# Sohit Kumar & Ors v. State of U.P. & Anr. Opp.Parties

- **Citation:** (2023) 3 ILRA 814
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-06
- **Case number:** Crl. Misc. Anticipatory Bail Application No. 10958 of 2022
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sohit-kumar-ors-v-state-of-u-p-anr-opp-parties-49847
- **Pages:** 10

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure,
1973
-
Section
438
-
anticipatory bail - Indian Penal Code,
1860 - Sections 323, 325, 354, 452, 504 &
506 , The Schedule Castes And The
Schedule Tribes (Prevention of Atrocities )
Act , 1989 - Section Section 3(2)(V)a,
3(1)r , 3(1)s , 18, 18A - Anticipatory bail in
a crime where an offence under SC/ST Act
is alleged can be granted only if the Court
is satisfied that the allegations levelled do
not prima facie make out a case under
SC/ST Act - a person against whom a
warrant
has
been
issued
and,
is
absconding or concealing himself in order
to avoid execution of warrants, is not
entitled to the relief of anticipatory
bail.(Para - 12,17)

Sudden fight between persons of two groups -
caste indicative words used
knowingly
-
applicants not available for interrogation and
investigation - applicants are avoiding to face
trial - non-bailable warrants were issued against
them. (Para -7,17)

HELD:-Offence under SC/ST Act made out
against the applicants . A person against whom
a warrant has been issued and, is absconding or
concealing himself in order to avoid execution of
warrants, is not entitled to the relief of
anticipatory bail. (Para -17)

Anticipatory bail application rejected. (E-7)

List of Cases cited:

## Text

814 INDIAN LAW REPORTS ALLAHABAD SERIES
condition that may have to be imposed. It is
not essential that an application should be
moved only after an FIR is filed; it can be
moved earlier, so long as the facts are clear
and
there
is
reasonable
basis
for
apprehending arrest. (Paras 92.1 and
85.1)"

11. Whether to grant anticipatory bail or
not is a matter of discretion; equally whether
and if so, what kind of special conditions are
to be imposed (or not imposed) are dependent
on facts of the case, and subject to the
discretion of the Court. Further, anticipatory
bail would depend on the conduct and
behaviour of the accused, continue after filing
of the chargesheet till end of trial and order of
anticipatory bail does not in any matter limit
or restrict the rights or duties of the police or
investigating agency, to investigate into the
charges against the person who seeks and is
granted pre-arrest bail.

12. From perusal of the records, it
appears that the applicant is the named
accused and the allegation against the
applicant relates to Uttar Pradesh Prohibition
of Unlawful Conversion of Religion Act,
2021, which is a serious offence punishable
upto ten years imprisonment and fine of
Rs.50,000/-. The Act said that "no person shall
convert, either directly or otherwise, any other
person from one religion to another by use or
practice of misrepresentation, force, undue
influence, coercion, allurement or by any
fraudulent means. No person shall abet,
convince or conspire such conversion". From
the allegations made in the FIR, the applicant
is involved in forcing people to convert their
religion. Prima Facie, offence is made out
against the applicant. The other co-accused
persons, namely, Alim, Mohsin, Yaseen,
Yaseen Mansoori @ Gulam Yaseen Mansoori
and Arman Ali have already been granted
regular bail by the Co-ordinate Bench of this
Court.

13. In the light of above, looking to the
facts
and
circumstances of
this
case,
submissions of learned counsel for the parties,
taking into consideration the role assigned to
the applicant as per prosecution case, gravity
and nature of accusation as well as reasons
mentioned above, this Court is of the view that
no case for exercising its discretionary power
under section 438 Code of Criminal Procedure
is made out in favour of applicant.

14. Accordingly this application under
section 438 Cr.P.C. is rejected with liberty to
avail appropriate remedy as provided under
the law.

