# Rahis Ahmad & Anr v. State of U.P. & Anr

- **Citation:** (2024) 9 ILRA 30
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-10
- **Bench:** Vikram D. Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rahis-ahmad-anr-v-state-of-u-p-anr-52588
- **Pages:** 8

## Headnote

Criminal Law - Prevention of Damage to
Public Property Act, 1984 - Sections 3⁄4 -
The Mines and Minerals (Regulation of
Development) Act, 1957 - Sections 4/21 -
Code of Criminal Procedure, 1973
-
Sections 61, 62, 64 & 87 - Bharatiya
Nagarik Suraksha Sanhita, 2023 - Sections
63, 64, 66, 90 - Constitution of India, 1950
- Article 21 - In the instant case,
summoning order has been passed on
15.11.2018 and thereafter on subsequent
dates summons have been directed to be
issued - The case before the court
concerned
travel
for
four
years
for
issuance of summons - Thereafter, on
21.11.2023, order for issuance of nonbailable warrant was passed - As per
report of District Judge, summons were
not
issued
to
accused/applicants
in
pursuance to summoning order. (Para 23)

Held, non - issuance of summons affects
right of accused/applicants to defend
himself/herself by various legal remedies
available to them by challenging said
summoning order or filing application u/s
88 Cr.P.C. or to prefer anticipatory bail
application - Hence, non-bailable warrant
against applicants was issued without
following procedure established by law.
(Para 24, 25)

Bail application allowed. (E-13)

List of Cases cited:

Sushila Aggarwal Vs St. (NCT of Delhi), (2020) 5
SCC 1, (Para 56, 57)

## Text

30 INDIAN LAW REPORTS ALLAHABAD SERIES

13.

Accordingly,
the
second
application of the applicant is rejected.
----------
(2024) 9 ILRA 30
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.09.2024

BEFORE

THE HON'BLE VIKRAM D. CHAUHAN, J.

Criminal Misc. Anticipatory Bail Application U/S
438 Cr. P.C. No. 6396 of 2024

Rahis Ahmad & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Rajendra Prasad, Sri Vinod Singh

Counsel for the Opposite Parties:
G.A.

Criminal Law - Prevention of Damage to
Public Property Act, 1984 - Sections 3⁄4 -
The Mines and Minerals (Regulation of
Development) Act, 1957 - Sections 4/21 -
Code of Criminal Procedure, 1973
-
Sections 61, 62, 64 & 87 - Bharatiya
Nagarik Suraksha Sanhita, 2023 - Sections
63, 64, 66, 90 - Constitution of India, 1950
- Article 21 - In the instant case,
summoning order has been passed on
15.11.2018 and thereafter on subsequent
dates summons have been directed to be
issued - The case before the court
concerned
travel
for
four
years
for
issuance of summons - Thereafter, on
21.11.2023, order for issuance of nonbailable warrant was passed - As per
report of District Judge, summons were
not
issued
to
accused/applicants
in
pursuance to summoning order. (Para 23)

Held, non - issuance of summons affects
right of accused/applicants to defend
himself/herself by various legal remedies
available to them by challenging said
summoning order or filing application u/s
88 Cr.P.C. or to prefer anticipatory bail
application - Hence, non-bailable warrant
against applicants was issued without
following procedure established by law.
(Para 24, 25)

Bail application allowed. (E-13)

List of Cases cited:

Sushila Aggarwal Vs St. (NCT of Delhi), (2020) 5
SCC 1, (Para 56, 57)

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

1. Heard learned counsel for the
applicants as well as learned AGA and
perused the material available on record.

2. The present Anticipatory Bail
Application has been filed with the prayer
to grant anticipatory bail to the applicant -
Rahis Ahmad and Mohammad Arif in Case
No. 4364 of 2024 in Case Crime No. 78 of
2018 under Sections 4/21 of Mine and
Minerals Act and Section 3/4 of Damage to
Public Property Act, Police Station - Swar,
District - Rampur.

