# Navneet Bhadauria v. State of U.P. & Anr

- **Citation:** (2024) 8 ILRA 231
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-30
- **Case number:** Application U/S 482. No. 7515 of 2024
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/navneet-bhadauria-v-state-of-u-p-anr-52307
- **Pages:** 13

## Headnote

Law-The
Bharatiya
Nagarik
Suraksha Sanhita,2023-Sections-72 & 91-
For seeking benefit of Section 88 Cr.P.C./
Section 91 BNSS, the concerned has to
appear/ surrender before the concerned
court-Applicant
without
submitting/
surrendering himself to the jurisdiction of
the court, preferred an application for
recall of the NonBailable Warrant under
Section 70 Cr.P.C./ Section 72 BNSS- it is
apparent from the record that anticipatory
bail was granted by this Court vide order
dated 18.11.2022 and thereafter order
granting anticipatory bail was cancelled
by this Court after taking note of the fact
that
the
applicant
did
not
appear
personally several dates. (Para 14) (E-15)

List of Cases cited:

## Text

_Characters 0–39,976 of 43,573. This is a partial read: ask again with offset=39976 for what follows._

8 All. Navneet Bhadauria Vs. State of U.P. & Anr.
231
Cr.P.C. cannot become a tool to frustrate
the very object of Section 125 Cr.P.C.
merely on objection of jurisdiction. The
Court cannot ignore that it is not much
disputed that complainants parents are
permanent resident of Bareilly and she has
frequent visit thereat.

13. The facts of present case are
distinguishable from the facts of judgment
cited by learned counsel for applicant in
Nirman Sagar (supra). Section 126 Cr.P.C.
provides that proceedings under Section
125 Cr.P.C. may be taken against any
person in any district where he is residing
or where he or his wife resides. Therefore,
if wife resides at Bareilly, she can file
complaint under Section 125 Cr.P.C. at
Bareilly also. It is upto the complainant to
chose the place of jurisdiction and in the
present case complainant has chosen to file
complaint at Bareilly.

14. In aforesaid circumstances, I do
not find that there is any ground to interfere
with impugned order whereby objection
with regard to jurisdiction was rejected.

15. The application is accordingly
rejected.
----------
(2024) 8 ILRA 231
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 30.08.2024

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Application U/S 482. No. 7515 of 2024

Navneet Bhadauria ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Anuuj Taandon, Purnendu Chakravarty

Counsel for the Opposite Parties:
G.A., Digvijay Nath Dubey

(Criminal
Law-The
Bharatiya
Nagarik
Suraksha Sanhita,2023-Sections-72 & 91-
For seeking benefit of Section 88 Cr.P.C./
Section 91 BNSS, the concerned has to
appear/ surrender before the concerned
court-Applicant
without
submitting/
surrendering himself to the jurisdiction of
the court, preferred an application for
recall of the NonBailable Warrant under
Section 70 Cr.P.C./ Section 72 BNSS- it is
apparent from the record that anticipatory
bail was granted by this Court vide order
dated 18.11.2022 and thereafter order
granting anticipatory bail was cancelled
by this Court after taking note of the fact
that
the
applicant
did
not
appear
personally several dates. (Para 14) (E-15)

List of Cases cited:

1. Tarsem Lal Vs Directorate of Enforcement
Jalandhar Zonal Office reported in (2024) 7 SCC
61

2. Satender Kumar Antil Vs Central Bureau of
Investigation & anr., (2022) 10 S.C.R. 351 :
(2022) 10 SCC 51

(Delivered by Hon'ble Saurabh Lavania, J.)

1. Heard Shri Purnendu Chakravarty,
learned counsel for the applicant, Shri S. P.
Tiwari, learned A.G.A. for the State of U.P.
and Shri Digvijay Nath Dubey, learned
counsel for the opposite party no. 2 and
perused the record.

2. Before proceeding, it would be apt
to rectify that in the order dated 28.08.2024
inadvertently name of "Shri Pradeep Kumar
Shukla, Advocate" has been indicated as
counsel for opposite party no. 2, which is
rectified and same would read as "Shri
Digvijay Nath Dubey, Advocate".
232 INDIAN LAW REPORTS ALLAHABAD SERIES

3. The present application has been
filed by the applicant namely Navneet
Bhadauria seeking following main relief:

"to allow the present Application
filed under section 528 Bhartiya Nagrik
Suraksha
Sanhita
2024
(BNSS)
corresponding to Section 482 Cr.P.C
exercising the inherent powers to give
effect to the provisions of the Code and
quash the impugned order dated 21/8/2024
passed by Learned Court of ACJM I Court
No. 25 Lucknow and direct and permit
applicant so as to furnish the bonds under
section 88 Cr.P.C to the satisfaction of the
Learned Trial Court in FIR No. 0363/2021
Case
No.
80697/2022
U/s
323,504,506,420,467,468,471
IPC
PS
Vibhuti Khand Lucknow in the interest of
justice."

4. Brief facts of the case, which are
relevant for the purposes of disposal of the
application under consideration, are as
under:

(i) An FIR was lodged as Case
Crime No. 363 of 2021 under Sections 147,
323, 504, 506, 406, 420 at Police Station -
Vibhuti Khand District - Lucknow by
opposite party no.2/Deepak Sharma against
Anand Kumar Singh @ Baba Trikaldarshi,
Rajeev Lochal Paliwal, Navneet Bhadauria
(applicant herein), Vijay Pal Prapati and
one unknown.

(ii) After the aforesaid, the
investigation was carried out and upon
completion
of
investigation,
the
Investigating Officer (in short "I.O.")
submitted
the
charge-sheet
dated
01.06.2022 under Sections 323, 504, 506,
406, 420, 467, 468, 471 which was
submitted before the Court concerned on
19.07.2022.

