# Parvez Ahmad v. State of U.P

- **Citation:** (2020) 6 ILRA 1239
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-05-22
- **Case number:** Criminal Misc. Anticipatory Bail Application U/S 438 CR.P.C. No. 2609 of 2020
- **Bench:** Siddharth
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/parvez-ahmad-v-state-of-u-p-45765
- **Pages:** 11

## Headnote

(A) Criminal law - Indian Penal Code,
1860 - Sections 376-D, 376(2)(n) 420,
506
-
Section
120-B
for
offence
conspiracy of rape - Code of criminal
procedure, 1973 - Section 438 Cr.P.C -
anticipatory
bail,
Section
161
--
Statement recorded before investigating
officer , section 164 - State recorded
before magistrate , Section 173 (2) -
Submission of police report , Section 439
- High Court or the Court of Session
vested with power to grant bail to any
person accused of an offence and in
custody - Right to life and personal
liberty are the important fundamental
rights guaranteed by the constitution
and therefore, no person should be
confined or detained in any manner
unless he has been held guilty. Para
-
18

Prosecutrix lodged the First Information
Report
against
Lekhapal
(co-accused)
-
Promised her to provide job and demanded
certain amount for payment to higher officers
- sole allegation against the applicant - he
along with co-accused recorded the video
when the co-accused was committing rape -
said
version
is
not
supported
by
the
prosecutrix either in her statement under
section 161 Cr.P.C. or 164 Cr.P.C. - Applicant
not named in the First Information report - He
is neither driver nor friend of co-accused - No
allegation of gang rape has been alleged
against the applicant. Para - 3,14,23

HELD:- Without expressing any opinion on
the merits of the case and considering the
nature of accusations and his antecedents, the
applicant is entitled to be released on
anticipatory bail in this case.
Para - 24

Criminal
Misc.
Anticipatory
Bail
Application allowed. (E-7)

LIST OF CASES CITED:-

## Text

6 All. Parvez Ahmad Vs. State of U.P. 1239
----------
(2020)06ILR A1239
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.05.2020

BEFORE

THE HON'BLE SIDDHARTH, J.

Criminal Misc. Anticipatory Bail Application U/S
438 CR.P.C. No. 2609 of 2020

Parvez Ahmad ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Santosh Yadav

Counsel for the Opposite Party:
A.G.A.

(A) Criminal law - Indian Penal Code,
1860 - Sections 376-D, 376(2)(n) 420,
506
-
Section
120-B
for
offence
conspiracy of rape - Code of criminal
procedure, 1973 - Section 438 Cr.P.C -
anticipatory
bail,
Section
161
--
Statement recorded before investigating
officer , section 164 - State recorded
before magistrate , Section 173 (2) -
Submission of police report , Section 439
- High Court or the Court of Session
vested with power to grant bail to any
person accused of an offence and in
custody - Right to life and personal
liberty are the important fundamental
rights guaranteed by the constitution
and therefore, no person should be
confined or detained in any manner
unless he has been held guilty. Para
-
18

Prosecutrix lodged the First Information
Report
against
Lekhapal
(co-accused)
-
Promised her to provide job and demanded
certain amount for payment to higher officers
- sole allegation against the applicant - he
along with co-accused recorded the video
when the co-accused was committing rape -
said
version
is
not
supported
by
the
prosecutrix either in her statement under
section 161 Cr.P.C. or 164 Cr.P.C. - Applicant
not named in the First Information report - He
is neither driver nor friend of co-accused - No
allegation of gang rape has been alleged
against the applicant. Para - 3,14,23

HELD:- Without expressing any opinion on
the merits of the case and considering the
nature of accusations and his antecedents, the
applicant is entitled to be released on
anticipatory bail in this case.
Para - 24

Criminal
Misc.
Anticipatory
Bail
Application allowed. (E-7)