15. It is clarified that observations made
in this order at this stage is limited for the
purpose of determination of this anticipatory
bail application and will in no way be
construed as an expression on the merits of the
case. The investigating officer of this case shall
be absolutely free to arrive at its independent
conclusions according to law on the basis of
materials/evidences on record.
----------
(2023) 3 ILRA 814
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.01.2023

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Crl. Misc. Anticipatory Bail Application No.
10958 of 2022
(U/s 438 Cr.P.C.)

Sohit Kumar & Ors. ...Applicant
Versus
State of U.P. & Anr. ...Opp.Parties
3 All. Sohit Kumar & Ors. Vs. State of U.P. & Anr.
815
Counsel for the Applicant:
Sri Gaurav Kakkar

Counsel for the Opp.Parties:
G.A., Sri Manoj Kumar Tripathi, Sri Vinod Kumar
Tripathi

(A) Criminal Law - The Code of Criminal
Procedure,
1973
-
Section
438
-
anticipatory bail - Indian Penal Code,
1860 - Sections 323, 325, 354, 452, 504 &
506 , The Schedule Castes And The
Schedule Tribes (Prevention of Atrocities )
Act , 1989 - Section Section 3(2)(V)a,
3(1)r , 3(1)s , 18, 18A - Anticipatory bail in
a crime where an offence under SC/ST Act
is alleged can be granted only if the Court
is satisfied that the allegations levelled do
not prima facie make out a case under
SC/ST Act - a person against whom a
warrant
has
been
issued
and,
is
absconding or concealing himself in order
to avoid execution of warrants, is not
entitled to the relief of anticipatory
bail.(Para - 12,17)

Sudden fight between persons of two groups -
caste indicative words used
knowingly
-
applicants not available for interrogation and
investigation - applicants are avoiding to face
trial - non-bailable warrants were issued against
them. (Para -7,17)

HELD:-Offence under SC/ST Act made out
against the applicants . A person against whom
a warrant has been issued and, is absconding or
concealing himself in order to avoid execution of
warrants, is not entitled to the relief of
anticipatory bail. (Para -17)

Anticipatory bail application rejected. (E-7)

List of Cases cited:

1. Prathvi Raj Chauhan Vs U.O.I. & ors. ,
(2020) 4 SCC 727

2.
P.
Chidambaram
Vs
Directorate
of
Enforcement, , (2019) 9 SCC 24

3. Sadhna Chaudhary Vs St. of Raj. & anr., ,
2022 (237) AIC 205 (SC)

4. Prem Shankar Prasad Vs The St. of Bihar &
anr. , AIR (2021) SC 5125

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Heard Mr. Gaurav Kakkar, learned
counsel for the applicants, Mr. Manoj
Kumar Tripathi, learned counsel for the
opposite party no.2, Mr. Amit Singh
Chauhan, learned A.G.A. for the State and
perused the record.

2. The present application has been
moved seeking anticipatory bail in S.T.
No.145 of 2022 arising out of Case Crime
No. 840 of 2021, under Sections 452, 354,
323, 325, 504, 506 IPC and Section
3(2)(V)a, 3(1)r and 3(1)s of S.C./S.T. Act,
P.S.-Kotwali Shahar, District-Bijnor, with
the prayer that in the event of arrest,
applicants may be released on bail.

3. A preliminary objection for
admissibility of jurisdiction of the aforesaid
bail application vide concurrent jurisdiction
enshrined in Section 438 of Cr.P.C. has
been raised by learned counsel for the
opposite parties.

4. While answering the preliminary
objection, the learned counsel for the
applicant submits that there can be no
absolute bar against grant of anticipatory
bail in cases under the SC/ST Act if no
prima facie case is made out or where on
judicial scrutiny the complaint is found to
be prima facie mala fide. As per the settled
law of the Apex Court passed in case of
Prathvi Raj Chauhan vs. Union of India
& Others reported in (2020) 4 SCC 727, if
the complaint does not make out a prima
facie case for the applicability of the
provisions of the SC/ST Act, 1989, the bar
created by Sections 18 and 18A(i) shall not
816 INDIAN LAW REPORTS ALLAHABAD SERIES
apply. The only caveat is that the power has
to be used sparingly and is not to be used
so as to convert the jurisdiction into that
under Section 438 of the Code of Criminal
Procedure.