(iii)
Thereafter,
the
Court
concerned took cognizance upon the
charge-sheet on 19.07.2022 and summons
were issued to the accused indicated in the
charge-sheet named above.

(iv) It appears that in pursuance
to the summons, the applicant did not
appear before the Court.

(v)
Thereafter,
the
Bailable
Warrant was issued on 10.10.2022 and
despite the order related to issuance of the
Bailable Warrant, the applicant did not
appear before the trial Court and ultimately
on 15.10.2022, the trial Court issued the
Non-Bailable Warrant.

(vi)
For
the
purposes
of
interference
in
the
pending
criminal
proceedings, the applicant approached this
Court by means of APPLICATION U/S
482 No. 6754 of 2022. This Court, after
considering the facts and circumstances of
the case vide order dated 26.09.2022,
declined to interfere in the pending
criminal proceedings and disposed of the
said
application
preferred
by
the
applicant/Navneet Bhadauria under Section
482 Code of Criminal Procedure (in short
"Cr.P.C.") with liberty to the applicant to
prefer an application seeking anticipatory
bail or regular bail. The relevant portion of
order dated 26.09.2022 reads as under:

"In view of the aforesaid case
law, this Court has adverted to the entire
record of the case.

The submissions made by the
applicant's
learned
counsel
call
for
adjudication on pure questions of fact
which may be adequately adjudicated upon
only by the trial court and while doing so
even the submissions made on points of law
can also be more appropriately gone into
by the trial court in this case. This Court
does not deem it proper, and therefore
cannot be persuaded to have a pre-trial
before the actual trial begins. A threadbare
8 All. Navneet Bhadauria Vs. State of U.P. & Anr.
233
discussion
of
various
facts
and
circumstances, as they emerge from the
allegations made against the accused, is
being purposely avoided by the Court for
the reason, lest the same might cause any
prejudice to either side during trial.
Therefore, I do not find any justification to
quash
the
proceedings
against
the
applicants as the case does not fall in any
of the categories recognized by the Apex
Court which may justify their quashing.

Accordingly,
the
prayer
for
quashing the same is refused as I do not see
any
illegality,
impropriety
and
incorrectness in the proceedings under
challenge. There is no abuse of court's
process either.

However, it is provided that if the
applicant appears before the court below
and applies for grant of anticipatory bail /
bail, the court below shall consider and
decide the same expeditiously on the basis
of
material
available
before
it
in
accordance with law having regard to the
fact that whether the offences under
Sections 406, 420, 467, 468, 471 I.P.C. are
made out against the present applicant in
the facts of this case and on the basis of
material collected during investigation.

With the aforesaid observations,
the instant application is finally disposed
of."

(vii) Prior to issuance of Bailable
Warrant and Non- Bailable Warrant, as
stated,
the
applicant
preferred
an
anticipatory bail application under Section
438 Cr.P.C. before this Court registered as
CRIMINAL MISC ANTICIPATORY
BAIL APPLICATION U/S 438 CR.P.C.
No. 1841 of 2022. This Court, after
considering the facts and circumstances of
the case including the interim protection
granted by Division Bench of this Court
vide order dated 10.08.2021 passed in
Misc. Bench No. 17201 of 2021 (Rajeev
Lochan Paliwal & Anr. Vs. State of
U.P.),
allowed
the
anticipatory
bail
application
preferred
by
the
applicant/Navneet Bhaduaria vide order
dated 18.11.2022. The relevant portion of
the order dated 18.11.2022 reads as under:

"8. Having heard the learned
counsel for the parties, I find that as per
prosecution case, first time co-accused
Anand Kumar Singh @ Baba Trikaldarshi
with dishonest intention by luring the
complainant insisted him to invest money in
mining business in U.P. and thereafter, he
introduced the complainant to Vijay Pal
Prajapati
(Proprietor
of
"M/s
V.P.
Construction"), who was also in his
collusion.
Subsequently,
on
their
inducement and assurance, complainant
believing their words as true, invested
money in question in good faith in the
mining business along with M/s V.P.
Construction. Applicant is neither partner
of Vijay Pal Prajapati nor investor in the
mining business in question. There is no
business deal between the complainant and
present
applicant-Navneet
Singh
Bhadauria and he is also not party in the
aforesaid agreements dated 05.12.2020.
The applicant is not liable to return any
amount in question to the complainant. The
applicant has no criminal antecedent to his
credit. Learned A.G.A. as well as learned
counsel for the complainant could not point
out any material on record to establish the
specific act of forgery or fabrication of any
document on the part of present applicantNavneet Singh Bhadauria. Tender was also
not allotted to the applicant. This Court is
of the view that in order to constitute the
offence under Section 420 I.P.C., there
must be element of deception and a person
is said to deceive another by "Suggestio
falsi" (suggesting false) or "Supressio very"
(suppressing the truth) or both intentionally
induces another to believe a thing to be
234 INDIAN LAW REPORTS ALLAHABAD SERIES
true which he knows to be false or does not
believe to be true. Under the facts of this
case, I find that the co-accused Anand
Kumar Singh @ Baba Trikaldarshi and
Vijay Pal Prajapati (Proprietor of M/s V.P.
Construction) are the main culprit in this
case and the case of the present applicant
Navneet
Singh
Bhadauria
is
distinguishable from them and stands on
better footing than that of co-accused
Rajeev Lochan Paliwal, who has been
granted anticipatory bail by the coordinate Bench as noted above. The
incident which is alleged to have taken
place on 09.03.2021 as alleged in F.I.R. is
a disputed question of fact and can be seen
by the trial Court. I also find that nonbailable warrant dated 15.10.2022 was
issued during pendency of anticipatory bail
application of the applicant before the
concerned Court below, which was filed in
compliance
of
above
order
dated
26.09.2022. So far as judgments relied
upon by the counsel for the complainant is
concerned, this Court is of the view that the
same is distinguishable on the facts of this
case. It is well settled that every case turns
on its own facts. Even one additional or
different fact may make a big difference
between the conclusion in two cases,
because even a single significant detail
may alter the entire aspect.