LIST OF CASES CITED:-

1. Sushila Aggarwal Vs St. (NCT of Delhi) ,
2020 SCC online SC 98

2. Siddharth Varadarajan Vs St. of U.P.& anr.
passed in Bail No. 2778 of 2020 (anticipatory
bail)

3. Gurbaksh Singh Sibbiya & ors. Vs St. of
Punj., (1980) 2 SCC 565

4. Siddharam Satlingappa Mhetri Vs St. of
Mah., (2011) 1 SCC 694

5. Bhadresh Bipinbhai Sheth Vs St. of Guj. ,
(2016) 1 SCC 152

6. Salauddin Abdulsamad Shaikh Vs St. of
Mah. , (1996) 1 SCC 667

7. K.L. Verma Vs St. & anr., (1998) 9 SCC 348

8. Sunita Devi Vs St. of Bihar, (2005) 1 SCC
6087

9. Nirmal Jeet Kaur Vs St. of M.P., 7 SCC 558

10. HDFC Bank Ltd. Vs J.J. Mannan, (2010) 1
SCC 679

11. Satpal Singh Vs St. of Punj. , (2018) 4 SCC
303

(Delivered by Hon'ble Siddharth, J.)
1240 INDIAN LAW REPORTS ALLAHABAD SERIES

Order
on
Criminal
Misc.
Correction Application No. 02 of 2020

1. The notice of the above noted
anticipatory bail application was served
online on the Government Advocate on
09.05.2020.
By
the
order
dated
20.05.2020 the above noted application
was decided by this court since despite
grant of time to learned Government
Advocate no objection was received and
the applicant was granted anticipatory
bail till the submission of police report
under Section 173 (2) Cr.P.C.

2. Correction application has been
filed on behalf of applicant on the ground
that in the present case chargesheet has
been filed by the Investigating Officer
therefore the grant of limited anticipatory
bail till the submission of report under
Section 173(2) is not justified, in view of
the recent Apex Court's judgment in the
case of Sushila Aggarwal vs. State (NCT
of Delhi) -2020 SCC online SC 98. It has
further been stated that this court in the
case of Siddharth Varadarajan vs. State
of U.P and another passed in Bail No.
2778 of 2020 (anticipatory bail) on
13.05.2020 has granted bail to the
applicant without any limitation.

3. The facts of the case as pleaded in
the affidavit in support of anticipatory
bail application are that the prosecutrix
lodged the First Information Report dated
29.08.2018
against
co-accused,
Jai
Shankar Upadhyay and two unknown
persons under Sections 376-D, 376(2)(n)
420, 506 of I.P.C alleging therein that she
works in Delhi and when she was coming
to her hometown, she met one Jai Shankar
Upadhyay who claimed himself to be
Lekhapal,
Tehsil
Bansi,
District-
Siddharth Nagar. He promised her to
provide job and demanded certain amount
for
payment
to
higher
officers.
Prosecutrix gave him the demanded
amount but the said Jai Shankar Prasad
did not provided her job and raped her
continuously for three years by taking
advantage of his position and her
helplessness. It was further alleged that he
also made her obscene video and when
she opposed it, co-accused, Jai Shankar
Upadhyay, started hatching conspiracy of
her murder with his friends. Jai Shankar
Upadhyay is threatening her that he will
make the video viral on account of which
she had to made complaints to his higher
officers. Applicant is not named in the
First Information report. He is neither
driver nor friend of co-accused, Jai
Shankar Upadhyay.

4. During the investigation, the
investigating
officer
recorded
the
statement of prosecutrix under Section
161 Cr.P.C on 30.08.2018. In her
statement she narrated the same story as
mentioned in the First Information
Report. The statement of the prosecutrix
was recorded under section 164 of
Cr.P.C. before learned Magistrate on
01.09.2018.
In
her
statement,
she
reiterated the allegations against Jai
Shankar Upadhyay regarding commission
of rape and video recording. She very
specifically stated that it is Jai Shankar
who made the video of rape. She further
alleged that she gave about Rs. 4.5 Lacs
between 2015 to 2017 to co-accused, Jai
Shankar
Upadhyay,
Lekhpal,
by
borrowing money from the applicant,
Parvez and one Krishna.

5. It is clear from the perusal of the
statement of the prosecutrix, that the
applicant is well known to her and she
borrowed money from him. There is not a
6 All. Parvez Ahmad Vs. State of U.P. 1241
single allegation against the applicant in
the statement of prosecutrix recorded
under
section
164
Cr.P.C.
before
Magistrate.

6.

