# Sovaran Singh Adhti & Ors v. State of U.P

- **Citation:** (2023) 5 ILRA 1988
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-05
- **Case number:** Crl. Misc. Anticipatory Bail Application No. 3037 of 2023
- **Bench:** Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sovaran-singh-adhti-ors-v-state-of-u-p-50189
- **Pages:** 6

## Headnote

Criminal Law -Criminal Procedure Code,
1973 - Section 438 CrPC- Sections 147,
148, 149, 307, 435, 436, 332, 353, 427,
341 & 186 - Public Property Act,1984 -
Section 3/4 - Criminal Law Amendment
Act,2013 - Section 7-incident involved
huge crowd-vandalism and stone peltingchargesheet against 64 persons-processes
issued by the trial court to procure
appearance of the accused applicantsunder Sections 82 and 83 CrPC-declared
proclaimed
offenders-
preliminary
objection-accused persons not entitled to
bail-after
having
been
declared
proclaimed offenders- if a person seeking
anticipatory bail himself creates situationthat his arrest becomes inevitable-he
makes exit from the protection area of
Section 438 CrPC-absconding in violation
of the order of the court is a grave
violation
of
personal
liberty.Bail
Application rejected. (Paras 7, 9, 10, 13,
15, 16 and 17)

HELD:
It has been further held therein that anticipatory
bail granted can, depending on the conduct and
behavior of the accused, continue after filing of
the charge sheet till end of trial.

It has been further held by the Hon'ble Apex
Court that 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. It has further been held that
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
5 All. Sovaran Singh Adhti & Ors. Vs. State of U.P.
1989
considering whether to grant anticipatory bail,
or refuse it. Whether to grant or not is a matter
of discretion. (Para 7)

The conduct of the applicants falls within the
ambit of the law promulgated by Hon'ble Apex
Court in Prem Shankar Prasad Vs St. of Bihar &
anr., 2021 SCC OnLine SC 955. In the facts of
the aforesaid case, charge-sheet was filed under
Sections 406, 420 IPC against the accused and
thus it was explicit that a prima facie case
against the accused was found. From the
record, it revealed that the arrest warrant was
issued by the Magistrate against the accused
and thereafter proceedings under Sections 82,
83 Cr.P.C. had been initiated pursuant to the
order passed by the Magistrate. Only thereafter
the accused moved an application before the
trial court for anticipatory bail, which was
rejected by the Sessions Court. (Para 9)

In fact this is the reason to believe that one may
be arrested on accusation of having committed
a non-bailable offence, that brings a person to
seek a specific protection of anticipatory bail but
if such a person himself creates a situation
which places him under such condition where
his arrest becomes inevitable, he makes an exit
from the protection area of Section 438 Cr.P.C.
The issuance of process under Section 82/83
Cr.P.C. reflects that the accused was not
complying with the earlier process issued by the
trial Court and he let it go in vain by showing his
disrespect to it. In normal circumstances, a
Court does not start with the process under
Section 82 and 83 Cr.P.C. firstly summons are
issued to the accused and then in an ascending
order bailable warrant, nonbailable warrant are
issued and if even then the accused remains
absconding he becomes a proclaimed offender
and process under Section 82 and subsequently
under Section 83 Cr.P.C. are issued against him.
(Para 10)

In the Sibbia case (supra) where the Hon'ble
Apex Court had an occasion to comprehensively
deal with the scope and ambit of the concept of
anticipatory bail, it was observed that Section
438 CrPC is an extraordinary provision where
the accused who apprehends his/her arrest on
accusation of having committed a non-bailable
offence can be granted bail in anticipation of
arrest which, indubitably depends upon the
dis

## Text

1988 INDIAN LAW REPORTS ALLAHABAD SERIES
events which can be said to exclusively
lead to the one and only conclusion, i.e.,
the guilt of the accused persons. In that
view of the matter, we find that the
judgment and order of the learned Sessions
Judge to be a plausible and sustainable
view, especially when the Trial Court had
the advantage of seeing and assessing the
demeanour of witnesses.

