# Neeru Kumar Yadav & Anr v. State of U.P. & Anr

- **Citation:** (2023) 9 ILRA 10
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-17
- **Case number:** Criminal Misc. Anticipatory Bail Application U/S 438 CR.P.C. No. 8564 of 2023
- **Bench:** Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/neeru-kumar-yadav-anr-v-state-of-u-p-anr-50709
- **Pages:** 4

## Headnote

Law-Criminal
Procedure
Code,1973-Section 438 - Indian Penal
Code, 1860-Sections 323 & 308- the
charge-sheet was filed in the matter and
cognizance was taken - Several processes
were sent to the accused applicant to
procure his appearance before the Court,
but since he was absconding, non-bailable
warrant was issued against him and
subsequently the Court found that he was
deliberately avoiding the service of the
process and his appearance before the
Court- the applicant has utterly failed to
show any valid reason for his abscondence
and also to put forth any compelling
circumstance under which he had been
unable to honour and comply with and to
submit himself to the process of the Court
which resulted into issuance of punitive
process against him and for making a
declaration against him to bring him
under the category of a proclaimed
offender-The present applicant, against
whom process under Section 82 Cr.P.C.
has been issued and who has been
declared as a proclaimed offender, is not
entitled for the protection by way of
anticipatory bail in the light of the law laid
9 All. Neeru Kumar Yadav & Anr. Vs. State of U.P. & Anr.
11
down in Prem Shankar Prasad case .(Para
1 to 13)

B.
As
regards
the
implication
of
proclamation having been issued against
the appellant, we have no hesitation in
making it clear that any person, who is
declared as an "absconder" and remains out
of reach of the investigating agency and
thereby stands directly at conflict with law,
ordinarily,
deserves
no
concession
or
indulgence. By way of reference, we may
observe that in relation to the indulgence of
pre-arrest bail in terms of Section 438 CrPC,
this Court has repeatedly said that when an
accused is absconding and is declared as
proclaimed offender, there is no question of
giving him the benefit of Section 438
CrPC.(Para 11)

The application is rejected. (E-6)

List of Cases cited:

## Text

10 INDIAN LAW REPORTS ALLAHABAD SERIES
was drawn. In the present case, the
proclamation under Sections 82 and 83
Cr.P.C. was completed on 18.01.2023 itself
and a period of more than six months have
passed and herein, the deceased has
committed suicide within the precincts of
the house of the applicants, as such this
case law also does not hold good to the
present case and the exception cannot be
drawn here. The applicants are named in
the FIR.

22. The eminent jurist Benjamin N.
Cardozo, a former Judge of Supreme Court
of America, in his book 'The Nature of the
Judicial Process', has stated that the
precedents cannot be applied in any given
dispute without some element of discretion,
for which Judges must take responsibility.
He says 'most Judges are inclined to say
that what was once thought to be the
exception is the rule, and what was the rule
is the exception now'. The relationship
between logic and experience is important
in the context of invoking precedents.

23. After hearing learned counsel for
the parties and taking into consideration
paragraph 43(2), (8) and (10) of the
judgment of this Court passed in Shivam
(supra) and also the facts of the case, I do
not find it a fit case to grant anticipatory
bail to the applicants.

24. The present anticipatory bail
application is hereby found devoid of
merits and is accordingly rejected.

25. However, it is provided that if the
applicants appear before the court below
and apply for regular bail, their prayer for
bail shall be considered and decided in
accordance to law as expeditiously as
possible.
----------
(2023) 9 ILRA 10
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.08.2023

BEFORE

THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Misc. Anticipatory Bail Application U/S
438 CR.P.C. No. 8564 of 2023

Neeru Kumar Yadav & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Padmaker Pandey

Counsel for the Opposite Parties:
G.A., Sri Anurag Shukla

A.
Criminal
Law-Criminal
Procedure
Code,1973-Section 438 - Indian Penal
Code, 1860-Sections 323 & 308- the
charge-sheet was filed in the matter and
cognizance was taken - Several processes
were sent to the accused applicant to
procure his appearance before the Court,
but since he was absconding, non-bailable
warrant was issued against him and
subsequently the Court found that he was
deliberately avoiding the service of the
process and his appearance before the
Court- the applicant has utterly failed to
show any valid reason for his abscondence
and also to put forth any compelling
circumstance under which he had been
unable to honour and comply with and to
submit himself to the process of the Court
which resulted into issuance of punitive
process against him and for making a
declaration against him to bring him
under the category of a proclaimed
offender-The present applicant, against
whom process under Section 82 Cr.P.C.
has been issued and who has been
declared as a proclaimed offender, is not
entitled for the protection by way of
anticipatory bail in the light of the law laid
9 All. Neeru Kumar Yadav & Anr. Vs. State of U.P. & Anr.
11
down in Prem Shankar Prasad case .(Para
1 to 13)