5. Thus, while entering into the merits
of the case to see whether the bar under
Section 18 and 18A(i) of the SC/ST Act is
applicable to the present case, the applicant
counsel has placed the following facts:-

i) An FIR has been lodged by Smt.
Sunita on 08.12.2021 at about 13:50 p.m.
against the present applicants and one Anil
Kumar alleging therein that the victim's
husband has a grocery shop and while
asking for the goods, Anil Kumar, the
named accused entered the shop and when
the victim restrained him from entering the
shop, asking him to stand outside the shop,
finding her to be all alone in the shop, with
bad intention, caught hold of the victim and
tried to outrage her modesty. The aforesaid
accused person used caste indicative words
like "Chamar Chatta". Alarm was raised by
the victim, on which her son, Manish and
brother-in-law, Dinesh reached the shop
and thereafter, the aforesaid accused, Anil
Kumar called other co-accused persons,
who are the applicants in the present case
and all of them with common intention
entered the house of the victim having rod,
danda and sharp edged weapon in their
hands and assaulted the victim and her
family members. The accused Anil Kumar
was carrying countrymade pistol whereas
Sohit (applicant no.1) was having iron rod.
The accused Akash and Akshay (applicant
nos.2 &3 respectively) had carried danda
with them. The aforesaid accused persons
with intention to kill the victim, her son and
brother-in-law assaulted them. On hearing
the noise of the victim and her family
members, people gathered there to save the
aforestated persons. Thereafter, the accused
persons while running away from the place
used caste indicating words.

ii) The FIR has been lodged after a
delay of about one month and three days
without giving any plausible explanation
for the same, which falsifies the entire
story.

iii) Only general allegations have been
made against the applicants in the first
information report.

iv) It was a sudden fight between the
parties and there is no motive or intention
on part of the applicants to cause injury to
the injured.

v) Perusal of the statement of the
victim under Section 164 Cr.P.C. goes to
show that no offence under Section
S.C./S.T. Act is made out against the
applicants.

vi) The applicants have been falsely
implicated in the present case due to village
party bandi as has been emphasized in para
24 of the affidavit in support of bail
application.

vii) Offence under Section SC/ST Act
is not attracted against the applicants
because as per Section 3(2) (Va) of SC/ST
Act, such offence would be made out only
when caste indicative words are used
against a person or property knowing that
such person is a member of a Scheduled
Caste or a Scheduled Tribe or such property
belongs to such member.

viii) In the present case, it was a
sudden fight between two group of persons,
therefore, in case any such words have
been used, it was by chance, not knowing
that the victim belongs to the SC/ST
community.

6. On the cumulative strength of the
aforesaid submissions, learned counsel for
the applicant submits that the applicants are
innocent and they have an apprehension
3 All. Sohit Kumar & Ors. Vs. State of U.P. & Anr.
817
that they may be arrested in the abovementioned case, whereas there is no
credible evidence against them. He further
submits that the applicants have been
falsely implicated in the present case due to
party bandi. The offence under Section 325
IPC is bailable. The applicants undertake to
co-operate during investigation and trial
and they would appear as and when
required by the investigating agency or
Court. It has been stated that in case, the
applicants are granted anticipatory bail,
they shall not misuse the liberty of bail and
will co-operate during investigation and
would obey all conditions of bail.

7. Per contra, learned AGA as well as
learned counsel for the opposite party no.2
opposed the prayer for granted anticipatory
bail to the applicants by contending that the
applicants are named in the FIR. From the
submissions made by learned counsel for
the applicants that it was a sudden fight
between persons of the two groups, is self
indicated of the fact that caste indicative
words have been used knowingly. From
perusal of the FIR itself, it is clear that
offence under Section SC/ST Act has made
out.

