# Sandeep Kumar Mishra v. State of U.P

- **Citation:** (2023) 2 ILRA 352
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-16
- **Case number:** Crl. Misc. Bail Application No. 32824 of 2020
- **Bench:** Krishan Pahal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sandeep-kumar-mishra-v-state-of-u-p-49668
- **Pages:** 7

## Headnote

(A) Criminal Law - Bail - Indian Penal
Code, 1860 - Sections 376-D, 342 & 506 ,
The Code of criminal procedure, 1973 -
Sections 161,162 & 164 , Indian Evidence
Act, 1872 - Section 114-A - Presumption
as to absence of consent in certain
prosecutions for rape - Offence of gang-rape
- Victim, informant and applicants were working
in the same organization - run in the name of
''Janeu Kranti Abhiyan' - delay in lodging the FIR
- HELD - Inordinate delay in lodging the FIR is
to be considered at the time of adjudicating the
bail. Trial is at its conclusive end. Applicants
have made out a case for bail. (Para-21,22)

Bail application allowed. (E-7)

List of Cases cited:-

## Text

352 INDIAN LAW REPORTS ALLAHABAD SERIES

14. In view of aforesaid judgments
and law propounded by the Division
Bench, it is evident that the impugned
orders are contrary to the aforesaid
judgments and, therefore, the aforesaid
orders dated 13th of September, 2011
passed under Section 47-A of Indian Stamp
Act, 1899 as well as the order dated 27th of
July, 2012 passed in Appeal under Section
56 of the Act, are set aside.

15. Consequently, the writ petition is
allowed. Parties to bear own costs.
Consequences to follow.
----------
(2023) 2 ILRA 352
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.02.2023

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Crl. Misc. Bail Application No. 32824 of 2020
with
Crl. Misc. Bail Application No. 12486 of 2022

Sandeep Kumar Mishra ...Applicant
Versus
State of U.P. ...Respondent

Counsel for the Applicant:
Sri Pulak Ganguly, Sri Virendra Kumar Mishra

Counsel for the Respondent:
G.A., Sri Shivam Yadav

(A) Criminal Law - Bail - Indian Penal
Code, 1860 - Sections 376-D, 342 & 506 ,
The Code of criminal procedure, 1973 -
Sections 161,162 & 164 , Indian Evidence
Act, 1872 - Section 114-A - Presumption
as to absence of consent in certain
prosecutions for rape - Offence of gang-rape
- Victim, informant and applicants were working
in the same organization - run in the name of
''Janeu Kranti Abhiyan' - delay in lodging the FIR
- HELD - Inordinate delay in lodging the FIR is
to be considered at the time of adjudicating the
bail. Trial is at its conclusive end. Applicants
have made out a case for bail. (Para-21,22)

Bail application allowed. (E-7)

List of Cases cited:-

1. U.O.I. Vs K.A. Najeeb, AIR 2021 SC 712

2. Bharwada Bhoginbhai Hirjibhai Vs St. of Guj. ,
(1983) 3 SCC 217

(Delivered by Hon'ble Krishan Pahal, J.)

1. Heard Shri Sudhir Mehrotra, Shri
Pulak Ganguly, learned counsels for the
applicants and Shri Shivam Yadav, learned
counsel for the informant as well as Shri
V.K.S. Parmar, learned A.G.A. for the
State.

2. Since these bail applications arise
out of the same incident, they are being
decided by this common order.

3. The present bail applications have
been filed by the applicants in Case Crime
No.511 of 2019, under Sections 376-D, 342
and 506 I.P.C., Police Station Rohaniya,
District Varanasi, with the prayer to enlarge
them on bail.

