# Sunil Kumar v. State of U.P. & Anr

- **Citation:** (2024) 5 ILRA 1612
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-03
- **Case number:** Criminal Misc. Anticipatory Bail Application U/S 438 CR.P.C. No. 4188 of 2024
- **Bench:** Krishan Pahal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sunil-kumar-v-state-of-u-p-anr-52002
- **Pages:** 11

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure,
1973
-
Section
438
-
anticipatory bail - Exceptional or Special
Circumstances - High Court and Court of
Session have concurrent jurisdiction for
anticipatory bail under Section 438 Cr.P.C.
- strong, cogent, compelling reasons and
special
circumstances
must
exist
in
justification
of
High
Court
being
approached first - Court must consider
these factors in each case, ensuring that
the available avenues are exhausted
before proceeding - Indian Penal Code,
1860 - Sections420, 467, 468, 47 &, 120B
(Para - 24)

Applicant being a public servant - no sanction to
prosecute u/s 197 Cr.P.C. - no criminal
antecedents to his credit. (Para - 27)

HELD:- An exception may be drawn in the
instant case to entertain the anticipatory bail
application directly by this Court without
taking recourse to the provision u/s 438
Cr.P.C. at the District and Sessions Court.
Applicant entitled to anticipatory bail in view
of law laid down by Supreme Court in case of
Sushila
Aggarwal
Vs.
State
(NCT
of
Delhi).(Para - 26,27)
Anticipatory bail application allowed. (E-7)

List of Cases cited:

## Text

1612 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2024) 5 ILRA 1612
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.05.2024

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Criminal Misc. Anticipatory Bail Application U/S
438 CR.P.C. No. 4188 of 2024

Sunil Kumar ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Nipun Singh, Vivek Chaturvedi

Counsel for the Opposite Party:

(A) Criminal Law - The Code of Criminal
Procedure,
1973
-
Section
438
-
anticipatory bail - Exceptional or Special
Circumstances - High Court and Court of
Session have concurrent jurisdiction for
anticipatory bail under Section 438 Cr.P.C.
- strong, cogent, compelling reasons and
special
circumstances
must
exist
in
justification
of
High
Court
being
approached first - Court must consider
these factors in each case, ensuring that
the available avenues are exhausted
before proceeding - Indian Penal Code,
1860 - Sections420, 467, 468, 47 &, 120B
(Para - 24)

Applicant being a public servant - no sanction to
prosecute u/s 197 Cr.P.C. - no criminal
antecedents to his credit. (Para - 27)

HELD:- An exception may be drawn in the
instant case to entertain the anticipatory bail
application directly by this Court without
taking recourse to the provision u/s 438
Cr.P.C. at the District and Sessions Court.
Applicant entitled to anticipatory bail in view
of law laid down by Supreme Court in case of
Sushila
Aggarwal
Vs.
State
(NCT
of
Delhi).(Para - 26,27)
Anticipatory bail application allowed. (E-7)

List of Cases cited:

1. Arnesh Kumar Vs St. of Bihar, (2014)4SCC 273

2. Md. Asfak Alam Vs St. of Jharkh. & anr. ,
(2023)8SCC 632

3. Shivam Vs St. of U.P. & anr. , AIROnline 2021
All 484

4. Vinod Kumar Vs St. of U.P. , (2020) 2 All Cri. R
1562

5. Ankit Bharti Vs St. of U.P., 2020 SCC Online All
1949

6. Sushila Aggarwal Vs St. (NCT of Delhi), 2020
SCC online SC 98

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

1. List has been revised.

2. Heard Sri Nipun Singh, learned
counsel for the applicant as well as Sri Anit
Kumar Shukla, learned A.G.A. for the State
and also perused the record.

3. The present anticipatory bail
application has been filed on behalf of the
applicant in Complaint Case No. 2807 of
2020, under Sections 420, 467, 468, 471,
120B IPC, Police Station Jahangirabad,
District Bulandshahr, with a prayer to
enlarge him on anticipatory bail.

