# Santosh Singh v. State of U.P. & Anr

- **Citation:** (2023) 12 ILRA 513
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-23
- **Case number:** Criminal Misc. Bail Cancellation Application No. 590 of 2023
- **Bench:** Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/santosh-singh-v-state-of-u-p-anr-49620
- **Pages:** 7

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 164, 173(2) & 482 -
Indian Penal Code, 1860 - Sections
376(3), 323, 504 & 506 - The Protection of
Children from Sexual Offences (POCSO)
Act, 2012 - Sections 3 & 4 - Bail
cancellation Application - for cancel the Bail of
opposite party no. 2 granted by court below -
FIR - allegations are that opposite party no. 2
enticed away the minor daughter of applicant
and committed rape with her - investigation -
514 INDIAN LAW REPORTS ALLAHABAD SERIES
Arrest - Bail Application - Bail granted - hence
the Application for cancellation of Bail - Plea
taken that, while granting Bail, court below did
not consider the St.ment of victim recorded u/s
161 & 164 CrPC and other relevant materials
available on record - Court finds that, even if
some relevant materials were not discussed, bail
should not be automatically cancelled - the bail
granting order does not suggest it was passed
on irrelevant factors, and the material appears
to have been perused - The prosecution story
appeared unconvincing, and delay in FIR, along
with the counter-FIR by opposite party no.2,
raised doubts - Moreso, there is no allegation
that accused opposite party no.2 after released
on bail is either threatening the applicant or
victim or is trying to tamper the prosecution
evidence - held, cancellation of bail requires
overwhelming and cogent circumstances and is
not to be done casually, the bail granted earlier
remained valid - Hence, the application is found
to be devoid of merit and is accordingly,
dismissed. (Para - 28, 29, 33, 34, 35, 36, 37)

Bail Cancellation Application Dismissed.
(E-11)

List of Cases cited:

## Text

12 All. Santosh Singh Vs. State of U.P. & Anr.
513
landlord and tenant; collection of rents;
transfer and alienation of agricultural land;
land improvement and agricultural loans, it
did not contain the subjects of wills,
intestacy and succession which were to be
found under Entry 5 which was a part of
List III. We also find that registration of
deeds and documents was put in Entry 6 of
the Seventh Schedule and this Entry also
found place in List III of the Constitution
of India.

12. We also find that though the
provisions of section 49 of the Registration
Act were not applicable on 23.8.2004 with
regard to a registered will generally but the
bringing in of the provision of registration
of a will by the amendment of the U.P.
Zamindari Abolition and Land Reforms
Act would definitely bring into play the
effects of non-registration of a document
which was required to be compulsory
registered
under
Section
49
of
the
Registration Act.

13. It, therefore, becomes imperative
for us to first look into the question of
legislative competence of the State in
incorporating a provision which we find to
be prima facie repugnant to the provisions
as contained under central Act, namely,
Registration Act, 1908 in the absence of
Presidential assent to the Amendment Act
No.- 27 of 2004.

14. In the circumstances, it becomes
necessary to hear the State on the issue
before we further proceed to examine the
question framed by us in this reference, and
hence we request the learned Advocate
General to argue on behalf of the State on
the next date.

15. Sri Ankur Tandon, learned
Standing Counsel who is present today in
the Court, is directed to accept notices in
this Case on behalf of the State.

16. List this case before this Bench on
11th December, 2023.

17. Registrar (Compliance) shall do
the
needful
in
the
matter
for
communicating this order to the learned
Advocate General, Uttar Pradesh. He shall
also provide a copy of this order along with
the complete set of the paper-book to Sri
Ankur Tandon who would in his turn
provide the same to the learned Advocate
General.
----------
(2023) 12 ILRA 513
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.11.2023

BEFORE

THE HON'BLE SAMEER JAIN, J.

