# Rakesh Kumar v. State of U.P

- **Citation:** (2023) 11 ILRA 20
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-19
- **Case number:** Criminal Misc. First Bail Application No. 37420 of 2020
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-kumar-v-state-of-u-p-49295
- **Pages:** 7

## Headnote

G.A., Sri Nityanand Srivastava, Sri Pramod
Kumar
Srivastava
11 All. Rakesh Kumar Vs. State of U.P.
21
Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 438 - Indian
Penal Code, 1860 - Sections 419, 420,
466, 467, 468 & 471 - Bail - Cheating and
Forgery - Civil Dispute - Criminal History -
Parity with Co-Accused

The applicant, Rakesh Kumar, sought bail in
Case Crime No. 721 of 2018 under Sections 419,
420, 466, 468, and 471 IPC, alleging false
implication in a case involving a fabricated will,
Parivar Register, and School Leaving Certificate
to dispute the informant's mother's parentage.
The informant claimed his mother was the
daughter of Late Shiv Sewak, while the
applicant contended she was not, supported by
a registered will. The dispute was pending in a
civil suit. The applicant disclosed a criminal
history of 14 cases, all bailed, and noted a coaccused
was
already
granted
bail.
The
informant
opposed,
citing
the
applicant's
criminal history and alleged violations of prior
bail conditions. Held: (1) The bail application
was allowed. (2) The dispute was primarily civil,
involving parentage, with a pending suit, and
the FIR appeared to criminalize a civil matter.
(3)
The
applicant's
criminal
history
was
explained, with bail granted in all cases, and
alleged
post-bail
offences
(including
noncognizable reports and bailed cases) did not bar
relief. (4) Parity with the co-accused, triable
offences by a Magistrate, and no merit in the
informant's objections justified bail. (5) The court
distinguished Harjit Singh Vs Inderpreet Singh and
Mokhtar Ansari Vs St. of U.P., noting the absence of
post-bail heinous crimes, and applied Roger Shashoua
Vs Mukesh Sharma to emphasize context-specific
precedent application. (6) Bail was granted with
conditions to prevent evidence tampering or witness
influence.

Case Law Cited:

Harjit Singh Vs Inderpreet Singh @ Inder &
anr., Criminal Appeal No. 883 of 2021, decided
on 24.08.2021

## Text

20 INDIAN LAW REPORTS ALLAHABAD SERIES
passed in the case of K. Jayaram vs. BDA,
(2022) 12 SCC 815, whereby it has been
held as follows:-

"In order to check multiplicity of
proceedings pertaining to the same subjectmatter and more importantly to stop the
menace of soliciting inconsistent orders
through
different
judicial
forums
by
suppressing
material
facts
either
by
remaining silent or by making misleading
statements in the pleadings in order to
escape the liability of making a false
statement, the parties have to disclose the
details of all legal proceedings and
litigations
either
past
or
present
concerning any part of the subject-matter
of dispute which is within their knowledge.
In case, according to the parties to the
dispute, no legal proceedings or court
litigations was or is pending, they have to
mandatorily state so in their pleadings in
order to resolve the dispute between the parties
in accordance with law."

10. Learned A.G.A. has further stated that
NBW has been issued against the applicant on
18.11.2022 and he is not appearing before the
court concerned. The present application is just
misuse of process of Court and law. Learned
A.G.A. has further stated that the applicant is
not entitled for anticipatory bail in the light of
paragraph-43 of the settled law of this Court in
the case of Shivam vs. State of U.P. and
Another reported in AirOnline 2021 All 484.

CONCLUSION:

11. Filing of an anticipatory bail
application, while there being a regular bail
application pending, is misuse of process of
Court. The applicant is used to filing multiple
applications and petitions at various forums
including the High Court. These acts are a
classic example of forum shopping and it
cannot be permitted to keep on going so
eternally.

12. After taking into consideration the
rival contentions, the fact that applicant had
filed several petitions before this Court thrice
and failed and there is pending regular bail
application of the applicant before the court
concerned and coupled with the said arguments
tendered at Bar in the light of the judgment in
Shivam (supra), I do not find it a fit case for
grant of anticipatory bail to the applicant.

