercise
jurisdiction of anticipatory bail on sound judicial
principles. The court should be slow to grant
anticipatory bail to an accused who does not
abide by law and commits an offence--- No
extraordinary circumstances have been shown
by applicants that refusal to grant anticipatory
bail would lead to injustice.

Anticipatory bail applications lack merit
and are accordingly dismissed. (E-15)

List of Cases cited:

1. Sabita Paul Vs St. of W.B., 2024 INSC 245

2. Shrikant Upadhyay & ors. Vs St. of Bihar &
anr., 2024 INSC 202

(Delivered by Hon'ble Vikram D. Chauhan, J.)

1. Heard Sri Sunil Kumar and Sri
Girijesh Kumar Gupta, learned counsels for
the applicants and Sri Naveen Kumar
Srivastava,
learned
counsels
for
the
informant, as well as, Sri Om Prakash
Dwivedi, learned A.G.A. for the State.

2. All the four anticipatory bail
applications are heard together with the
consent of learned counsels for the
respective parties and are being decided by
a common judgment and order.

3. Present Anticipatory Bail
Applications
are
preferred
with
the
common prayer to grant anticipatory bail to
applicants - Mukesh s/o Buddhu, Nitin
s/o Raju, Tusar s/o Sripal, Shiva s/o
Sripal, Tusar @ Tushar Tomar s/o
Mukesh @ Mukesh Tomar, Amit @
Dhoni @ Amit Tomar s/o Surendra @
Surendra Singh, Vikas s/o Mukesh,
Umesh s/o Deshpal, Deepak s/o Munipal,
Sonu s/o Satveer, Kapil s/o Ompal, Rahul
s/o Chandar @ Chandrapal Singh and
Ashish @ Deepak s/o Surendra (13 in
number) in Case Crime No. 0206 of 2024
under Sections 147, 148, 149, 452, 352,
307, 323, 325, 324, 504, 506, 427 I.P.C.,
Police Station - Pilkhua, District - Hapur.

4. It is submitted by learned
counsels for applicants that FIR was lodged
on 22.04.2024 at 1701 hours in respect of
an incident of 21/22.04.2024 with the
allegation that a dispute had arisen on
21.04.2024 between children and that was
resolved, however, nominated accused
persons have later on come near the house
of informant and when informant along
with family members reached near their
house in mid night at about 1:00 PM (in the
intervening
night
of
21.04.2024
&
22.04.2024),
accused
persons
have
assaulted the informant & family members
and have fired & assaulted, as a result of
same,
injured
have
suffered
injuries
including firearm injury.

5. Learned counsel for applicants
submits that general allegations of assault
are made against nominated accused
persons except against Tusar, Amit @
Dhoni, Ashish and Rahul against whom
allegations of firing have been made.
Learned counsels for applicants submits
that 11 persons have suffered injuries in
alleged occurrence out of which injury of
three injured is grievous in nature. Injured,
who have suffered grievous injuries are,
namely, Keshav, Ankit and Shiva. Injury
report of injured-Keshav is at page-27 of
compliance affidavit dated 02.09.2024,
where injured has received single gun shot
injury on right arm. Learned counsels for
applicants submits that insofar as, injury of
injured-Ankit is concerned, which is at
page-30 of compliance affidavit, he has
11 All. Mukesh & Ors. Vs. State of U.P.
229
also suffered single gun shot injury at left
thigh. Insofar as, injury of injured-Shiva is
concerned, there are superficial abrasion on
right cheek and has not suffered any gun
shot injury. Learned counsels for applicants
by referring to page-60 of compliance
affidavit submits that injured-Ankur has
suffered grievous injuries, however, as per
NCCT report, which is at page-34 of
compliance affidavit, there are no bony
injury found.