Criminal Misc. Bail Cancellation Application No.
590 of 2023

Santosh Singh ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Manu Sharma, Sri Shiv Shankar Singh

Counsel for the Opposite Parties:
G.A., Sri Rajkumar Verma

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 164, 173(2) & 482 -
Indian Penal Code, 1860 - Sections
376(3), 323, 504 & 506 - The Protection of
Children from Sexual Offences (POCSO)
Act, 2012 - Sections 3 & 4 - Bail
cancellation Application - for cancel the Bail of
opposite party no. 2 granted by court below -
FIR - allegations are that opposite party no. 2
enticed away the minor daughter of applicant
and committed rape with her - investigation -
514 INDIAN LAW REPORTS ALLAHABAD SERIES
Arrest - Bail Application - Bail granted - hence
the Application for cancellation of Bail - Plea
taken that, while granting Bail, court below did
not consider the St.ment of victim recorded u/s
161 & 164 CrPC and other relevant materials
available on record - Court finds that, even if
some relevant materials were not discussed, bail
should not be automatically cancelled - the bail
granting order does not suggest it was passed
on irrelevant factors, and the material appears
to have been perused - The prosecution story
appeared unconvincing, and delay in FIR, along
with the counter-FIR by opposite party no.2,
raised doubts - Moreso, there is no allegation
that accused opposite party no.2 after released
on bail is either threatening the applicant or
victim or is trying to tamper the prosecution
evidence - held, cancellation of bail requires
overwhelming and cogent circumstances and is
not to be done casually, the bail granted earlier
remained valid - Hence, the application is found
to be devoid of merit and is accordingly,
dismissed. (Para - 28, 29, 33, 34, 35, 36, 37)

Bail Cancellation Application Dismissed.
(E-11)

List of Cases cited:

1. Myakala Dharmarajam & ors. Vs The St. of
Telangana & anr. dated 07.01.2020 passed in
Criminal Appeal No. 1974-1975 of 2019,

2. Vipan Kumar Dhir Vs St. of Pun. & anr., (2021) 15
SCC 518,

3. U.O.I. Vs K.A.Najib, AIR 2021 SC 12,

4.
Satender
Kumar
Antil
Vs
C.B.I.
&
ors.
(Manu/SC/0851/2022),

(Delivered by Hon'ble Sameer Jain, J.)

1. Counter affidavit filed on behalf of
opposite party no.2 is taken on record.

2. Learned counsel for the applicant does
not propose to file any rejoinder affidavit.

3. Heard Sri Manu Sharma, learned
counsel for the applicant, Shri Suresh
Bahadur Singh, learned AGA for the State
and Sri Kamaldev Rai, Advocate holding
brief of Sri Rajkumar Verma, learned
counsel for opposite party no.2.

4. The instant bail cancellation
application has been filed on behalf of the
applicant with the prayer to cancel the bail
of opposite party no.2 already granted by
court concerned vide order dated 30.8.2023
in Case Crime No.225 of 2023, under
Sections 376(3), 323, 504 and 506 IPC and
Section 3/4 POCSO Act, Police Station
Khaga, District Fatehpur.

BRIEF FACTS:

5. FIR of the present case was lodged by
the applicant against opposite party no.2 on
17.6.2023 and according to the FIR, on
10.6.2023 at about 5.00 PM in the evening
opposite party no.2 enticed away the daughter
of applicant aged about 14 years and next day
in the morning at about 5.30 AM informant i.e.
applicant
received
a
phone
call
from
neghbouring village Gopalpur that his daughter
is in the village Gopalpur and thereafter
daughter of the informant, i.e., applicant has
taken to the Police Station and on the way his
daughter informed that opposite party no.2
abducted her and in the jungle he committed
rape with her throughout the night.

6. After registration of the FIR,
investigation was commenced and during
investigation opposite party no.2 was
arrested and thereafter he applied for bail
before the court concerned. On 30.8.2023
the court concerned granted bail to him.

7. Hence,the instant bail cancellation
application.

CONTENTION
RAISED
ON
BEHALF OF THE APPLICANT.
12 All. Santosh Singh Vs. State of U.P. & Anr.
515

8. Learned counsel for the applicant
submits that applicant is the informant of
the case and court concerned granted bail to
opposite party no.2 in heinous crime like
rape.

9. He further submits that daughter of
the applicant was a child below 18 years of
age and she in her both the statements
recorded under Sections 161 Cr.P.C. and
164 Cr.P.C. categorically stated that
opposite party no.2 committed rape with
her but in spite of that court concerned
enlarged the opposite party no.2 on bail.

10. He further submits that from the
perusal of bail granting order dated
30.8.2023 it appears that while granting
bail to opposite party no.2 the court
concerned did not even consider the
statements of the victim recorded under
Sections 161 Cr.P.C. and 164 Cr.P.C.

11. He further submits that from the
perusal of the medical report of the victim,
it appears that she sustained abrasion on
left cheek and on both hands and Doctor
also opined that there are signs of use of
force but the court concerned also did not
consider the medical report of the victim
and released the opposite party no.2 on
bail.