Co-accused,
Jai
Shankar
Upadhyay, Lekhpal is very influential
person.
The
investigating
officer,
Mahendra Kumar Chaturvedi colluded
with him. First, he threatened the
prosecutrix to change her statement and
withdraw
case
against
Jai
Shankar
Upadhyay. When she did not relent, she
was mercilessly beaten by the police
including the investigating officer. In the
said circumstances, the prosecutrix filed a
Criminal Misc. Writ Petition No. 27214
of 2018 before this court with the prayer
to change of investigating officer and to
set an inquiry conducted as to why she
was beaten by police. This Court vide
order dated 28.09.2018 disposed of the
said petition directing the S.P., Basti to
inquire into the matter and further
directed to ensure the investigation of the
case
be
conducted
by
competent
Investigating Officer in a fair manner, but
in vain.

7.

Co-accused,
Jai
Shankar
Upadhyay, succeeded in his design and
got the applicant falsely implicated along
with one Krishna in the case with the help
of
the
Investigating
officer.
The
Investigating officer made entry of false
and fabricated statement dated 19.09.2018
of Prosecutrix in the case diary. In the
said statement, it has been alleged that the
applicant,
Parvez
and
co-accused,
Krishna, recorded the video when Jai
Shankar was committing rape on the
prosecutrix. Thus, on the basis of the said
statement, the investigating officer made
the applicant and Krishna accused in the
case under Section 120-B for offence
conspiracy of rape.

8. Prosecutrix moved several
applications for the compliance of the
order dated 29.09.2018 passed by this this
Court in writ petition before S.P., Basti
but S.P., Basti neither passed any order on
the
applications
submitted
by
the
prosecutrix nor changed the Investigating
officer. She again moved an application/
reminder dated 6.01.2019 before S.P.,
Basti and prayed for compliance of the
order dated 29.09.2018 passed by this
Court in Criminal Writ No. 27214 of
2018. In her application she very
specifically stated that she has no
grievance with the applicant Parvez and
the
Investigating
Officer,
Mahendra
Kumar Chaturvedi, is falsely implicating
him on personal grudge. But the S.P.,
Basti remained silent and did not take any
action on the said application.

9. Despite the repeated requests and
order of this Court, the investigating
officer was not changed and ultimately a
charge-sheet
dated
09.03.2019
was
submitted against Jai Shankar Upadhyay,
Krishna and the applicant under section
376- D, 420, 506, and 120B I.P.C. by the
same investigating officer i.e., Mahendra
Pratap Chaturvedi.

10. As soon as, prosecutrix came to
know about the false implication of the
applicant she moved an application before
the Circle Officer, Kotwali, District Basti
along with Affidavit to the effect that
applicant Parvez is not involved in the
case and he has been falsely implicated
by the police and she further requested
that Investigating Officer be directed to
not to proceed against the applicant.
1242 INDIAN LAW REPORTS ALLAHABAD SERIES

11. The Circle Officer did not take
any action on the application of the
Prosecutrix and forwarded the chargesheet before the concerned Court. The
learned Court below, took cognizance of
offences on the charge sheet vide order
dated 05.07.2019 and summoned the
accused persons.

12. Applicant filed a Criminal Misc.
Application (U/S 482 of Cr.P.C.) No.
30523 of 2019 before this Court against
the charge-sheet dated 09.03.2019 and
cognizance order dated 05.07.2019. The
said application is still pending before this
Court.

13. Co-accused, Krishna ,who has
been assigned similar role has already
been released on bail by this Court vide
order dated 04.01.2019. Main accused of
this case, namely, Jai Shankar Upadhyay,
has also been granted bail in the aforesaid
case by this Court vide order dated
4.01.2019 passed in Criminal Misc. Bail
Application No. 45975 of 2019.

14. The sole allegation against the
applicant is that he along with coaccused, Krishna, recorded the video
when
the
co-accused,
Jai
Shankar
Upadhyay,
was
committing
rape.
However,
the
said
version
is
not
supported by the prosecutrix either in her
statement under section 161 Cr.P.C. or
164 Cr.P.C.

15. The police is regularly visiting
the house of the applicant. It is taking
coercive action against the applicant
despite the fact that Criminal Misc.
Application (under Section 482 Cr.P.C)
challenging
the
charge
sheet
and
impugned cognizance order of the court
below is still pending before this Court.
Applicant is not having any other criminal
case registered against him and he is not a
previous convict.

16. Before proceeding with this case
further the concept of anticipatory bail
and its application to the state of Uttar
Pradesh is required to be considered.