6. Learned counsels for applicants
further submit that two persons have
suffered gun shot injuries, which is on nonvital part of the body. By referring to
statement of injured, which is at page-19 of
counter affidavit, learned counsels for
applicants submit that general allegations
with regard to assault have been made
against accused persons. The injured has
stated that it was a night incident and many
persons were present at the place and he
had only seen persons standing at the place
of
occurrence.
Learned
counsel
for
applicants further submits that eye-witnessAman has also given the similar account.
On the strength of the aforesaid statement,
learned counsels for applicants submit that
there are no allegation that applicant-Tusar
had fired, his parentage is also not being
disclosed in the statement of witnesses, as
such it is not identifiable, as to who, is the
author of gun shot injury.

7. Learned counsels for applicants
further submit that applicants have no
previous criminal history and a simple
quarrel between two groups have resulted
into present FIR and as such, present case is
indicative of over implication. Learned
counsels for applicants submit that in the
facts and circumstances of the case, Section
149 IPC would not be attracted. Learned
counsels for applicants further submits that
there is delay in lodging of FIR. If applicants
are enlarged on anticipatory bail, they will
not misuse the liberty and cooperate with
investigation.
The
applicants
have
apprehension of their arrest by police any
time.

8. Sri Naveen Srivastava, advocate
appearing on behalf of informant submitted
that 11 persons have suffered injuries in
assault, out of which, two have suffered
gunshot injuries and one has suffered injury
which is grievous in nature, as per medical
report.

9. It is submitted by learned counsel
for informant that in present case, occurrence
has taken place adjacent to house of
informant, when informant came back to his
house
from
marriage
ceremony.
The
nominated accused persons were waiting for
informant and family members. When the
informant reached near his house, nominated
accused have assaulted them, as such in the
medical report, it has been referred to as
group fighting.

10. Learned counsel for informant
further submit that in the present case section
149 I.P.C. would be attracted as there was no
occasion for the applicants to have reached
house of informant in mid of night. Learned
counsel for informant further submits that
there are two eye-witness account of alleged
occurrence and injured themselves have
supported the prosecution story and as such
complicity of applicants cannot be denied. It
is submitted by learned counsel for informant
that eye-witness has come at later stage as
can be seen from their statement. He submits
that statement of injured itself is sufficient to
prosecute the applicants.

11. Learned A.G.A. for State has
submitted that in the present case there are
230 INDIAN LAW REPORTS ALLAHABAD SERIES
gunshot injuries of two injured persons.
The incident has taken place at mid of night
when accused/applicants along with other
accused persons have come to house of
informant and have assaulted. He submits
that section 149 IPC would be attracted in
the facts and circumstances of the present
case. No person has suffered injuries on the
side of the applicants, which is indicative
of the fact that it was a one sided assault.

12. It is submitted by learned
A.G.A. that it cannot be denied that
gunshot injury received by two injured are
itself enough to prosecute the applicants
under section 307 IPC. It is further
submitted by learned A.G.A. that pallets
have been recovered on 22.04.2024. The
recovery memo is at page-68 of the
compliance affidavit.

13. The prosecution case as per first
information report is to the effect that on
21.01.2024, marriage of one Arun (who is the
family member of informant) was solemnized
and informant & family members had gone to
Village - Tatarpur, District - Gautambudh
Nagar. Where there was a dispute between
two children and same was intervened & the
dispute was put to peace. On 21/22.04.2024
at about 01:00 o'clock in the night,
informant, his brother Ajai Tomar, son of
informant Vishal, Vikas, Rahul, Devendra,
Keshav, Shiva, Sachin were coming back
from marriage and as soon as aforesaid
persons
alighted
from
their
vehicle,
nominated accused persons started assaulting
them with stick, farsa, gadansa, balkati, iron
rod, bricks and firearm. The aforesaid
accused persons were identified in the streetlight. Accused-Tushar, Amit @ Dhoni,
Ashish and Rahul fired with intention to
commit culpable homicide. Injured-Keshav
suffered firearm injury on the hand and was
unconscious on the spot and other accused
persons have assaulted as a result of the
same, hand of injured-Ajai Tomar was
fractured and there was injury on the head.
Injured-Vishal was assaulted with sharp
edged weapon and he sustained injury.
Injured-Shiva was assaulted with iron pipe on
his face, injured-Sachin received injury on his
ear and others also received injury. The
motorcycle of the informant was also
damaged. When injured persons including
informant in order to save themselves entered
into their house, accused person armed with
weapons also entered into the house and have
abused, assaulted and when the villagers
came, they ran away. When informant went
to police, the police got conducted the
medical examination of injured and the
injured-Ajay Tomar, Vishal and Vikas were
admitted to the hospital. The cover of bullet
was also found at the place of occurrence
which was handed over to police.