12. He further submits that bail
granting order dated 30.8.2023 passed by
the court concerned is based on irrelevant
facts and court concerned did not consider
relevant materials available on record.

13. He further submits that the court
concerned wrongly interpreted the judgments
of the Supreme Court in the cases of Union
of India Vs. K.A.Najib, AIR 2021 SC 12
and Satender Kumar Antil Vs. Central
Bureau
of
Investigation
and
others
(Manu/SC/0851/2022).

14. He further submits that in both these
cases the Apex Court never opined that in
serious offences like rape even without
considering the statements of the victim
recorded during investigation and without
considering her medical report, bail should be
granted.

15. He further submits that considering
the seriousness of allegation made against
opposite party no.2 and non-consideration of
relevant material available on record, bail
granted to opposite party no. 2 should be
cancelled.

SUBMISSIONS
MADE
ON
BEHALF OF THE STATE:

16. Learned AGA appearing on behalf
of the State also submitted that it is a case of
rape upon the minor girl, who was child
under the provisions of POCSO Act and she
in her both the statements recorded under
Sections 161 Cr.P.C. and 164 Cr.P.C. stated
that opposite party no.2 committed rape with
her and the Doctor also noted the sign of use
of force, therefore, bail granted to opposite
party no.2 should be cancelled.

CONTENTIONS RAISED ON
BEHALF
OF
OPPOSITE
PARTY
NO.2/ACCUSED:

17. Learned counsel for the opposite
party
no.2
opposed
the
prayer
for
cancellation of bail and submitted that bail
granting order dated 30.8.2023 passed by
the court concerned is a well reasoned
order and after considering all aspects of
the case, bail was granted to opposite party
no.2.
516 INDIAN LAW REPORTS ALLAHABAD SERIES

18. He further submits that however,
the court concerned did not discuss the
statements of the victim recorded under
Sections 161 Cr.P.C. and 164 Cr.P.C. but
from the perusal of the bail granting order
it appears that the court concerned after
discussion found that the prosecution story
does not appear to be convincing therefore,
court concerned did not discuss the
statements of the victim recorded during
investigation as even its discussion would
hardly affect the bail granting order dated
30.8.2023.

19. He further submits that FIR of the
present case was lodged after seven days on
17.6.2023 on the application of applicant
dated 13.6.2023 and on 10.6.2023 applicant
and others assaulted the opposite party no.2
at about 5.00 PM in the evening and in this
regard on 12.6.2023 opposite party no.2
himself lodged FIR against the applicant
and others at Police Station Khaga, District
Fatehpur vide Case Crime No.215 of 2023
and as soon as applicant came to know
about the FIR dated 12.6.2023 lodged by
opposite
party
no.2
then
next
day,i.e.,13.6.2023 he moved an application
against opposite party no.2 with the
allegation of rape committed by him upon
his daughter and this fact clearly suggests
that on the basis of false allegation of rape
opposite party no.2 was made accused in
the present case therefore, court concerned
rightly granted bail to opposite party no.2.

20. He further submits that from the
perusal of the bail granting order dated
30.8.2023 it appears that after considering the
evidence collected by Investigating Officer
during investigation court concerned granted
bail therefore, it cannot be said that while
granting bail to opposite party no.2 court
concerned failed to consider the material
available on record.

21. He further submits that bail granted
to the accused should be very rarely cancelled
and for cancellation of bail very strong
reasons must be available on record.

22. He further submits that there is no
allegation against opposite party no.2 that
after released on bail he either in any manner
is pressurizing the applicant or victim i.e. his
daughter or is trying to tampering with the
prosecution evidence.

23. He further submits that in the
present matter after investigation charge sheet
has already been submitted.

24. He further submits that instant bail
cancellation application is devoid of merit
and is, therefore, should be dismissed.

ANALYSIS:

25. This is the bail cancellation
application filed by the informant of the case
(applicant) for cancellation of bail granted by
court concerned to the accused i.e. opposite
party no.2 vide order dated 30.8.2023.

26. The main contention raised on
behalf of the applicant and the learned
AGA is that while granting bail to opposite
party no.2 court concerned failed to even
consider the statements of the victim
recorded under Sections 161 Cr.P.C. and
164 Cr.P.C. They further submitted that
even during medical examination Doctor
noticed abrasion on the cheek and hands of
the victim and Doctor also opined that there
are signs of use of force and this aspect was
also not considered by the court concerned.