9. In view of the above analysis of
the case, looking to the overall facts and
circumstances of the case, submissions of
learned counsel for the parties, reasonable
apprehension of arrest of the applicant,
taking into consideration the gravity of
offence in the light of nature of accusation
so far as against the present applicant is
concerned which is distinguishable from
the case of Anand Kumar Singh @ Baba
Trikaldarshi and Vijay Pal Prajapati and
there being no possibility of his fleeing
from justice as well as reasons noted
above, this Court is of the view that prima
facie the applicant has made out a case for
granting anticipatory bail during trial."

(viii) After the aforesaid, an
application seeking cancellation of bail
registered as CRIMINAL MISC. BAIL
CANCELLATION APPLICATION No.
-37 of 2024 was preferred by Deepak
Sharma. This Court took note of the fact
indicated in the said application as also the
submissions advanced by learend counsel
for the applicant (opposite party no. 2
herein) and thereafter vide order dated
05.07.2024,
the
application
seeking
cancellation of bail was allowed. The order
dated 05.07.2024 reads as under:

"Heard
Mr.
Digvijay
Nath
Dubey, learned counsel for the applicant,
Mr. Virendra, learned A.G.A. representing
the State and Mr. Chandan Srivastava,
learned counsel for opposite party no. 2
through video conferencing.

The instant application has been
moved by the applicant - Deepak Sharma
with a prayer to cancel the anticipatory
bail granted vide order of this Court dated
18.11.2022 to opposite party no. 2-Navneet
Bhadauria mainly on the ground of
violation of condition no.1 of anticipatory
bail order dated 18.11.2022, which reads
as under :

"(i) That the applicant shall
cooperate in the expeditious disposal of the
trial and shall regularly attend the court on
each dates unless inevitable.

(ii) xxxx

(iii) xxxx

(iv) xxxx"

The only submission of Mr.
Digvijay Nath Dubey, learned counsel for
the applicant is that opposite party no. 2 is
not cooperating with expeditious disposal
of trial. Referring the order-sheet of the
trial Court, he submits that on 16.06.2023,
28.06.2023,
27.07.2023,
10.08.2023,
8 All. Navneet Bhadauria Vs. State of U.P. & Anr.
235
21.08.2023, 17.11.2023, 18.01.2024 and
29.01.2024, opposite party no. 2 did not
personally appear before the trial Court
and moved exemption applications through
his counsel in a casual manner.

On the other hand, learned
counsel for opposite party no. 2 does not
dispute the said fact of moving exemption
applications, however, he submits that
opposite party no. 2 was appearing before
the trial Court on the aforesaid dates
through his counsel, therefore, it cannot be
said that he is not cooperating with
expeditious disposal of trial.

Having
heard
submission
of
learned counsel for the parties and
perusing the record, I find that it is not in
dispute that on several dates as noted
above, opposite party no. 2 did not appear
in person and moved applications through
his
counsel
for
exemption
of
his
appearance. Record also shows that case is
running at a slow pace on account of
delaying tactics adopted by accused
persons by adopting different modus
operandi. Opposite party no. 2 despite
granting time vide order dated 17.05.2024
did not file counter affidavit. This Court is
also of the view that despite granting
anticipatory bail to opposite party no. 2,
his non-appearance in person before the
trial
Court
and
frequently
moving
exemption applications on the dates fixed
amount to his non-cooperation with the
expeditious disposal of the trial.

In view of the above, order dated
18.11.2022 granting anticipatory bail to
opposite party no. 2-Navneet Bhadauria is
hereby cancelled. Opposite party no. 2 is
directed to surrender before the trial Court
forthwith.

Accordingly, instant anticipatory
bail cancellation application succeeds and
is allowed.

This order be communicated to
the concerned trial Court for information."

(ix) Being aggrieved by the order
dated 05.07.2024, quoted above, the
applicant approached the Hon'ble Apex
Court by preferring Special Leave to
Appeal (Crl.) No. 9752 of 2024. This
appeal was taken up on 29.07.2024 and the
Hon'ble
Apex
Court,
after
due
consideration, dismissed the appeal. The
order dated 29.07.2024 dismissing the
appeal filed by the applicant challenging
the order dated 05.07.2024, whereby the
application seeking cancellation of bail
filed by Deepak Sharma (opposite party
no.2 herein) was allowed, reads as under:

"Having heard learned counsel
for the petitioner, we are not inclined to
interfere with the impugned judgment and
order.

The special leave petition is,
accordingly, dismissed.

Pending application(s), if any,
shall also stand disposed of."

(x) After dismissal of the special
leave to appeal by the Hon'ble Apex Court
vide order dated 29.07.2024, whereby the
order cancelling the anticipatory bail was
affirmed, the applicant approached the trial
Court by preferring application(s) under
Section 88 Cr.P.C. (Section 91 Bhartiya
Nagrik Suraksha Sanhita, 2023 (in short
"BNSS") and Section 70 Cr.P.C. (Section
72 BNSS) with a prayer to accept the bond.
Both these applications have been rejected
by the order under challenge dated
21.08.2024.