14.

Injured-Devendra
was
medically examined on 22.04.2024 at
Community
Health
Centre,
Pilkhuwa,
District-Hapur. As per
the
aforesaid
medical report the following injuries were
sustained by the aforesaid injured :-

1.Multiple
Abrasion
5cm x 4cm on left
shoulder, 2. Contused
abrasion of size 10cm x
cm on left ankle and
foot.

15. Injured-Vijay was medically
examined on 22.04.2024 at Community
Health Centre, Pilkhuwa, District-Hapur.
As per the aforesaid medical report the
following injuries were sustained by the
aforesaid injured :-

i. lacerated wound of size
1cm x 1cm on left side frontal area
11 All. Mukesh & Ors. Vs. State of U.P.
231
of scalp 9cm above left eyebrow; ii.
Contusion below left eye of size
6cm x 5cm on left side of face; iii.
Abrasion on chin of size 2cm x
2cm; iv. Contusion on right index
finger of size 1cm x 1cm;

16. Injured-Rahul was medically
examined on 22.04.2024 at Community
Health Centre, Pilkhuwa, District-Hapur.
As per the aforesaid medical report the
following injuries were sustained by the
aforesaid injured :-

i.
lacerated
wound
on
dorsom of right wrist of size 2cm x
0.5cm skin deep; ii. Contusion over
right proximal forearm of size 1cm
x 2cm; iii. Contusion over right
distal arm; iv. Contusion of size
8cm x 3cm over left shoulder;

17. Injured-Ajay was medically
examined on 22.04.2024 at Community
Health Centre, Pilkhuwa, District-Hapur.
As per the aforesaid medical report the
following injuries were sustained by the
aforesaid injured :-

i. two lacerated wound
over left parietal
occipital area of
size 2cm x 1cm into
skin deep;

18. As per supplementary report of
injured-Ajay which is at page-37 of
compliance affidavit, hematoma along left
fronto parieto temporal convexity and right
shoulder dislocation was found which was
grievous in nature.

19. Injured-Vishal was medically
examined on 22.04.2024 at Community Health
Centre, Pilkhuwa, District-Hapur. As per the
aforesaid medical report the following injuries
were sustained by the aforesaid injured :-

i. incised wound on frontal
area of scalp of size 6cm x 1cm skin
deep; ii. Swelling over right forearm
with tenderness;

20. As per supplementary report of
injured-Vishal at page-40 of Compliance
Affidavit, hematoma along right high parietal
convexity, undisplaced fracture of postero
lateral wall of right maxillary sinus which are
grievous in nature.

21. Injured-Vikas was medically
examined on 22.04.2024 at Community Health
Centre, Pilkhuwa, District-Hapur. As per the
aforesaid medical report the following injuries
were sustained by the aforesaid injured :-

i. lacerated wound on left
temporal tempo parietal area of scalp
of size 3.5cm x 0.5cm into skin deep; ii.
tenderness over left side lower back
and left flank; iii. Abrasion over right
arm of size 6cm x 1cm; iv. redness and
tenderness over proximal forearm;

22. As per supplementary report of
injured-Vikas
which
is
at
page-43
of
compliance affidavit, injury was non-grievous
in nature.

23. Injured-Ankur was medically
examined on 22.04.2024 at Rama Super
Speciality Hospital & Research Centre. As
per the aforesaid medical report the
following injuries were sustained by the
aforesaid injured :-

i. lacerated wound on head
of size 5cm x 1cm; ii. Abrasion on
right wrist; iii. Abrasion on right
knee;
232 INDIAN LAW REPORTS ALLAHABAD SERIES
24. Injured-Keshav was medically
examined on 22.04.2024 at Rama Super
Speciality Hospital & Research Centre. As
per the aforesaid medical report the
following injuries were sustained by the
aforesaid injured :-

i. Gunshot wound 1.5cm x
1cm over anterior aspect in right
arm and on posterior aspect 2cm x
1cm;

25. As per supplementary report of
injured-Keshav at page-35 of compliance
affidavit firearm injury on right hand was
found which was grievous in nature.