PROSECUTION STORY:

4. As per the prosecution story, a first
information report was lodged at P.S.
Daurala, District Meerut stating that the
informant
is
a
resident
of
village
Machchari, P.S. Daurala and is connected
to Param Dham Nyas, Arihantpuram,
Valeedpur, Daurala and his wife aged about
24 years alongwith other colleagues is
living
at
Baroranpur,
P.S.
Rohaniya,
Varanasi for the last one year. She travels
off and on to Meerut and Varanasi for the
works of the organization. At Varanasi, the
informant and his wife used to live in a
2 All. Sandeep Kumar Mishra Vs. State of U.P.
353
rental house of one Sushil Patel. On
18.06.2019, the informant had come to
Meerut and his wife along with other
colleagues of the organization were left
behind at Varanasi. On 03.08.2019, the wife
of the informant came to Meerut from
Varanasi and told him about the incident
which happened with her at Varanasi. She
told the informant that on 01.07.2019 at
about 10:00 AM, Chandan Kumar s/o Ram
Narayan and Sandeep s/o of Dev Kumar
Mishra had raped her in her room. When
she had tried to raise alarm, Sandeep is
stated to have closed her mouth with his
hand. After sometime one Ankit s/o Satveer
is said to have reached there, at which the
accused persons had left the room and
Ankit is said to have slapped Chandan, but
the duo is said to have escaped on their
motorcycle. When the informant asked the
said perpetrators of crime about the
incident, they are said to have threatened
him that he alongwith his wife shall be
ruined by them. The said application was
moved at the police station on 05.08.2019
and it was registered at Case crime No.349
of 2019 under Sections 376-D, 342, 506
I.P.C. at P.S. Daurala, District Meerut.

5. The said FIR was sent to be
investigated by the police of P.S. Rohaniya,
District Varanasi on a letter sent by S.S.P.,
Meerut as the matter fell within the
jurisdiction of District Varanasi. The F.I.R.
was lodged at FIR No. 511 of 2019 at P.S.
Rohaniya on 09.09.2019.

RIVAL CONTENTIONS:

For Applicants:

6. Learned counsels for the applicants have
stated that the victim was medically
examined at District Hospital, Varanasi on
12.09.2019 and no internal or external
injury
was
found on
her body
to
corroborate the prosecution allegations.
The statements of the victim recorded
under Sections 161 and 164 Cr.P.C. are in
verbatim of the allegations levelled in the
FIR. Learned counsels have further stated
that they have been falsely implicated in
the case as they had enquired about the
illegal activities being undertaken by the
victim and other activists of the Ashram.
The story has been cooked up just to harass
the applicants and to dissuade them from
bringing forward their illegal activities.

7. Learned counsels have further
stated that the prosecution had created
additional evidence by introducing new
witnesses and filed their affidavits before
S.S.P., Meerut, which is hit by Section 162
Cr.P.C. and are not admissible in law.
Learned counsels have further stated that
one of the witness Smt. Sanjana had even
filed another affidavit on 23.09.2019,
sworn at Meerut, denying the contents of
her earlier affidavit. The said affidavit has
been annexed as annexure no.7 to the
Criminal Misc. Bail Application No.23824
of 2020. Learned counsels have further
stated that it is pertinent to mention that
prior
to
06.08.2019,
no
other
first
information report was lodged by any of
the followers of the founder ''Janeu Kranti
Abhiyan' Chandra Mohan. It is the said
godman Chandra Mohan who had got the
FIRs' lodged against the revolting disciples
of
''Janeu
Kranti
Abhiyan'.
Learned
counsels have brought on record a chart of
the FIRs' lodged at the instance of godman
Chandra Mohan against his disciples not
falling in line with him, which is
reproduced as below:-

Case
Crim
Und
er
Police
Station
Distr
ict
Infor
mant
Accus
ed
354 INDIAN LAW REPORTS ALLAHABAD SERIES
e
No.
Secti
on
349
of
2019
376.
D,
342,
506
IPC
Daurala
26.08.2
020
Mee
rut
Neeraj
Kuma
r
Chand
an
Kuma
r
Sande
ep
352
of
2019
386,
295,
500,
120.
B,
504,
506
IPC
and
66.A
, 67
I.T.
Act
Daurala
06.08.2
019
Mee
rut
Smt.
Sonia
Chand
an
Deepa
k,
Akash
,
Pushp
endra,
Vishal
456
of
2019
504,
506,
500
IPC
and
66,
67
I.T.
Act
Nai
Mandi
07.08.2
019