(xi) The aforesaid application(s),
as stated, were preferred in the light of
judgment passed by the Hon'ble Apex
Court in the case of Tarsem Lal Vs.
Directorate of Enforcement Jalandhar
Zonal Office reported in (2024) 7 SCC 61.
The relevant portion of the judgment
passed in the case of Tarsem Lal (Supra):
236 INDIAN LAW REPORTS ALLAHABAD SERIES

"33. Now, we summarise our
conclusions as under:

33.1. Once a complaint under
Section 44(1)(b) PMLA is filed, it will be
governed by Sections 200 to 205Cr.P.C. as
none of the said provisions are inconsistent
with any of the provisions of PMLA;

33.2. If the accused was not
arrested by ED till filing of the complaint,
while taking cognizance on a complaint
under Section 44(1)(b), as a normal rule,
the court should issue a summons to the
accused and not a warrant. Even in a case
where the accused is on bail, a summons
must be issued;

33.3. After a summons is issued
under
Section
204Cr.P.C.
on
taking
cognizance of the offence punishable under
Section 4 PMLA on a complaint, if the
accused appears before the Special Court
pursuant to the summons, he shall not be
treated as if he is in custody. Therefore, it
is not necessary for him to apply for bail.
However, the Special Court can direct the
accused to furnish bond in terms of Section
88Cr.P.C.;

33.4. In a case where the accused
appears pursuant to a summons before the
Special Court, on a sufficient cause being
shown, the Special Court can grant
exemption from personal appearance to the
accused by exercising power under Section
205Cr.P.C.;

33.5. If the accused does not
appear after a summons is served or does
not appear on a subsequent date, the
Special Court will be well within its powers
to issue a warrant in terms of Section
70Cr.P.C.. Initially, the Special Court
should issue a bailable warrant. If it is not
possible to effect service of the bailable
warrant, then the recourse can be taken to
issue a non-bailable warrant;

33.6. A bond furnished according
to Section 88 is only an undertaking by an
accused who is not in custody to appear
before the court on the date fixed. Thus, an
order accepting bonds under Section 88
from the accused does not amount to a
grant of bail;

33.7. In a case where the accused
has
furnished
bonds
under
Section
88Cr.P.C., if he fails to appear on
subsequent dates, the Special Court has the
powers under Section 89 read with Section
70Cr.P.C. to issue a warrant directing that
the accused shall be arrested and produced
before the Special Court; if such a warrant
is issued, it will always be open for the
accused to apply for cancellation of the
warrant by giving an undertaking to the
Special Court to appear before the said
court on all the dates fixed by it. While
cancelling the warrant, the court can
always take an undertaking from the
accused to appear before the court on
every date unless appearance is specifically
exempted. When ED has not taken the
custody
of
the
accused
during
the
investigation, usually, the Special Court
will exercise the power of cancellation of
the warrant without insisting on taking the
accused
in
custody
provided
an
undertaking is furnished by the accused to
appear regularly before the court. When
the Special Court deals with an application
for cancellation of a warrant, the Special
Court is not dealing with an application for
bail. Hence, Section 45(1) will have no
application to such an application;

33.8. When an accused appears
pursuant to a summons, the Special Court
is empowered to take bonds under Section
88Cr.P.C. in a given case. However, it is
not mandatory in every case to direct
furnishing of bonds. However, if a warrant
of arrest has been issued on account of
non-appearance or proceedings under
Section 82 and/or Section 83Cr.P.C. have
been issued against an accused, he cannot
8 All. Navneet Bhadauria Vs. State of U.P. & Anr.
237
be let off by taking a bond under Section
88Cr.P.C., and the accused will have to
apply for cancellation of the warrant;

33.9. After cognizance is taken of
the offence punishable under Section 4
PMLA based on a complaint under Section
44(1)(b), ED and its officers are powerless
to exercise power under Section 19 to
arrest a person shown as an accused in the
complaint; and

33.10. If ED wants custody of the
accused who appears after service of
summons
for
conducting
further
investigation in the same offence, ED will
have to seek custody of the accused by
applying to the Special Court. After
hearing the accused, the Special Court
must pass an order on the application by
recording brief reasons. While hearing
such an application, the court may permit
custody only if it is satisfied that custodial
interrogation at that stage is required, even
though the accused was never arrested
under Section 19. However, when ED
wants to conduct a further investigation
concerning the same offence, it may arrest
a person not shown as an accused in the
complaint already filed under Section
44(1)(b), provided the requirements of
Section 19 are fulfilled."

5. In the aforesaid background of the
case, the present application has been filed
seeking main relief, quoted above.

6. Impeaching the order dated
21.08.2024 as also seeking relief in terms
of Section 88 Cr.P.C., learned counsel for
the applicant states that the case of the
applicant is squarely covered by the
judgement passed in the case of Tarsem
Lal (Supra). The trial Court by not
granting the relief as per the observation
made in this judgment erred in fact and law
both.

7. It is also stated that the trial Court
by means of the impugned order rejected
the application under Section 70 Cr.P.C.
(Section 72 BNSS) and has not decided the
application under Section 88 Cr.P.C.
(Section 91 BNSS).

8. In support of his submissions
aforesaid, reliance has been placed on para
33 of the judgment passed in the case of
Tarsem Lal (Supra), quoted above.

9. Shri S. P. Tiwari, learned A.G.A.
for the State of U.P. and Shri Digvijay Nath
Dubey, learned counsel for the opposite
party no. 2 opposed the prayer sought by
the applicant. The submissions advanced
by the side opposite are as under:

(i) The applicant, in the facts and
circumstances of the case, is not entitled to
the benefit of the judgment passed in the
case of Tarsem Lal (Supra).

(ii) The applicant, in fact, is
avoiding the proceedings pending before
the trial Court.

(iii) The applicant was summoned
by the trial Court but the applicant avoided
the proceedings, therefore, the Bailable
Warrant was issued on 10.10.2022 and
despite this, the applicant failed to take
benefit
of
various
pronouncements
including the pronouncement passed in
Satender Kumar Antil versus Central
Bureau of Investigation and another,
(2022) 10 S.C.R. 351 : (2022) 10 SCC 51
and
therefore,
under
compelling
circumstances after so many dates, the trial
Court issued the Non -Bailable Warrant on
15.10.2022.