26. Injured-Aakash Tomar was
medically examined on 22.04.2024 at
Rama Super Speciality Hospital &
Research Centre. As per the aforesaid
medical report the following injuries
were sustained by the aforesaid injured
:-

i. Lacerated wound on
forehead 4cm x 1cm in right
side;

27.

Injured-Ankit
was
medically examined on 22.04.2024 at
Rama Super Speciality Hospital &
Research Centre. As per the aforesaid
medical report the following injuries
were sustained by the aforesaid injured
:-

i. Gunshot wound at left
thigh approx. diameter 1cm;

28.

Injured-Shiva
was
medically examined on 22.04.2024 at
Rama Super Speciality Hospital &
Research Centre. As per the aforesaid
medical report the following injuries
were sustained by the aforesaid injured
:-

i. Superficial abrasion on right
cheek approx. 2cm x 1cm;

29. The investigating officer
recorded the statement of informant and
injured-Vishal,
Vikas,
Rahul,
Akash,
Keshav, Ankit, Shiva, Ajay, Devendra,
under section 161 Cr.P.C. who supported
the prosecution story. As per statement of
informant and injured-Vishal, Vikas, Rahul,
Akash,
Keshav,
Ankit,
Shiva,
Ajay,
Devendra, accused persons namely Tushar,
Amit @ Dhoni, Ashish and Rahul have
fired, as a result of same, injured-Keshav
had sustained firearm injury on the hand
and the other injured persons were also
assaulted in the incident and had received
injuries. The prosecution has also relied
upon to eyewitnesses namely Akash and
Aman, however, the aforesaid witnesses
have stated that when they reached the
place of occurrence the assault had already
taken place and the applicants were
standing at the place of occurrence.

30. It is not in dispute between the
parties that two injured have suffered
gunshot injuries and others have sustained
injuries. It is also to be noted that
applicants and accused persons are resident
of same village. Being the resident of same
village, accused persons and the informant
including other injured were known to each
other. The incident had taken place in
intervening
night
of
21.04.2024
and
22.04.2024 at about 1:00 AM, when
informant and other injured came back
from
marriage
to
their
house.
The
applicants case rests on the general
allegations of assault being made on
injured persons by accused persons and
specific case with regard to assault by
11 All. Mukesh & Ors. Vs. State of U.P.
233
firearm has been made against accusedTushar, Amit @ Dhoni, Ashish and Rahul.
There are two persons with name of Tushar,
have been nominated as accused person in
first information report, one being Tushar
s/o Mukesh and other being Tushar s/o
Sripal.
The
present
anticipatory
bail
application is filed by persons who have
not been alleged as the person who have
caused injury by firearm except for Tushar
where
the
prosecution
in
the
first
information report has not specified as to
which of the accused - Tushar has fired
although both the accused Tushar have
remained present at the time of occurrence.

31. Applicants along with other
accused persons are being proceeded under
Sections 147, 148, 149, 452, 352, 307, 323,
325, 324, 504, 506, 427 IPC. As per the
submission
of
learned
counsel
for
applicants, gunshot injuries of injured is on
the right arm and left thigh and is not on a
vital part. As per the medical opinion three
injured have suffered grievous injuries.

32. Section 307 of Indian Penal
Code contemplates punishment for attempt
to murder. It provides that whoever does
any act with such intention or knowledge
and under such circumstances that if he by
that act caused death, he would be guilty of
murder, would be punishable for attempt of
murder. For the purpose of Section 307
I.P.C., what is material is the intention or
the knowledge and not the consequence of
actual act done, for purpose of carrying out
intention. The section clearly contemplates
an act which is done with intention of
causing death but which fails to bring about
intended consequence on account of
intervening circumstances.

33.