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

14. It is clarified that the observations
made herein are limited to the facts brought in
by the parties pertaining to the disposal of
anticipatory bail application and the said
observations shall have no bearing on the
merits of the case during trial.
----------
(2023) 11 ILRA 20
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.09.2022

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Misc. First Bail Application No. 37420 of
2020

Rakesh Kumar ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Pradeep Singh, Sri Anjani Kumar Rai, Sri
Manu Pathak, Sri Tarun Kumar Gupta

Counsel for the Opposite Party:
G.A., Sri Nityanand Srivastava, Sri Pramod
Kumar
Srivastava
11 All. Rakesh Kumar Vs. State of U.P.
21
Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 438 - Indian
Penal Code, 1860 - Sections 419, 420,
466, 467, 468 & 471 - Bail - Cheating and
Forgery - Civil Dispute - Criminal History -
Parity with Co-Accused

The applicant, Rakesh Kumar, sought bail in
Case Crime No. 721 of 2018 under Sections 419,
420, 466, 468, and 471 IPC, alleging false
implication in a case involving a fabricated will,
Parivar Register, and School Leaving Certificate
to dispute the informant's mother's parentage.
The informant claimed his mother was the
daughter of Late Shiv Sewak, while the
applicant contended she was not, supported by
a registered will. The dispute was pending in a
civil suit. The applicant disclosed a criminal
history of 14 cases, all bailed, and noted a coaccused
was
already
granted
bail.
The
informant
opposed,
citing
the
applicant's
criminal history and alleged violations of prior
bail conditions. Held: (1) The bail application
was allowed. (2) The dispute was primarily civil,
involving parentage, with a pending suit, and
the FIR appeared to criminalize a civil matter.
(3)
The
applicant's
criminal
history
was
explained, with bail granted in all cases, and
alleged
post-bail
offences
(including
noncognizable reports and bailed cases) did not bar
relief. (4) Parity with the co-accused, triable
offences by a Magistrate, and no merit in the
informant's objections justified bail. (5) The court
distinguished Harjit Singh Vs Inderpreet Singh and
Mokhtar Ansari Vs St. of U.P., noting the absence of
post-bail heinous crimes, and applied Roger Shashoua
Vs Mukesh Sharma to emphasize context-specific
precedent application. (6) Bail was granted with
conditions to prevent evidence tampering or witness
influence.

Case Law Cited:

Harjit Singh Vs Inderpreet Singh @ Inder &
anr., Criminal Appeal No. 883 of 2021, decided
on 24.08.2021

2. Mokhtar Ansari Vs St. of U.P., Criminal Misc.
Bail Application No. 46494 of 2021, decided on
13.06.2022 (All. HC)

3. Roger Shashoua Vs Mukesh Sharma, (2017)
14 SCC 722
4. Regional Manager Vs Pawan Kumar Dubey,
cited in Roger Shashoua

5. Director of Settlements Vs M.R. Apparao,
cited in Roger Shashoua

6. CIT Vs Sun Engg. Works (P) Ltd., cited in
Roger Shashoua

7. Ambica Quarry Works Vs St. of Guj., cited in
Roger Shashoua

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Anjani Kumar Rai
Advocate, the learned counsel for the
applicant, the learned A.G.A. for the State,
Sri Pramod Kumar Srivastava Advocate,
the learned Counsel for the informant and
perused the record.

2. The present bail application has
been filed by the applicant with the
prayer to enlarge him on bail in Case
Crime No. 721 of 2018, under Sections
419, 420, 466, 468, 471 I.P.C., Police
Station Saini, District Kaushambi.

3. The aforesaid case has been
registered on the basis of an application
under Section 156 (3) Cr.P.C. filed on 1812-2018 by the informant Kuldeep @
Shivam
Tiwari
against
five
named
accused persons, including the applicant,
alleging that the informant's mother Raju
Devi, d/o Late Shiv Sewak is the genuine
legal heir of Late Shiv Sewak. The
accused
persons
have
fabricated
an
unregistered will of Late Shiv Sewak and they
have also fabricated copies of Parivar Register
and School Leaving Certificate to establish that
the applicant's mother was daughter of
Surajbali s/o Vishwanath.