75. This court has also recorded its
independent finding and holds that the theory
put forth by prosecution that the four accused
persons were liable for causing death of the
deceased is unconvincing and shorn of
evidence proved beyond reasonable doubt.

76. As a sequel to above, the appeal as
well as the revision are therefore dismissed.
The judgment and order of acquittal dated
29.03.2004 rendered by Sessions Judge,
Lakhimpur Kheri in Sessions Trial No.
518/2001, under Section 302, 302/34 IPC,
Police Station Tikunia, District Lakhimpur
Kheri, acquitting accused/respondent no. 1
Ajay
Misra
alias
Teni
and
accused/respondent no. 2 Subhash alias
Mama under Section 302 IPC and accusedrespondent no. 3 Rakesh alias Dalu and
accused-respondent no. 4 Shashi Bhushan,
under Section 302 IPC read with Section 34
IPC is upheld in the light of the discussions
and findings recorded hereinabove. The bail
bonds, if any, shall stand discharged.
----------
(2023) 5 ILRA 1988
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.04.2023

BEFORE

THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Crl. Misc. Anticipatory Bail Application No. 3037
of 2023
(u/s 438 Cr.P.C.)
Sovaran Singh Adhti & Ors. ...Applicants
Versus
State of U.P. ...Respondent

Counsel for the Applicants:
Sri Ram Badan Maurya

Counsel for the Respondent:
G.A.

Criminal Law -Criminal Procedure Code,
1973 - Section 438 CrPC- Sections 147,
148, 149, 307, 435, 436, 332, 353, 427,
341 & 186 - Public Property Act,1984 -
Section 3/4 - Criminal Law Amendment
Act,2013 - Section 7-incident involved
huge crowd-vandalism and stone peltingchargesheet against 64 persons-processes
issued by the trial court to procure
appearance of the accused applicantsunder Sections 82 and 83 CrPC-declared
proclaimed
offenders-
preliminary
objection-accused persons not entitled to
bail-after
having
been
declared
proclaimed offenders- if a person seeking
anticipatory bail himself creates situationthat his arrest becomes inevitable-he
makes exit from the protection area of
Section 438 CrPC-absconding in violation
of the order of the court is a grave
violation
of
personal
liberty.Bail
Application rejected. (Paras 7, 9, 10, 13,
15, 16 and 17)

HELD:
It has been further held therein that anticipatory
bail granted can, depending on the conduct and
behavior of the accused, continue after filing of
the charge sheet till end of trial.

It has been further held by the Hon'ble Apex
Court that 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. It has further been held that
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
5 All. Sovaran Singh Adhti & Ors. Vs. State of U.P.
1989
considering whether to grant anticipatory bail,
or refuse it. Whether to grant or not is a matter
of discretion. (Para 7)

The conduct of the applicants falls within the
ambit of the law promulgated by Hon'ble Apex
Court in Prem Shankar Prasad Vs St. of Bihar &
anr., 2021 SCC OnLine SC 955. In the facts of
the aforesaid case, charge-sheet was filed under
Sections 406, 420 IPC against the accused and
thus it was explicit that a prima facie case
against the accused was found. From the
record, it revealed that the arrest warrant was
issued by the Magistrate against the accused
and thereafter proceedings under Sections 82,
83 Cr.P.C. had been initiated pursuant to the
order passed by the Magistrate. Only thereafter
the accused moved an application before the
trial court for anticipatory bail, which was
rejected by the Sessions Court. (Para 9)

In fact this is the reason to believe that one may
be arrested on accusation of having committed
a non-bailable offence, that brings a person to
seek a specific protection of anticipatory bail but
if such a person himself creates a situation
which places him under such condition where
his arrest becomes inevitable, he makes an exit
from the protection area of Section 438 Cr.P.C.
The issuance of process under Section 82/83
Cr.P.C. reflects that the accused was not
complying with the earlier process issued by the
trial Court and he let it go in vain by showing his
disrespect to it. In normal circumstances, a
Court does not start with the process under
Section 82 and 83 Cr.P.C. firstly summons are
issued to the accused and then in an ascending
order bailable warrant, nonbailable warrant are
issued and if even then the accused remains
absconding he becomes a proclaimed offender
and process under Section 82 and subsequently
under Section 83 Cr.P.C. are issued against him.
(Para 10)