To
justify
a
prosecution/conviction under this section, it
is not essential that bodily injury capable of
causing death should have been inflicted.
Although the nature of injury actually
caused
may
often
give
considerable
assistance in coming to a finding as to
intention of accused, such intention may
also be deduced from other circumstances,
and may even, in some cases, be
ascertained without any reference at all to
actual wounds.

34. It is further to be noted that
incident is of mid night hours when
informant
and
other
injured
persons
reached the house after attending the
marriage. The previous dispute which had
arisen at the marriage, between two
children, was resolved. Two persons have
suffered firearm injury. As per first
information report and statement of the
injured, the accused person namely Tushar,
Amit @ Dhoni, Ashish and Rahul have
fired, as a result of same, injured-Keshav
has sustained firearm injury on the hand &
11 persons, as per the prosecution, have
suffered injuries in the alleged occurrence.

35. The carrying of firearms by
accused persons to the house of informant
and suffering of gunshot injuries to injured
at the behest of the accused persons is
indicative of intention of accused persons
to
commit
culpable
homicide
more
particularly when incident has taken place
at the mid night when the accused person
are not expected to be on streets near the
house
of
informant
under
normal
circumstances.

36. It is further to be noted that the
11 persons have been injured out of which
two persons have suffered gunshot injuries.
The gunshot injuries has not been attributed
to the applicants (except Tushar, however,
it has not been specified as to which of the
234 INDIAN LAW REPORTS ALLAHABAD SERIES
two accused namely Tushar were the author
of gunshot injuries).

37. In general, an accused person
is liable to be prosecuted and convicted
only in respect of the act which is
committed by the accused, however, the
difficulty arises when the offence is
committed by means of several acts of
individuals
and
which
cannot
be
distinguished or proved as to the part
exactly taken by each of them in
furtherance of the offence. In such an
event, the law imposes joint liability or
constructive ability on all accused persons
who were involved in offence. Such joint
liability or constructive liability may arise
from rigours of section 34, section 149 or
section 120B of Indian penal code.

38. In the present case, large
number of persons have assembled near
the house of informant at the mid night
hours and thereafter have assaulted, as a
result of the same, 11 persons have been
injured from the informant side out of
which two persons suffered gunshot
injuries. As per the prosecution case four
persons have been alleged to have fired
namely Tushar, Amit @ Dhoni, Ashish
and Rahul and there are general role of
assault assigned to the nominated accused
person which has resulted in 11 persons
suffering injuries.

39. Section 149 of the Indian penal
code provides, if an offence is committed
by any member of an unlawful assembly in
prosecution of the common object of that
assembly, or such as the members of that
assembly knew to be likely to be
committed in prosecution of that object,
every person who, at the time of the
committing of that offence, is a member of
the same assembly, is guilty of that offence
40. Section 141 of Indian Penal
Code prescribes unlawful assembly and the
same is quoted herein below :

141. Unlawful assembly.-
An assembly of five or more
persons is designated an "unlawful
assembly", if the common object of
the
persons
composing
that
assembly is-
First.-To
overawe
by
criminal force, or show of criminal
force, 12[the Central or any State
Government or Parliament or the
Legislature of any State], or any
public servant in the exercise of the
lawful
power
of
such
public
servant; or
Second.-To
resist
the
execution of any law, or of any
legal process; or
Third.-To
commit
any
mischief or criminal trespass, or
other offence; or
Fourth.-By
means
of
criminal force, or show of criminal
force, to any person, to take or
obtain possession of any property,
or to deprive any person of the
enjoyment of a right of way, or of
the
use
of
water
or
other
incorporeal right of which he is in
possession or enjoyment, or to
enforce any right or supposed
right; or
Fifth.-By
means
of
criminal force, or show of criminal
force, to compel any person to do
what he is not legally bound to do,
or to omit to do what he is legally
entitled to do.
Explanation.-An assembly
which was not unlawful when it
assembled,
may
subsequently
become an unlawful assembly.
11 All. Mukesh & Ors. Vs. State of U.P.
235
41. The visiting of accused persons
in midnight at house of informant, when
informant and injured person came back to
their house thereafter the assault has been
made, is indicative of planning made by
accused persons. It is not in dispute that as
per first information report more than five
persons have reached the house of
informant
and
have
assaulted.
The
members of aforesaid assembly were
carrying
firearm
weapons
and
other
weapons which is indicative of intention
with which the aforesaid accused persons
went
to
house
of
informant
more
particularly when the previous dispute at
the marriage between the children's was
already
resolved.
Under
ordinary
circumstances no person is expected to be
on streets in the midnight. No explanation
has been offered by learned counsel for
applicants, as to why, the accused persons
including applicants were on the streets
near the house of informant in the
midnight.

