# Ravindra Kumar v. State of U.P

- **Citation:** (2025) 9 ILRA 10
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-09-10
- **Case number:** Application U/S 528 BNSS No. 902 of 2025
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ravindra-kumar-v-state-of-u-p-53843
- **Pages:** 6

## Headnote

G.A.
9 All. Ravindra Kumar Vs. State of U.P.
11
Issue for consideration
Preliminary Objection as to maintainability of
Application u/s 528 BNSS-

Headnotes
Default bail-Default bail application filedrejected-impugned- on account of non-filing of
complaint within ninety days-from the date of
arrest-allegation against applicant being an
employee of Ordnance Factory-was sharing
confidential information and documents through
WhatsApp to an agent of Pakistan-preliminary
objection-Section 21(4) of the Act 2008-appeal
shall lie to the High Court against an order of
the Special Court granting or refusing bailnotwithstanding contained in Section 378 (3)
Cr.P.C.- no otherwise definition can be given
against the intent of the legislature. Application
not maintainable-dismissed.

Held, apparent from the provision of Section
21(4) of the Act 2008 that an appeal shall lie to
the High Court against an order of the Special
Court granting or refusing bail, notwithstanding
contained in Sub Section (3) of Section 378 of
the Cr.P.C. This provision is overt in its mandate
and while applying this provision in the present
case, it is apparent that this does not speak
regarding any difference of any kind of refusing
or granting bail, meaning thereby that if the
Special Court (NIA) grants or refuses the bail,
the same is amenable to the provisions of the
appeal, prescribed under Section 21 of the Act
2008 and, therefore, in presence of the obvious
provisions, no otherwise definition can be given
against the intent of the legislature. (E-9)

Case Law Cited

## Text

10 INDIAN LAW REPORTS ALLAHABAD SERIES
approach, viz., request for treating a
revision as a petition under Article 226/227
of the Constitution. The Supreme Court
while refusing such a request cannot be
taken
to
have
dissented
from
the
established
practice
of
the
courts
permitting conversion of one particular
type of proceeding into another. I think,
that while interpreting this decision of the
Supreme Court, one should keep in mind
the principle that unless a decision clearly
intents so, it should not be read as up
setting the law declared and the procedure
followed by High Courts for a long number
of years.

8. In case of R. Rajagopal @ R.R.
Gopal and another Vs. State of T.N. and
others reported in AIR 1995 SC 264 in
paragraph No.27, the Hon'ble Supreme
Court held as under :

27. Lastly, we must deal with the
objection raised by the respondent as to the
maintainability of the present writ petition.
It is submitted that having filed a writ
petition for similar reliefs in the Madras
High Court, which was dismissed as not
maintainable under a considered order, the
petitioners could not have approached this
Court under Article 32 of the Constitution.
The petitioners, however, did disclose the
above fact but they stated that on the date
of their filing the writ petition, no orders
were pronounced by the Madras High
Court. It appears that the writ petition was
filed at about the time the learned single
Judge
of
the
Madras
High
Court
pronounced the orders on the office
objections. Having regard to the facts and
circumstances of the case, we are not
inclined to throw out the writ petition on
the said ground. The present writ petition
can also be and is hereby treated as a
Special Leave Petition against the orders of
the learned single Judge of the High Court.

9. In view of the case law discussed
above, I am of the opinion that there is no
impediment in case a particular kind of
proceeding is not maintainable and a
different kind of proceeding lies in respect
thereof, the Court has jurisdiction to
convert one into other subject to limitation
and court fees as the case may be. Thus,
following the earlier decisions of this Court
as well as of the Supreme Court and the
established
practice
of
permitting one
particular type of proceedings to be converted
into another, I permit the petitioner to convert
this petition under Article 227 into an appeal
under Section 37 of the Arbitration and
Conciliation Act, 1996 and grant him three
weeks time to do so.

