# Raj Kapoor v. State of U.P. & Ors

- **Citation:** (2023) 8 ILRA 1241
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-13
- **Case number:** Crl. Misc. Anticipatory Bail Application (U/S 438 Cr.P.C.) No.7762 of 2023
- **Bench:** Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-kapoor-v-state-of-u-p-ors-50524
- **Pages:** 7

## Headnote

Law-The
Code
of
Criminal
Procedure,1973-Section 438 - The Indian
Penal Code-1860-Sections 406,420,467 &
468- If the word 'normally' be replaced by the
word 'invariably' it means that if an accused is
absconding and has been declared proclaimed
offender, he has no occasion to say anything to
defend himself as to in what compelling
circumstances he could not appear before the
Court and was declared as proclaimed offender
and that is why there is no bar to move
anticipatory bail application in case the accused
has been declared as proclaimed offender but,
however, if he is unable to satisfy the Court
regarding his bonafide, the law on the point will
be applicable to him and anticipatory bail cannot
be granted to him, as he is a proclaimed
offender. So far as the present case is
concerned, from the perusal of the record it
appears that to avoid summons of the Court and
to appear before the Court in compliance
thereof, was a wilful default on the part of the
applicant and, therefore, even if the present
applicant is supposed to be entitled to move
anticipatory bail application, he is not entitled to
the relief of anticipatory bail. (E-15)

List of Cases cited:

## Text

8 All. Raj Kapoor Vs. State of U.P. & Ors.
1241
under Section 170 Cr.P.C., the most
apposite observations are in sub-para (v) of
the High Court judgment in the context of
an accused in a non-bailable offence whose
custody was not required during the period
of investigation. In such a scenario, it is
appropriate that the accused is released on
bail as the circumstances of his having not
been arrested during investigation or not
being produced in custody is itself
sufficient to entitle him to be released on
bail. The rationale has been succinctly set
out that if a person has been enlarged and
free for many years and has not even been
arrested during investigation, to suddenly
direct his arrest and to be incarcerated
merely because charge sheet has been filed
would be contrary to the governing
principles for grant of bail. We could not
agree more with this."

16. Undoubtedly, it is a case of
consensual relationship between two major
persons. The applicant was not arrested
during the course of investigation nor
required to be taken into custody by the
Investigating
Officer
and
now
after
submission of charge sheet, no custodial
interrogation is required. Hence, in the light
of the aforesaid legal pronouncements and
considering the facts and circumstances of
the case, submissions of the learned
counsel
for
the
parties,
nature
of
accusation, role of applicant, without
expressing any opinion of the merits of the
case, in my view, it is a fit case for
anticipatory bail to the applicant till end of
the trial in the matter.

17. The anticipatory bail application
is allowed.

18. In the event of arrest of the
applicant in the aforesaid case crime, he
shall be released on anticipatory bail till
end of the trial on his furnishing a personal
bond of Rs. 50,000/- with two sureties each
in the like amount to the satisfaction of the
Court
concerned
with
the
following
conditions :-

(i) The applicant shall make
himself
available
before
the
court
concerned on the date fixed in the matter;

(ii) 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 / her from disclosing
such facts to the Court or to any police
officer;

(iii) The applicant shall not leave
India without the previous permission of
the Court and if he has passport, the same
shall be deposited by him before the
S.S.P./S.P. Concerned.

19. In case of default of any of the
conditions, same may be a ground for
cancellation of protection granted to the
applicant.
----------
(2023) 8 ILRA 1241
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.07.2023

BEFORE

THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Crl. Misc. Anticipatory Bail Application (U/S 438
Cr.P.C.) No.7762 of 2023

Raj Kapoor ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Brij Bhushan Upadhyay
1242 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Opposite Parties:
G.A.