(iv)
The
applicant
also
approached this Court by by means of
APPLICATION U/S 482 No. 6754 of
2022, which was disposed of vide order
238 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 26.09.2022 and no protection was
granted to the applicant.

(v)
The
applicant
thereafter
preferred an anticipatory bail application
under Section 438 Cr.P.C. before this Court
registered
as
CRIMINAL
MISC
ANTICIPATORY
BAIL
APPLICATION U/S 438 CR.P.C. No. -
1841 of 2022 which was allowed vide order
dated 18.11.2022 and subsequently, the
anticipatory bail application was cancelled
vide order dated 05.07.2024 affirmed by
the Hon'ble Apex Court vide order dated
29.07.2024.

(vi) In terms of order dated
05.07.2024 passed by this Court, whereby
the bail of the applicant was cancelled, the
applicant
was/in
under
obligation
to
surrender/submit himself to the Court's
jurisdiction, direction or control.

(vii) In the instant case, after the
order dated 05.07.2024, the applicant failed
to appear before the Court concerned and
thereafter on account of non appearance of
the applicant, in compliance of order dated
22.07.2024 passed by the trial Court the
Non-Bailable Warrant was issued and
taking note of all the relevant facts as also
the conduct of the applicant, the trial Court
passed
the
order
dated
21.08.2024,
whereby rejected both the applications
preferred by the applicant.

(viii) It is not mandatory for the
trial Court to enlarge the applicant on bail
in terms of Section 88 Cr.P.C..

(ix) In the Tarsem Lal (Supra)
the summons were issued and thereafter on
account on non-appearance the warrants
were issued and thereafter, the application
seeking anticipatory bail before the Special
Court was rejected and thereafter the High
Court also rejected the prayer seeking
anticipatory
bail
and
thereafter,
the
appellant approached the Hon'ble Apex
Court and the interim protection was
granted by the Hon'ble Apex Court and
subsequently, the Hon'ble Apex Court
concluded in para 33, quoted above,
referred by learned counsel for the
applicant.

(x) In the instant case, from the
record it is apparent that after order of
granting
bail
dated
18.11.2022,
the
applicant did not appear on 16.06.2023,
28.06.2023,
27.07.2023,
10.08.2023,
21.08.2023, 17.11.2023, 18.01.2024 and
29.01.2024 and taking note of the conduct
of the applicant, this Court cancelled the
anticipatory bail application and it appears
that conduct of the applicant was also
considered by the Hon'ble Apex Court and
therefore the special leave to appeal
preferred by the applicant was dismissed
vide order dated 29.07.2024 without
granting the benefit of the judgment passed
in the case of Tarsem Lal (Supra).

10. In view of above facts, the
benefits of the principles settled in the case
of Tarsem Lal (Supra) would not be
available to the applicant.

11. In response, learned counsel for
the applicant states that after the order
dated 18.11.2022, the bail bond was
accepted
on
20.01.2023
and
after
production of order of this Court dated
05.07.2024 on 23.07.2024, the trial Court,
on 22.07.2024, directed the Office to
proceed in terms of the earlier order and in
compliance thereof, Non Bailable Warrant
was issued.

12. It would be apt to indicate that at
this stage that from the aforesaid it is
apparent that Non-Bailable Warrant was
issued before preferring the application(s),
which have been rejected by the impugned
order dated 21.08.2024.
8 All. Navneet Bhadauria Vs. State of U.P. & Anr.
239

13. Considered the aforesaid and
perused the records.

14. Upon due consideration of the
facts of the present case, this Court is of the
view that no interfere is required in the
composite
order
dated
21.08.2024,
impugned
herein,
whereby
two
application(s) i.e. application under Section
70
Cr.P.C./Section
72
BNSS
and
application
under
Section
88
Cr.P.C./Section 91 BNSS have been
rejected. It is for the following reasons:

(i) The order dated 21.08.2024 is
in two parts, as it decides two applications,
referred above.

(ii) This Court feels it appropriate
to first consider the second part of the order
dated 21.08.2024, which relates to the
application
under
Section
88
Cr.P.C./Section 91 BNSS. The same reads
as under:

"जहां्‌
तक्‌
प्रार्थी/अभभयुक्त्‌
निनीत्‌ भदौररया्‌ दिारा्‌ प्रस्तुत्‌ प्रार्थगनापि्‌
अंतर्गत्‌
धारा्‌
88्‌
दं.प्र.सं.्‌
का्‌
प्रकन्‌
है,
अभभयुक्त्‌
निनीत्‌
भदौररया्‌
का्‌
उक्त्‌
प्रार्थगनापि्‌
अभभयुक्त्‌
की्‌
व्यण्क्तर्त्‌
अनुपण्स्र्थनत,
उसके्‌
विरुदध्‌
जारी्‌
एन.बी.िब्लू, तर्था्‌ माननीय्‌ उछि्‌ न्यायालय्‌
के्‌ आदेश्‌ ददनांककत्‌ 05.07.2024्‌ के्‌ आलोक्‌
में्‌ स्िीकार्‌ होने्‌ योग्य्‌ नहीं्‌ है"

(iii) From the above extracted
part of the order dated 21.08.2024, it is
apparent that the Trial Court rejected the
application of the application preferred
under Section 88 Cr.P.C./ Section 91 BNSS
on the ground that the applicant was not
present before the Trial Court and also that
the applicant did not surrender himself to
the jurisdiction of the concerned court in
terms of order dated 05.07.2024 of this
Court, affirmed by the Hon'ble Apex Court
vide order dated 29.07.2924.

(iv)
For
seeking
benefit
of
Section 88 Cr.P.C./ Section 91 BNSS, the
concerned has to appear/ surrender before
the concerned court and the same is evident
from said provisions. The same are as
under:-

"Section 88 Cr.P.C.