In the Sibbia case (supra) where the Hon'ble
Apex Court had an occasion to comprehensively
deal with the scope and ambit of the concept of
anticipatory bail, it was observed that Section
438 CrPC is an extraordinary provision where
the accused who apprehends his/her arrest on
accusation of having committed a non-bailable
offence can be granted bail in anticipation of
arrest which, indubitably depends upon the
discretion of the Court but such discretion
should be exercised with due care, caution and
prudence on the facts and circumstances of the
case. It can no doubt be continued after filing of
charge sheet till end of trial. (Para 15)

The idea of anticipatory bail strengthen the
theory of personal liberty of a person but if it is
explicit before the Court that such person is
likely to otherwise misuse or has misused his
liberty, the negation to grant of anticipatory bail
to such a person is never violation of the
provisions of personal liberty. Absconding in
violation of the order of the Court is a grave
misuse of personal liberty and that is why, " if
any
one
is
declared
as
an
absconder/
proclaimed offender in terms of Section 82
Cr.P.C.", as held in St. of M.P. Vs Pradeep
Sharma (2014) 2 SCC 171, " he is not entitled to
grant of anticipatory bail. (Para 16)

Bail application rejected. (E-14)

List of Cases cited:

1. Sushila Aggarwal & ors. Vs St. (NCT of Delhi)
& anr., (2020) 5 SCC 1

2. Prem Shankar Prasad Vs St. of Bihar & anr.,
2021 SCC OnLine SC 955

3. Gurbaksh Singh Sibbia Vs St. of Pun.(1980) 2
SCC 565

4. Siddharam Satlingappa Mhetre Vs St. of Mah.
(2011) 1 SCC 694

5. Lavlesh Vs St. (NCT of Delhi) (2012) 8 SCC
730

(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)

1. This application has been moved
on behalf of the applicants Sovaran Singh
Adhti,
Shivanand
Shakya,
Brijesh
Kumar, Santosh, T.R. Shakya @ Tulsidas
and Shyam Sundar seeking anticipatory
bail in Case Crime No.231 of 2006 (Case
No.6183 of 2011) under Sections 147, 148,
149, 307, 435, 436, 332, 353, 427, 341, 186
1990 INDIAN LAW REPORTS ALLAHABAD SERIES
IPC, Section 3/4 Public Property Act and
Section 7 Criminal Law Amendment Act,
Police
Station
-
Bhogaon,
District-
Mainpuri.

2. Heard learned counsel for the
applicant, learned A.G.A. for the State and
perused the record.

3. From perusal of the FIR it appears
that in the case in hand a huge crowd of
several persons was raising slogan and the
roads were jammed demanding the arrest of
some accused wanted in case crime no.226
of 2006 under Section 376 IPC and when
the police force came at the spot, several
persons including the present accusedapplicants, being excited, started stone
pelting upon the police force and some
persons also opened fire upon the police
with intention to kill. Roadways buses,
bearing registration nos. UP75-B-9429,
UP14-W-9707
and
UP84-C-9487
and
UP84-C-9171, were damaged and set to
fire and public order was completely
disturbed. The police with the view to
disburse the crowd used force and in
defence fire was also reciprocated by the
police and some miscreants were arrested
on spot. F.I.R. was lodged and investigation
started. After investigation, charge-sheet
was filed against 64 named accusedpersons. Processes were issued by the
Court
to
the
accused-persons
for
appearance including the present accusedapplicants, but they did not appear before
the Court and the trial Court, in order to
procure the appearance of the accusedapplicants, issued processes under Sections
82 & 83 Cr.P.C. and they were declared
proclaimed offender.

4. The preliminary objection has been
raised by the learned State counsel that if
the accused-applicants have been declared
proclaimed offender, they are not entitled
for the benefit to anticipatory bail.