17. The word 'anticipatory bail' has
not been defined anywhere in the Cr.P.C.
Under Section 438 Cr.P.C there is no use of
term 'anticipatory bail' anywhere. It only
provides that where any person has reason
to believe that he may be arrested on
accusation of having committed a nonbailable offence he may apply to the High
Court or the Court of Session under this
Section that in the event of such arrest he
shall be released on bail. Therefore it is
clear that anticipatory bail is granted before
the arrest of the accused takes place. It is
pre-arrest bail as distinguished from post
arrest bail granted by the High Court or the
Court of Session under Section 439 Cr.P.C.
Under Section 439 Cr.P.C the High Court
or the Court of Session have been vested
with power to grant bail to any person
accused of an offence and in custody.
Therefore it is clear that bail under Section
439 Cr.P.C can only be granted to an
accused person when he has been arrested
or has surrendered to the custody of the
court. In the case of anticipatory bail the
custody of accused person is not with the
court or the police at the time of grant of
bail. The custody of accused person only
comes to the court when he is arrested and
subsequently released on anticipatory bail
on furnishing personal bond and sureties to
the satisfaction of the court or the police
officer concerned.

18. In the state of Uttar Pradesh the
concept
of
anticipatory
bail
was
6 All. Parvez Ahmad Vs. State of U.P. 1243
introduced in Cr.P.C. by 1973 amendment
but vide U.P. Act No. 16 of 1976 (w.e.f.,
28.11.1975)
it
was
omitted
during
emergency. After about 43 years the
anticipatory bail has been restored in
Uttar Pradesh vide U.P. Amendment to
Section 438 Cr.P.C. The amendment bill
received the approval of the President on
01.06.2019 and has been brought into
force
w.e.f.,
06.06.2019.
The
said
provision can be invoked by a person who
has a "reasonable apprehension" that he
may be arrested for committing a nonbailable offence. The main purpose for
incorporating Section 438 in Cr.P.C. was
that the liberty of an individual should not
be unnecessarily jeopardised. Right to life
and personal liberty are the important
fundamental rights guaranteed by the
constitution and therefore, no person
should be confined or detained in any
manner unless he has been held guilty.
The provision of 438 Cr.P.C., (U.P.
Amendment) is reproduced hereinbelow:-

"438. (1) Where any person has
reason to believe that he may be arrested
on accusation of having committed a nonbailable offence, he may apply to the
High Court or the Court of Session for a
direction under this section that in the
event of such arrest he shall be released
on bail; and that Court may, after taking
into
consideration,
inter
alia,
the
following factors, namely:-

i. the nature and gravity of the
accusation;

ii.
the
antecedents
of
the
applicant including the fact as to whether
he
has
previously
undergone
imprisonment on conviction by a Court in
respect of any cognizable offence;

iii.
the
possibility
of
the
applicant to flee from justice; and

iv. where the accusation has
been made with the object of injuring or
humiliating the applicant by having him
so arrested; either reject the application
forthwith or issue an interim order for the
grant of anticipatory bail:

Provided that where the High
Court or, as the case may be, the Court of
Session, has not passed any interim order
under this sub-section or has rejected the
application for grant of anticipatory bail,
it shall be open to an officer in-charge of
a police station to arrest, without
warrant, the applicant on the basis of the
accusation
apprehended
in
such
application.

(2) Where the High Court or, as
the case may be, the Court of Session,
consider it expedient to issue an interim
order to grant anticipatory bail under sub
section (1), the Court shall indicate
therein the date, on which the application
for grant of anticipatory bail shall be
finally heard for passing an order
thereon, as the Court may deem fit, and if
the Court passes any order granting
anticipatory bail, such order shall include
inter alia the following conditions,
namely:-

(i) that the applicant shall make
himself available for interrogation by a
police officer as and when required;

(ii) that the applicant shall not,
directly
or
indirectly,
make
any
inducement, threat or promise to any
person acquainted with the facts of the
case so as to dissuade him from
disclosing such facts to the Court or to
any police officer;

(iii) that the applicant shall not
leave
India
without
the
previous
permission of the Court; and

(iv) such other conditions as
may be imposed under sub-section (3) of
1244 INDIAN LAW REPORTS ALLAHABAD SERIES
section 437, as if the bail were granted
under that section.