10. After conversion, this petition be
listed before appropriate Bench having
jurisdiction in the matter.
----------
(2025) 9 ILRA 10
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 10.09.2025

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Application U/S 528 BNSS No. 902 of 2025

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

Counsel for the Applicant:
Pranjal
Jain,
Nitin
Mathur,
Purnendu
Chakravarty

Counsel for the Opposite Party:
G.A.
9 All. Ravindra Kumar Vs. State of U.P.
11
Issue for consideration
Preliminary Objection as to maintainability of
Application u/s 528 BNSS-

Headnotes
Default bail-Default bail application filedrejected-impugned- on account of non-filing of
complaint within ninety days-from the date of
arrest-allegation against applicant being an
employee of Ordnance Factory-was sharing
confidential information and documents through
WhatsApp to an agent of Pakistan-preliminary
objection-Section 21(4) of the Act 2008-appeal
shall lie to the High Court against an order of
the Special Court granting or refusing bailnotwithstanding contained in Section 378 (3)
Cr.P.C.- no otherwise definition can be given
against the intent of the legislature. Application
not maintainable-dismissed.

Held, apparent from the provision of Section
21(4) of the Act 2008 that an appeal shall lie to
the High Court against an order of the Special
Court granting or refusing bail, notwithstanding
contained in Sub Section (3) of Section 378 of
the Cr.P.C. This provision is overt in its mandate
and while applying this provision in the present
case, it is apparent that this does not speak
regarding any difference of any kind of refusing
or granting bail, meaning thereby that if the
Special Court (NIA) grants or refuses the bail,
the same is amenable to the provisions of the
appeal, prescribed under Section 21 of the Act
2008 and, therefore, in presence of the obvious
provisions, no otherwise definition can be given
against the intent of the legislature. (E-9)

Case Law Cited
1. Harendra Vs. State of U.P. and another
reported in 2020 SCC OnLine All 850
2. Madhu Limaye Vs. the State of Maharashtra,
reported in NA528 No. 908 of 2025 4 (1977) 4
SCC 551
3. Amar Nath and others Vs. State of Haryana
and another, reported in (1977) 4 SCC 137
4. V.C. Shukla Vs. State reported in 1980 Supp
SCC 92

Appearances of parties
Counsel for Applicant(s) : Pranjal Jain, Nitin
Mathur, Purnendu Chakravarty
Counsel for Opposite Party(s) : G.A.
(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard Sri Purnendu Chakravarty,
learned counsel assisted by Ms. Aishwarya
Saxena, Mr. Pranajal Jain and Mr. Rohit
Kanaujia, learned counsels for the applicant
and Sri Shiv Nath Tilhari, learned counsel
for the State of U.P.

2. Present application is directed
against the order dated 7.7.2025 passed by
learned Additional Sessions Judge, Court
No.3/Special
Judge/NIA,
Lucknow
whereby the default bail application on
account of non-filing of complaint, within
ninety days, from the date of arrest, has
been rejected.

3. At the very outset, a preliminary
objection has been taken by Sri Shiv Nath
Tilhari, learned counsel appearing for the
State that the F.I.R. No.1/2025 dated
13.3.2025 was registered under Section 148
BNS and Section 3/4/5 of the Official
Secrets Act, 2023 (hereinafter referred to as
'the Act 2023'), against the applicant, while
alleging that the applicant being an
employee of Ordnance Factory, Kanpur,
was sharing confidential information and
documents through WhatsApp to one Neha
Sharma who is said to be an agent of
Pakistan, compromising the safety and
interest of the Country. He submits that the
schedule as prescribed under the National
Investigation
Agency
Act,
2008
(hereinafter referred to as 'the Act 2008')
reveals that Chapter VI of the Indian Penal
Code [Sections 121 to 130 (both inclusive)]
are find mention and, therefore, this is
amenable to the jurisdiction of Special
Court designated/constituted under the
scheme of the Act 2008 read with the Rules
2008 made thereunder. He submits that
Section 121A of I.P.C. corresponds to
12 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 148 in Bharatiya Nyaya Sanhita,
2023 (hereinafter referred to as 'the BNS').
He further submits that the order impugned
dated 7.7.2025 has admittedly been passed
by the Special Court (NIA) wherein default
bail application has been rejected. He
argued that any order passed by the Special
Court (NIA) is appealable as per the
provisions given under Section 21 of the
Act 2008.