8. They further submits that from the
material as collected by the Investigating
Officer, credible, clinching as well as
documentary
evidences
showing
the
complicity of commission of the crime has
been found, therefore, the charge sheet has
been submitted against the applicants on
24.12.2021 under Sections 452, 354, 323,
325, 504, 506 IPC and Section 3(2)(V)a,
3(1)r and 3(1)s of S.C./S.T. Act. Thereafter,
on the basis of the aforesaid charge sheet,
cognizance
has
been
taken
by
the
concerned court below on 04.03.2022.
They further submits that as the charge
sheet has been submitted against the
applicants including the sections of SC/ST
Act, therefore, the present anticipatory bail
application is not maintainable as in view
of Section 18 of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities)
Act, 1989, provisions of Section 438
Cr.P.C. are not applicable pertaining to
offence committed under the Scheduled
Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989.

9. So far as the merits of the case are
concerned, in the present case, two persons,
namely, Manish and Dinesh sustained
injury and they have been medically
examined on 06.11.2021. From perusal of
the X-ray report of the Manish and Dinesh,
it is clear that they have sustained fracture.
The applicants are avoiding to face trial,
therefore,
non-bailable
warrants
have
already been issued against them. They
further submits that the case does not fall
under the category of section 438 Cr.P.C.
Therefore, the relief as prayed cannot be
granted.

10. Considering the submissions
made by learned counsel for the parties and
perused the record, this Court finds that
from the allegations made in the FIR, prima
facie offence is made out against the
applicants.

11.

For
ready
reference,
the
provisions of Sections 18 and 18-A and
Section 3 (1) (Dha) of Scheduled Castes
and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 are reproduced
below:-

"18. Section 438 of the Code not to
apply to persons committing an offence
under the Act.--Nothing in Section 438 of
the Code shall apply in relation to any case
involving the arrest of any person on an
818 INDIAN LAW REPORTS ALLAHABAD SERIES
accusation of having committed an offence
under this Act.

18-A.
No
enquiry
or
approval
required.--(1) For the purposes of this Act-
-

(a) preliminary enquiry shall not be
required
for
registration
of
a
first
information report against any person; or

(b) the investigating officer shall not
require
approval
for
the
arrest,
if
necessary, of any person,against whom an
accusation of having committed an offence
under this Act has been made, and no
procedure other than that provided under
this Act or the Code shall apply.

(2)The provisions of Section 438 of the
Code shall not apply to a case under this
Act, notwithstanding any judgment or order
or direction of any Court.

Section 3 (1) (s) of SC/ST Act-- abuses
any member of a Schedule caste or a
Scheduled Tribe by caste name in any place
within public view."

12. The legal position is that an
anticipatory bail in a crime where an
offence under SC/ST Act is alleged can
be granted only if the Court is satisfied
that the allegations levelled do not prima
facie make out a case under SC/ST Act.
The position of law remains same even
after the enactment of Section 18A of the
Act. The Apex Court in the case of
Prathvi Raj Chauhan vs. Union of
India & Others reported in (2020) 4
SCC 727, has observed as under:-

"11. Concerning the applicability of
provisions of Section 438 CrPC, it shall
not apply to the cases under the 1989
Act. However, if the complaint does not
make out a prima facie case for
applicability of the provisions of the
1989 Act, the bar created by Sections 18
and 18-A(i) shall not apply. We have
clarified this aspect while deciding the
review petitions."

13. From perusal of the FIR itself,
it is clear that the offence under SC/ST
At is made out against the applicants.
Therefore, the present anticipatory bail
application is not maintainable in view
of Section 18 (2) of the Scheduled
Castes and Scheduled Tribes (Prevention
of Atrocities) Act, 1989 wherein it has
been
mentioned
that
provisions
of
Section 438 Cr.P.C. are not applicable
pertaining to offence committed under
the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act,
1989.

14. So far as the merits of the case, it
would be appropriate to refer Section 438
Cr.P.C., which is reproduced herein below:-

"438. Direction for grant of bail to
person apprehending arrest.

(1) When any person has reason to
believe that he may be arrested on an
accusation of having committed a non-
bailable offence, he may apply to the High
Court or the Court of Session for a
direction under this section; and that Court
may, if it thinks fit, direct that in the event
of such arrest, he shall be released on bail.