5. It has been argued by the learned
counsel for the applicant that applicants are
innocent and they have apprehension of
their arrest in the above-mentioned case,
whereas there is no credible evidence
against them. Allegations levelled against
the applicants are false. After completion of
the investigation, charge-sheet has been
filed and cognizance has been taken by the
Court concerned. It has been submitted that
in
case
the
applicants
are
granted
anticipatory bail, they shall not misuse the
liberty of bail and would obey all
conditions of bail.

6. Learned A.G.A. opposed the prayer
for anticipatory bail.

7. In this matter, it reveals that after
completion of investigation, charge sheet has
been submitted and cognizance has also been
taken by the Court concerned. Summons
were issued to the accused-applicants. Since
the accused-applicants did not appear before
the Court concerned, despite service, coercive
processes were issued against them as they
were absconding. In Sushila Aggarwal and
others vs. State (NCT of Delhi) and
another, (2020) 5 SCC 1, the Hon'ble Apex
Court has settled the controversy finally by
holding the anticipatory bail need not be of
limited duration invariably. In appropriate
case, it can continue upto conclusion of trial.

It has been further held therein that
anticipatory bail granted can, depending on
the conduct and behavior of the accused,
continue after filing of the charge sheet till
end of trial.

It has been further held by the Hon'ble
Apex Court that while considering an
5 All. Sovaran Singh Adhti & Ors. Vs. State of U.P.
1991
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. It has further been held that
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.

8. However, in the case in hand,
process under Section 82 and 83 Cr.P.C.
have been issued against the accusedapplicants. The rejection order of the
Sessions Judge, Mainpuri dated 19.12.2022
also corroborates this fact.

9. The conduct of the applicants
falls within the ambit of the law
promulgated by Hon'ble Apex Court in
Prem Shankar Prasad Versus State of
Bihar and Another, 2021 SCC OnLine
SC 955. In the facts of the aforesaid case,
charge-sheet was filed under Sections
406, 420 IPC against the accused and
thus it was explicit that a prima facie case
against the accused was found. From the
record, it revealed that the arrest warrant
was issued by the Magistrate against the
accused and thereafter proceedings under
Sections 82, 83 Cr.P.C. had been initiated
pursuant to the order passed by the
Magistrate. Only thereafter the accused
moved an application before the trial
court for anticipatory bail, which was
rejected by the Sessions Court. However,
subsequently
anticipatory
bail
was
granted to the aforesaid accused by the
High Court and when the matter came
before the Hon'ble Apex Court, it was
observed like this.

"19. Despite the above observations
on merits and despite the fact that it was
brought to the notice of the High Court
that respondent No. 2 - accused is
absconding and even the proceedings
under sections 82-83 of Cr. P.C. have
been initiated as far as back on
10.01.2019, the High Court has just
ignored the aforesaid relevant aspects
and has granted anticipatory bail to
respondent No. 2 - accused by observing
that the nature of accusation is arising
out of a business transaction. The specific
allegations of cheating, etc., which came
to be considered by learned Additional
Sessions Judge has not at all been
considered by the High Court. Even the
High Court has just ignored the factum of
initiation of proceedings under sections
82-83 of Cr. P.C. by simply observing that
"be that as it may". The aforesaid
relevant aspect on grant of anticipatory
bail ought not to have been ignored by
the High Court and ought to have been
considered by the High Court very
seriously and not casually.

20. In the case of State of Madhya
Pradesh v. Pradeep Sharma (Supra), it is
observed and held by this court that if
anyone
is
declared
as
an
absconder/proclaimed offender in terms
of section 82 of Cr. P.C., he is not entitled
to relief of anticipatory bail."

10. In fact this is the reason to believe that
one may be arrested on accusation of
having committed a non-bailable offence,
that brings a person to seek a specific
protection of anticipatory bail but if such a
person himself creates a situation which
places him under such condition where his
arrest becomes inevitable, he makes an exit
1992 INDIAN LAW REPORTS ALLAHABAD SERIES
from the protection area of Section 438
Cr.P.C. The issuance of process under
Section 82/83 Cr.P.C. reflects that the
accused was not complying with the earlier
process issued by the trial Court and he let
it go in vain by showing his disrespect to it.
In normal circumstances, a Court does not
start with the process under Section 82 and
83 Cr.P.C. firstly summons are issued to the
accused and then in an ascending order
bailable warrant, non-bailable warrant are
issued and if even then the accused remains
absconding he becomes a proclaimed
offender and process under Section 82 and
subsequently under Section 83 Cr.P.C. are
issued against him.