3. It is submitted by learned counsel
for the applicants that applicant has not
been served with the summons although the
summoning
order
was
passed
on
15.10.2023. On 21.08.2024 this Court has
passed the following order:-

"1. The present Anticipatory Bail
Application has been filed with the prayer
to grant anticipatory bail to the applicants
Rahis Ahmad and Mohammad Arif in Case
Crime No.78 of 2018, under Section 4/21 of
Mines and Minerals Act and Section 3/4
Damage to Public Property Act, Police
Station Swar, District Rampur.

2. In the present case, summoning
order was issued on 15.10.2023 by the
court concerned. A perusal of the order
9 All. Rahis Ahmad & Anr. Vs. State of U.P. & Anr.
31
sheet of the court concerned would
demonstrate that the Non-Bailable Warrant
has been issued against the applicant.

3. Learned counsel for the
applicants submit that summons have not
been served on the applicants.

4. This Court on 9.7.2024 granted
time
to
learned
A.G.A.
to
obtain
instructions as to whether the summons
were served on the applicants. On
6.8.2024, learned A.G.A. has made a
statement that summons were not received
in the police station as such the same could
not be served.

5.
Today
an
affidavit
of
compliance has been filed by learned
A.G.A. in this respect.

6. Paragraph 6 of the compliance
affidavit filed today is quoted hereinbelow:-

"6. That it is relevant to mention
here that the Inspector Incharge, Police
Station
Swar,
District
Rampur
has
prepared his report and a perusal of the
same goes to show that according to order
sheet of the Learned Court Below it
appears that on different dates ordered to
issue summons and Non Bailable Warrant
but the same were not received at the
Police Station and lastly on 03.04.2024 a
Non Bailable Warrant issued against the
applicant no.1 was received at the Police
Station and the concerned Sub-Inspector
namely Amar Pal has gone to serve the same
at the house of aforesaid Rahis Ahmad but he
was not present at the house and it transpires
that he used to work of Dairy in Haldwani
(Uttarakhand) accordingly regarding the
issuance of Non Bailable Warrant and
information given to him at his mobile
No.9837165426. Photocopy of Non Bailable
Warrant issued against applicant no.1 Rahis
Ahmad in which 03.05.2024 was fix and
information regarding the same was given to
him on telephone is being filed herewith and
marked as Annexure-2 to this affidavit."

7. It is to be seen in the present
case that as per the State the summons were
not received by the police station from the
court concerned and as such the same is not
served.

8. It is not known as to how the
court concerned has issued the Non-Bailable
Warrant against the applicants without
recording a finding with regard to service of
summons.

9. The District Judge, Rampur is
hereby directed to submit a report as to why
the summons were not issued to police station
concerned despite the order being passed by
the court concerned for service. In the event,
summons were issued then, whether the
service was made on the applicants. Any
service report was filed by the police shall
also be disclosed. In the event, no summons
were issued in pursuance to the summoning
order of the court concerned, the District
Judge, Rampur shall specify reason in the
report for non-issuance of the summoning
order and the Officer, who have erred in not
issuing the summons despite the order of the
court concerned summoning the accused.

10. The report shall be submitted
before the next date fixed.

11. List on 10th September, 2024
in top ten cases.

12. Interim order granted earlier
shall remain in currency, till the next date
of listing.

13. Registrar (Compliance) is
directed to send a copy of this order to the
District Judge, Rampur for necessary
compliance
forthwith
through
Special
Messenger/Fax/E-mail."

4. The District Judge, Rampur has
submitted report dated 05.09.2024. As per
report of District Judge, Rampur nonbailable warrants have been issued without
issuance
of
summons
to
the
accused/applicants.
32 INDIAN LAW REPORTS ALLAHABAD SERIES

5. It is submitted by learned counsel
for applicants that applicants are innocent
and have no concern with the present
matter. Allegations levelled against the
applicants are false. It is further argued that
no prima facie case is made out against the
applicants. Applicants have no previous
criminal history. If the applicants are
enlarged on anticipatory bail, they will not
misuse the liberty and cooperate with the
investigation.
The
applicants
have
apprehension of their arrest by the police
any time. It is further submitted that
Article-21 of the Constitution of India is
violated.

