# Smt. Anita Sharma & Anr v. State of U.P. & Anr

- **Citation:** (2021) 9 ILRA 295
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-12
- **Case number:** Crl. Misc. Anticipatory Bail Application No. 9323 of 2021
- **Bench:** Arvind Kumar Mishra - I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-anita-sharma-anr-v-state-of-u-p-anr-47572
- **Pages:** 6

## Headnote

A.G.A., Sri Amit Daga, Sri Namman Raj
Vanshi, Sri Onkar Singh, Sri Sachin Malik,
Sri Vipul Shukla

A.
Anticipatory
Bail
-
The
Court
rejected the anticipatory bail application
on finding that offence committed prima
facie is found to be intentional, for the
reason that the first information report
contains specially the very cell phone
number by which the victim/ deceased
was called at the house of the applicant
where he was beaten as a result of which
he sustained injuries, and 'septicemia'
developed
during
the
course
of
the
treatment. At last, he succumbed to his
injuries. 'Septicemia' has direct nexus
with the injury caused to the deceased.
(Para 20-22)

Bail Application Rejected. (E-10)

List of Cases cited:

## Text

9 All. Smt. Anita Sharma & Anr. Vs. State of U.P. & Anr.
295
its meaning. Little girls are worshiped in
our country, but the cases of pedophilia are
increasing. Rape is a heinous crime. The
victim suffers from psychological effects of
embarrassment, disgust, depression, guilt
and even suicidal tendencies. Many cases
go unreported. In almost rape cases, the
victim was unwilling to report the name of
the abuser. The families of the victim
remain silent about the sexual offences in
order to protect the family image. The
victim/female
small
child
experience
sexual abuse once tend to be more
vulnerable to abuse in adult life. Healing is
slow and systematic. In such a situation, if
the right decision is not taken from the
Court at the right time, then the trust of a
victim/common man will not be left in the
judicial system. This is the time to strictly
stop this kind of crime.

10. Considering the facts and
circumstances of the case, submissions
advanced on behalf of parties, gravity of
the offence and severity of the punishment,
I do not find any good ground to grant bail
to the applicant.

11. Accordingly, the bail application
is rejected.

12. However, it is clarified that the
observation, if any, made here-in above
shall be strictly confined to the disposal of
the bail application and must not be
construed to have any reflection on the
ultimate merits of the case.

13. Office is directed to send a copy
of this order to the informant of this case
within two weeks.

14. It is directed that in case, certified
copy of this order is not issued due to
COVID-19 pandemic, the copy of the order
downloaded from the official website of the
Allahabad High Court shall be acted upon.
----------
(2021)09ILR A295
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.08.2021

BEFORE

THE HON'BLE ARVIND KUMAR MISHRA - I, J.

Crl. Misc. Anticipatory Bail Application No. 9323
of 2021

Smt. Anita Sharma & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Rajesh Mishra, Sri Akhilesh Chandra
Shukla

Counsel for the Opposite Parties:
A.G.A., Sri Amit Daga, Sri Namman Raj
Vanshi, Sri Onkar Singh, Sri Sachin Malik,
Sri Vipul Shukla

A.
Anticipatory
Bail
-
The
Court
rejected the anticipatory bail application
on finding that offence committed prima
facie is found to be intentional, for the
reason that the first information report
contains specially the very cell phone
number by which the victim/ deceased
was called at the house of the applicant
where he was beaten as a result of which
he sustained injuries, and 'septicemia'
developed
during
the
course
of
the
treatment. At last, he succumbed to his
injuries. 'Septicemia' has direct nexus
with the injury caused to the deceased.
(Para 20-22)

Bail Application Rejected. (E-10)

List of Cases cited:

1. St. of Telangana Vs Habib Abdullah Jeelani
(2017) 2 SCC 779
296 INDIAN LAW REPORTS ALLAHABAD SERIES
2. M/s Neeharika Infrastructure Pvt. Ltd. Vs St.
of Mah. & ors. LL 2021 SC 211

(Delivered by Hon'ble Arvind Kumar
Mishra - I, J.)

1. Learned counsel for the applicants
does not want to press this application in
respect of applicant no.2- Devesh Dixit
because he is minor aged about six years.
Therefore, his anticipatory bail application
may be dismissed as not pressed.

2.

Accordingly,
this
Criminal
Miscellaneous
Anticipatory
Bail
Application in respect of applicant no.2-
Devesh Dixit is dismissed as not pressed.

3. Heard Sri. Akhilesh Chandra
Shukla, learned counsel for the applicant
no.1- Smt. Anita Sharma, Sri Amit Daga
and Sri Namman Raj Vanshi, learned
counsels for the informant, learned A.G.A.
for the State and perused the record.