4. For ready reference, Section 21
of
the
Act
2008
is
reproduced
hereinunder:-

"21. Appeals. (1) Notwithstanding
anything contained in the Code, an appeal
shall lie from any judgment sentence or
order, not being an interlocutory order, of
a Special Court to the High Court both on
facts and on law.

(2) Every appeal under subsection (1) shall be heard by a bench of two
Judges of the High Court and shall, as far
as possible, be disposed of within a period
of three months from the date of admission
of the appeal.

(3) Except as aforesaid, no
appeal or revision shall lie to any court
from any judgment, sentence or order
including an interlocutory order of a
Special Court.

(4)
Notwithstanding
anything
contained in sub-section (3) of Section 378
of the Code, an appeal shall lie to the High
Court against an order of the Special Court
granting or refusing bail.

(5) Every appeal under this
section shall be preferred within a period
of thirty days from the date of the judgment,
sentence or order appealed from:

Provided that the High Court
may entertain an appeal after the expiry of
the said period of thirty days if it is
satisfied that the appellant had sufficient
cause for not preferring the appeal within
the period of thirty days:

Provided further that no appeal
shall be entertained after the expiry of
period of ninety days."

5. Referring to Sub Section (4) of
Section 21, he submits that an appeal shall
lie to the High Court, against an order of
the Special Court, granting or refusing bail
and in the present case, the default bail
application has been rejected, thus, he
submits that the order impugned dated
7.7.2025 passed by the Special Court (NIA)
is appealable under the provision of Act
2008 and therefore, being an efficacious
and alternative statutory remedy available
to the applicant, the present application
under
Section
482
Cr.P.C.
is
not
maintainable, as such, this application may
be dismissed on this ground alone.

6. Per contra, learned counsel for the
applicant has opposed the contention
aforesaid and submits that Section 167(2)
Cr.P.C. (corresponding to Section 187(3)
BNS, 2023) is a statutory provision which
confers indefeasible right upon accused to
be released on bail, on non-filing of charge
sheet, within the prescribed time period
whereas Section 439 Cr.P.C./Section 483
Bharatiya Nyaya Suraksha Sanhita, 2023
(hereinafter referred to as 'the BNSS') is
regular bail procedure and is wholly
discretionary in nature. He also submits
that Sub Section (1) (2) of Section 21 of
Act 2008 provides right to appeal against
the Judgment, sentence or order, not being
an interlocutory order. Further submitted
that Section 21(3) of the Act provides an
9 All. Ravindra Kumar Vs. State of U.P.
13
exclusion clause, restricting appeals against
interlocutory orders and Section 21(4) of
the Act 2008 prescribes the right to appeal
against an order granting or refusing bail
which is to be construed with reference to
Section 439 Cr.P.C./483 BNSS and does
not apply to Section 167 (2) Cr.P.C./187(3)
of BNSS 2023.

7. In support of his contention, he has
placed reliance on a Judgement of this
Court in the case of Harendra Vs. State of
U.P. and another reported in 2020 SCC
OnLine All 850 and has referred to para
13, which reads as under:-

"13. Thus, on the facts of the case
that the applications for default bail were
filed prior to the filing of the charge-sheet
and following the law as laid down by the
Supreme Court in the case of Union of
India
Through
General
Bureau
of
Investigation v. Nirala Yadav alias Raja
Ram Yadav alias Deepak Yadav (Supra), I
am of the view that the applicants were
entitled to be enlarged on statutory bail
and non-grant of statutory bail and the
rejection of the application for grant of
statutory bail was wholly untenable in
law."

8. He also argued that non-filing of
charge sheet within the prescribed time,
mandates release of an accused under
statutory remedy of default bail and such
release is a deemed release under Chapter
XXXIII of Cr.P.C., however, order for the
bail can be cancelled under Section 439 (2)
of Cr.P.C. which is subject to cancellation
and, therefore, any order which is subject to
cancellation,
withdrawal
or
recession,
would not be a final order. He also added
that test of finality has to be seen in terms
of Sub Section (2) which bars alteration or
review of Judgment or final judgement
except of clerical or arithmetical errors and
since this Court possesses inherent power
to give effect to any order under this Code
empowers it to give effect to Section 167
(2) of Cr.P.C. while directing the release of
an accused on statutory bail.