Explanation:- The final order
made on an application for direction under
sub-section (1); shall not be construed as an
interlocutory order for the purpose of this
Code

(3) Where the Court grants an
interim order under sub-section (1), it
shall forthwith cause a notice being not
less than seven days notice, together with
a copy of such order to be served on the
Public Prosecutor and the Superintendent
of Police, with a view to give the Public
Prosecutor a reasonable opportunity of
being heard when the application shall be
finally heard by the Court

(4) On the date indicated in the
interim order under sub-section (2), the Court
shall hear the Public Prosecutor and the
applicant and after due consideration of their
contentions, it may either confirm, modify or
cancel the interim order.

(5) The High Court or the Court
of Session, as the case may be, shall
finally dispose of an application for grant
of anticipatory bail under sub-section (1),
within thirty days of the date of such
application.

(6) Provisions of this section
shall not be applicable -

(a) to the offences arising out of
-

(i)
the
Unlawful
Activities
(Prevention) Act, 1967;

(ii) the Narcotic Drugs and
Psychotropic Substances Act, 1985;

(iii) the Official Secret Act,
1923;

(iv)
the
Uttar
Pradesh
Gangsters
and
Anti-Social Activities
(Prevention) Act, 1986.

(b) in the offences, in which
death sentence can be awarded.

(7) If an application under this
section has been made by any person to
the High Court, no application by the
same person shall be entertained by the
Court of Session."

19. On account of omission of the
provision of anticipatory bail from Cr.P.C
regarding the State of Uttar Pradesh for
long
time
there
is
considerable
uncertainty
regarding
the
scope
of
anticipatory bail in the State of Uttar
Pradesh. The air of uncertainty has been
cleared by the Apex Court by its
Constitution Bench judgment Sushila
Aggarwal vs. State (NCT of Delhi)- 2020
SCC Online SC 98.

20. The Apex Court in the case of
Sushila Aggarwal vs. State (NCT of
Delhi)- 2020 SCC Online SC 98. has
resolved the conflicting views of different
Benches of the Apex Court. Constitution
Bench had considered the Constitution
Bench judgment in the case of Gurbaksh
Singh Sibbiya and others vs. State of
Punjab (1980) 2 SCC 565; Siddharam
Satlingappa
Mhetri
vs.
State
of
Maharashtra,
(2011)
1
SCC
694;
Bhadresh Bipinbhai Sheth vs. State of
Gujarat, (2016) 1 SCC 152 on one side
which provide that there is no limit to the
currency of an order of anticipatory bail
and on the other side the judgment of
Salauddin Abdulsamad Shaikh vs. State
of Maharashtra, (1996) 1 SCC 667
followed in the cases of K.L. Verma vs.
State and another (1998) 9 SCC 348;
Sunita Devi vs. State of Bihar (2005) 1
SCC 6087; Nirmal Jeet Kaur vs. State of
M.P., 7 SCC 558; HDFC Bank Limited
vs. J.J. Mannan, (2010) 1 SCC 679 and
Satpal Singh vs. State of Punjab, (2018)
4 SCC 303 which laid down restrictive
6 All. Parvez Ahmad Vs. State of U.P. 1245
conditions or terms limiting the grant of
anticipatory bail to a definite period.

21. The Apex Court in the
Constitution Bench judgment framed two
questions for consideration:-

"1. Whether the protection
granted to a person under Section 438
Cr.P.C should be limited to a fixed
period so as to enable the person to
surrender before the Trial Court and
seek regular bail.

2. Whether the life of an
anticipatory bail should end at the time
and
stage
when
the
accused
is
summoned by the court."

22. The Apex Court has in an
elaborate judgment after considering both
the sets of judgments mentioned above
has answered the above questions as
follows:-

(1) Regarding Question No. 1,
this court holds that the protection
granted to a person under Section 438
Cr. PC should not invariably be limited
to a fixed period; it should inure in
favour of the accused without any
restriction on time. Normal conditions
under Section 437 (3) read with Section
438 (2) should be imposed; if there are
specific facts or features in regard to any
offence, it is open for the court to impose
any appropriate condition (including
fixed nature of relief, or its being tied to
an event) etc. (2) As regards the second
question referred to this court, it is held
that
the
life
or
duration
of
an
anticipatory bail order does not end
normally at the time and stage when the
accused is summoned by the court, or
when charges are framed, but can
continue till the end of the trial. Again, if
there are any special or peculiar features
necessitating the court to limit the tenure
of anticipatory bail, it is open for it to do
so.