27. The Apex Court in the case of
Vipan Kumar Dhir Vs. State of Punjab
and another, (2021) 15 SCC 518 observed
that the bail can be revoked where court
12 All. Santosh Singh Vs. State of U.P. & Anr.
517
concerned while granting bail considered
irrelevant factors or has ignored relevant
materials available on record.

28. In case at hand, after perusing the
bail granting order dated 30.8.2023 passed
by the court concerned it cannot be said
that
on
irrelevant
factors
the
court
concerned granted bail to opposite party
no.2. However, it reflects that while
granting bail the statements of victim
recorded during investigation and her
medical report could not be discussed but
in my view even if some relevant materials
available
on
record
could
not
be
discussed/considered while granting bail to
the accused then also on this ground bail
granted to the accused should not be
automatically
cancelled
and
for
cancellation of bail it is necessary to
consider the effect of non consideration of
material available on record.

29. In the present matter, no doubt
victim in her both the statements recorded
during investigation stated against opposite
party no.2 but from the perusal of the bail
granting order dated 30.8.2023 it appears
that even the Investigating Officer raised
doubts on the story narrated by the victim
and the informant and court concerned also
considered the fact that FIR of the present
case was lodged after seven days and,
therefore, even if the court concerned failed
to consider the statements of the victim
recorded during investigation then also it
cannot be said that opposite party no. 2 was
not entitled to be enlarged on bail.

30. Further, however, the court
concerned also did not discuss the fact that
at the time of medical examination
abrasions were found on the cheek and
hands of the victim and Doctor also opined,
there are signs of use of force but from the
perusal of the medical report of the victim
it appears that victim was medically
examined on 19.6.2023, i.e., after nine days
of the alleged rape and, therefore, merely
on the basis of abrasions noted by the
Doctor at the time of her medical
examination it cannot be said that these
abrasions were sustained during alleged
rape as she might have sustained these
minor/small abrasions even subsequently in
some other manner.

31. Further, no doubt in bail granting
order the court concerned did not discuss
the material available on record including
statements of victim and her medical report
but from the bail granting order it reflects
that the entire material was perused before
granting bail.

32. The Apex Court in case of
Myakala Dharmarajam & others Vs.
The State of Telangana & Another dated
07.01.2020 passed in Criminal Appeal No.
1974-1975 of 2019 arising out from SLP
(Crl.) Nos. 8882-8883 of 2019 also
observed as:-

""9. Having perused the law laid
down by this Court on the scope of the
power to be exercised in the matter of
cancellation of bails, it is necessary to
examine whether the order passed by the
Sessions Court granting bail is perverse
and suffers from infirmities which has
resulted in the miscarriage of justice. No
doubt, the Sessions Court did not discuss
the material on record in detail, but there is
an indication from the orders by which bail
was granted that the entire material was
perused before grant of bail. It is not the
case of either the complainant-Respondent
No.2
or
the
State
that
irrelevant
considerations
have
been
taken
into
account by the Sessions Court while
518 INDIAN LAW REPORTS ALLAHABAD SERIES
granting bail to the Appellants. The order
of the Sessions Court by which the bail was
granted to the Appellants cannot be termed
as perverse as the Sessions Court was
conscious of the fact that the investigation
was completed and there was no likelihood
of the Appellant tampering with the
evidence."

33. Further, in the case at hand,
apart from the fact that in view of the
court
concerned
prosecution
story
appears to be unconvincing the another
aspect is that FIR of the present case was
lodged
after
seven
days
on
the
application moved by applicant dated
13.6.2023
and
a day before, i..e,
12.6.2023 opposite party no.2 had
lodged an FIR against him and others
and, therefore, possibility at this stage
cannot be ruled out that due to this
enmity next day applicant moved an
application for lodging of the FIR
against opposite party no.2.

34. Further, from the perusal of the
FIR of the present case dated 17.6.2023
it reflects that opposite party no.2 had
taken the victim on 10.6.2023 at about
5.00 PM and according to the FIR,
lodged by opposite party no.2 against the
applicant dated 12.6.2023, on 10.6.2023
at about 5.00 PM in the evening
applicant and others assaulted him,
therefore, time and date of incident
alleged by opposite party no.2 in his FIR
and time and date of enticement alleged
to have been made by opposite party
no.2 in the FIR of the present cae are
same and, therefore, at this stage it is not
possible to ascertain whose FIR and
allegation is correct and this fact can
only be properly ascertained by the trial
court during trial therefore, from this
angle too opposite party no. 2 appears to
be entitled for bail.