9. Concluding his arguments, he
submits that the order passed under Section
167(2) Cr.P.C./187(3) BNSS is not passed,
on the merits of this case, thus, the same
cananot be treated as a final order. and,
therefore, the instant application under
Section 482 Cr.P.C./582 of BNSS is
maintainable
and,
therefore,
the
preliminary objection may be rejected.

10. Having heard learned counsel for
the parties and after perusal of the record, it
transpires that at the very inception, the
preliminary objection has been raised by
the counsel appearing for the State, on the
premises of Section 21 of the Act 2008,
while submitting that the appeal is
maintainable against any order passed by
the Special Court constituted/designated
under the provisions of Act 2008.

11. By way of the present application,
the order passed under Section 187(3) of
BNSS whereby the default bail has been
rejected, is under challenge. The provision
prescribed under Section 187(3) of BNSS
contains the 'statutory bail', which in fact
identifies the indefeasible right given to the
accused person. In fact, the right of default
bail can be exercised once and not likewise
the other provision of bail as prescribed under
Section 439 of the Cr.P.C. where at the
subsequent stage ,more bail applications can
be instituted, in form of second, third and
fourth bail application and so on.

12. The provision of statutory bail
under Section 187(3) BNSS/167(2) Cr.P.C.
14 INDIAN LAW REPORTS ALLAHABAD SERIES
is whether an interlocutory order or a final
order. The test which could be applied, for
an order, being interlocutory, intermediary
or final, can be summarized in two folds;
firstly
that
any
such
order,
which
substantially affects the right of the accused
or parties, cannot be termed as an
interlocutory order and secondly, any right,
which accrue out of some statutory
provisions, is also not an interlocutory
order. Time and again, this issue has
exhaustively been dealt with by the Apex
Court starting from a three Judge Bench
decision of the Hon'ble Apex Court in the
case of Madhu Limaye Vs. the State of
Maharashtra, reported in (1977) 4 SCC
551 wherein the ratio drawn in the case of
Amar Nath and others Vs. State of
Haryana and another, reported in (1977)
4 SCC 137 has partly been affirmed,
holding that the term 'interlocutory order' as
is used in Section 397 of the Cr.P.C. does
not invariably mean the converse of the
term of 'final order' and certain guidelines
were provided to examine that a particular
order is not an 'interlocutory order'.

13. Subsequently, the Apex Court in
the case of V.C. Shukla Vs. State reported
in 1980 Supp SCC 92, considering the
ratio drawn in Amar Nath (supra) and
Madhu Limaye (supra), has held that the
intermediate, quasi final and final orders
are revisable. In this view, the provision of
statutory bail under Section 187(3) of
BNSS is an intermediary order and the
same is revisable, subject to any other
provision provided in a special Act.

14. Coming to the crux of the issue of
maintainability, it is apparent from the
provision of Section 21(4) of the Act 2008
that an appeal shall lie to the High Court
against an order of the Special Court
granting or refusing bail, notwithstanding
contained in Sub Section (3) of Section 378
of the Cr.P.C. This provision is overt in its
mandate and while applying this provision
in the present case, it is apparent that this
does not speak regarding any difference of
any kind of refusing or granting bail,
meaning thereby that if the Special Court
(NIA) grants or refuses the bail, the same is
amenable to the provisions of the appeal,
prescribed under Section 21 of the Act
2008 and, therefore, in presence of the
obvious provisions, no otherwise definition
can be given against the intent of the
legislature. This Court is also aware of the
trite law that a thing should be done in the
manner prescribed under the statute, not
otherwise. Admittedly, vide order dated
7.7.2025, the learned Special Judge (NIA)
has rejected the default bail application of
the applicant. Thus, against such order the
remedy of appeal is provided under the
Special Act, i.e., Act 2008.