PROSECUTION STORY:

4. The informant moved an application
before the S.S.P., Bulandshahar, alleging
that his father Kadam Singh was having an
electricity connection of 5 HP with service
connection no. 0625/3251. The informant
was in possession of the said tubewell and
used to deposit the bill of the electricity
5 All. Sunil Kumar Vs. State of U.P. & Anr.
1613
consumed for running the said tubewell. The
named accused persons Shyamveer and
Dabbu @ Tirvesh, in collusion with the
officials of the electricity department, got
the said electricity connection transferred in
the name of Smt. Shashi Kanta w/o
Shyamveer and on 15.10.2019 at about 1.30
pm got the electricity line of the said
tubewell disconnected. The informant is a
practising
advocate.
He
moved
a
Memorandum
before
the
Executive
Engineer, Vidyut Vitaran Khand Khand on
14.10.2019.
The
co-accused
person
Shyamveer is stated to be declared in village
that he has got the said connection
permanently disconnected in collusion with
the
employees
of
the
Electricity
Department. The crop of the informant is
stated to have been destroyed as a result of
the lack of irrigation. On 15.10.2019, the
Executive Engineer, Jahangirabad, is stated
to have asked the informant to move an
application before the police.The FIR was
instituted at Police Station Jahangirabad on
18.10.2019 at 4.00 pm.

ARGUMENTS ON BEHALF OF
THE APPLICANT:

5. Learned counsel has stated the
informant herein is a practising advocate in
the District Court Bulandshahar and the
applicant
has
apprehension
of
being
mistreated and manhandled at Sessions
Court, that is why, he has moved the
anticipatory bail application before this
Court directly. It is next stated that there is
no likelihood of him absconding.

6. Learned counsel for the applicant
has stated that the applicant is maliciously
being prosecuted in the present case due to
ulterior motive and has the apprehension of
his arrest. The applicant has nothing to do
with the said offence as alleged by the
prosecution. Learned counsel has next stated
that opposite party no. 2, being the
renowned advocate at District and Sessions
Court, Bulandshahar, practising since 1981,
therefore,
the
renowned
Advocates
practising at District and Sessions Court,
Bulandshahar, have refused to contest and
pursue the case on behalf of the applicant.

7. The enmity of informant with the
applicant stands established from the fact
that the applicant had passed the order of
disconnecting the electricity connection of
the opposite party no. 2 on 19.10.2019. It is
next stated that the applicant is not named in
the FIR. His name has come up later on
during investigation, that too, at the behest
of opposite party no. 2. The instant criminal
proceedings have just been initiated against
the applicant to harass him and to threaten
him to get his service terminated by
instituting other criminal cases against him.
It is stated that he is being threatened by the
opposite party no. 2 of dire consequences,
whenever he appears in the present matter
before the trial court.

8. Learned counsel has further stated
that Smt. Shashi Kanta, the named accused
person, had purchased 0.402 hectares of
land in Gata no. 151, 115, 209, 147 from
Rajeev Singh and Kapil Kumar S/o
Mahendra Kumar of the several village
through registered sale deed dated 2.6.2009.
The co-accused person Smt. Shashi Kanta,
had paid Rs. 15 thousand for the said
tubewell, which fell in Gata no. 209, which
stands mentioned in the aforesaid sale deed.
The said sale deed has been annexed as
Annexure-2 to the affidavit. The name of
Smt. Shashi Kanta was mutated in Revenue
records over the aforesaid Gate nos. 151,
115, 209, 147 without any objection, in
which the tubewell finds mention in Khasra
of 1425 Fasli year. A copy of the Khasra No.
1614 INDIAN LAW REPORTS ALLAHABAD SERIES
1425 fasli year has been filed as Annexure3 to the affidavit.

9. It is further argued that the named
accused person Smt. Shashi Kanta had
regularly paid bill of the said tubewell. The
payment details of the tubewell connection
has been filed as Annexure-4 to the affidavit.