Muz
affar
Nag
ar
Amit
Kuma
r
Chand
an
Deepa
k,
Akash
,
Vishal
,
Pushp
endra
260
of
2019
500,
506
IPC
and
66
I.T.
Act
Mandi
Dhanur
a
10.08.2
019
J.P.
Nag
ar
Rajesh Deepc
hand,
Karm
vir
327
of
2019
386,
504,
506
IPC
Titawi
08.10.2
019
Muz
affar
Nag
ar
Vinod
Kuma
r
Rajee
v
1028
of
2019
418,
420,
506,
384
IPC
and
66.D
, 67
I.T.
Act
Kotwali
Nagar
25.10.2
019
Muz
affar
Nag
ar

Smt.
Pankaj
Vinod
Kuma
r,
Jitend
ra,
Amit,
Chint
u,
Anil,
Monu,
Jitend
ra,
Deven
dra
30
of
2020
376.
D,
506
IPC
and
5/6
POC
SO
Act
Hasanp
ur
18.01.2
020
J.P.
Nag
ar
Km.
Bhanu
Priya
Kovin
d
Chauh
an,
Jaivir
Chauh
an,
Pushp
endra
Chauh
an,
one
boy
unkno
wn
224
of
2020
67
I.T.
Act
Khataul
i
26.05.2
020
Muz
affar
Nag
ar
Sristi

Jugnu
Bharti
ya
428
of
2020
506
and
67
I.T.
Act
Daurala
20.09.2
020
Mee
rut
Smt.
Shiro
mani
Monik
a
Punit
455
of
2020
323,
504,
506
IPC
Cantt
25.08.2
021
Vara
nasi
Neeraj
Kuma
r
Kamal
,
Arun,
Kulde
ep,
2 All. Sandeep Kumar Mishra Vs. State of U.P.
355
One
unkno
wn
459
of
2020
147,
323,
504,
506,
392
IPC
Cantt.
26.08.2
021
Vara
nasi
Kamal
Verma
Neeraj
,
Manis
h, one
unkno
wn
44
of
2020
174.
A
IPC
Rohani
ya
Vara
nasi
Inspec
tor
Crime
Mohit
Yadav
Chand
an
Kuma
r,
Sandi
p
Kuma
r
Mishr
a

8. Learned counsels have also filed
the
photocopies
of
the
entire
first
information reports mentioned in the
aforesaid chart.

9. Learned counsels have further
stated that the victim herein was the
National
President
of
''Janeu
Kranti
Abhiyan' and her husband/informant was
the treasurer in it. The prime witness Ankit
is also a member of the said organization.
The applicants were also associated with
the godman Chandra Mohan for about 10
years and used to live permanently with
him since 2018. The applicant- Chandan
Kumar had even married one Sanjana
Sharma (who was also a member of the
organization) at the instructions of Chandra
Mohan. After a period of time, the
applicant- Chandan Kumar came to know
that he has been cheated by the said
godman Chandra Mohan and came to know
of his illegal activities and as such, posted
several messages in a WhatsApp group
''Har Har Mahadev' from 01.08.2019 to
03.08.2019, which was being administered
by one Kamal. The said Kamal was also
threatened by Chandra Mohan and his
followers and he had also sent a latter to the
S.S.P., Meerut on 26.08.2019, which is a
matter of record. Infuriated, by the said
posts on the said WhatsApp group, the
present FIR has been instituted after
cooking a false story.

10. Learned counsels have also
indicated that there are several FIRs'
instituted against Chandra Mohan including
Case Crime No.317 of 2005, under
Sections 302 and 307 I.P.C., P.S. Bhopa,
District Muzaffarnagar and Case Crime
No.131 of 2019, P.S. Rajpur, District
Dehradun, Uttarakhand lodged by Smt.
Neeraj.

11. Learned counsels have also stated
that the posts on WhatsApp led immense
protests against the godman Chandra
Mohan and almost all his disciples were
divided into two sections and a large
section of his disciples rose against him. As
a result of the said act, the said godman
Chandra Mohan incurred a huge loss in the
form of donations as his regular disciples
discontinued their contributions leading to
the stoppage of various campaigns and
schemes. The new recruitment to the
Ashram was also brought to a near halt.
The present FIR has been foisted just three
days after the said WhatsApp messages
became viral.