6. Learned A.G.A. opposed the prayer
but does not dispute the factual matrix.

7. It is not shown by learned AGA
that the nature and gravity of allegations
are such that the same would disentitle the
applicants for relief of anticipatory bail. No
material, facts, circumstances or concern
been shown by learned AGA for the State
that the accused may tamper with the
evidence or witnesses or accused is of such
character that his mere presence at large
would intimidate the witnesses or that
accused will use his liberty to subvert
justice or tamper with the evidence.

8. Learned Counsel for opposite
parties has not placed any criminal
antecedents
of
the
applicants.
The
applicants have no criminal history.

9. When a First information report is
lodged, the investigating agency after
investigation submits its report before the
court concerned having jurisdiction. The
court concerned after scrutinising the
material, if it is of the opinion that
sufficient grounds for proceeding against
an accused exist, issues process against the
accused by way of summon or warrant as
the case may be. In the event, summoning
order is passed by the court concerned
against an accused person, a summon is to
be issued as per section 61 (Section 63 of
BNSS, 2023) of the Criminal Procedure
Code, 1973 (for short 'Cr.P.C.). As per
aforesaid section, every summons issued by
a Court under the Code shall be in writing,
in duplicate, signed by Presiding Officer of
such Court or by such other officer as the
High Court may, from time to time, by rule
direct, and shall bear the seal of the Court.
In this respect section 61 of the Cr.P.C. is
quoted herein below:-

"61. Form of summons.-Every
summons issued by a Court under this
Code shall be in writing, in duplicate,
signed by the presiding officer of such
Court or by such other officer as the High
Court may, from time to time, by rule
direct, and shall bear the seal of the Court."

10. Further, Section 63 of BNSS,
2023 is quoted herein below :-

"63. Form of summons.-Every
summons issued by a Court under this
Sanhita shall be,-

(i) in writing, in duplicate, signed
by the presiding officer of such Court or by
such other officer as the High Court may,
from time to time, by rule direct, and shall
bear the seal of the Court; or

(ii) in an encrypted or any other
form of electronic communication and shall
bear the image of the seal of the Court or
digital signature."

11. As per section 62 of the Cr.P.C.
(Section 64 of BNSS, 2023), summons are
required to be served by a police officer or
subject
to
such
rules
as
the
state
government may make in this behalf, by an
9 All. Rahis Ahmad & Anr. Vs. State of U.P. & Anr.
33
officer of the court issuing it or other public
servant. Section 62 of the Cr.P.C., is quoted
herein below :-

"62. Summons how served.-(1)
Every summons shall be served by a police
officer, or subject to such rules as the State
Government may make in this behalf, by an
officer of the Court issuing it or other
public servant.

(2)
The
summons
shall,
if
practicable, be served personally on the
person
summoned,
by
delivering
or
tendering to him one of the duplicates of
the summons.

(3) Every person on whom a
summons is so served shall, if so required
by the serving officer, sign a receipt
therefor on the back of the other duplicate."

12. Further, Section 64 of BNSS,
2023 is quoted herein below :-

"64. Summons how served.-(1)
Every summons shall be served by a police
officer, or subject to such rules as the State
Government may make in this behalf, by an
officer of the Court issuing it or other
public servant:

Provided that the police station
or the registrar in the Court shall maintain
a register to enter the address, email
address, phone number and such other
details as the State Government may, by
rules, provide.

(2)
The
summons
shall,
if
practicable, be served personally on the
person
summoned,
by
delivering
or
tendering to him one of the duplicates of
the summons:

Provided that summons bearing
the image of Court's seal may also be
served by electronic communication in such
form and in such manner, as the State
Government may, by rules, provide.

(3) Every person on whom a
summons is so served personally shall, if so
required by the serving officer, sign a
receipt therefor on the back of the other
duplicate."

13. As per section 62 of Cr.P.C.
(Section 64 of BNSS, 2023), summons are
required to be served personally on the
person
summoned,
by
delivering
or
tendering to him one of the duplicates of
the summons. The person on whom a
summon is so served, if so required by the
serving officer, sign a receipt therefor on
the back of the other duplicate.