4. In paragraph 7 of the affidavit it
has been stated that prior to lodging the
22 INDIAN LAW REPORTS ALLAHABAD SERIES
instant F.I.R., the informant's mother Raju
Devi had filed a Complaint Case No. 5041
of 2017 (Smt. Raju Devi Vs. Dayasanker
and Others), under Sections 419, 420, 467,
468,
471
IPC,
P.S.
Saini,
District
Kaushambi in which the applicant has been
granted bail by means of an order dated 1705-2019, copy whereof has been annexed
as Annexure No. 4 to the affidavit.

5. The informant Kuldeep lodged
another F.I.R. dated 24-10-2019 against the
four
accused
persons,
including
the
applicant, by way of an application under
Section
156(3)
Cr.P.C.,
which
was
registered as Case Crime No. 92 of 2019,
under Sections 419, 420, 467, 468, 471
I.P.C., P.S. Kadadham, District Kaushambi,
in which the applicant has been granted bail
by means of an order dated 08-09-2020, a
copy whereof has been annexed as
Annexure No. 6 to the affidavit.

6. The applicant contends that the
informant's mother is daughter of one
Surajbali, resident of Saurai Alipur
Bhadar, District Fatehpur and she is not
daughter of Late Shiv Sewak son of
Kedar Nath, resident of Saurai Bujurg,
Kaushambi. To support this contention,
a copy of a registered will dated 23-051990 executed by Late Shiv Sewak has
been annexed as Annexure no. SRA-5 to
the
5th
Supplementary
rejoinder
affidavit wherein the testator had stated
that he had no son or daughter.

7. Per contra, the informant claims
that his mother Raju Devi is daughter of
Late Shiv Sewak son of Kedarnath. The
learned counsel for the informant has
stated that the informant has filed a Suit
No. 843 of 2022 in the Court of Civil
Judge
(J.D.),
Kaushambi
seeking
cancellation of the aforesaid registered will
dated 23-05-1990 executed by late Shiv
Sewak.

8. The question whether Shiv Sewak
had any son or daughter or not or whether
the informant's mother Smt. Raju Devi is in
fact daughter of Shiv Sewak or she is
daughter of Surajbali, is a question which is
yet to be determined by the competent
Court after both the parties have had an
opportunities to lead evidence in support of
their respective contentions.

9. It has been averred in the affidavit
filed in support of the bail application that
the applicant is an innocent person, he has
been falsely implicated in the case and he is
in jail since 20-04-2020. It has also been
stated that the co-accused Sarvnam Tiwari
has already been released on bail by means
of an order dated 10-12-2021 passed in
Criminal Misc. Bail Application No. 45861
of 2021.

10. In para 18 of the affidavit the
applicant's criminal history of 14 cases has
been disclosed, in all of which the applicant
has been granted bail.

11. Sri. Pramod Kumar Srivastava,
the learned counsel for the informant has
vehemently opposed the prayer for grant of
bail to the applicant and he has submitted
that keeping in view the applicant's long
criminal history, he should not be released
on bail. He has further submitted that the
applicant is already accused in a case under
Section 307 I.P.C. which has subsequently
been converted under Section 308 I.P.C.
and in such a situation the applicant's
released on bail would result in a threat to
the informant.

12. Replying to the aforesaid
submission, the learned counsel for the
applicant has submitted that the F.I.R. in
11 All. Rakesh Kumar Vs. State of U.P.
23
Case Crime No. 42 of 2019, (Annexure no.
SCA-5 to the 5th Supplementary Counter
Affidavit filed by the informant) had been
filed
against
four
accused
persons,
including the applicant and the allegation
against the applicant was that he had
exhorted his sons Pankaj Pandey and
Neeraj Pandey and nephew Hiramani
Pandey. The applicant has already been
granted anticipatory bail in the aforesaid
case by means of an order dated 26-092019 passed in Criminal Misc. Bail
Application No. 37997 of 2019.