12. It is also argued by the counsels
for the applicants that another FIR No.352
of 2019 has also been foisted against the
applicants for demanding ransom and also
under I.T. Act. The same modus operandi
has been followed in another FIR No.30 of
2020 filed at P.S. Hasanpur, District
356 INDIAN LAW REPORTS ALLAHABAD SERIES
Amroha, U.P. against one Kovinder and
others. Learned counsels have further
stated that even the statement of the said
eye-witness Ankit stands falsified on the
ground that he could have certainly
reported the matter as it had come to his
knowledge five minutes after the said
incident.

13. Learned counsels have further
stated
that
in
the
present
scenario
everybody carries mobile and the victim
could have narrated the story to her
husband on mobile itself and she being an
educated lady herself. She could have got
the FIR lodged at the Varanasi itself
through Ankit or herself, but lodging of the
FIR, all the way at a far from place about
800 kilometers from Varanasi at Meerut
speaks volume of the malicious intent of
the informant to implicate the applicants at
the behest of godman Chandra Mohan.
Learned counsels have further stated that
even their parokars have been threatened
and beaten up by the followers of godman
Chandra Mohan.

14. Learned counsels have further
stated that seven witnesses have been
examined at trial and there is no likelihood
of any tampering of evidence by the
applicants.

15. Learned counsels have further
placed much reliance on the judgment of
Apex Court passed in the case of Union of
India vs. K.A. Najeeb1, wherein the Apex
Court has observed as under:-

"We are conscious of the fact that the
charges levelled against the respondent are
grave and a serious threat to societal
harmony. Had it been a case at the
threshold, we would have outrightly turned
down the respondent's prayer. However,
keeping in mind the length of the period
spent
by
him
in
custody
and
the
unlikelihood of the trial being completed
anytime soon, the High Court appears to
have been left with no other option except
to grant bail."

16. There are two other cases foisted
against the applicant- Chandan Kumar at
Case Crime No.352 of 2019 at P.S.
Daurala, District Meerut and Case Crime
No.456 of 2019 at P.S. Nai Mandi,
Muzaffarnagar. Learned counsels have
further stated that the victim of the present
case is an accused in Case Crime No.131 of
2019, in which initially a closure report
was submitted, but the said closure report
was rejected and further investigation was
ordered by the learned court which is still
pending. Learned counsels have further
stated that during trial, the informant and
the victim had even escaped to answer the
questions put to them with respect to the
registration of Case Crime No.131 of 2019
against them. Several other submissions
have been made on behalf of the applicants
to demonstrate the falsity of the allegations
made against them. The circumstances
which, as per counsel, led to the false
implication of the applicants have also been
touched upon at length. It is also argued
that the criminal history assigned to the
applicants stands explained. The applicants
are in jail since 28.02.2020 and 01.03.2020
respectively. In case, the applicants are
released on bail, they will not misuse the
liberty of bail. There is no possibility of
applicants tampering with evidence at this
stage.

For State:

17. Per contra, learned A.G.A. and
learned counsel for the informant have
vehemently opposed the bail applications
2 All. Sandeep Kumar Mishra Vs. State of U.P.
357
on the ground that the applicants have
committed the gruesome act of gang-rape
with the victim and it is not possible in the
Indian society for a women to foist false
allegation of rape. Many such offences of
sexual assault go unreported. Learned
counsels have further stated that the
prosecution witnesses of fact have been
examined
and
they
have
deposed
categorically against the applicants.

18. Learned counsels have further
stated that the delay caused in lodging the
FIR is but natural as the victim was under
acute pressure due to the Indian values to
not to reveal the said act committed with
her. The victim has been ravished out of the
lust by the applicants as she was found
alone in her room. Learned counsels have
further stated that it is an admitted fact that
the victim, informant and the applicants
were working in the same organization run
in the name of ''Janeu Kranti Abhiyan'.
Already
seven
witnesses
have
been
examined and only the statement of doctor
remains to be recorded. Learned counsels
have further stated that the supplementary
affidavit filed on behalf of the informant in
Criminal Misc. Bail Application No.32824
of 2020 categorically indicates that the
applicants are not co-operating with trial.
Even the advocate of one of the applicants
was removed and an amicus curiae was
provided to him. The applicants have got
the trial delayed on one pretext or the other.