14. The law prescribes that once
summoning order is passed, the court
concerned is required to issue a summon
(in writing) in pursuance to the summoning
order, to the police officer for service on
the accused person. It is to be noted that till
the stage of summoning of an accused,
normally the accused does not have any
knowledge with regard to the process under
criminal law being initiated against him by
court concerned. It is the summons which
when served on the accused, forms the
basis of knowledge to the accused with
regard to initiation of criminal proceedings
against the accused person by court
concerned.

15. As per Section 64 of Cr.P.C.
(Section 66 of BNSS, 2023), when the
person summoned cannot, by exercise of
due diligence, be found, the summons may
be served by leaving one of the duplicates
for him with some adult male member of
his family residing with him, and the
person with whom the summons is so left
shall, if so required by the serving officer,
sign a receipt therefor on the back of other
duplicate. In respect of, service of a
summon on a corporation, as per section 63
34 INDIAN LAW REPORTS ALLAHABAD SERIES
of the Cr.P.C. (Section 65(1) of BNSS,
2023), the same may be effected by serving
it on the Secretary, local Manager or other
Principal Officer of the Corporation, or by
letter sent by registered post, addressed to
the chief officer of the corporation in India,
in which case the service shall be deemed
to have been effected when the letter would
arrive in ordinary course of post.

16. A Court under law is authorised to
issue a warrant against an accused under
section 87 of the Cr.P.C. (Section 90 of
BNSS, 2023), where the accused person
fails to appear and the summons is proved
to have been duly served in time to admit
his appearance in accordance therewith and
no reasonable excuse is offered for such
failure by accused. The provision of section
87 of the Cr.P.C. is quoted herein below :-

"87. Issue of warrant in lieu of,
or in addition to, summons.-A Court may,
in any case in which it is empowered by
this Code to issue a summons for the
appearance of any person, issue, after
recording its reasons in writing, a warrant
for his arrest-

(a) if, either before the issue of
such summons, or after the issue of the
same but before the time fixed for his
appearance, the Court sees reason to
believe that he has absconded or will not
obey the summons; or

(b) if at such time he fails to
appear and the summons is proved to have
been duly served in time to admit of his
appearing in accordance therewith and no
reasonable excuse is offered for such
failure."

17. A perusal of the above-mentioned
provision would demonstrate that the court
concerned is authorised to issue warrant
where the court has reason to believe that
the accused has absconded or will not obey
the summons or where the summons have
been duly served in time, however, the
accused has failed to appear before the
court concerned in pursuance to the
summons.

18. For proceeding, against an
accused for issuance of a warrant, it is
imperative on the part of the court
concerned
to
record
a
finding
that
summons have been served on the accused
person and he has failed to appear before
the court concerned without reasonable
cause. The finding with regard to service of
summons on accused can only be recorded
by the court concerned when in pursuance
to the summoning order, the court has
actually issued summons to the police
authorities for service. The issuance of a
actual summons in pursuance to the
summoning
order
is
the
procedure
prescribed by law.

19. Article 21 of the Constitution of
India provides that no person shall be
deprived of his life or liberty except in
accordance with procedure established by
law. Article 21 of Constitution of India is
one of the fundamental rights provided
under part-III of the Constitution of India.
The right to life and liberty has an
important role to play in the life of every
individual. The object of the aforesaid
provision is to prevent the deprivation of
personal liberty of an individual except in
accordance with law. It is necessary that
before an individual is deprived of his
personal liberty, the procedure established
by law is followed and must not be
departed from, to the disadvantage of
accused person. The aforesaid fundamental
right is available to every individual
including an accused. It is settled law that
the procedure established by law has to be
9 All. Rahis Ahmad & Anr. Vs. State of U.P. & Anr.
35
"due procedure". The Supreme Court has
read the principle of reasonableness into
the said procedure prescribed by Article21, holding that it must be just and fair &
not arbitrary.