42. It is contended by learned
counsel for applicants that eyewitness
Akash
and Aman
have
stated
that
applicants were standing at place of
occurrence and as such mere standing at the
place of occurrence by itself cannot be said
that applicants were members of unlawful
assembly. The said argument of learned
counsel for the applicants cannot hold the
field as the aforesaid witnesses have also
stated that when they reached the place of
occurrence when major part of the assault
has already taken place. Once the aforesaid
witnesses have already stated that they are
not the witness to the complete incident
then it cannot be said that the applicants
were not the member of the unlawful
assembly more particularly when the
injured witnesses have supported the
prosecution case.
43. It is further to be noted that as
per prosecution, applicants were part of
unlawful assembly and also participated in
offence which aspect has not been
challenged
by
applicants
but
only
submission that has been advanced is that
applicants were only standing at the place
of occurrence. It is to be seen that incident
is
of
midnight
and
under
ordinary
circumstances persons are expected to be in
their house however no explanation has
been offered on behalf of applicants, as to
why, applicants' presence has been shown
at the place of occurrence by the
prosecution. The injured in their statement
have stated that applicants were also the
participants in crime. The first information
report indicates that about 19 known
persons and one unknown person were
participants in offence. There are injuries to
11 persons out of which two have sustained
firearm injury. At this stage it cannot be
denied that accused persons had intention
to commit an offence, the manner in which
the accused person had visited the house of
the informant by forming an assembly of
persons with the purpose of committing an
offence would prima facie make all the
participants of the unlawful assembly liable
for offence.

44. In Sabita Paul v. State of
West Bengal, 2024 INSC 245, the
Supreme Court has held as under :-

"6.
The
concept
of
anticipatory bail came to be part of
the criminal law landscape via the
41st Report of the Law Commission
which recommended the inclusion
of such a provision, which then
stood incorporated in the Code of
Criminal Procedure, 1973. Over
the years, many judgments of this
Court have considered that a Court
236 INDIAN LAW REPORTS ALLAHABAD SERIES
must weigh while considering an
application for anticipatory bail. In
Dr. Naresh Kumar Mangla v. Anita
Agarwal & Ors1 ., a three-Judge
Bench laid down the following
factors : "17. The facts which must
be borne in mind while considering
an application for the grant of
anticipatory
bail
have
been
elucidated in the decision of this
Court in Siddharam Satlingappa
Mhetre v. State of Maharashtra
[Siddharam Satlingappa Mhetre v.
State of Maharashtra, (2011) 1
SCC 694 : (2011) 1 SCC (Cri) 514]
and several other decisions. The
factors to be considered include :
(SCC pp. 736-37, paras 112-13)
"112. ...