B.
As
regards
the
implication
of
proclamation having been issued against
the appellant, we have no hesitation in
making it clear that any person, who is
declared as an "absconder" and remains out
of reach of the investigating agency and
thereby stands directly at conflict with law,
ordinarily,
deserves
no
concession
or
indulgence. By way of reference, we may
observe that in relation to the indulgence of
pre-arrest bail in terms of Section 438 CrPC,
this Court has repeatedly said that when an
accused is absconding and is declared as
proclaimed offender, there is no question of
giving him the benefit of Section 438
CrPC.(Para 11)

The application is rejected. (E-6)

List of Cases cited:

1. Abhishek Vs St. of Mah. (2022) 8 SCC 282
2. Prem Shankar Prasad Vs St. of Bih. 7 anr.
(2021) SCC OnLine SC 955

3. St. of M.P. Vs Pradeep Sharma (2014) 2 SCC
171

(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)

1. Supplementary affidavit filed today
is taken on record.

2. Crl. Misc. Exemption Application
No.02 of 2023 is allowed.

3. At the very outset, learned counsel
for the applicants submits that he is not
pressing the anticipatory bail application in
respect of applicant no.1 Neeru Kumar
Yadav, as he is already under judicial
custody. He confines his prayer only to the
extent of prayer for granting anticipatory
bail to the applicant no.2 Lallan @
Pushpendra Singh during the pendency of
trial in Case Crime No.530 of 2018 (Case
No.3420 of 2018, State of U.P. Vs. Neeru
and Others) under Sections 323, 308 IPC,
Police Station Dibiyapur, District Auraiya.

4. Heard learned counsel for the
applicant, learned A.G.A for the State as
well as learned counsel for the informant /
opposite party no.2 and perused the record.

5. A NCR was filed under section 323
IPC by the informant of the case against the
applicants no.1 and 2 along with two other
co-accused persons on 24.1.2018 at 20:10
p.m. alleging therein that an assault was
made by them with kicks, fists, lathi and
danda upon him on 24.1.2018 at 17:00 p.m.
During course of investigation, section 308
IPC was added to the matter. Thereafter,
after
investigation,
charge-sheet
was
submitted.

6. It is submitted by the learned
counsel for the applicant no.2 that the
applicant is innocent and has no concern
with the present matter. He has been falsely
implicated in this matter. Allegations
levelled against the applicant are false.
Applicant's case is squarely covered under
Section 438 Cr.P.C. It is further submitted
that the present case is a cross case and a
cross F.I.R. was lodged on behalf of the
applicant's side as Case Crime No.73 of
2018 under sections 354, 323, 506 IPC and
that was lodged prior to the NCR made by
the informant side in this matter.

It is further submitted that no
specific role of assault has been assigned to
the present applicant in the alleged crime. It
is further submitted that except one injury
caused to the informant / injured as nasal
bone fracture, all other injuries are simple
in nature. It is further submitted that during
12 INDIAN LAW REPORTS ALLAHABAD SERIES
course of investigation the applicant has
been cooperative with the investigation of
the case. He never received any summon /
process by the Court after submission of
the charge-sheet and had absolutely no
knowledge about the punitive process
issued against him by the Court.

It is further submitted that the
criminal history of the applicant has been
explained
by
way
of
supplementary
affidavit. On the aforesaid grounds a prayer
for grant of anticipatory bail has been
made.

7. Per contra, learned A.G.A. as well
as learned counsel for the informant /
opposite party no.2 vehemently opposed
the prayer for anticipatory bail. At the very
outset, it has been submitted that process
under section 82 Cr.P.C. has already been
issued by the court concerned on 16.6.2023
against the applicant no.2 after adopting the
required
procedure
to
procure
the
appearance of the applicant before it.

It is further submitted that the
anticipatory bail application moved by the
applicant before the Sessions Court was
rejected on 14.7.2023 and even on that date
the applicant had already been declared as a
proclaimed offender by the Court. In
support of his contention, reliance has been
placed upon the decisions of the Hon'ble
Apex Court in Prem Shankar Prasad
Versus State of Bihar and Another, 2021
SCC OnLine Supreme Court 955 and
State of Madhya Pradesh vs. Pradeep
Sharma, (2014) 2 Supreme Court Cases
171.