1. This court, in the light of the
above discussion in the two judgments,
and in the light of the answers to the
reference, hereby clarifies that the
following need to be kept in mind by
courts, dealing with applications under
Section 438, Cr. PC:

(1)
Consistent
with
the
judgment in Shri Gurbaksh Singh Sibbia
and others v. State of Punjab, when a
person complains of apprehension of
arrest and approaches for order, the
application should be based on concrete
facts
(and
not
vague
or
general
allegations) relatable to one or other
specific offence. The application seeking
anticipatory bail should contain bare
essential facts relating to the offence,
and why the applicant reasonably
apprehends arrest, as well as his 1980
(2) SCC 565 side of the story. These are
essential for the court which should
consider his application, to evaluate the
threat or apprehension, its gravity or
seriousness and the appropriateness of
any condition that may have to be
imposed. It is not essential that an
application should be moved only after
an FIR is filed; it can be moved earlier,
so long as the facts are clear and there is
reasonable
basis
for
apprehending
arrest.

(2) It may be advisable for the
court, which is approached with an
application
under
Section
438,
depending on the seriousness of the
threat (of arrest) to issue notice to the
public prosecutor and obtain facts, even
while
granting
limited
interim
anticipatory bail.
1246 INDIAN LAW REPORTS ALLAHABAD SERIES

(3) Nothing in Section 438 Cr.
PC, compels or obliges courts to impose
conditions limiting relief in terms of
time, or upon filing of FIR, or recording
of statement of any witness, by the
police, during investigation or inquiry,
etc. While considering an application
(for grant of anticipatory bail) the court
has to consider the nature of the offence,
the role of the person, the likelihood of
his
influencing
the
course
of
investigation,
or
tampering
with
evidence
(including
intimidating
witnesses), likelihood of fleeing justice
(such as leaving the country), etc. The
courts would be justified ? and ought to
impose conditions spelt out in Section
437 (3), Cr. PC [by virtue of Section 438
(2)]. The need to impose other restrictive
conditions, would have to be judged on a
case by case basis, and depending upon
the materials produced by the state or
the investigating agency. Such special or
other restrictive conditions may be
imposed if the case or cases warrant, but
should not be imposed in a routine
manner, in all cases.

Likewise,
conditions
which
limit the grant of anticipatory bail may
be granted, if they are required in the
facts of any case or cases; however, such
limiting conditions may not be invariably
imposed.

(4)
Courts
ought
to
be
generally guided by considerations such
as the nature and gravity of the offences,
the role attributed to the applicant, and
the facts of the case, while considering
whether to grant anticipatory bail, or
refuse it. Whether to grant or not is a
matter of discretion; equally whether
and if so, what kind of special conditions
are to be imposed (or not imposed) are
dependent on facts of the case, and
subject to the discretion of the court.

(5) Anticipatory bail granted
can, depending on the conduct and
behavior of the accused, continue after
filing of the charge sheet till end of trial.

(6) An order of anticipatory
bail should not be "blanket" in the sense
that it should not enable the accused to
commit further offences and claim relief
of indefinite protection from arrest. It
should be confined to the offence or
incident, for which apprehension of
arrest is sought, in relation to a specific
incident. It cannot operate in respect of a
future incident that involves commission
of an offence.

(7) An order of anticipatory
bail does not in any manner limit or
restrict the rights or duties of the police
or investigating agency, to investigate
into the charges against the person who
seeks and is granted pre-arrest bail.

(8) The observations in Sibbia
regarding "limited custody" or "deemed
custody" to facilitate the requirements of
the investigative authority, would be
sufficient for the purpose of fulfilling the
provisions of Section 27, in the event of
recovery of an article, or discovery of a
fact, which is relatable to a statement
made during such event (i.e deemed
custody). In such event, there is no
question (or necessity) of asking the
accused to separately surrender and seek
regular bail. Sibbia (supra) had observed
that "if and when the occasion arises, it
may be possible for the prosecution to
claim the benefit ofSection 27 of the
Evidence Act in regard to a discovery of
facts made in pursuance of information
supplied by a person released on bail by
invoking the principle stated by this
Court in State of U.P. v Deoman
Upadhyaya." (9) It is open to the police
or the investigating agency to move the
court
concerned,
which
grants
6 All. Parvez Ahmad Vs. State of U.P. 1247
anticipatory bail, for a direction under
Section 439 (2) to arrest the accused, in
the event of violation of any term, such
as absconding, non-cooperating during
investigation, evasion, intimidation or
inducement to witnesses with a view to
influence outcome of the investigation or
trial, etc. (10) The court referred to in
para (9) above is the court which grants
anticipatory bail, in the first instance,
according to prevailing authorities.