13. The learned counsel for the
informant has relied upon a judgment
passed by the
Hon'ble Supreme Court in the case of
Harjit Singh Vs. Inderpreet Singh @
Inder and another passed in Criminal
Appeal No. 883 of 2021 decided on 24-082021, wherein the Hon'ble Supreme Court
has held that: -

"From the material on record, it
is clear that as and when he is granted bail,
he came out of the jail, committed another
offence and again went to jail. Even the
High Court cancelled the bail in another
case
vide
order
dated
26-07-2019
specifically observing that while on bail
during the pendency of the appeal, they
were involved in other cases of heinous
crime. From the material on record, it
appears that there is a high possibility of
threat and danger to the life and safety of
the appellant herein/complainant and his
family members, as is evident from the
criminal
history
of
respondent
no.1,
detailed above."

14. It is a well settled law that
precedents are not to be read as statutes.
The judgments passed by the Hon'ble
Supreme Court and the High Court are to
be read in the light of the factual
background in which they are rendered. It
is also equally settled that a difference of
factual background in which the case was
passed makes a word of a difference in an
application of the precedence.

15. While examining the applicability
of the aforesaid decision, it would be
appropriate to have a look at the law
regarding application of precedents, as
explained by the Hon'ble Supreme Court in
Roger Shashoua v. Mukesh Sharma
(2017) 14 SCC 722, in the following
words:--

"55. ....It is well settled in law
that the ratio decidendi of each case has to
be correctly understood. In Regional
Managerv.Pawan Kumar Dubey, a threeJudge Bench ruled : (SCC p. 338, para 7)

"7. ... It is the rule deducible from
the application of law to the facts and
circumstances of a case which constitutes
its ratio decidendi and not some conclusion
based upon facts which may appear to be
similar. One additional or different fact can
make a world of difference between
conclusions in two cases even when the
same principles are applied in each case to
similar facts."

56. In Director of Settlements v.
M.R. Apparao, another three-Judge Bench,
dealing with the concept whether a
decision is "declared law", observed :
(SCC p. 650, para 7)

"7. ... But what is binding is the
ratio of the decision and not any finding of
facts. It is the principle found out upon a
reading of a judgment as a whole, in the
light of the questions before the Court that
forms the ratio and not any particular word
or sentence. To determine whether a
decision has "declared law" it cannot be
said to be a law when a point is disposed of
24 INDIAN LAW REPORTS ALLAHABAD SERIES
on concession and what is binding is the
principle underlying a decision. A judgment
of the Court has to be read in the context of
questions which arose for consideration in
the case in which the judgment was
delivered. ..."

57. In this context, a passage
from CIT v. Sun Engg. Works (P) Ltd.
would be absolutely apt : (SCC pp. 385-86,
para 39)

"39. ... It is neither desirable nor
permissible to pick out a word or a
sentence from the judgment of this Court,
divorced from the context of the question
under consideration and treat it to be the
complete "law" declared by this Court. The
judgment must be read as a whole and the
observations from the judgment have to be
considered in the light of the questions
which were before this Court. A decision of
this Court takes its colour from the
questions involved in the case in which it is
rendered and while applying the decision to
a later case, the courts must carefully try to
ascertain the true principle laid down by
the decision of this Court and not to pick
out words or sentences from the judgment,
divorced from the context of the questions
under consideration by this Court, to
support their reasonings. ..."

58.
In
this
context,
we
recapitulate what the Court had said in
Ambica Quarry Works v. State of Gujarat :
(SCC p. 221, para 18)

"18. ... The ratio of any decision
must be understood in the background of
the facts of that case. It has been said long
time ago that a case is only an authority for
what it actually decides, and not what
logically follows from it. (See Lord
Halsbury in Quinn v. Leathem)..."