20. Article 21 of Constitution of
India, has embedded in itself the principle
of Rule of Law. It is fundamental right of
an individual to be subjected to deprivation
of personal liberty by procedure established
by law. Whenever an individual is
threatened
or
steps
are
taken,
for
deprivation of his personal liberty in
violation of Article 21 of Constitution of
India, such a procedure or steps would not
be constitutionally permissible. It is further
to be noted that Constitution is a "grand
norm" and all the laws & procedures are
subject to Article 21 of Constitution of
India. It is, therefore, imperative that
whenever personal liberty of individual is
threatened or is being violated without
following the procedure established by law,
courts are required to take steps in
furtherance of the mandate of Article 21 of
Constitution of India. Personal liberty of an
individual is required to be protected.

21. It is further to be noted that
provision of anticipatory bail is an
extension to the fundamental right of an
individual
under
Article
21
of
the
Constitution of India. The provision of
anticipatory bail ensures that an individual
is not subjected to arbitrary arrest and is
subjected to deprivation of personal liberty
only by established procedure of law.
While
exercising
the
jurisdiction
of
anticipatory bail, the courts are required to
also examine, as to whether, the personal
liberty of an individual is being proceeded
to be curtailed as per the procedure
established by law or an individual is being
subjected
to
arbitrary
arrest/without
following the procedure established by law.
The constitution being the grand norm, all
laws and procedures are required to ensure
that a right of an individual under Article
21 of the Constitution of India is not in any
manner infringed. The state and all
authorities (including court of law) are
required to preserve the right of an
individual under Article 21 of Constitution
of India by following the procedure
established.

22. In Sushila Aggarwal v. State
(NCT of Delhi), (2020) 5 SCC 1, the
Supreme Court has observed as under:-

"56. The reason for enactment of
Section 438 in the Code was parliamentary
acceptance of the crucial underpinning of
personal liberty in a free and democratic
country. Parliament wished to foster
respect for personal liberty and accord
primacy to a fundamental tenet of criminal
jurisprudence, that everyone is presumed to
be innocent till he or she is found guilty.
Life and liberty are the cherished attributes
of every individual. The urge for freedom is
natural to each human being. Section 438
is a procedural provision concerned with
the personal liberty of each individual, who
is entitled to the benefit of the presumption
of innocence. As denial of bail amounts to
deprivation of personal liberty, the court
should lean against the imposition of
unnecessary restrictions on the scope of
Section 438, especially when not imposed
by the legislature. In Sibbia [Gurbaksh
Singh Sibbia v. State of Punjab, (1980) 2
SCC 565 : 1980 SCC (Cri) 465] , it was
observed that : (SCC p. 589, para 35)

"35.... Anticipatory bail is a
device to secure the individual's liberty; it
is neither a passport to the commission of
crimes nor a shield against any and all
kinds of accusations, likely or unlikely."
36 INDIAN LAW REPORTS ALLAHABAD SERIES

57. The interpretation of Section
438 - that It does not encapsulate Article
21, is erroneous. This Court is of the
opinion that the issue is not whether
Section 438 is an intrinsic element of
Article 21 : it is rather whether that
provision is part of fair procedure. As to
that, there can be no doubt that the
provision for anticipatory bail is proliberty and enables one anticipating arrest,
a facility of approaching the court for a
direction that he or she not be arrested; it
was specifically enacted as a measure of
protection against arbitrary arrests and
humiliation
by
the
police,
which
Parliament
itself
recognised
as
a
widespread malaise on the part of the
police."

23. In the present case, summoning
order has been passed on 15.11.2018 and
thereafter
on
24.11.2018,
03.01.2019,
06.02.2019,
08.04.2019,
28.05.2019,
17.07.2019,
27.08.2019,
06.11.2019,
17.12.2019,
10.02.2020,
13.03.2020,
24.04.2022,
24.05.2022,
20.08.2022,
25.07.2022, 25.08.2022 & 29.09.2022
summons have been directed to be issued.
The case before the court concerned travel
for four years for issuance of summons.
Thereafter, on 21.11.2023, order for
issuance of non-bailable warrant was
passed. As per report of District Judge,
Rampur, summons were not issued to the
accused/applicants in pursuance to the
summoning order passed by the court
concerned.