(i) the nature and gravity of
the accusation and the exact role of
the accused must be properly
comprehended before arrest is
made;
(ii) the antecedents of the
applicant including the fact as to
whether
the
accused
has
previously
undergone
imprisonment on conviction by a
court in respect of any cognizable
offence;
(iii) the possibility of the
applicant fleeing from justice;
(iv) the likelihood of the
accused
repeating
similar
or
other offences;
(v)
whether
the
accusations have been made only
with the object of injuring or
humiliating
the
applicant
by
arresting them;
(vi) the impact of the
grant
of
anticipatory
bail
particularly in cases of large
magnitude affecting a very large
number of people; (2021) 15 SCC
777
(vii)
the
courts
must
carefully
evaluate
the
entire
material against the accused. The
court
must
also
clearly
comprehend the exact role of the
accused in the case. The cases in
which the accused is implicated
with the help of Sections 34 and
149 of the Penal Code, 1860 the
court should consider with even
greater care and caution because
over implication in such cases is
a matter of common knowledge
and concern;
(viii) while considering
the
prayer
for
grant
of
anticipatory bail, a balance has
to be struck between two factors,
namely, no prejudice should be
caused to the free, fair and full
investigation and there should be
prevention
of
harassment,
humiliation
and
unjustified
detention of the accused;
(ix)
the
reasonable
apprehension of tampering of the
witnesses or apprehension of threat
to the complainant;
(x) frivolity in prosecution
should always be considered and it
is only the element of genuineness
that shall have to be considered in
the matter of grant of bail and in
the event of there being some doubt
as to the genuineness of the
prosecution, in the normal course
of events, the accused is entitled to
an order of bail."

45. In Shrikant Upadhyay and
others Vs State of Bihar and another,
2024 INSC 202 has observed as under
11 All. Mukesh & Ors. Vs. State of U.P.
237
"19.
The
relief
of
Anticipatory Bail is aimed at
safeguarding
individual
rights.
While it serves as a crucial tool to
prevent the misuse of the power of
arrest
and
protects
innocent
individuals from harassment, it also
presents challenges in maintaining
a
delicate
balance
between
individual rights and the interests
of justice. The tight rope we must
walk lies in striking a balance
between safeguarding individual
rights and rotecting public interest.
While the right to liberty and
presumption of innocence are vital,
the court must also consider the
gravity of the offence, the impact
on society, and the need for a fair
and free investigation. The court's
discretion
in
weighing
these
interests
in
the
facts
and
circumstances of each individual
case becomes crucial to ensure a
just outcome."

46. The power of anticipatory bail
is somewhat extraordinary in character and
it is to be exercised only in exceptional
cases
where
the
person
is
falsely
implicated. Though in many cases it was
held that bail is said to be a rule, it cannot,
by any stretch of imagination, be said that
anticipatory bail is the rule.

47. The court owes duty that
justice is done to all the parties (i.e.)
accused,
prosecution,
informant,
complainant and victim). The citizens in
terms
of
constitutional
mandate
are
required to abide by law. Where from the
material and allegation against an accused,
offence is made out, the accused is required
to
show
exceptional
circumstances
warranting the protection of liberty. No
circumstances
have
been
shown
by
applicant(s) to demonstrate that personal
liberty of accused in the facts and
circumstances of the case is required to be
protected. In the facts and circumstances of
the case, the grant of anticipatory bail
would lead to miscarriage of justice.

48. The Court is required to
exercise jurisdiction of anticipatory bail on
sound judicial principles. The court should
be slow to grant anticipatory bail to an
accused who does not abide by law and
commits an offence. In the present case, it
is not shown by the applicant(s) that the
prosecution or complainant has falsely
implicated the applicant(s). One cannot
lose sight of the fact that unwarranted
protection to an accused has adverse effect
on the peace and tranquillity of society at
large and effects maintenance of law and
order in the society. The jurisdiction of
anticipatory bail permits the accused to be
not
produced
before
the
ordinary
jurisdictional
court
although
ordinary
jurisdictional court at grass root level have
greater experience and exposure with
regard to situation of maintenance of law
and order at the local place. The process of
anticipatory bail permits consideration of
anticipatory bail by Session Court or High
Court and not by Magistrate courts. Facts
and circumstance of each case is to be
examined at the time of consideration of
anticipatory bail.

49. A perusal of the First
Information Report and the material
available during investigation would show
that offence is made out against the
applicants. It is not a case where no offence
is made out against an accused.

50. The grant of anticipatory bail
to accused in the present case would have
238 INDIAN LAW REPORTS ALLAHABAD SERIES
adverse impact on protection of rights and
interest of the informant/victim.