4. This anticipatory bail application
has been filed on behalf of the applicant
no.1 - Smt. Anita Sharma, seeking
anticipatory bail in Case Crime No.30 of
2021, under Sections - 147, 148, 302, 504,
506, 394 I.P.C., Police Station - Paratapur,
District - Meerut, during the pendency of
trial.

5. At the outset, objection was raised
by Sri Amit Daga, learned counsel for the
informant that the present case is barred by
Section ? 438 (6) Cr.P.C. as the offence
inter-alia, is under Section ? 302 I.P.C.,
therefore, it is not cognizable by this Court.

6. At this stage, learned counsel for
the applicant has submitted that he has filed
supplementary affidavit but the same is not
on record, however, office copy of
supplementary affidavit dated 29.06.2021
supplied in Court is taken on record.
Learned A.G.A. assented to the receipt of
the supplementary affidavit given by the
counsel for the applicant.

7. Learned counsel for the applicant
has placed reliance on the observation of
the division Bench of this Court in
Criminal Misc. Writ petition No. 3194 of
2021, copy whereof is at Page Nos. 8 and 9
in the supplementary affidavit, wherein the
prayer
for
quashment
of
the
first
information
report
was
refused
on
12.05.2021. However, certain observation
was made in the last paragraph of the
aforesaid order that the deceased died out
of 'septicemia', therefore, prima facie
provisions of Section 302 I.P.C. will not be
attracted in this case, whereas, Section -
304 I.P.C. Hence, the bar in filing
anticipatory bail application would not
come in the way of the petitioner-applicant
and it may be treated to be a case under
Section - 304 I.P.C. That being the
position, this anticipatory bail application,
apart from its merit, just for the sake of
aforesaid observation be entertained, as
such. Now, the merit of this claim is to be
gone into at this stage.

8. Before proceeding further in this
case, it would be relevant to take note of
the fact (as alleged in the F.I.R.) - the very
genesis of the F.I.R. registered against the
applicant. Bare perusal of the F.I.R. itself is
reflective of fact that as per the version
contained in the first information report, a
call was given to the informant on the cell
phone no.9997699155 on 12.01.2021 at
about 3:00 a.m. by accused Dr. Pradeep son
of
Beg
Raj
by
his
cell
phone
no.9358672920, the informant (father of
the victim-Akash) reached the house of the
applicant, whereupon he saw Dr. Pradeep
9 All. Smt. Anita Sharma & Anr. Vs. State of U.P. & Anr.
297
and his wife and his son assaulting Vikas
alias Akash aged about 18 years by lathi,
danda and iron rod. Apart from that, they
were also abusing him. The informant
rushed to the spot and tried to save his son.
When the informant asked to know about
the matter, then he too was abused and
threatened by the accused persons. The
informant took his son to the hospital
whose condition was serious. It has been
alleged in the F.I.R. that the treatment is
underway but the injured is serious. As per
the version contained in the F.I.R., it
appears that the informant Richhpal son of
Ram Sharan handed over the report to the
police on 13.01.2021, whereupon the F.I.R.
was registered at Case Crime No. 30 of
2021, under Sections ? 323, 504, 307, 352,
506, 325 I.P.C. on 16.01.2021. Lastly, the
injured died on 29.01.2021, therefore,
Sections - 302 and 394 I.P.C. were added
against the accused during investigation.

9. Learned counsel for the applicant
has placed reliance on the statement of the
informant, which has been brought on
record, copy whereof is annexed as
Annexure No. S.A.-2 to the supplementary
affidavit filed in support of this application
and claimed that the prosecution story has
been changed, therefore, the same is full of
embelishment and improved one.

10. Now, insofar as the observation of
the Hon'ble Division Bench of this Court is
concerned as above, it is noticeable that
there is no such direction that in all
eventualities, the application should and
must be treated to be the one under Section
? 304 I.P.C. but insofar as the facts of this
case and the contents of the F.I.R. are
concerned, there is no denial of fact that the
deceased was called on the cell phone by
one of the accused, Dr. Pradeep - the
husband of the applicant by using his
mobile.

11. Submission of learned counsel for
the applicant is to the ambit that the first
information report lodged against the
applicant
on
16.01.2021
is
belated,
whereas, the incident took place at 3:00
a.m. on 12.01.2021, therefore, the first
information report itself speaks about high
deliberation between the police and the
informant. Further learned counsel for the
applicant claimed that assuming it to be
that the deceased came to the house of the
applicant to commit robbery and in such
situation the right to private defence can be
exercised by the applicant, which she in
fact did. No point that death of the victim
was ever intended. Insofar as the allegation
contained in the first information report is
concerned, there is whisper of the applicant
being present at her home. If the F.I.R. is
believed to be true, then the statement of
the informant recorded under Section ? 161
Cr.P.C. becomes different version of the
incident, wherein other persons are also
involved in the commission of the crime.
The emphasis was laid that the deceased
entered into the house of the applicant at
3:00 a.m. with the intention to commit
robbery and that way right to private
defence accrued and exercised, otherwise
there was no motive to commit the offence
as such, either to cause any fatal injury to
the deceased or to intend his death. There is
no injury report of the sort, as such.