(2) When the High Court or the Court
of Session makes a direction under sub-
section (1), it may include such conditions
in such directions in the light of the facts of
the particular case, as it may think fit,
including-

(i) a condition that the person shall
make himself available for interrogation by
a police officer as and when required;

(ii) a condition that the person shall
not, directly or indirectly, make any
inducement, threat or promise to any
person acquainted with the facts of the case
3 All. Sohit Kumar & Ors. Vs. State of U.P. & Anr.
819
so as to dissuade him from disclosing such
facts to the Court or to any police officer;

(iii) a condition that the person shall
not leave India without the previous
permission of the Court;

(iv) such other condition as may be
imposed under sub- section (3) of section
437, as if the bail were granted under that
section.

(3) If such person is thereafter
arrested without warrant by an officer in
charge of a police station on such
accusation, and is prepared either at the
time of arrest or at any time while in the
custody of such officer to give bail, be shall
be released on bail; and if a Magistrate
taking cognizance of such offence decides
that a warrant should issue in the first
instance against that person, he shall issue
a bailable warrant in conformity with the
direction of the Court under sub- section
(1)."

15. Grant of anticipatory bail may
hamper the custodial interrogation and will
lead to nondisclosure of useful information
and material facts and information. In the
case of P. Chidambaram vs. Directorate of
Enforcement, reported in (2019) 9 SCC
24, the Apex Court held as under:-

"74. Ordinarily, arrest is a part of the
process of the investigation intended to
secure several purposes. There may be
circumstances in which the accused may
provide information leading to discovery
of material facts and relevant information.
Grant of anticipatory bail may hamper the
investigation. Pre-arrest bail is to strike a
balance between the individual's right to
personal freedom and the right of the
investigating agency to interrogate the
accused as to the material so far collected
and to collect more information which
may
lead
to
recovery
of
relevant
information. In State Rep. By The CBI v.
Anil Sharma (1997) 7 SCC 187, the
Supreme Court held as under:-

"6. We find force in the submission of
the CBI that custodial interrogation is
qualitatively more elicitation-oriented than
questioning
a
suspect
who
is
well
ensconced
with
a
favourable
order
under Section 438 of the Code. In a case
like this effective interrogation of a
suspected
person
is
of
tremendous
advantage in disinterring many useful
informations and also materials which
would have been concealed. Success in
such interrogation would elude if the
suspected person knows that he is well
protected and insulated by a pre-arrest bail
order during the time he is interrogated.
Very often interrogation in such a condition
would reduce to a mere ritual. The
argument that the custodial interrogation is
fraught with the danger of the person being
subjected to third-degree methods need not
be countenanced, for, such an argument
can be advanced by all accused in all
criminal cases. The Court has to presume
that responsible police officers would
conduct
themselves
in
a
responsible
manner and that those entrusted with the
task of disinterring offences would not
conduct themselves as offenders."

81. Grant of anticipatory bail at the
stage of investigation may frustrate the
investigating agency in interrogating the
accused and in collecting the useful
information and also the materials which
might have been concealed. Success in
such interrogation would elude if the
accused knows that he is protected by the
order of the court. ........."

16. In another judgment of Apex
Court in case of Sadhna Chaudhary Vs.
State of Rajasthan & Anr., reported in
820 INDIAN LAW REPORTS ALLAHABAD SERIES
2022 (237) AIC 205 (SC), the Apex Court
had held as under:-

"14. Law on the applicability or grant
of anticipatory bail under section 438
Cr.P.C. may be briefly summarised as
under:

14.1. In Shri Gurbaksh Singh Sibbia
and Others v. State of Punjab1, a
Constitution Bench of this Court, Chief
Justice Y.V. Chandrachud, speaking for the
Court dealt
with
in detail
on
the
considerations for grant of anticipatory
bail.