59.
From
the
aforesaid
authorities, it is quite vivid that a ratio of a
judgment has the precedential value and it
is obligatory on the part of the court to
cogitate on the judgment regard being had
to the facts exposited therein and the
context in which the questions had arisen
and the law has been declared. It is also
necessary to read the judgment in entirety
and if any principle has been laid down, it
has to be considered keeping in view the
questions that arose for consideration in
the case. One is not expected to pick up a
word or a sentence from a judgment dehors
from the context and understand the ratio
decidendi which has the precedential value.
That apart, the court before whom an
authority is cited is required to consider
what has been decided therein but not what
can be deduced by following a syllogistic
process."

16. A perusal of the aforesaid passage
relied upon by the learned counsel for the
informant indicates that in that case while
deciding an appeal filed against an order of
the High Court granting bail to the
respondents, the Hon'ble Supreme Court
had allowed the appeal and cancelled the
bail on the ground that after being released
on bail, the accused had committed an
offence under Section 302 I.P.C. and in
view of this peculiar factual backdrop the
Hon'ble Supreme Court had found it a fit
case for cancellation of the bail. In the
present case there is no such allegation
against the applicant. Therefore, I am of the
view that the aforesaid decision rendered
by the Hon'ble Supreme Court in Harjit
Singh (Supra) was given keeping in view
the peculiar background of that case
and the same does not lay down a
ratio of general application.

17. The learned counsel for the
informant has next relied upon a
judgment of this Court in Mokhtar
Ansari Vs. State of U.P. passed in
Criminal Misc. Bail Application No.
11 All. Rakesh Kumar Vs. State of U.P.
25
46494 of 2021 decided on 13-062022.

18. In the aforesaid judgment this
Court had relied upon the judgment of
Hon'ble Supreme Court in Harjit Singh
(Supra) and this Court rejected the prayer
for bail on the ground that the applicant had
a criminal history of 21 cases which were
being tried by different sessions, divisions
and districts. In the present case the
applicant has some cases lodged against
him in district Kaushambi alone out of
which two cases have been lodged by the
informant and one has been lodged by the
informant's mother, therefore, the ratio laid
down by this Court in the case of Mokhtar
Ansari (supra) does not apply to the
factual background of the present case and
the same is distinguishable.

19. It is prima facie apparent from the
allegations levelled in the application under
Section 156 (3) Cr.P.C. that the dispute
between the parties is essentially of a civil
nature and the F.I.R. has been lodged
merely in an attempt to give a colour of
criminality to a civil dispute.

20. The learned counsel for the
informant has drawn attention of the Court
to the averments made in paragraph no. 5
of
the
5th
Supplementary
Counter
Affidavit
in
which
the
applicant's
criminal history of 14 cases, which have
already been mentioned in paragraph 18
of the affidavit, has been reiterated. He
has submitted that the applicant has been
released on bail by means of an order
dated 17-05-2019 in Bail Application No.
20871 of 2019 and after his released on
bail, he has violated the conditions
imposed by this Court in the bail order
dated 17-05-2019 and he has again
indulged in commission of as many as
five cases. The details whereof has been
mentioned
in
paragraph
8
of
the
Supplementary Counter Affidavit.

21. In reply to the 5th Supplementary
Counter Affidavit,
5th
Supplementary
Rejoinder Affidavit has been filed and in
paragraph 10 thereof, an explanation
regarding the 5 cases alleged by the
informant have been disclosed; 2 cases
mentioned
in
paragraph
8
of
the
Supplementary Counter Affidavit are noncognizable reports; in Case Crime No. 92
of 2019, under Sections 419, 420, 467, 468,
471
I.P.C.,
P.S.
Kadadham,
District
Kaushambi, the applicant has already been
released on bail by means of an order dated
08-09-2020 passed by this Court in
Criminal Misc. Bail Application No. 19752
of 2020, a copy whereof has been annexed
as Annexure no-6 to the affidavit filed in
support of the bail application; in Case
Crime No. 42 of 2019, under Sections 323,
504, 506, 307, 325 IPC, P.S. Kadadham,
District Kaushambi, the applicant has been
granted anticipatory bail by means of an
order dated 26-09-2019 passed in Criminal
Misc. Bail Application No. 37997 of 2019
and in Case Crime No. 10 of 2020, under
Section 2/3 of U.P. Gangster and AntiSocial Activities (Prevention) Act, 1986,
P.S. Kadadham, District Kaushambi, the
applicant has already been granted bail.
Therefore, I do not find any merit in the
submissions of the learned counsel for the
informant that the aforesaid cases debar the
applicant from seeking the relief for bail.