Criminal
Law-The
Code
of
Criminal
Procedure,1973-Section 438 - The Indian
Penal Code-1860-Sections 406,420,467 &
468- If the word 'normally' be replaced by the
word 'invariably' it means that if an accused is
absconding and has been declared proclaimed
offender, he has no occasion to say anything to
defend himself as to in what compelling
circumstances he could not appear before the
Court and was declared as proclaimed offender
and that is why there is no bar to move
anticipatory bail application in case the accused
has been declared as proclaimed offender but,
however, if he is unable to satisfy the Court
regarding his bonafide, the law on the point will
be applicable to him and anticipatory bail cannot
be granted to him, as he is a proclaimed
offender. So far as the present case is
concerned, from the perusal of the record it
appears that to avoid summons of the Court and
to appear before the Court in compliance
thereof, was a wilful default on the part of the
applicant and, therefore, even if the present
applicant is supposed to be entitled to move
anticipatory bail application, he is not entitled to
the relief of anticipatory bail. (E-15)

List of Cases cited:

1. Sushila Aggarwal & ors. Vs St. (NCT of Delhi)
& anr., (2020) 5 SCC 1

2. Prem Shankar Prasad Vs St. of Bihar & anr.,
2021 SCC OnLine Supreme Court 955.

3. Lavesh Vs St. (NCT of Delhi), (2012) 8
Supreme Court Cases 730

4. Sovran Singh Adhiti and 5 others Vs St. of
U.P Criminal Misc. Anticipatory Bail Application
U/S 438 CrPC No. 3037 of 2023 decided on
5.4.2023

5. St. of M.P.Vs Pradeep Sharma, (2014) 2
Supreme Court Cases 171

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

1. This application has been moved
on behalf of the applicant Raj Kapoor
seeking anticipatory bail in Case Crime No.
396 of 2014, under Sections 406, 420, 467,
468 IPC, Police Station Tajganj, District
Agra.

2. Heard learned counsel for the
applicant, learned A.G.A. for the State and
perused the record.

3. It has been submitted by the
learned counsel for the applicant that
applicant
is
innocent
and
he
has
apprehension of his arrest in the abovementioned case, whereas there is no
credible evidence against him. Allegations
levelled against the applicant are false. It is
further submitted that the applicant had
approached this Court by way of Criminal
Misc. Writ Petition No. 15335 of 2014 in
which this Court vide order dated 5.9.2014
granted protection to the applicant till
submission of police report under Section
173(2) CrPC. It is further submitted that the
Investigating Officer submitted final report
in the matter. Thereafter, as per the order of
the Circle Officer concerned, matter was
re-investigated and charge sheet was
submitted and cognizance was also taken
thereon by the Court concerned. It is also
submitted that the informant Babulal had
executed a valid power of attorney in
favour of the applicant on the basis of
which transaction in question took place. It
is further submitted that in the aforesaid
transaction both sons of informant Babulal
appeared as attesting witnesses of the
document in question. It is also submitted
that applicant is an old, infirm and ailing
person and is also a heart patient. Dispute is
purely of civil nature. Process under
Sections 82 CrPC has also been issued
against the applicant. It has been submitted
that
in
case
applicant
is
granted
8 All. Raj Kapoor Vs. State of U.P. & Ors.
1243
anticipatory bail, he shall not misuse the
liberty of bail and would obey all
conditions of bail. In support of his
submissions, learned counsel for the
applicant has placed reliance upon a
decision of the Hon'ble Apex Court in
Lavesh vs. State (NCT of Delhi), (2012) 8
Supreme Court Cases 730.

4. Per contra, learned A.G.A. opposed
the prayer for anticipatory bail and
submitted
that
in
this
matter
after
investigation
charge
sheet
has
been
submitted against the applicant and during
course of investigation ample evidence has
been collected against him and now he has
been declared as a proclaimed offender.

5. I have considered the rival
submissions made by the learned counsel
for the parties and have gone through the
entire record carefully.

6. In this matter, from the perusal of
the record it reveals that informant has
executed a power of attorney in favour of
the applicant in respect of the land acquired
by Agra Vikash Pradhikaran but some
portion of land of the informant was sold
by the applicant claiming himself to be the
owner of the said property in favour of
vendee Chandrapal on 10.12.2013, which
resulted into a huge monetary loss to the
informant. The said land was further sold
by Chandrapal to some other person on
3.1.2014 and thereafter present F.I.R. was
lodged on 17.5.2014. The said F.I.R. was
challenged by way of Criminal Misc. Writ
Petition No. 15335 of 2014 wherein
protection from arrest till submission of
police report under Section 173(2) CrPC
was granted to the applicant by the
Division Bench of this Court vide order
dated 5.9.2014. The investigation continued
and finding no evidence against the
applicant a final report was submitted by
the police. However, after completion of
re-investigation,
charge
sheet
was
submitted and cognizance was also taken
by the Court concerned on 11.7.2017.
Summons were issued to the applicant.
Since the applicant did not appear before
the Court concerned, coercive processes
have been issued against him and a process
under Section 82 CrPC is still operative.