Power
to
take
bond
for
appearance - When any person for whose
appearance or arrest the officer presiding
in any Court is empowered to issue a
summons or warrant, is present in such
Court, such officer may require such
person to execute a bond, with or without
sureties, for his appearance in such Court,
or any other Court to which the case may
be transferred for trial."

"Section 91 BNSS

Power to take bond or bail bond
for appearance - When any person for
whose appearance or arrest the officer
presiding in any Court is empowered to
issue a summons or warrant, is present in
such Court, such officer may require such
person to execute a bond or bail bond for
his appearance in such Court, or any other
Court to which the case may be transferred
for trial."

(v) Section 88 Cr.P.C. was also
considered by a Division Bench of this
Court and upon due consideration, the
Division Bench of this Court at Allahabad
in the case of Babu Lal and Others Vs.
Smt Momina Begum passed in Criminal
Misc. Application No. 8810 of 1989 on
23.03.2006, observed as under :-

"Now coming to the question as
to whether the cases where section 88 is
applicable, can the Officer presiding a
Court may require a person to execute
bond, who is not present in the Court can
be answered, by a simple reading of
240 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 88 which clearly mention the word
" is present in such Court". In order to
apply Section
88 Cr.P.C.,
therefore,
presence of a person is necessary before
the Court. The purpose of asking him to
execute bond with or without surety is to
ensure his presence/appearance in such
Court or any other Court to which the
cases may be transferred for trial. In the
absence of such person even Section 88
Cr.P.C. would have no application. This
view has been taken by an Hon'ble Single
Judge of this Court in Mukesh Kumar
Versus State of U.P. and others, 2000
Crl.L.J.1694 and after referring to the
observations made in para-10 of the
judgment in Vishwa Nath Jiloka and others
Versus Munsif Lower Criminal Court,
Bahraich and others, reported in 1989
AWC 1235 the Hon'ble Single Judge has
taken a view that the aforesaid observation
does not lay down that the bail application
should be disposed of without appearance
of the accused in person. The provisions of
Section 88 Cr.P.C. also requires taking of
the bonds, if a person is present in the
Court and, therefore, no order for taking of
the bonds can be passed, unless the
accused appears in person. We agree with
the aforesaid view."

(vi) Para 33 of the judgment
passed by the Hon'ble Apex Court in the
case of Tarsem Lal (Supra), which
includes Sub-Para 33.3, 33.5, 33.7 and 33.8
also indicates that for seeking benefit under
Section 88 Cr.P.C./ Section 91 BNSS, the
accused has to appear in person before the
concerned court.

(vii) The benefit of Section 88
Cr.P.C./ Section 91 BNSS would only be
available if the accused on his/her own
volition
appears
before
the
court
concerned, and in the instant case the
benefit of Section 88 Cr.P.C./ Section 91
BNSS would not be available to the
applicant as prior to moving the application
in the said provision(s) the Non-Bailable
Warrant was issued for the purposes of
appearance of the applicant. In this regard
reference can be made to Para 33.8 of the
judgment passed by the Hon'ble Apex
Court in the case of Tarsem Lal (Supra).
It would be apt to indicate here that on
account of non-appearance before the court
in terms of order dated 25.07.2024, an
order was passed on 22.07.2024 and in
compliance thereof, the Non Bailable
Warrant was issued, fixing 07.08.2024 and
prior to the same, the applications, in issue,
i.e. Application under Section 70 Cr.P.C./
Section 72 BNSS and Application under
Section 88 Cr.P.C./ Section 91 BNSS, were
not preferred by the applicant.

(viii) In view of the aforesaid, the
Trial Court, in the instant case, has not
committed any error in rejecting the
application of the applicant under Section
88 Cr.P.C./ Section 91 BNSS as the
applicant was not present in person before
the court concerned.

(ix) Non-compliance of the order
dated 05.07.2024, affirmed by the Hon'ble
Apex Court vide order dated 29.07.2024, is
apparent from the record.

(x)
The
applicant
without
submitting/surrendering himself to the
jurisdiction of the court, preferred an
application for recall of the Non-Bailable
Warrant under Section 70 Cr.P.C./ Section
72 BNSS.

(xi) Now coming to the first part
of the order impugned. First part of the
impugned order dated 21.08.2024 deals
with the rejection of the application
preferred by the applicant under Section 70
Cr.P.C./ Section 72 BNSS. For ready
reference, the relevant portion of the order
dated 21.08.2024 is extracted hereunder:-
8 All. Navneet Bhadauria Vs. State of U.P. & Anr.
241