15. Further this Court also noticed that
the law referred by counsel for the
applicant, which is rendered in case of
Harendra Vs. State of U.P. and another
(supra), is on different factual matrix and
this will not apply to the facts and
circumstances of the present case as the
dispute in question in the above-said case
was regarding completion of ninety days as
the charge sheet was dispatched on the
same day when the application for default
bail was moved, therefore, this will not
cover the field of the issue in the instant
matter.

16. Ergo, this Court is of the
considered
opinion
that
the
instant
application challenging the order dated
7.7.2025 passed by the Special Court (NIA)
is not maintainable, thus, preliminary
objection taken by counsel for the State;
sustains.
9 All. Sanoj Kumar Yadav Vs. State of U.P. & Ors.
15

17. The present application is hereby
dismissed as not maintainable.

18. However, it is open to the
applicant to pursue the appropriate remedy,
provided under law.

19. Consigned to the records.
---------
(2025) 9 ILRA 15
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.09.2025

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Application U/S 482 No. 6653 of 2025

Sanoj Kumar Yadav ...Applicant
Versus
State Of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Satyendra Kumar Tiwari, Rajesh Pandey

Counsel for the Opposite Parties:
G.A.

Issue for Consideration
Matter pertains to - (i) Whether the charges can
be altered on an application moved by either of
the parties; and (ii) At the stage of framing of
charges, what material is to be looked into by
the trial court.

Headnotes
Indian Penal Code, 1860 - SS. 323, 324,
342, 504, 506 r.w. S. 34 and S. 120-B, 307
& 302 - Criminal Procedure Code, 1973 -
S. 216 - Alteration of charge - Power to
alter or add any charge before judgment
lies exclusively with the Court; such
power may be exercised suo motu or on
an application moved by parties, but not
as a matter of right - Alteration of charge -
Nature of power - Exclusive domain of the
trial court; parties cannot claim alteration
as of right - Framing of charges - Scope of
enquiry - At the stage of framing charges,
only prima facie case to be seen; mini trial
not permissible; sufficiency of grounds to
proceed to be determined on materials
placed before the court.
Held: The power under S. 216 Cr.P.C. is the
exclusive domain of the court - no party can
seek alteration of charge as of right - At the
stage of framing charges, the trial court is only
required to determine whether a prima facie
case is made out - Mini trial not permissible -
Impugned
order
dated
03.07.2025
passe
Impugned order dated 03.07.2025 passed by
Sessions Judge, Sultanpur, examined the entire
record and found appropriate grounds for
alteration of charges - No illegality or infirmity
found - Application dismissed - Trial court
directed to proceed in accordance with law -
High Court found no illegality or infirmity in the
impugned order of Sessions Judge. (paras
12,13,14,15,16,17,18,19,20) (E-7)

Case Law Cited
Directorate of Revenue Intelligence v. Raj
Kumar Arora & Ors., 2025 SCC OnLine SC
819; State of Rajasthan v. Ashok Kumar
Kashyap, (2021) 11 SCC 191; P. Vijayan v.
State of Kerala, (2010) 2 SCC 398; State of
Karnataka v. M.R. Hiremath, (2019) 7 SCC
515; State of T.N. v. N. Suresh Rajan, (2014)
11 SCC 709; Radhey Lal v. State of U.P. &
Anr., Criminal Appeal No. 1014 of 2025.

List of Acts
Code of Criminal Procedure, 1973; Bharatiya
Nyaya Sanhita, 2023; Indian Penal Code, 1860;
Prevention of Corruption Act, 1988.

List of Keywords
Alteration of charge; Framing of charges; Prima
facie case; Mini trial; Exclusive domain; Suo
motu power; No right to alteration; Judicial
discretion; Charge modification; Criminal trial.

Case Arising From
Order dated 03.07.2025 passed by Sessions
Judge, Sultanpur, in Sessions Trial No. 208 of
2024 (arising out of Case Crime No. 363 of
2023, P.S. Motigarpur, District Sultanpur).

Appearances for Parties
Advs. for the Applicant:
Mr. Satyendra Kumar Tiwari, Mr. Rajesh Pandey