14.2.
In
Siddharam
Satlingappa
Mhetre vs. State of Maharashtra and
Others2; this Court relying upon the
Constitution Bench judgment in Shri
Gurbaksh Singh Sibbia laid down in
paragraph 112 of the report the following
factors and parameters to be considered
while dealing with an application for
anticipatory bail:

"(i) The nature and gravity of the
accusation and the exact role of the
accused must be properly comprehended
before arrest is made;

(ii) The antecedents of the applicant
including the fact as to whether the accused
has previously undergone imprisonment on
conviction by a court in respect of any
cognizable offence;

(iii) The possibility of the applicant to
flee from justice;

(iv) The possibility of the accused's
likelihood to repeat similar or other
offences;

(v) Where the accusations have been
made only with the object of injuring or
humiliating the applicant by arresting him
or her;

(vi) Impact of grant of anticipatory
bail
particularly
in
cases
of
large
magnitude affecting a very large number of
people;

(vii) The courts must evaluate the
entire available material against the
accused very carefully. The court must also
clearly comprehend the exact role of the
accused in the case. The cases in which the
accused is implicated with the help of
Sections 34 and 149 of the Penal Code,
1860 the court should consider with even
greater
care
and
caution
because
overimplication in the cases is a matter of
common knowledge and concern;

(viii) While considering the prayer for
grant of anticipatory bail, a balance has to
be struck between two factors, namely, no
prejudice should be caused to the free, fair
and full investigation and there should be
prevention of harassment, humiliation and
unjustified detention of the accused;

(ix) The court to consider reasonable
apprehension of tampering of the witnesses
or
apprehension
of
threat
to
the
complainant;

(x) Frivolity in prosecution should
always be considered and it is only the
element of genuineness that shall have to
be considered in the matter of grant of bail
and in the event of there being some doubt
as to the genuineness of the prosecution, in
the normal course of events, the accused is
entitled to an order of bail."
14.3. In yet another recent Constitution
Bench judgment in the case of Sushila
Aggarwal and Others vs. State (NCT of
Delhi) and Another3, in paragraph 85 of
the report Justice Ravindra Bhatt laid down
the guiding principles in dealing with
applications under Section 438. Justice
M.R. Shah had authored a separate
opinion. Justice Arun Misra, Justice Indira
Banerjee and Justice Vineet Saran agreed
with both the opinions. The concluding
guiding factors stated in paragraphs 92,
92.1 to 92.9 are reproduced hereunder:

"92. This Court, in the light of the
above discussion in the two judgments, and
3 All. Sohit Kumar & Ors. Vs. State of U.P. & Anr.
821
in the light of the answers to the reference,
hereby clarifies that the following need to
be kept in mind by courts, dealing with
applications under Section 438 CrPC.

92.1. Consistent with the judgment in
Shri Gurbaksh Singh Sibbia and others v.
State of Punjab4, when a person complains
of apprehension of arrest and approaches
for order, the application should be based
on concrete facts (and not vague or general
allegations) relatable to one or other
specific offence. The application seeking
anticipatory bail should contain bare
essential facts relating to the offence, and
why the applicant reasonably apprehends
arrest, as well as his side of the story.
These are essential for the court which
should consider his application, to evaluate
the threat or apprehension, its gravity or
seriousness and the appropriateness of any
condition that may have to be imposed. It is
not essential that an application should be
moved only after an FIR is filed; it can be
moved earlier, so long as the facts are clear
and
there
is
reasonable
basis
for
apprehending arrest.

92.2. It may be advisable for the court,
which is approached with an application
under Section 438, depending on the
seriousness of the threat (of arrest) to issue
notice to the public prosecutor and obtain
facts, even while granting limited interim
anticipatory bail.

92.3. Nothing in Section 438 Cr. PC,
compels or obliges courts to impose
conditions limiting relief in terms of time,
or upon filing of FIR, or recording of
statement of any witness, by the police,
during investigation or inquiry, etc. While
considering an application (for grant of
anticipatory bail) the court has to consider
the nature of the offence, the role of the
person, the likelihood of his influencing the
course of investigation, or tampering with
evidence
(including
intimidating
witnesses), likelihood of fleeing justice
(such as leaving the country), etc.

