# Sreedhar Prasad v. State of U.P

- **Citation:** (2025) 1 ILRA 53
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-01-21
- **Case number:** Criminal Misc. Bail Application No. 29850 of 2020
- **Bench:** Ashutosh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sreedhar-prasad-v-state-of-u-p-52891
- **Pages:** 5

## Headnote

Criminal Law - Indian Penal Code,
1860 - Sections 420, 467, 468 & 120B - Information Technology Act, 2000
- Section 66 - Code of Criminal
Procedure, 1973 - Section 362 (Now
Section 403, BNSS 2023) - Bail -
Application for modification of order
- Maintainability - High Court vide
order
dated
12.10.2020
enlarged
applicant on bail on his furnishing a
personal bond of Rs. 1 Lac with two
sureties (one should be of his family
members) each in like amount to
satisfaction
of
Court
concerned.
(Para 2)
54 INDIAN LAW REPORTS ALLAHABAD SERIES
Applicant contended that he lodged in jail
for long time and unable to arrange
sureties and can be released on filing
personal
bonds
without
monetary
obligations. (Para 4)

Held, taking note of fact that applicant
though
released
earlier
on
bail
has
remained in custody since 15.07.2019 on
account of non-fulfilment of condition of
providing
one
surety
of
his
family
member,
prayer
for
modification
of
condition granted - Thus, by allowing said
application,
Court
deleted
condition
mentioned in impugned order. (Para 15,
17)

Modification application allowed. (E-13)

List of Cases cited:

## Text

1 All. Sreedhar Prasad Vs. State of U.P.
53
consultation with various authorities and
experts.

115. The State Government to provide
necessary support to Ms. Richa Upadhyay,
HJS/Secretary,
DLSA,
Gautam
Budh
Nagar
and
the
District
Probationary
Officer, Jhansi to accomplish this task.
Copy of the said individual child care plan
shall be provided to the jail authorities,
CWC and BSA. The District Magistrate,
Jhansi shall also ensure that the aforesaid
child care plan is duly implemented by the
concerned
authorities
of
the
local
administration.

116. The CWC, Jhansi shall prepare a
regular report regarding implementation of
the aforesaid plan and submit a report to
the concerned authorities.

X.
Circulation
of
copies
for
compliance

117. Learned Additional Advocate
General to ensure service of copy of this
judgement for necessary compliance upon
the following authorities:

i. Principal Secretary, Women
and Child Development, Government of
U.P.

ii. Principal Secretary, Law/Legal
Remembrancer, Government of U.P.

iii. Director General of Police,
Government of UP

iv. Principal Secretary, (Prisons),
Government of UP

v. Principal Secretary (Basic
Education), Government of UP

vi.Principal Secretary, Health and
Medical Education, Government of UP

vii. CWC members in all districts

viii. District Jail Superintendents
of all district jails

ix. Police Chiefs of all districts

x. District Probationary Officers
of all districts

xi. Director, JTRI, Lucknow

xii. District Magistrate, Jhansi

118. Registrar General to ensure that a
copy of this order is provided to Ms. Richa
Upadhyay,
Additional
District
Judge/Secretary, DLSA, Gautam Budh
Nagar.

119. A copy of this order translated in
Hindi to be served to the applicant.
----------
(2025) 1 ILRA 53
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.01.2025

BEFORE

THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Criminal Misc. Bail Application No. 29850 of
2020

Sreedhar Prasad ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:

Counsel for the Opposite Party:

Criminal Law - Indian Penal Code,
1860 - Sections 420, 467, 468 & 120B - Information Technology Act, 2000
- Section 66 - Code of Criminal
Procedure, 1973 - Section 362 (Now
Section 403, BNSS 2023) - Bail -
Application for modification of order
- Maintainability - High Court vide
order
dated
12.10.2020
enlarged
applicant on bail on his furnishing a
personal bond of Rs. 1 Lac with two
sureties (one should be of his family
members) each in like amount to
satisfaction
of
Court
concerned.
(Para 2)
54 INDIAN LAW REPORTS ALLAHABAD SERIES
Applicant contended that he lodged in jail
for long time and unable to arrange
sureties and can be released on filing
personal
bonds
without
monetary
obligations. (Para 4)