12. Per contra, opposing the aforesaid
contention of the learned counsel for the
applicant, Sri Amit Daga, learned counsel
for the informant reiterated his stand raised
in
the
form
of
objection
that
the
anticipatory
bail
application
is
not
maintainable. Further, he submitted that so
far as the observation of the division Bench
298 INDIAN LAW REPORTS ALLAHABAD SERIES
of this Court regarding death caused by
'septicemia' is concerned, the same does
not, out and out, reject allegation of the
F.I.R.
and
does
not
negate
the
circumstances and facts of this case, which
spell out and bring this case within the
purview of Section ? 302 I.P.C., therefore,
the bar raised under Section ? 438 (6)
Cr.P.C. is very much applicable to this
case.

13. Learned A.G.A. has contended
that time and again the victim was asked to
give statement but he was not in fit
physical condition to make any statement
which also goes to prove severity and
magnitude of hard beating given to the
victim by the applicant and the inmates of
her family.

14. Also considered the rival
submissions and perused the record.

15. Bare perusal of the material
available on record shows that the incident
in question took place on 12.01.2021 at
3:00 a.m., whereas, the deceased was taken
to the hospital by the informant, where he
was given treatment and after few days, he
died on 29.01.2021. The post mortem
examination was conducted the very same
day. In the post mortem examination
report, injury in the form of abrasion admeasuring 4 cm x 1.5 cm present on the left
side of parietal skull and it was stated to be
old one and the cause of death was shown
to be 'septicemia'.

16. Now, the point of injury being
caused cannot be scrutinized vastly on its
merit, however, it is obvious that call was
given by the cell phone of the applicant's
husband, only when the deceased came to
the house of the applicant. Then, how can it
be claimed that the deceased entered into
the house of the applicant for committing
robbery when he was called by one of the
co-accused by using cell phone. However,
the death is admittedly caused due to
'septicemia' as shown in the post mortem
examination report but that particular
aspect needs to be scrutinized by the trial
court concerned itself while the applicant
faces trial, for the specific reason that the
seat of assault was on the left skull of the
deceased.

17. At this stage to opine that this
case is not covered under Section- 302
I.P.C. would be an oversight as the entire
merit of the case cannot be scanned by this
Court. The jurisdiction of this Court is
confined only to the extent of scrutiny
within the four corners of Section - 438
Cr.P.C. and not beyond that. Bare perusal
of the F.I.R., the attendant facts and
circumstances of the case and the statement
on record should alone be taken into
account. The assault was allegedly caused
on the left parietal skull and the deceased
was called by using the cell phone of the
husband of the applicant. Admittedly, it is
not a case that the applicant-wife of Dr.
Pradeep was not present inside the house at
that point of time, when the incident
occurred.

18. Insofar as the facts of this case are
concerned, in the light of various citations
namely the State of Telangana Vs. Habib
Abdullah Jeelani (2017) 2 SCC 779 and
M/s Neeharika Infrastructure Pvt. Ltd. Vs.
State of Maharashtra and others, LL 2021
SC 211 and considering the provisions of
Section 438 Cr.P.C. as recently amended
by the State of U.P., it can be assumed that
in this case, the incident took place on
12.01.2021, whereas, the first information
report was lodged against the applicant on
16.01.2021 alleging therein that the victim
9 All. Smt. Anita Sharma & Anr. Vs. State of U.P. & Anr.
299
was allegedly assaulted / beaten by three
accused including the applicant and the
victim remained under treatment for about
10 to 17 days, lastly the victim succumbed
to his injury on 29.01.2021, as septicemia
was said to be the cause of death in the post
mortem examination report.

19. In the wake of the aforesaid fact
position, the argument advanced on behalf
of the applicant to the extent that this case
would not be covered under Section 302
I.P.C. but at the most - the entire act
alleged when taken together as a whole
under facts and circumstances of the case,
would amount to commission of culpable
homicide not amounting to murder as
defined under Section 299 I.P.C. and
punishable under Section 304 I.P.C. Insofar
as that argument and the contention is
concerned, this Court is of the opinion that
advantage should go to the applicant only
for the purpose of disposal of this
application under Section 438 Cr.P.C. and
nothing more, though this observation
should not come in the way of the trial
court or the lower court concerned which
would be dealing with the offence and
vested with the jurisdiction to try the case
and it would not be binding on the trial
court as such. Therefore, for the sake of the
above argument, this application is deemed
to be entertained for offence under Section
304 I.P.C., as such maintainable.