(11) The correctness of an
order granting bail, can be considered by
the appellate or superior court at the
behest of the state or investigating
agency, and set aside on the ground that
the court granting it did not consider
material facts or crucial circumstances.
(See Prakash Kadam & Etc. Etc vs
Ramprasad Vishwanath Gupta & Anr;
Jai Prakash Singh (supra) State through
C.B.I. vs. Amarmani Tripathi ). This
does not amount to "cancellation" in
terms of Section 439 (2), Cr. PC.

(12)
The
observations
in
Siddharam Satlingappa Mhetre v. State
of Maharashtra & Ors (and other
similar judgments) that no restrictive
conditions at all can be imposed, while
granting anticipatory bail are hereby
overruled. Likewise, the decision in
Salauddin Abdulsamad Shaikh v. State
of
Maharashtra
and
subsequent
decisions (including K.L. Verma v. State
& Anr; Sunita Devi v. State of Bihar &
Anr ; Adri Dharan Das v.

State of West Bengal; Nirmal
Jeet Kaur v. State of M.P. & Anr62;
HDFC Bank Limited v. J.J. Mannan 63;
Satpal Singh v.

(2011) 6 SCC 189 (2005) 8
SCC 21 2011 (1) SCC 694 (1996 (1) SCC
667) 1998 (9) SCC 348 2005 (1) SCC 608
2005 (4) SCC 303 2004 (7) SCC 558
2010 (1) SCC 679 the State of Punjab
and Naresh Kumar Yadav v Ravindra
Kumar) which lay down such restrictive
conditions, or terms limiting the grant of
anticipatory bail, to a period of time are
hereby overruled.

2. The reference is hereby
answered in the above terms."

23. Now considering the present
case
in
the
light
of
the
above
consideration
of
the
Apex
Court's
Judgment this court finds that from the
allegation on record it is clear that the
prosecutrix
is
not
implicating
the
applicant for any offence. Her stand is
that the applicant was infact helping her.
No allegation of gang rape has been
alleged against the applicant. The only
allegation against the applicant is that he
was
doing
videography
when
the
prosecutrix was subjected to rape by the
main accused, Jai Shankar Upadhyay.
This allegation has also not been accepted
by
the
prosecutrix
and
she
had
approached this court by way of Criminal
Misc. Writ Petition No. 27214 of 2018
praying that fair investigation may be
conducted. She prayed before this court
that the Investigating Officer had beaten
her and is harassing her for changing her
statement against the main accused. This
court directed the Superintendent of
Police, Basti to entrust the investigation
to a competent Investigating Officer to
conduct fair investigation by the order
dated 28.09.2018. On 11.03.2019 the
prosecutrix herself give application to his
Circle Officer, Police Station- Kotwali,
District- Basti duly supported by affidavit
that the applicant had no role in the
incident
and
he
has
been
falsely
implicated but nothing was done. The coaccused,
Krishna
Gopal
Yadav
@
Krishna Yadav, has already been granted
regular bail by this court vide Criminal
1248 INDIAN LAW REPORTS ALLAHABAD SERIES
Misc. Bail Application No. 43622 of
2018. The main accused, Jai Shankar
Upadhyay, has already been granted bail
vide Criminal Misc. Bail Application No.
45759 of 2018 on 04.01.2019. There is
specific averment in paragraph 24 of the
affidavit in support of the bail application
that the police is regularly approaching
the house of the applicant and is trying to
arrest him. In view of the fact that the two
co-accused persons were arrested and
then enlarged on bail there appears to be
definite apprehension of arrest against the
applicant. Hence the applicant is directed
to be enlarged on anticipatory bail as per
the Constitution Bench judgment of the
Apex Court in the case of Sushila
Aggarwal vs. State (NCT of Delhi)- 2020
SCC
Online
SC
98.
The
future
contingencies regarding anticipatory bail
being granted to applicant shall also be
taken care of as per the aforesaid
judgment of the Apex Court.

24. Without expressing any opinion
on the merits of the case and considering
the nature of accusations and his
antecedents, the applicant is entitled to be
released on anticipatory bail in this case.