The courts would be justified - and
ought to impose conditions spelt out in
Section 437 (3), Cr.P.C. [by virtue of
Section 438 (2)]. The need to impose other
restrictive conditions, would have to be
judged on a casebycase basis, and
depending upon the materials produced by
the state or the investigating agency. Such
special or other restrictive conditions may
be imposed if the case or cases warrant,
but should not be imposed in a routine
manner, in all cases. Likewise, conditions
which limit the grant of anticipatory bail
may be granted, if they are required in the
facts of any case or cases; however, such
limiting conditions may not be invariably
imposed.

92.4. Courts ought to be generally
guided by considerations such as the nature
and gravity of the offences, the role
attributed to the applicant, and the facts of
the case, while considering whether to
grant anticipatory bail, or refuse it.
Whether to grant or not is a matter of
discretion; equally whether and if so, what
kind of special conditions are to be imposed
(or not imposed) are dependent on facts of
the case, and subject to the discretion of the
court.

92.5. Anticipatory bail granted can,
depending on the conduct and behaviour of
the accused, continue after filing of the
chargesheet till end of trial.

92.6. An order of anticipatory bail
should not be "blanket" in the sense that it
should not enable the accused to commit
further offences and claim relief of
indefinite protection from arrest. It should
be confined to the offence or incident, for
which apprehension of arrest is sought, in
relation to a specific incident. It cannot
operate in respect of a future incident that
involves commission of an offence.
822 INDIAN LAW REPORTS ALLAHABAD SERIES

92.7. An order of anticipatory bail
does not in any manner limit or restrict the
rights
or
duties
of
the
police
or
investigating agency, to investigate into the
charges against the person who seeks and
is granted prearrest bail.

92.8. The observations in Sibbia
regarding "limited custody" or "deemed
custody" to facilitate the requirements of
the investigative authority, would be
sufficient for the purpose of fulfilling the
provisions of Section 27, in the event of
recovery of an article, or discovery of a
fact, which is relatable to a statement made
during such event (i.e deemed custody). In
such event, there is no question (or
necessity) of asking the accused to
separately surrender and seek regular bail.
Sibbia (supra) had observed that "if and
when the occasion arises, it may be
possible for the prosecution to claim the
benefit of Section 27 of the Evidence Act in
regard to a discovery of facts made in
pursuance of information supplied by a
person released on bail by invoking the
principle stated by this Court in State of
U.P. v Deoman Upadhyaya."

92.9. It is open to the police or the
investigating agency to move the court
concerned, which grants anticipatory bail,
for a direction under Section 439 (2) to
arrest the accused, in the event of violation
of any term, such as absconding, non
cooperating during investigation, evasion,
intimidation or inducement to witnesses
with a view to influence outcome of the
investigation or trial, etc."

17. From these materials and
information, it is clear that the present
applicants
were
not
available
for
interrogation and investigation and nonbailable warrants were issued against them,
therefore, a person against whom a warrant
has been issued and, is absconding or
concealing himself in order to avoid
execution of warrants, is not entitled to the
relief of anticipatory bail. The aforesaid has
been held by the Apex Court in the case of
Prem Shankar Prasad vs. The State of
Bihar and another reported in AIR (2021)
SC 5125. Relevant paragraph no.16 of the
afroresaid judgment is as under:-

"16. Recently, in Lavesh v. State (NCT
of Delhi) [(2012) 8 SCC 730] , this Court
(of which both of us were parties)
considered the scope of granting relief
under Section 438 vis-à-vis a person who
was
declared
as
an
absconder
or
proclaimed offender in terms of Section 82
of the Code. In para 12, this Court held as
under : (SCC p. 733) "12. From these
materials and information, it is clear that
the present appellant was not available for
interrogation and investigation and was
declared as 'absconder'. Normally, when
the accused is 'absconding' and declared as
a 'proclaimed offender', there is no
question of granting anticipatory bail. We
reiterate that when a person against whom
a warrant had been issued and is
absconding or concealing himself in order
to avoid execution of warrant and declared
as a proclaimed offender in terms of
Section 82 of the Code he is not entitled to
the relief of anticipatory bail."