7. As regards the maintainability of an
application for anticipatory bail after
submission of charge sheet, in Sushila
Aggarwal and others vs. State (NCT of
Delhi) and another, (2020) 5 SCC 1, the
Hon'ble Apex Court has settled the
controversy finally by holding that the
anticipatory bail need not be of limited
duration invariably. In appropriate case, it
can continue upto conclusion of trial.

It has been further held therein
that
anticipatory
bail
granted
can,
depending on the conduct and behavior of
the accused, continue after filing of the
charge sheet till end of trial.

It has been further held by the
Hon'ble Apex Court that 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. It has further been held that
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.
1244 INDIAN LAW REPORTS ALLAHABAD SERIES

8. It reveals from the perusal of the
record that after submission of charge
sheet, on 11.7.2017 the Magistrate Court
took cognizance into the matter and
summons were issued against the applicant;
on 20.5.2019 bailable warrant was issued
and subsequently on 10.12.2021 nonbailable warrant was issued by the Court to
procure the presence of the accused -
applicant and thereafter on 17.2.2023
process under Section 82 CrPC was issued
against him. On 8.6.2023 anticipatory bail
application was moved in the Sessions
Court, Agra which was rejected by the
Sessions Court vide order dated 13.6.2023
wherein observations regarding issuance of
process under Section 82 CrPC against the
applicant were made.

9. The conduct of the applicant falls
within the ambit of the law promulgated by
Hon'ble Apex Court in Prem Shankar
Prasad Versus State of Bihar and
Another, 2021 SCC OnLine Supreme
Court 955. In the facts of this case, chargesheet was filed under Sections 406, 420
IPC against the accused and thus it was
explicit that a prima facie case against the
accused was found. From the record, it
reveals that the arrest warrant was issued
by the Magistrate against the accused and
thereafter proceedings under Sections 82,
83 Cr.P.C. had been initiated pursuant to
the order passed by the Magistrate. Only
thereafter the accused moved an application
before the trial court for anticipatory bail,
which was rejected by the Sessions Court.
However, subsequently anticipatory bail
was granted to the aforesaid accused by the
High Court and when the matter came
before the Hon'ble Apex Court, it was
observed like this.

"19.
Despite
the
above
observations on merits and despite the fact
that it was brought to the notice of the High
Court that respondent No. 2 - accused is
absconding and even the proceedings
under sections 82-83 of Cr. P.C. have been
initiated as far as back on 10.01.2019, the
High Court has just ignored the aforesaid
relevant
aspects
and
has
granted
anticipatory bail to respondent No. 2 -
accused by observing that the nature of
accusation is arising out of a business
transaction. The specific allegations of
cheating, etc., which came to be considered
by learned Additional Sessions Judge has
not at all been considered by the High
Court. Even the High Court has just
ignored
the
factum
of
initiation
of
proceedings under sections 82-83 of Cr.
P.C. by simply observing that "be that as it
may". The aforesaid relevant aspect on
grant of anticipatory bail ought not to have
been ignored by the High Court and ought
to have been considered by the High Court
very seriously and not casually.

20. In the case of State of
Madhya Pradesh v. Pradeep Sharma
(Supra), it is observed and held by this
court that if anyone is declared as an
absconder/proclaimed offender in terms of
section 82 of Cr. P.C., he is not entitled to
relief of anticipatory bail."

10. So far as the law laid down by the
Hon'ble Apex Court in the case of Lavesh
vs. State (NCT of Delhi), (2012) 8
Supreme Court Cases 730, referred in
Prem Shankar Prasad case (supra) and
relied upon by the learned counsel for the
applicant is concerned, paragraph 12 of the
said decision is as under :

"12. From these materials and
information, it is clear that the present
appellant
was
not
available
for
interrogation
and
investigation
and
8 All. Raj Kapoor Vs. State of U.P. & Ors.
1245
declared as "absconder". Normally, when
the accused is "absconding" and declared
as a "proclaimed offender", there is no
question of granting anticipatory bail. We
reiterate that when a person against whom
a warrant had been issued and is
absconding or concealing himself in order
to avoid execution of warrant and declared
as a proclaimed offender in terms of
Section 82 of the Code is not entitled to the
relief of anticipatory bail."