25. In the event of arrest of the
applicant- Parvez Ahmad, involved in
Case Crime No. 585 of 2018, under
Sections- 376D, 420, 506, 120-B IPC,
Police Station- Kotwali, District- Basti,
he shall be released on anticipatory bail
on furnishing a personal bond of Rs.
25,000/- with two sureties each in the like
amount to the satisfaction of the trial
court concerned with the following
conditions:-

1. The applicant shall not leave
India during the currency of trial without
prior permission from the concerned trial
Court.

2. The applicant shall surrender
his passport, if any, to the concerned trial
Court forthwith. His passport will remain in
custody of the concerned trial Court.

3. That the applicant shall not,
directly or indirectly, make any inducement,
threat or promise to any person acquainted
with the facts of the case so as to dissuade
him from disclosing such facts to the Court
or to any police officer;

4. The applicant shall file an
undertaking to the effect that he shall not
seek any adjournment on the dates fixed for
evidence and the witnesses are present in
court. In case of default of this condition, it
shall be open for the trial court to treat it as
abuse of liberty of bail and pass orders in
accordance with law to ensure presence of
the applicant.

5. In case, the applicant misuses
the liberty of bail, the trial Court
concerned may take appropriate action in
accordance with law and judgment of
Apex Court in the case of Sushila
Aggarwal vs. State (NCT of Delhi)- 2020
SCC Online SC 98.

6. The applicant shall remain
present, in person, before the trial court
on the dates fixed for (i) opening of the
case, (ii) framing of charge and (iii)
recording of statement under Section 313
Cr.P.C. If in the opinion of the trial court
default of this condition is deliberate or
without sufficient cause, then it shall be
open for the trial court to treat such
default as abuse of liberty of his bail and
proceed against him in accordance with
law.

7. The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad.
6 All. Viparna Gaur Vs. State of U.P. & Anr.
1249

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

26. The order dated 20.05.2020
passed by this court stands corrected and
replaced by the present order.

27. The correction application is
allowed.
----------
(2020)06ILR A1249
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.03.2020

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.

Criminal Misc. Bail Cancellation Application No.
302 of 2019

Viparna Gaur ...Applicant(In Person)
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
In Person

Counsel for the Opposite Parties:
A.G.A., Sri Pankaj Satsangi

(A) Criminal law - Bail cancellation -
Code of Criminal Procedure, 1973 -
Section 439 - Special powers of high
court or court of session regarding bail -
Indian Penal Code, 1860 - Sections 147,
302, 307, 504, 506, 120-B - Rejection of
bail
stands
on
one
footing
but
cancellation of bail is a harsh order since
it interferes with liberty of individual and
must not be lightly resorted to - While
considering degree of burden of prove lie
upon
prosecution
or
complainant/Informant,
when
an
application
for
cancellation
of
bail
moved, is not to the extent of proving by
a mathematical certainty or beyond
reasonable doubt but it must establish
its case by showing on a preponderance
of
probabilities
that
accused
has
attempted or may attempt to or tamper
or has tampered with witnesses - It may
also be proved by test of balance of
probabilities that accused has abused his
liberty or it may show that there is
reasonable apprehension that he will
interfere with course of justice. Para14,16

Violating conditions of bail, opposite party 2
intimidated and threatened applicant - in
respect whereof Informant/Applicant lodged
report under Section 506 IPC at Police Station
- Opposite party 2 made another attempt of
identifying Informant/ Applicant with his
associates with an intention to eliminate her -
in respect whereof FIR was lodged - not
appearing in trial, delaying the same by
absenting on false and artificial reason - filed a
false application under Section 156(3) Cr.P.C.
before Chief Judicial Magistrate, against
Informant/Applicant and others - placed
documents,
which
shows
that
he
has
intimidated
witnesses
and
met
them
repeatedly to influence them - violated terms
and conditions of bail with impuginity and
without being deterred in any manner. Para -
6

HELD:- Accused/opposite party 2 is not only
contacting witnesses but also involving Police
officials to influence witnesses and this is a
serious aspect. Such a person if continue to
remain on bail, there is every likelihood of trial
being influenced and may not proceed fairly
and objectively. I refrain myself in making
further observations as it may prejudice trial
but have no hesitation in holding that it is a fit
case where bail granted to accused opposite
party 2 cannot be held to be a valid exercise
of discretion and bail deserves to be cancelled.
Para-42

Bail Cancellation Application allowed.(E7)

List of cases cited:-