Held, taking note of fact that applicant
though
released
earlier
on
bail
has
remained in custody since 15.07.2019 on
account of non-fulfilment of condition of
providing
one
surety
of
his
family
member,
prayer
for
modification
of
condition granted - Thus, by allowing said
application,
Court
deleted
condition
mentioned in impugned order. (Para 15,
17)

Modification application allowed. (E-13)

List of Cases cited:

1. Rakesh Kumar Paul Vs St. of Assam reported
in 2017(15) SCC 67

2. Hussainara Khatoon & ors. Vs Home,
Secretary, St. of Bihar, 1980 (1) SCC 81

3. R. D. Upadhyay Vs St. of Andhra Pradesh,
1996 (3) SCC 422

4. Girish Gandhi Vs The St. of U. P., Writ Petition
No. 149 of 2024, order dated 12.10.2020, (Para
22, 23)

5. Narayan Prasad Vs St. of Bihar & ors.,
reported in 2019(14) SCC 726

6. Sanjeev Kapoor Vs Chandana Kapoor & ors.,
reported in 2020 (13) 172

7. Ramadhar Sahu Vs The St. of M. P., reported
in 2023 LiveLaw (SC) 945, (Para 4, 5)

(Delivered by Hon'ble Ashutosh
Srivastava, J.)

In
Ref.:
Criminal
Misc.
Modification Application

1. This is an application seeking
modification of the order dated 12.10.2020
passed in Criminal Misc. Application No.
29850 of 2020 to the extent of removing
the condition of one family member as a
surety and direct the release of the
applicant on his furnishing a personal bond
along with any two sureties each in the like
amount to the satisfaction of the court
concerned or pass any other and further
orders
in
the
interest
of
applicant
considering
the
present
facts
and
circumstances of the case.

2. It is contended that the applicant
filed Criminal Misc. Bail Application
aforementioned seeking regular bail in
Case Crime No. 0816 of 2017, under
Sections 420, 467, 468, 120-B IPC and
Section 66 of Information Technology Act,
Police Station Kotwali City, District
Bijnore. This Court vide order dated
12.10.2020 was pleased to enlarge the
applicant on bail on his furnishing a
personal bond of Rs. 1 Lac with two
sureties (one should be of his family
members) each in the like amount to the
satisfaction of the Court concerned.

3. It has been submitted that the
applicant has not been able to obtain bail
on account of the fact that he has not been
able to arrange a family member to stand as
his security as directed by this Court while
granting bail vide order dated 12.10.2020
and has been languishing in jail since
15.07.2019. His father has expired and his
family comprises of his Mother and Wife,
who are home makers and two daughters,
one
of
whom
is
working
in
Vishakhapatnam and the other studying in
Mumbai.

4. Learned counsel has placed reliance
upon the Apex Court decision in the case of
Rakesh Kumar Paul Vs. State of Assam
reported in 2017(15) SCC 67 to buttress
1 All. Sreedhar Prasad Vs. State of U.P.
55
the point that in matters of personal liberty
and Article 21 of the Constitution of India
it is not always advisable to be formalistic
or technical and the bail order is liable to be
modified as prayed to enable the applicant
to avail the benefit of the bail order.
Placing further reliance upon 1980 (1) SCC
81 (Hussainara Khatoon & others Vs.
Home, Secretary, State of Bihar) as also
1996 (3) SCC 422 (R. D. Upadhyay Vs.
State of Andhra Pradesh). It is contended
that accused lodged in jail for long time
and unable to arrange sureties can be
released on filing personal bonds without
monetary obligations.