24. In the order-sheet of the trial court
there is no finding that summons were
actually issued to the accused/applicants
after passing of the summoning order nor
there is any finding that summons were
actually served on the accused/applicants.
Once summons were not served on the
accused/applicants,
the
non-bailable
warrants could not have been issued in an
mechanical manner. Non issuance of the
summons
affects
the
right
of
the
accused/applicants
to
defend
himself/herself by various legal remedies
available to an accused by challenging the
summoning order or filing an application
under Section 88 Cr.P.C. or to prefer
anticipatory bail application.

25. The accused/applicants have been
subjected to issuance of non-bailable
warrant without service of summons which
is not in accordance with the procedure
established by law and as such the right of
the accused/applicants under Article 21 of
the Constitution of India is violated. In
view of aforesaid, non-bailable warrant
against
applicants
is
issued
without
following procedure established by law.

26. It is settled principle of law that
the object of bail is to secure the attendance
of the accused. No material particulars or
circumstances suggestive of the applicants
fleeing from justice or thwarting the course
of justice or creating other troubles in the
shape of repeating offences or intimidating
witnesses and the like have been shown by
learned AGA for the State.

27. In view of the above, the
applicants are granted anticipatory bail in
respect of offence described in para-2 of
the present order. In the event of arrest of
the applicants, they shall be released on
anticipatory bail on their furnishing a
personal bond of Rs.25,000/- with two
sureties each in the like amount to the
satisfaction of the court concerned with the
following conditions:-

(i) The applicants shall not
directly
or
indirectly,
make
any
9 All. Shashi Bala @ Shashi Bala Singh Vs. Directorate of Enforcement
37
inducement, threat or promise to any
person acquainted with the facts of the case
so
as
to
dissuade
themselves
from
disclosing such facts to the Court or to any
police office.

(ii) The applicants shall not leave
India without the previous permission of
the Court concerned.

(iii) In the event, applicants
change residential address, the applicants
shall
inform
the
court
concerned/Investigating Officer about new
residential address in writing.

(iv)
The
applicants
shall
cooperate with the investigation and make
themselves
available
for
interrogation
whenever required.

(v) The applicants shall not
obstruct or hamper the police investigation
and not to play mischief with the evidence
collected or yet to be collected by the
police.

(vi) The applicants shall maintain
law and order.

(vii) The applicants shall at the
time of execution of the bond, furnish their
address and mobile number to investigating
officer, and the court concerned.

(viii)
The
applicants
shall
regularly remain present during the trial,
and cooperate with the Court to complete
the trial for the above offences.

(ix)
Non
presence
of
the
applicants or their counsel before the
court concerned shall be construed as
violation of the present order and the
court concerned would be at liberty to
take coercive measures in accordance
with law.

28. In case of default of any of the
conditions, the Investigating Officer shall
be at liberty to file appropriate application
for cancellation of protection granted to the
applicants.

29. With the directions made above,
the anticipatory bail application stands
allowed.
----------
(2024) 9 ILRA 37
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 10.09.2024

BEFORE

THE HON'BLE JASPREET SINGH, J.

Criminal Misc. Bail Application No. 6762 of 2024

Shashi Bala @ Shashi Bala Singh
 ...Applicant
Versus
Directorate of Enforcement
 ...Opposite Party

Counsel for the Applicant:
Pradeep Kumar Rai, Prakarsh Pandey,
Praveen Kumar Shukla

Counsel for the Opposite Party:
Rohit Tripathi

Criminal Law - Prevention of Money
Laundering Act, 2002 - Sections 2(u), 2(y)
3⁄4,
45
-
As
per
Enforcement
Case
Information Report, applicant was close
confidant of Director and master-mind of
Shine City Group of Companies - Closely
associated
with
illegal
activities
of
offending company and its management -
The said companies were involved in
alluring investors to invest in projects of
companies which promised handsome
returns - Company issued post-dated
cheques to instill confidence in investors,
when
said
cheques
matured
for
redemption, they were dishonoured -
Complaint was filed against companies
including applicant for commission of
offence of money laundering - During
investigation,
various
premises
were
searched
including
present
applicant,
bank account St.ment and digital devices
recovered - Considerable quantum of