"पिािली्‌ के्‌ अिलोकन्‌ से्‌ विददत्‌ है्‌
कक्‌
यह्‌
पिािली्‌
माननीय्‌
मुख्य्‌
न्यानयक्‌
मण्जस्ट्रेट्‌
महोदय्‌
के्‌
आदेश्‌
ददनांककत्‌
31.07.2024्‌ के्‌ अनुक्रम्‌ हस्तांतररत्‌ होकर्‌ इस्‌
न्यायालय्‌ में्‌ प्रापत्‌ हुई।्‌ पिािली्‌ के्‌ अिलोकन्‌
पर्‌
यह्‌
पाया्‌
र्या्‌
कक्‌
अभभयुक्त्‌
निनीत्‌
भदौररया्‌ को्‌ प्रस्तुत्‌ प्रकरर््‌ में्‌ माननीय्‌ उछर्थ्‌
न्यायालय्‌
से्‌
ददनांक्‌
18.11.2022्‌
को्‌
अचधन्‌
जमानत्‌ प्रदान्‌
की्‌ र्यी्‌ र्थी, ण्जसके्‌ उपरान्त्‌
माननीय्‌ उछि्‌ न्यायालय्‌ दिारा्‌ अपने्‌ आदेश्‌
ददनांककत्‌ 05.07.2024्‌ दिारा्‌ अभभयुक्त्‌ निनीत्‌
भदौररया्‌ को्‌ अचग्रम्‌ जमानत, उसके्‌ न्यायालय्‌
में्‌ व्यण्क्तर्त्‌ रूप्‌ से्‌ उपण्स्र्थत्‌ न्‌ होने्‌ तर्था्‌
प्रायः्‌
जररए्‌
अचधिक्ता्‌
हाण्जरीमाफी्‌
प्रस्तुत्‌
करने्‌ तर्था्‌ वििारर््‌ में्‌ सहयोर््‌ न्‌ करने्‌ तर्था्‌
वििारर््‌ को्‌ विलंत्रबत्‌ करने्‌ का्‌ प्रयास्‌ करने्‌ के्‌
आधार्‌
पर्‌
ननरस्त्‌
करते्‌
हुए्‌
अभभयुक्त्‌
को्‌
अविलंब्‌
वििारर््‌
न्यायालय्‌
के्‌
समक्ष्‌
आत्मसमपगर््‌ करने्‌ हेतु्‌ आदेभशत्‌ ककया्‌ र्या।,
तदोपरांत्‌
अभभयुक्त्‌
उपरोक्त्‌
दिारा्‌
माननीय्‌
उछितम्‌ न्यायालय्‌ में्‌ उक्त्‌ आदेश्‌ के्‌ विरुदध्‌
एक्‌
SLP दाखखल्‌
की्‌
र्यी, ण्जसे्‌
माननीय्‌
उछितम्‌
न्यायालय्‌
दिारा्‌
अपने्‌
आदेश्‌
ददनांककत्‌ 29.07.2024्‌ दिारा्‌ ननरस्त्‌ कर्‌ ददया्‌
र्या।्‌ माननीय्‌ उछि्‌ न्यायालय्‌ के्‌ आदेश्‌ के्‌
उपरांत्‌ भी्‌ जब्‌ अभभयुक्त्‌ दिारा्‌ इस्‌ न्यायालय्‌
में्‌
आत्मसमपगर््‌
नहीं्‌
ककया्‌
र्या, तब्‌
पूिग्‌
पीठासीन्‌ अचधकारी्‌ दिारा्‌ ददनांक्‌ 22.07.2024्‌
को्‌
पिािली्‌
पर्‌
यह्‌
अंकन्‌
करते्‌
हुए्‌
कक्‌
अभभयुक्त्‌
निनीत्‌
भदौररया्‌
के्‌
विरुदध्‌
पूिग्‌
आदेशानुसार्‌
यर्थोचित्‌
आदेभशका्‌
जारी्‌
हो,
अभभयुक्त्‌
निनीत्‌
भदौररया्‌
के्‌
विरुदध्‌
एन.बी.िब्लू, जारी्‌
कर्‌
ददया्‌
तर्था्‌
ददनांक्‌
17.08.2024्‌ की्‌ नतचर्थ्‌ पिािली्‌ में्‌ ननयत्‌ कर्‌ दी्‌
र्यी।्‌
न्यायालय्‌
के्‌
आदेश्‌
ददनांककत्‌
22.07.2024्‌
के्‌
उपरांत्‌
अभभयुक्त्‌
निनीत्‌
भदौररया्‌ दिारा्‌ न्यायालय्‌ में्‌ आत्मसमपगर््‌ न्‌
करते्‌ हुए्‌ प्रार्थगनापि्‌ अंतर्गत्‌ धारा्‌ 70 (2) दं.प्र.सं.्‌
प्रस्तुत्‌ करते्‌ हुए्‌ यह्‌ आपवत्त्‌ की्‌ है्‌ कक्‌ पूिग्‌
पीठासीन्‌
अचधकारी्‌
दिारा्‌
अपने्‌
आदेश्‌
ददनांककत्‌ 22.07.2024्‌ में्‌ शब्द्‌ पूिग्‌ आदेशानुसार्‌
प्रयोर््‌ ककया्‌ है, जो्‌ कक्‌ तकनीकी्‌ रूप्‌ से्‌ र्लत्‌
है।्‌ यदद्‌ अभभयुक्त्‌ निनीत्‌ भदौररया्‌ की्‌ ओर्‌ से्‌
की्‌ र्यी्‌ आपवत्त्‌ को्‌ सही्‌ भी्‌ मान्‌ भलया्‌ जाए्‌
तो्‌
भी्‌
यह्‌
ध्यान्‌
देने्‌
योग्य्‌
है्‌
कक्‌
पूिग्‌
पीठासीन्‌
अचधकारी्‌
दिारा्‌
अपने्‌
आदेश्‌
ददनांककत्‌
22.07.2024्‌
में्‌
स्पष्ट्‌
रूप्‌
से्‌
यह्‌
अंकन्‌ करते्‌ हुए्‌ कक्‌ माननीय्‌ उछि्‌ न्यायालय्‌
दिारा्‌ अभभयुक्त्‌ निनीत्‌ भदौररया्‌ की्‌ अचग्रम्‌
जमानत्‌ ननरस्त्‌ कर्‌ दी्‌ र्यी्‌ है, उसके्‌ विरुदध्‌
एन.बी.िब्लू.्‌ जारी्‌ ककया्‌ र्था।्‌ यहां्‌ ध्यान्‌ देने्‌
योग्य्‌ यह्‌ भी्‌ है्‌ कक्‌ माननीय्‌ उछि्‌ न्यायालय्‌
के्‌ आदेश्‌ ददनांककत्‌ 05.07.2024्‌ तर्था्‌ माननीय्‌
उछितम्‌
न्यायालय्‌
के्‌
आदेश्‌
ददनांककत्‌
29.07.2024्‌
तर्था्‌
इस्‌
न्यायालय्‌
के्‌
आदेश्‌
ददनांककत्‌
22.07.2024्‌
के्‌
बािजूद्‌
अभभयुक्त्‌
निनीत्‌
भदौररया्‌
दिारा्‌
न्यायालय्‌
में्‌
व्यण्क्तर्त्‌ रूप्‌ से्‌ उपण्स्र्थत्‌ न्‌ होते्‌ हुए्‌ जररए्‌
अचधिक्ता्‌ न्यायालय्‌ में्‌ प्रार्थगनापि्‌ अंतर्गत्‌ धारा्‌
70 (2) दं.प्र.सं.्‌
प्रस्तुत्‌
करते्‌
हुए्‌
तकनीकी्‌
आधार्‌ पर, उसके्‌ विरुदध्‌ जारी्‌ एन.बी.िब्लू.्‌ को्‌
ननरस्त्‌ करने्‌ की्‌ प्रार्थगना्‌ की्‌ र्यी्‌ है।्‌ न्यायालय्‌
के्‌ आदेश्‌ ददनांककत्‌ 22.07.2024्‌ के्‌ अिलोकन्‌
से्‌ स्पष्ट्‌ है्‌ कक्‌ न्यायालय्‌ दिारा्‌ उक्त्‌ आदेश्‌
में्‌
माननीय्‌
उछि्‌
न्यायालय्‌
के्‌
आदेश्‌
का्‌
अंकन्‌ करते्‌ हुए्‌ अभभयुक्त्‌ उपरोक्त्‌ के्‌ विरुदध्‌
एन.बी.्‌ िब्लू, जारी्‌ ककया्‌ र्या्‌ है।्‌ ितगमान्‌ में्‌
पिािली्‌ आरोप्‌ विरिन्‌ के्‌ स्तर्‌ पर्‌ ननयत्‌ है।्‌
242 INDIAN LAW REPORTS ALLAHABAD SERIES
अभभयुक्त्‌ निनीत्‌ भदौररया्‌ के्‌ अनतररक्त्‌ अन्य्‌
सभी्‌ अभभयुक्त्‌ न्यायालय्‌ में्‌ व्यण्क्तर्त्‌ रूप्‌ से्‌
उपण्स्र्थत्‌
आ्‌
रहे्‌
हैं।्‌
अभभयुक्त्‌
निनीत्‌
भदौररया्‌
की्‌
अनुपण्स्र्थनत्‌
के्‌
कारर््‌
िाद्‌
के्‌
ननस्तारर््‌
में्‌
विलंब्‌
हो्‌
रहा्‌
है।्‌
अभभयुक्त्‌
निनीत्‌ भदौररया्‌ दिारा्‌ वििारर््‌ में्‌ सहयोर््‌ न्‌
करते्‌ हुए्‌ तर्था्‌ न्यायालय्‌ में्‌ उपण्स्र्थत्‌ न्‌ होते्‌
हुए्‌
जररए्‌
अचधिक्ता्‌
तकनीकी्‌
आधार्‌
पर्‌
प्रार्थगनापि्‌ अंतर्गत्‌ धारा्‌ 70 (2) दं.प्र.सं.्‌ प्रस्तुत्‌
ककया्‌ र्या्‌ है।्‌ आदेश्‌ ददनांककत्‌ 22.07.2024्‌ के्‌
अिलोकन्‌ तर्था्‌ अभभयुक्त्‌ उपरोक्त्‌ के्‌ आिरर््‌
के्‌ दृण्ष्टर्त्‌ तर्था्‌ माननीय्‌ उछि्‌ न्यायालय्‌ के्‌
आदेश्‌
ददनांककत्‌
05.07.2024्‌
के्‌
आलोक्‌
में्‌
प्रार्थी्‌ /्‌ अभभयुक्त्‌ का्‌ प्रार्थगनापि्‌ अंतर्गत्‌ धारा्‌
70 (2) दं.प्र.सं.्‌ स्िीकार्‌ होने्‌ योग्य्‌ नहीं्‌ है।"