5. Learned counsel for the applicant
has invited attention to Para 22 of the
decision of the Apex Court in the case of
Girish Gandhi Vs. The State of Uttar
Pradesh (Writ Petition No. 149 of 2024),
quoted herein-below to submit that the
order
dated
12.10.2020
be
suitably
modified.

"22.
Whether
it
is
to
get
individuals, to stand as a guarantor for a
loan transaction or as a Surety in a
criminal proceeding, the choice for a
person is very limited. It will very often be
a close relative or a longtime friend. In a
criminal proceeding, the circle may get
even more narrowed as the normal
tendency is to not disclose about the said
criminal proceeding to relatives and
friends, to protect one's reputation. These
are hard realities of life in our country and
as a court of law we cannot shut our eyes
to them. A solution, however, has to be
found strictly within the framework of the
law.

23. From time immemorial, the
principle has been that the excessive bail is
no bail. To grant bail and thereafter to
impose excessive and onerous conditions,
is to take away with the left hand, what is
given with the right. As to what is excessive
will depend on the facts and circumstances
of each case. In the present case, the
petitioner
is
experiencing
a
genuine
difficulty in finding multiple sureties.
Sureties are essential to ensure the
presence of the accused, released on bail.
At the same time, where the court is faced
with the situation where the accused
enlarged on bail is unable to find sureties,
as ordered, in multiple cases, there is also
a need to balance the requirement of
furnishing the sureties with his or her
fundamental rights under Article 21 of the
Constitution of India. An order which
would protect the person's fundamental
right under Article 21 and at the same time
guarantee
the
presence,
would
be
reasonable and proportionate. As to what
such an order should be, will again depend
on the facts and circumstances of each
case."

6. The modification application has
been vehemently opposed by the learned
AGA by submitting that the application
seeking modification of the bail order is hit
by the embargo imposed by Section 362
Cr.P.C. and hence not maintainable and the
remedy lies elsewhere.

7. I have heard the learned counsel for
the applicant, learned AGA for the State
and have given my anxious consideration
to the submissions advanced by the
respective counsels.

8. Section 362 Cr.P.C. contained in
Chapter XXVII of the Cr.P.C. reads as
under:-

"362.
Court
not
to
alter
judgment.
56 INDIAN LAW REPORTS ALLAHABAD SERIES

Save as otherwise provided by
this Code or by any other law for the time
being in force, no Court, when it has signed
its judgment or final order disposing of a
case, shall alter or review the same except
to correct a clerical or arithmetical error."

9.
The
equivalent
Section
403
contained in Chapter XXIV of the BNSS
2023 read as under:-

"403.
Court
not
to
alter
judgment.

Save as otherwise provided by
this Sanhita or by any other law for the
time being in force, no Court, when it has
signed its judgment or final order disposing
of a case, shall alter or review the same
except to correct a clerical or arithmetical
error."

10. The embargo put on the criminal
court by Section 362 Cr.P.C. (Section 403
BNSS) is with a purpose and object. The
criminal justice delivery system does not
clothe criminal courts with power to alter or
review the judgment or final order disposing
of the case except to correct the clerical or
arithmetical
error.
After
the
judgment
delivered by a criminal court or passing of the
final order disposing of the case the court
becomes functus-officio and any mistake or
glaring omission is left to be corrected only by
the appropriate forum in accordance with law.

11. The expression "Save as otherwise
provided by this Code/Sanhita or by any other
law for the time being in force" contained in
Section 362 Cr.P.C./Section 403 BNSS, 2023
is relaxed in following two conditions"-

(i) Save as otherwise provided by
the Code of Criminal Procedure/BNSS,
2023

(ii) Any other law for the time
being in force.