11. The Constitution no doubt
guarantees protection of life and personal
liberty of a person and this guarantee is
enshrined in Article 21 of the Constitution
of India, which pronounces that :

"21. Protection of life and personal
liberty.- No person shall be deprived of his
life or personal liberty except according to
procedure established by the law".

12. The prevention of any encroachment
upon life and personal liberty of a person is
the goal of Article 21 and the rule
embodied therein is meant to ensure the
recognition, respect and enforceability of
the rights of the people and should be
treated as continuing mandamus with
ultimate object of social justice in true
sense and the provisions of bail are
connotative to avow this philosophy but the
question of bail arises only when the person
is in custody. The custody of a person starts
when on account of being an accused of an
offence he is arrested and brought or
surrenders before the Court and thus is
deprived of his personal liberty; but this
deprivation comes within the ambit of the
words used in Article 21 i.e. "except
according to procedure established by law".

13. At the same time, when we enter
into the sphere of 'anticipatory bail' we find
that the said term is not used under Section
438 Cr.P.C. which embodies the enabling
provision. It can be taken as an anticipation
of
being
arrested.
In
the
landmark
judgement of the Constitution Bench of
Hon'ble Apex Court in Gurbaksh Singh
Sibbia Vs. State of Punjab (1980) 2 SCC
565, it was that "a person seeking
anticipatory bail is still a free man entitled
to the presumption of innocence. He is
willing
to
submit
to
restraints
and
conditions
on
his
freedom,
by
the
acceptance of conditions which the court
may deem fit to impose, in consideration of
the assurance that if arrested, he shall be
enlarged on bail".

14. In the Case of Siddharam
Satlingappa
Mhetre
Vs.
State
of
Maharashtra (2011) 1 SCC 694 It was
held as under:

"14. It is clear from the Statement of
Objects and Reasons that the purpose of
incorporating Section 438 Cr.P.C. in Cr.P.C.
was to recognize the importance of
personal liberty and freedom in a free and
democratic country. When we carefully
analyze this section, the wisdom of the
legislature becomes quite evident and clear
that the legislature was keen to ensure
respect for the personal liberty and also
pressed in service the age-old principle that
an individual is presumed to be innocent till
he is found guilty by the court".

15. In the Sibbia case (supra) where
the Hon'ble Apex Court had an occasion to
comprehensively deal with the scope and
ambit of the concept of anticipatory bail, it
5 All. Sovaran Singh Adhti & Ors. Vs. State of U.P.
1993
was observed that Section 438 CrPC is an
extraordinary provision where the accused
who
apprehends
his/her
arrest
on
accusation of having committed a nonbailable offence can be granted bail in
anticipation of arrest which, indubitably
depends upon the discretion of the Court
but such discretion should be exercised
with due care, caution and prudence on the
facts and circumstances of the case. It can
no doubt be continued after filing of charge
sheet till end of trial.

16. The idea of anticipatory bail
strengthen the theory of personal liberty of
a person but if it is explicit before the Court
that such person is likely to otherwise
misuse or has misused his liberty, the
negation to grant of anticipatory bail to
such a person is never violation of the
provisions of personal liberty. Absconding
in violation of the order of the Court is a
grave misuse of personal liberty and that is
why, " if any one is declared as an
absconder/ proclaimed offender in terms of
Section 82 Cr.P.C.", as held in State of M.P.
Vs. Pradeep Sharma (2014) 2 SCC 171, "
he is not entitled to grant of anticipatory
bail.

17. The Hon'ble Apex Court in
Lavesh Vs. State (NCT of Delhi)(2012) 8
SCC 730 has clarified the legal position by
holding that "12.......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."

18. Hence, no anticipatory bail may
be
granted
to
the
present
accusedapplicants.

19. The anticipatory bail application is
hereby rejected.
----------