11. F rom the aforesaid dictum of law,
it can safely be held that it is a normal rule
that when an accused is absconding and
declared as proclaimed offender, there is no
question of granting anticipatory bail to
him. A point has been raised by the learned
counsel for the applicant that the word
'normally' has been used by the Hon'ble
Apex Court in above-quoted paragraph 12
of the said decision of Lavesh (supra)
which emphasises that there is no general
law that a proclaimed offender cannot be
granted anticipatory bail invariably and
normally it should be granted to an accused
absconding or concealing himself in order
to avoid the execution of warrant.

12. In the light of the aforesaid
submission, if the word 'normally' be
replaced by the word 'invariably' it means
that if an accused is absconding and has
been declared proclaimed offender, he has
no occasion to say anything to defend
himself
as
to
in
what
compelling
circumstances he could not appear before
the Court and was declared as proclaimed
offender and that is why there is no bar to
move anticipatory bail application in case
the
accused
has
been
declared
as
proclaimed offender but, however, if he is
unable to satisfy the Court regarding his
bonafide, the law on the point will be
applicable to him and anticipatory bail
cannot be granted to him, as he is a
proclaimed offender. So far as the present
case is concerned, from the perusal of the
record it appears that to avoid summons of
the Court and to appear before the Court in
compliance thereof, was a wilful default on
the part of the applicant and, therefore,
even if the present applicant is supposed to
be entitled to move anticipatory bail
application, he is not entitled to the relief of
anticipatory bail. Hence, the submission
made by the learned counsel for the
applicant is a complete misinterpretation of
the law promulgated in Lavesh (supra).

13. In almost similar matter, this
Court has dealt with the relevant laws
wherein to ensure the respect for personal
liberty on one hand and at the same time
effect of wilful default in obeying the
process of the Court on the other hand,
have been impressed upon and it was held
by
this
Court
in
Criminal
Misc.
Anticipatory Bail Application U/S 438
CrPC No. 3037 of 2023, Sovran Singh
Adhiti and 5 others vs. State of U.P.,
decided on 5.4.2023 as under (paragraphs
13,14,15 and 16 of the said judgment) :

"13. At the same time, when we
enter into the sphere of 'anticipatory bail'
we find that the said term is not used under
Section 438 Cr.P.C. which embodies the
enabling provision. It can be taken as an
anticipation of being arrested. In the
landmark judgement of the Constitution
Bench of Hon'ble Apex Court in Gurbaksh
Singh Sibbia Vs. State of Punjab (1980) 2
SCC 565, it was that "a person seeking
anticipatory bail is still a free man entitled
to the presumption of innocence. He is
willing
to
submit
to
restraints
and
conditions
on
his
freedom,
by
the
acceptance of conditions which the court
may deem fit to impose, in consideration of
1246 INDIAN LAW REPORTS ALLAHABAD SERIES
the assurance that if arrested, he shall be
enlarged on bail".

14. In the Case of Siddharam
Satlingappa
Mhetre
Vs.
State
of
Maharashtra (2011) 1 SCC 694 It was
held as under:

"14. It is clear from the Statement
of Objects and Reasons that the purpose of
incorporating Section 438 Cr.P.C. in
Cr.P.C. was to recognize the importance of
personal liberty and freedom in a free and
democratic country. When we carefully
analyze this section, the wisdom of the
legislature becomes quite evident and clear
that the legislature was keen to ensure
respect for the personal liberty and also
pressed in service the age-old principle
that an individual is presumed to be
innocent till he is found guilty by the
court".

15. In the Sibbia case (supra)
where the Hon'ble Apex Court had an
occasion to comprehensively deal with the
scope and ambit of the concept of
anticipatory bail, it was observed that
Section 438 CrPC is an extraordinary
provision
where
the
accused
who
apprehends his/her arrest on accusation of
having committed a non-bailable offence
can be granted bail in anticipation of arrest
which, indubitably depends upon the
discretion of the Court but such discretion
should be exercised with due care, caution
and
prudence
on
the
facts
and
circumstances of the case. It can no doubt
be continued after filing of charge sheet till
end of trial.