19. Learned counsels have further
stated that as per the provisions of Section
114-A of the Indian Evidence Act, the
statement
of
the
victim
needs
no
corroboration and has to be relied. Learned
counsels have further stated that false story
of the involvement of godman Chandra
Mohan has been foisted by the applicants
just to get themselves exonerated with the
grave offences committed by them. The
offence of gang-rape is of grave nature and
the bail applications are liable to be
rejected. Although, they could not dispute
the fact that there is delay in lodging the
FIR.

CONCLUSION:

20. The Apex Court in the judgment
of Bharwada Bhoginbhai Hirjibhai vs.
State of Gujarat2, has categorically
opined that in the current non permissive
Indian society, no girl would foist a false
case of sexual assault against any person to
avoid being maligned in society.

21. Much water has flown down the
ganges since passing of the aforesaid
judgment by the Apex Court. The Indian
society has undergone a complete change
during the said period of about 40 years
and now it is more often observed that false
implication in sexual offences is on a rise.
The inordinate delay in lodging the FIR is
to be considered at the time of adjudicating
the bail.

22. Considering the facts and
circumstances of the case, submissions
made by learned counsel for the parties, the
evidence
on
record,
taking
into
consideration the inordinate delay in
lodging of the FIR by the informant and
also the fact that the trial is at its conclusive
end, and without expressing any opinion on
the merits of the case, the Court is of the
view that the applicants have made out a
case for bail. The bail applications are
allowed.

23. Let the applicants- Sandeep
Kumar Mishra and Chandan Kumar
involved in aforementioned case crime
number be released on bail on furnishing a
358 INDIAN LAW REPORTS ALLAHABAD SERIES
personal bond and two heavy sureties each
in the like amount to the satisfaction of the
court concerned subject to following
conditions.

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

(ii). The applicants will not pressurize/
intimidate the prosecution witness.

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

(iv) The applicants shall not commit
an offence similar to the offence of which
he is accused, or suspected of the
commission of which they are suspected.

(v) The applicants 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 them
from disclosing such facts to the Court or
to any police officer or tamper with the
evidence.

24. In case of breach of any of the
above conditions, it shall be a ground for
cancellation of bail. Identity, status and
residence proof of the applicants and
sureties be verified by the court concerned
before the bonds are accepted.

25. It is made clear that observations
made in granting bail to the applicants shall
not in any way affect the learned trial Judge
in forming his independent opinion based
on the testimony of the witnesses.
----------
(2023) 2 ILRA 358
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.07.2022

BEFORE

THE HON'BLE MANISH MATHUR, J.

Civil Revision No. 47 of 2022

Khawaja Moinuddin Chisti Language Univ.
& Ors. ...Revisionists
Versus
Dr. Arif Abbas & Ors. ...Respondents

Counsel for the Petitioner:
Kumar Ayush, Pritish Kumar

Counsel for the Respondents:
Farooqahmad, Syed Azizul Hasan Rizvi

A. Civil Law -Code of Civil Procedure,
1908-Section 115 - Order XXVI - Rule 9application for Issuance of commission
filed
by
plaintiff
allowed-Evidently,
application for issuance of commission to
conduct an investigation and examination
of documents although not supported by
affidavit
was
even
otherwise
not
maintainable in terms of Order XXVI, Rule
9
CPC-Such
applications
cannot
be
allowed merely for purposes of facilitating
the case of one or the other party and it is
not
the
business
of
the
Courts
to
discharge burden of evidence of either
party-Impugned order set aside .(Para 1
to 22)

The revision is allowed. (E-6)

List of Cases cited:

1. Shiv Shakti Co. Housing Scy.,Nagpur Vs M/s
Swaraj Developers & ors. (2003) AIR SCW 2445

2.
Pormusamy
Pandaram
Vs
The
Salem
Vaiyappamalai Jangamar (1986) AIR Madras 33

3. Lalit Devi & anr. Vs Bindu Bihari Verma & ors.,
Writ C No. 41940 of 2013

4. Rama Shanker Tiwari Vs Mahadeo & ors.
(1968) AWR 103

5. Aligarh Muslim Univ. Vs 7th Addl. CJM Aligarh
& anr. (1999) ALR 571

6. Parvej Akhtar & ors. Vs 4th ADJ Agra & anr.
(1993) 2 ARC 304