It
is
further
submitted
that
grievous injuries have been caused to the
informant / injured in this case and specific
role of assault has been assigned to the
present applicant in the statement of the
injured himself given to the Investigating
Officer under section 161 Cr.P.C. It is
further submitted that the applicant is not
cooperating with the trial court at all and in
view of the established legal principles for
consideration for grant of anticipatory bail,
he is not entitled for anticipatory bail in the
present matter.

8. A perusal of the record reflects that
the charge-sheet in this matter was filed in
2018 and cognizance was taken on
24.8.2018. Several processes were sent to
the accused applicant to procure his
appearance before the Court, but since he
was absconding, non-bailable warrant was
issued against him on 28.10.2022 and
subsequently the Court found that he was
deliberately avoiding the service of the
process and his appearance before the
Court. An order was passed to issue process
under section 82 Cr.P.C. by the Court on
16.6.2023 against the applicant. The
anticipatory bail application of the present
applicant was rejected by the Sessions
Court on 14.7.2023. It is explicitly clear
that when such application was being heard
by the Sessions Court, Auraiya, the accused
applicant had already been declared 'a
proclaimed offender'.

9. The present applicant, against
whom process under Section 82 Cr.P.C. has
been issued and who has been declared as a
proclaimed offender, is not entitled for the
protection by way of anticipatory bail in the
light of the law laid down in Prem Shankar
Prasad case (supra) and State of Madhya
Pradesh vs. Pradeep Sharma (supra).

10. Further more, the applicant has
utterly failed to show any valid reason for
his abscondence and also to put forth any
compelling circumstance under which he
had been unable to honour and comply with
and to submit himself to the process of the
9 All. Kaushal Anand Vs. State of U.P. & Anr.
13
Court which resulted into issuance of
punitive process against him and for
making a declaration against him to bring
him under the category of a proclaimed
offender. Since no such exceptional ground
exists in favour of the applicant, he,
without adhering himself to the legal
process issued by the Court, is bereft of
protection provided by the statute by way
of anticipatory bail.

11. Recently, the Hon'ble Apex Court
in Abhishek Vs. State of Maharashtra,
(2022) 8 SCC 282 has reiterated the legal
dictum in respect of grant of anticipatory
bail to an absconder and held as hereunder :

"68. As regards the implication
of proclamation having been issued
against the appellant, we have no
hesitation in making it clear that any
person,
who
is
declared
as
an
"absconder" and remains out of reach of
the investigating agency and thereby
stands directly at conflict with law,
ordinarily, deserves no concession or
indulgence. By way of reference, we may
observe that in relation to the indulgence
of pre-arrest bail in terms of Section 438
CrPC, this Court has repeatedly said that
when an accused is absconding and is
declared as proclaimed offender, there is
no question of giving him the benefit of
Section 438 CrPC." (Prem Shankar
Prasad case (supra) referred to.)

12. In view of the established law laid
down by the Hon'ble Apex Court, I deem it
not a fit case for grant of anticipatory bail
to the present applicant. Such a person,
who
does
not
cooperate
with
the
investigation / trial at all and has been a
willful defaulter, is not entitled for any
relief from this Court by way of granting
anticipatory bail.

13. Accordingly, and in view of the
above, this anticipatory bail application is
rejected.
----------
(2023) 9 ILRA 13
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.08.2023

BEFORE

THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Misc. Anticipatory Bail Application U/S
438 of CR.P.C. No. 9261 of 2023

Kaushal Anand ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Anshu Singh, Sri Hemendra Pratap Singh

Counsel for the Opposite Parties:
G.A., Sri Jitendra Pal Singh Jadaun, Seema
Singh Jadaun

A.
Criminal
Law-Criminal
Procedure
Code,1973-Section 438 - Indian Penal
Code,1860-Sections 323, 328, 376 & 506complainant had willingly been stayed
with the appellant and continued with the
relationship and since the relationship
was not working out, it was held that it
was no ground to lodge an F.I.R. for the
offence under Section 376 (2) (n) IPC, but
the elements of seducement, concealment
of marital status with ulterior motive on
the part of the accused and commission of
rape upon the victim by adopting deceitful
means present in the case in hand- As a
married person having his wife and two
children, the applicant was never in a
position to marry with the prosecutrix, but
the concealment of his marital status from
the victim of the case and making physical
relations with her is a discernible fact that
since
the
very
inception,
he
never
intended to marry with the prosecutix and
with
malafide
motives
he
was
only
fulfilling his lust-not only in her statement