16. The idea of anticipatory bail
strengthen the theory of personal liberty of
a person but if it is explicit before the Court
that such person is likely to otherwise
misuse or has misused his liberty, the
negation to grant of anticipatory bail to
such a person is never violation of the
provisions of personal liberty. Absconding
in violation of the order of the Court is a
grave misuse of personal liberty and that is
why, " if any one is declared as an
absconder/ proclaimed offender in terms of
Section 82 Cr.P.C.", as held in State of
M.P. Vs. Pradeep Sharma (2014) 2 SCC
171, " he is not entitled to grant of
anticipatory bail."

14. Further more, the judgment
passed in Lavesh (supra) was referred by
the Hon'ble Apex Court in State of
Madhya Pradesh vs. Pradeep Sharma,
(2014) 2 Supreme Court Cases 171 and
referring to paragraph 12 of the judgment
of Lavesh (supra), in paragraph 16 of the
said judgment, it was observed, relevant
portion of which is as under :

"16.........It is clear from the
above decision that if anyone is declared as
an absconder / proclaimed offender in
terms of Section 82 of the Code, he is not
entitled to the relief of anticipatory bail."

15. In view of the above discussions
and the law laid down by the Hon'ble Apex
Court and keeping in view the conduct of
the applicant, I deem it not a fit case to
grant anticipatory bail to the present
applicant. Such a person, who does not
cooperate with the Court / investigating
agency and is a wilful defaulter of the
process of the Court, debars himself from
any entitlement to get a relief by way of
anticipatory bail from this Court. Prayer
made in the application deserves to be
refused.

16. The anticipatory bail application
is rejected.
8 All. Vivek Kumar Maurya Vs. State of U.P. & Ors.
1247
----------
(2023) 8 ILRA 1247
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.07.2023

BEFORE

THE HON'BLE SIDDHARTH, J.

Crl. Misc. Ist Bail Application No. 23551 of 2023

Vivek Kumar Maurya ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for Applicant:
Om Narayan Pandey

Counsel for the Opposite Parties:
G.A., Sri Lakshman Tripathi

Criminal
Law-The
Code
of
Criminal
Procedure, 1973-Section-439 - The Indian
Penal Code-1860-Sections 90, 323 & 375-
Conduct of the prosecutrix of repeatedly eloping
from her parental home with applicant and
going to Delhi, Lucknow, Mughalsarai and to the
places of relatives of the applicant shows that
she was a consenting party all through- All the
places where the applicant took the prosecutrix
she admits entering into physical relationship
with the applicant without any element of
coercion before and after her court marriage,
therefore her consent was not covered under
Section 90 of IPC, nor physical relationship
made by applicant with prosecutrix will come
under the definition of rape as per Section
375 IPC- Allegations of her physical torture
are not supported by any medical report. In
the FIR it is alleged that the injuries of
prosecutrix were treated by her mother at
home. This also proves the meticulous
drafting of FIR by an expert. There cannot be
any evidence of treatment of home, but to
justify implication under Section 323 IPC such
an allegation was made.

Bail application is allowed. (E-15)

List of Cases cited:
Satendra Kumar Antil Vs C.B.I., passed in S.L.P
(Crl.) No. 5191 of 2021

(Delivered by Hon'ble Siddharth, J.)

1. Heard learned counsel for the
applicant; Shri Lakshman Tripathi, learned
counsel for the informant and learned
A.G.A.

2. The instant bail application has
been filed on behalf of the applicant, Vivek
Kumar Maurya, with a prayer to release
him on bail in Case Crime No. 143 of
2020, under Sections 363, 366, 376, 323,
504, 506, 354, 354-A IPC and 3/4 POCSO
Act Police Station Sarnath, District-
Varanasi, during pendency of trial.

3. There are allegations of abduction
of minor girl with intent to marry,
commission of offfence of rape, beating,
threatening, outraging her modesty, sexual
harassment and penetrative sexual assault
against the applicant.

4. There is allegation in the First
Information
Report
that
prosecutrix,
resident of Varanasi, was made to enter
into physical relationship with applicant for
about one year on false promise of
marriage, when she was student of B.SC.,
Part-1. Whenever prosecutrix talked to
applicant about their marriage he used to
avoid her request. On 3.5.2019, when
prosecutrix was going to college, applicant
enticed her from the way at 7 a.m in the
morning and took her to Delhi at his aunt's
place where he made physical relationship
with her. Father of the prosecutrix gave an
application at the police station on 4.5.2019
about
her
abduction
by
applicant.
Thereafter the father and mother of the
applicant pressurised the father and mother
of prosecutrix and they threatened them of