22. Having considered the aforesaid
facts and submission and keeping in view
the facts that there is a civil dispute
between the parties involving a dispute
regarding parentage of the informant's
mother, which dispute is yet to be
determined by a competent court of law
and the suit has already been filed by the
informant which is pending before the
26 INDIAN LAW REPORTS ALLAHABAD SERIES
Court of Civil Judge (J.D.), Kaushambi;
that all the offences alleged against the applicant
are triable by the Magistrate and that the coaccused Sarvnam Tiwari has already been
released on bail, I am of the view that the applicant
is also entitled to be released on bail pending
conclusion of the trial.

23. The bail application is accordingly
allowed.

24. Let the applicant - Rakesh Kumar be
released on bail in Case Crime No. 721 of 2018,
under Sections 419, 420, 466, 468, 471 I.P.C., P.S.
Saini, District Kaushambi on his furnishing a
personal bond and two reliable sureties each of the
like amount to the satisfaction of the court
concerned subject to following conditions:-

(i) The applicant will not tamper with
the evidence during the trial.

(ii) The applicant will not influence
any witness.

(iii) The applicant will appear before
the trial court on the date fixed, unless personal
presence is exempted.

(iv) The applicant shall not directly or
indirectly make 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 to any police officer or tamper with the
evidence.

25. In case of breach of any of the above
condition, the prosecution shall be at liberty to
move an application bail before this Court seeking
cancellation of bail.
----------
(2023) 11 ILRA 26
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.11.2023

BEFORE

THE HON'BLE PANKAJ BHATIA, J.
Criminal Misc. First Bail Application No. 42050 of
2023
Angad Rai @ Jhullan Rai ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Shashi Bhushan Kunwar, Sri Pradeep
Kumar Rai, Sri Kamal Kishore (Senior
Advocate)

Counsel for the Opposite Party:
G.A.

Criminal Law - U.P. Gangsters and AntiSocial Activities (Prevention) Act, 1986 -
Sections 2(b), 2(c), 3(1) & 19(4) - Indian
Penal Code, 1860 - Section 386 - Bail -
Public Order vs. Law and Order - Gang Chart -
Non-Application of Mind

The applicant, Angad Rai @ Jhullan Rai, sought
bail in Case Crime No. 314 of 2023 under
Section 3(1) of the U.P. Gangsters Act, alleging
misuse of the Act to frustrate his prior bail in a
case under Section 386 IPC (Case Crime No.
111 of 2023). The gang chart alleged the
applicant, a member of Mukhtar Ansari's
gang, threatened witnesses, disturbing public
order. The applicant argued the allegations
were a law and order issue, not public order,
and the gang chart omitted his prior bail
order. The St. opposed, citing the Act's strict
bail provisions under Section 19(4). Held: (1)
The bail application was allowed. (2) The
gang chart's failure to mention the applicant's
prior bail order dated 26.05.2023 indicated
non-application of mind, and the allegations
of witness threats constituted a law and order
issue, not public order, per Banka Sneha Sheela
Vs St. of Telangana. (3) The twin conditions
under Section 19(4)(b) were satisfied: no prima
facie evidence supported guilt under the
Gangsters Act, and no material suggested the
applicant would commit similar offences if
released, per Mohd Muslim @ Hussain Vs St.
(NCT of Delhi) and Ranjitsingh Brahmajeetsing
Sharma Vs St. of Maharashtra. (4) The St.'s
failure to challenge the prior bail order or seek
its cancellation weakened its case. (5) Bail was
granted
with
conditions
to
ensure
court