It is clear from the above decision
that
if
anyone
is declared
as an
absconder/proclaimed offender in terms of
Section 82 of the Code, he is not entitled
to the relief of anticipatory bail."

Thus the High court has committed an
error in granting anticipatory bail to
respondent No.2 - accused ignoring the
proceedings under Section 8283 of Cr.PC."

18. In the light of above, looking to
the facts and circumstances of this case,
submissions of learned counsel for the
3 All. Monish Vs. State of U.P. & Ors.
823
parties, taking into consideration the role
assigned
to
the
applicants
as
per
prosecution case, gravity and nature of
accusation as well as reasons mentioned
above, this Court is of the view that no case
for exercising its discretionary power under
section 438 Code of Criminal Procedure is
made out in favour of applicant.

19. Accordingly this application under
section 438 Cr.P.C. is rejected with liberty
to avail appropriate remedy as provided
under the law.

20. It is clarified that observations
made in this order at this stage is
limited for the purpose of determination
of this anticipatory bail application and
will in no way be construed as an
expression on the merits of the case.
The investigating officer of this case
shall be absolutely free to arrive at its
independent conclusions according to
law on the basis of materials/evidences
on record.
----------
(2023) 3 ILRA 823
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.02.2023

BEFORE

THE HON'BLE AJAY BHANOT, J.

Crl. Misc. Bail Application No. 55026 of 2021
with
Crl. Misc. Bail Applications No. 38452 of 2021,
42694 of 2021, 50905 of 2021, 38124 of 2021,
10907 of 2022, 45095 of 2021, 2135 of 2022,
55734 of 2021

Monish ...Applicant
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicant:
Sri Shiv Prakash Tiwari
Counsel for the Respondent:
G.A.

(A) Criminal Law- The Juvenile Justice
(Care and Protection of Children) Act,
2015 - Section 94 - Presumption and
determination of age, The Juvenile Justice
(Care and Protection of Children) Rules,
2007 - Rule 12(3) - Procedure to be
followed
in
determination
of
Age
,
Juvenile Justice (Care and Protection of
Children) Act, 2000 - Section 49 , The
Juvenile Justice (Care and Protection of
Children) Model Rules, 2016 - Rule 54
(18) (iv) - Procedure in cases of offences
against children - The Protection of
Children from Sexual Offences Act, 2012 -
Sections 3⁄4 , Section 29 , Section 34 -
Procedure in case of commission of
offence by child and determination of age
by Special Court - Indian Penal Code, 1860
-Sections 376, 506 , The Schedule Castes
And The Schedule Tribes (Prevention of
Atrocities ) Act , 1989 - Sections 3(2)(v),
3(2)(va), 3(1)(2) of SC/ST Act - The Code
of criminal procedure, 1973 - Sections
161,164 - Engagement of fundamental
rights in bail jurisprudence is a constant in
constitutional law. (Para -71)

Applicant
(major)
committed
inappropriate
sexual acts with victim (minor) - prosecution
case set out in FIR - victim is 15 years old, but
her age is 13 years and 3 months - material
inconsistencies in the age related evidence -
victim falsely shown as minor - applicant and
victim were intimate -F.I.R. is a result of an
opposition of victim's parents - applicant not a
flight risk - applicant always cooperated with
investigation - applicant on interim bail. (Para -
2, 96)

(B)
The
Juvenile
Justice
(Care
and
Protection of Children) Act, 2015 - Section
94 - Presumption and determination of
age - at the stage of bail - Whether age of
the
victim
will
be
determined
in
accordance with Section 94 of the JJ Act,
2015? - If not - manner of assessing the
age of a victim in a bail application under
the POCSO Act when a challenge is laid to
it by an accused - HELD - Section 94 of the
JJ Act, 2015 should not be applied to bail