35. Personal liberty of a person is
the most cherished fundamental right
provided under the Constitution of India
and personal liberty of a person should
not be easily curtailed and for curtailment
of personal liberty very cogent and
overwhelming
circumstances
are
necessary. The law with regard to
cancellation of bail is also settled that it
is easy to reject a bail application but it is
very difficult to cancel the bail already
granted and for cancellation of bail very
overwhelming and cogent circumstances
are necessary. In case of cancellation of
bail the court has to extinguish the
personal liberty which has been earlier
granted and therefore, the court in casual
manner without in depth examination of
the facts and circumstances of the case,
can not allow such application for
cancellation of bail. While dealing with
the bail cancellation application the Court
must be circumspect in cancelling the bail
already granted.

36. Further, there is no allegation that
opposite party no.2 after released on bail is
either threatening the applicant or victim or is
trying to tamper the prosecution evidence.

37. Therefore, from the discussed above,
in my view, the instant bail cancellation
application is devoid of merit and is,
accordingly, dismissed.

38. It is clarified that the observations
made herein are limited to the facts brought
in by the parties pertaining to the disposal
of bail cancellation application and the said
observations shall have no bearing on the
merits of the case during trial.

----------
12 All. Ashish Kumar @ Rinku Vs. State of U.P. & Ors.
519
(2023) 12 ILRA 519
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.11.2023

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Criminal Misc. Anticipatory Bail Application U/S
438 CR.P.C. No. 12759 of 2023

Ashish Kumar @ Rinku ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Ashwini Kumar Ojha

Counsel for the Opposite Party:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 82, 83, 156(3), 438 &
482 - Indian Penal Code, 1860 - Sections
498-A & 304-B - Dowry Prohibition
Act,1961 - Sections 3 & 4 - Anticipatory
Bail Application - seeking protection from arrest
- FIR - the informant alleged that his daughter
was subjected to cruelty and dowry demands,
eventually set ablaze, leading to her death -
the applicant argued that the dying declaration
St.d the burns were accidental, he sustained
8% burns trying to save her, and the FIR was
delayed without explanation - He also claimed
malicious prosecution and irregularities in
investigation, including non-consideration of
the dying declaration - Court finds that, the
case appeared to involve blatant misuse of
dowry laws and false implication, noted that
the informant was a Panch witness yet did not
name the applicant in the inquest, and found
merit
in
granting
anticipatory
bail
-
consequently, anticipatory bail was allowed -
with specific conditions ensuring cooperation in
the trial and no tampering with evidence,
making it clear that these observations made in
granting anticipatory bail to the applicant shall
not in any way affect the merits of the trial -
Accordingly, Bail Application is allowed.(Para -
13, 14, 15, 16)
Application allowed. (E-11)

List of Cases cited:

Shivam Vs St. of U.P. & anr., reported in AIR
Online 2021 All 484.

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

1. List has been revised.

2. Heard Sri Ashwini Kumar Ojha,
learned counsel for the applicant and Sri
Pranshu Kumar, learned A.G.A. for the
State and also perused the record.

3. The present anticipatory bail
application has been filed on behalf of the
applicant in F.I.R./Case Crime No. 1053 of
2007, under Sections 498-A, 304-B of IPC
and Sections 3/4 of Dowry Prohibition Act,
Police Station - Prem Nagar, District -
Jhansi, with a prayer to enlarge him on
anticipatory bail.

PROSECUTION STORY:-

4. Brief facts of the case in a nutshell
are that the marriage of the daughter of the
informant was solemnized with the applicant
as per Hindu Rites on 10.12.2005. The
applicant and other family members are
stated to have subjected her to cruelty for a
demand of dowry. It is also alleged in the FIR
that the electronic shop of the applicant got
closed due to loss, as such, he is stated to
have demanded an amount of Rs.50,000/- for
business as dowry. The inability of the
informant to provide them with Rs.50,000/-
again impelled them to start committing
cruelty to her and are even stated to have
threatened the deceased that they shall kill her
by sprinkling kerosene oil over her.

5. On 10.04.2007 at about 06:00 PM,
the applicant and other family members are