(xii) From a perusal of the
aforesaid
part
of
the
order
dated
21.08.2024, which relates to rejection of
Application under Section 70 Cr.P.C./
Section 72 BNSS, it is apparent that the
Trial Court, upon due consideration of the
facts of the case, particularly the conduct of
the applicant, rejected the said application.

(xiii) In regard to the conduct of
the applicant, it is apparent from the record
that anticipatory bail was granted by this
Court vide order dated 18.11.2022 and
thereafter the order dated 18.11.2022
granting anticipatory bail was cancelled by
this Court vide order dated 05.07.2024.
This order was passed after taking note of
the fact that the applicant did not appear
personally on 16.06.2023, 28.06.2023,
27.07.2023,
10.08.2023,
21.08.2023,
17.11.2023, 18.01.2024 and 29.01.2024.

(xiv) While cancelling the bail,
this
Court
specifically
ordered
that
"opposite party No. 2 is directed to
surrender before the Trial Court forthwith."
The
expression
'surrender'
means
appearance personally before the concerned
court.

(xv) In this case, the applicant
challenging the order dated 05.07.2024
approached the Hon'ble Apex Court and
the Hon'ble Apex Court, considering the
conduct of the applicant, declined to
interfere in the matter and dismissed the
Special Leave Petition (SLP) vide order
dated
29.07.2024
that
too
without
providing the benefit of the judgment
passed in the case of Tarsem Lal (Supra).

(xvi) Despite the aforesaid, the
applicant
again
avoided
the
court
proceedings and without making him
personally present before the court
concerned preferred two applications
i.e.
Application
under
Section
70
Cr.P.C./
Section
72
BNSS
and
Application under Section 88 Cr.P.C./
Section 91 BNSS, in relation to which,
this Court has already observed hereinabove that the Trial Court has not
committed any error in rejecting the
prayer seeking benefit of Section 88
Cr.P.C./ Section 91 BNSS.