51. The nature and gravity of
offence and the role play by applicants
disentitle the applicants to grant of
anticipatory bail. Applicants have failed to
show that there is harassment, humiliation
and unjustified detention of applicants. It is
also not shown that there is over
implication of the applicants or the
applicants have been falsely implicated or
there is frivolity in prosecution. A person
who has committed an offence is not
entitled
to
grant
of
discretionary
jurisdiction of anticipatory bail unless it is
shown that the accused is falsely implicated
or is entitled for protection of liberty. A
person who has violated the law and has
not shown exceptional circumstances is not
entitled to the benefit of extraordinary
jurisdiction.
No
extraordinary
circumstances
have
been
shown
by
applicants that refusal to grant anticipatory
bail
would
lead
to
injustice.
Even
otherwise, the applicants have failed to
demonstrate factors which would entitle the
applicants for anticipatory bail.

52. In view of the above, the
present anticipatory bail applications lacks
merit and are accordingly dismissed.
----------
(2024) 11 ILRA 238
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.11.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE DR. GAUTAM CHOWDHARY, J.

Criminal Appeal No. 337 of 2020

Neeraj ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Deepak Kaushaik

Counsel for the Respondent:
G.A.

आपराधिक धिधि - भारतीय दंड संधिता, 1860 - िारा 376
- लैंधिगक अपरािों से बालकों का संरक्षर्ण अधतिधियम -
2012 - िारा 6, 3⁄4 - आजीि कारािास - अर्णदंड - दंड
प्रधिया संधिता, 1973 - िारा 161, 164, 313 - 8
िर्ण से अधिक समय से कारागार में सजा भुगत चुका िैं -
अधभयोजि पक्ष के अिुसार िादी मुकदमा िे एक धलधित तिरीर
दी धक धदिांक 27.09.2017 को प्रार्ी की लड़की पीधड़ता
(प्रर्म) आयु 5 िर्ण ि पीधड़ता (धितीय) आयु 4 साल दोिों
बधचचयों गली में िेल रिी र्ी, तभी अधभयुक्त गली में आया और
दोिों बधचचयों के सार् असलील िरकत करिे लगा - बाद में
अधभयुक्त िे बड़ी लडकी का मुुँि दबाकर िजदीक के िाली प्लाट
में ले गया - छोटी बचची धचल्लाते िुए घर पर गई और घर िालों
को पूरी घटिा के बारे में बताया, घर िाले तर्ा पड़ोस में रििे
िाले कुछ व्यधक्तयों िे प्लाट में जाकर देिा तो अधभयुक्त पीधड़ता
के सार् अश्लील िरकत कर रिा र्ा - धििेचक िारा धििेचिा की
गयी एिं अधभयुक्त के धिरुद्ध पयाणप्त साक्ष्य पाए जािे पर धिचरर्
िेतु आरोप पत्र दाधिल धकया गया| (प्रस्तर 2, 4)

अपीलार्ी िे तकण धदया धक उसे रंधजशि ितणमाि मामले में असत्य
ि कपोल-कधल्पत तथ्यों के आिार पर झूठा फसाया गया िै -
उन्िोंिे आगे किा धक कुछ अधभयोजि साधक्षयों के पक्षद्रोिी िो
जािे का कोई धिपरीत प्रभाि अधभयोजि के धिरुद्ध ििीं पड़ता िै,
क्योंधक पक्षद्रोिी साक्षीयों िे भी अपिे साक्ष्य में तर्ाकधर्त
घटिास्र्ल पर घटिा के घधटत िोिे की बात मािी िै, परंतु
घटिास्र्ल पर स्ियं को उपधस्र्त ि िोिे संबंिी अधभकर्ि करते
िुए अधभयोजि के धिरुद्ध अधभकर्ि धकया िै। (प्रस्तर 41)

अधभधििाणररत, पीधड़ता के सार् बलात्कार की घटिा अधभयुक्त के
िारा िी काररत की गई िै, यि अधभयोजि साधक्षयों िारा धदए गए
बयाि से साधबत िै, इसके अलािा मेधडकल साक्ष्य ि अन्य
दस्तािेजीय साक्ष्य से भी युधक्त-युक्त संदेि से परे प्रमाधर्त िै।
(प्रस्तर 46, 47)

दाधडडक अपील आंधशक रूप से स्िीकार (E-13)

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