20. Now the point is whether this
development
from
12.01.2021
to
29.01.2021
would
itself
entitle
the
applicant to interim protection under
Section - 438 Cr.P.C.. In that regard, after
considering the case from viewpoint of
Section 438 Cr.P.C. as amended by U.P.
Amendment Act, 2018 (U.P. Act 4 of
2019) it can be said that the act of the
applicant was intentional. In that regard
though I would not explore merits of the
case at this stage but the offence
committed prima facie is found to be
intentional, for the reason that the first
information report contains specifically
the very cell phone number by which the
victim / deceased was called at the house
of the applicant where he was beaten as a
result of which he sustained injuries, and
'septicemia' developed during course of
the treatment and lastly he succumbed to
his injury. Can 'septicemia' caused here be
treated to be extraneous to the act of
causing assault by the applicant. Certainly,
the answer is in the negative.

21. Thus, 'septicemia' has direct
nexus with the injury caused to the
deceased.

22. In view of the above fact
situation, I do not find it a fit case for
leniency being shown to the applicant
because the entire application is silent on
the point of denial of fact, whether the
mobile cell phone as the one shown to
have been used for calling the victim /
deceased at the place of occurrence /
house of the applicant was not used, as
such.

23. In view of the discussion made
herein above, the prayer for anticipatory
bail is refused. Accordingly, the instant
anticipatory bail application is devoid of
force, and the same is dismissed.

24. It is made clear that observation
made in this order shall have no bearing on
the merits of the case and the same is
confined to the disposal of this application
and the trial court will not be prejudiced by
the same while deciding the case on its
merit
or
hearing
the
case
on
charge/discharge.
300 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2021)09ILR A300
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.08.2021

BEFORE

THE HON'BLE SAMIT GOPAL, J.

Crl. Misc. Bail Application No. 28763 of 2021

Sher Ali ...Applicant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Zia Uddin Ahmad, Ms. Tanisha Jahangir
Monir

Counsel for the Opposite Party:
A.G.A.

A. Bail - The Court rejected the bail
application of the applicant who was in a
police force, a pious duty of maintaining law
and order and protecting citizens, on
account of facing trial of committing
custodial torture and death. (Para 19)

Bail Application Rejected. (E-10)

List of Cases cited:

1. D.K. Basu Vs St of W.B. (1997) 1 SCC 416
(followed)

2. Shakila Abdul Gafar Khan Vs Vasant Raghunath
Dhoble & anr. (2003) 7 SCC 749 (followed)

(Delivered by Hon'ble Samit Gopal, J.)

1. Heard Sri Zia Uddin Ahmad, learned
counsel for the applicant and Sri Sanjay
Kumar Singh, learned AGA for the State and
perused the material on record.

2. This bail application under Section
439 of Code of Criminal Procedure has been
filed by the applicant Sher Ali, seeking
enlargement on bail during trial in connection
with Case Crime No. C-37 of 1997, under
Sections 364, 304, 506 IPC, registered at
Police Station Phoolpur, District Varanasi.

3. The prosecution case as per the First
Information Report registered by Sanjay
Kumar Gupta the son of the deceased
Gokrakhnath @ Om Prakash Gupta against
Shankhdhar Dwivedi Sub-Inspector, Sher
Ali, Digvijay Pandey, Jagat Singh, R. Rajan,
Suresh Prasad Agarwal, Mahesh Chandra
Agarwal and one unknown person of Kumar
Guest House, Lanka, Varanasi and some
other persons on 28.02.1997 at about 04:00
AM is as follows:-

(i) On 27.02.1997 at about 07:00
PM, one person whose name is not known
but can be identified by the first informant
and lives in Kumar Guest House, Lanka,
Varanasi who if appears can be identified
along with Mahesh Chandra Agarwal the
brother of a transporter Suresh Prasad
Agarwal of Shahdol, Madhya Pradesh
came to the house of the first informant and
inquired about his father to which he stated
that his father will come in the night. On
asking about the work the said person
replied that he has to place an order for
bricks.

(ii) On 28.02.1997 at about 04:00
AM, the same person of Kumar Guest
House came along with Shankhdhar
Dwivedi Sub-Inspector, Police Station
Kotwali, District Shahdol, Madhya Pradesh
and the police personnels of the said Police
Station namely Sher Ali (the present
applicant), Digvijay Pandey, Jagat Singh
along with the transporter of Shahdol
Suresh Prasad Agarwal
and Mahesh
Chandra Agarwal and some unknown
persons in three vehicles being a Maruti
Van No. M.P. 20A 9700, a Commander