12. Section 362 Cr.P.C. of which
Section 403 BNSS is pari-materia has been
interpreted by the Courts of law. The Apex
Court in the case of Narayan Prasad Vs.
State of Bihar and others, reported in
2019(14) SCC 726 has held that the
prohibition under Section 362 Cr.P.C. is
absolute; after the judgment is signed even
the High Court in exercise of its inherent
power under Section 482 Cr.P.C. has no
authority or jurisdiction to alter/review the
same. The judgment further held that
inherent power under Section 482 Cr.P.C.
was purported to avoid the abuse of the
process of the Court and to secure the ends
of justice. Such power cannot be exercised
to do something which is expressly barred
under the Code.

13. In the case of Sanjeev Kapoor Vs.
Chandana Kapoor and others, reported
in 2020 (13) 172 after analyzing various
decisions, however, held that the embargo
as contained in Section 362 Cr.P.C. was
clearly relaxed in proceedings under
Section 125 Cr.P.C. and the maintenance
proceedings initiated by the wife under
Section 125 Cr.P.C. which had been finally
disposed off with terms of settlement
arrived at Section the husband and wife
were rightly restored on the application of
the wife seeking recall on non compliance
of the conditions by the husband.

14. Recently, the Apex Court in the
case of Ramadhar Sahu Vs. The State of
Madhya
Pradesh
reported
in
2023
LiveLaw (SC) 945 observed that Section
362 which prohibits modification of a
judgment or final order will not be
applicable in an order for refusal of bail.
1 All. Om Prakash Kushwaha Vs. State of U.P.
57
The relevant paras of the decision of the
Apex Court is quoted hereunder:-

"4. The opinion of the High
Court, in the impugned order, is that in the
event the High Court granted bail to the
appellant
without
compliance
of
the
conditions specified in the earlier order of
a Coordinate Bench, that would constitute
modification of the order and Section 362
of the Code prohibits such modification of
a judgment or final order.

5. An order for refusal of bail
however,
inherently
carries
certain
characteristics of an interlocutory order in
that certain variation or alteration in the
context in which a bail plea is dismissed
confers on the detained accused right to file
a fresh application for bail on certain
changed circumstances. Thus, an order
rejecting
prayer
for
bail
does
not
disempower the Court from considering
such plea afresh if there is any alteration of
the circumstances. Conditions of bail could
also be varied if a case is made out for
such variation based on that factor.
Prohibition contemplated in Section 362 of
the Code would not apply in such cases.
Hence, we do not think the reasoning on
which the impugned order was passed
rejecting the appellant?s application of bail
can be sustained. The impugned order is
set aside and the matter is remitted to the
High Court. The bail petition of the
appellant before the High Court shall
revive to be examined afresh by the High
Court in the light of our observations made
in this order"

15. In view of the above, taking note
of the fact that the applicant though
released
on
bail
vide
order
dated
12.10.2020 has remained in custody on
account of non-fulfillment of the condition
of providing one surety of his family
member, I am inclined to grant the prayer
for modification of the condition, to meet
the ends of justice.

16. In view of the above, the
modification application stands allowed.

17. Accordingly, in the 4th & 5th line
of the order dated 12.10.2020 is modified
to the extent that the condition mentioned
as "one of the surety should be of his
family member" is hereby deleted.
----------
(2025) 1 ILRA 57
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.01.2025

BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.

Criminal Misc. Bail Application No. 35494 of
2024

Om Prakash Kushwaha ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Himanshu Mishra, Kamlesh Kumar Dwivedi,
Suvansit Kumar Jaiswal

Counsel for the Opposite Party:
G.A., Vijay Kumar Mishra

A. Criminal Law - Bharatiya Nyaya Sanhita
- Sections 64, 74 & 351 - Evidence
Act,1875 - Section 65B - Rape - CCTV
footage show the presence of applicant
and victim together in a hotel and
WhatsApp chatting proof that applicant
was taking advantage of withdrawing the
case lodged by him against the victim's
brother and used it to make physical
relation
with
her
-
There
is
no
inconsistency in the FIR version and
St.ment of victim u/s 180 and 183 of
BNSS - Effect - Held, from the medical