10. It has been vehemently argued that
the aforesaid tubewell connection was
originally in the name of one Kadam Singh,
who was engaged in the agricultural work at
Khasra no. 209 on contractual basis.
Thereafter, the said land situated in Khasra
no. 209 was sold alongwith tubewell to the
named accused person Smt. Shashi Kanta,
by his owner Rajeev Singh and Kapil Singh,
as such, Smt. Shashi Kanta moved an
application before the Executive Engineer,
Electricity Supply Khand, Jahangirabad,
Bulandshahar, for transfer of the said
tubewell connection in her name on account
of her title. A copy of the application moved
by the Smt. Shashi Kanta has been filed as
Annexure-5 to the affidavit.

11. Pursuant to the said application, the
electricity connection was transferred in the
name of Smt. Shashi Kanta vide order dated
6.2.2019, which has been filed as Annexure6 to the affidavit.

12. Learned counsel has further placed
much reliance on the provisions of the
Electricity supply Code, 2005, which are
being reproduced as follows:-

"4.44 Transfer of Connection and
Mutation of Names--

(a) A connection shall be transferred
in the name of another person upon the death
of the consumer or in case of transfer of
ownership or occupancy of the premises, upon
an application of the consumer.

(b) Application for mutation shall
be filed, in the prescribed format,
alongwith prescribed fee by the transferee
or the legal heir or successor of the
deceased consumer with the local office of
the Licensee.

(c) The application shall be
accompanied by documentary evidence of
transfer or legal heir-ship or succession
and proof of no arrears on account of
electricity charges on that connection."

13. The said connection has been
transferred in the name of Smt. Shashi Kanta
after due procedure as prescribed in the
Electricity Supply Code 2005. Smt. Shashi
Kanta moved an application on 10.10.2019
seeking permanent disconnection of the
aforesaid tubewell connection, as such, it
was disconnected by the orders of the
applicant
dated
19.10.2019.
The
investigating officer had recorded the
statement of the informant u/s 161 Cr.P.C.
and there is no whisper of a single word
against the applicant in the said statement.

14. It is further argued that the
Assistant Engineer, Sub station Charora, has
submitted a report in respect of the
allegations made in the FIR stating therein
that the land of the Gata no. 209 alongwith
tubewell
situated
therein,
has
been
transferred in favour of the aforesaid Smt.
Shashi Kanta on 1.11.2019. The said report
is filed as Annexure-10 to the affidavit.

15. Subsequent to it, the Lekhpal
concerned had also submitted a report in
respect of the allegations made in the FIR on
7.11.2019 thereby corroborating the statement
of the Assistant Engineer, Sub station Charora.
The said report of the Lekhpal has been filed
as Annexure 11. The revenue inspector,
Anoopshahr, has also confirmed the said
report the same day i.e. 7.11.2019.
5 All. Sunil Kumar Vs. State of U.P. & Anr.
1615

16. The opposite party no. 2
(informant) has filed a Civil Misc. Writ
Petition No. 2733 of 2020 before this Court
for getting the electricity connection
restored. The said writ petition was disposed
of vide order dated 13.7.2023 with liberty
being granted to the informant to file a fresh
representation
before
the
concerned
authority and the authorities were directed to
decide the same within three weeks vide
order dated 13.7.2023. The representation
was made by the informant before the
Executive Engineer, Paschimanchal Vidyut
Vitran
Nigam
Limited,
Jahangirabad,
Bulandshahar, which was rejected after
examining the grievances made by the
informant vide order dated 11.12.2023.

17. The investigating officer filed a
closure report in the said case, as such, the
informant herein filed a protest petition
before the C.J.M. concerned, who, vide
order dated 16.3.2020 allowed the protest
petition by treating it as a Complaint Case
No. 2807 of 2020. After recording the
statements of the witnesses u/s 200 and 202
Cr.P.C., the C.J.M., in a mechanical and
arbitrary manner, summoned the applicant
and others to face criminal trial vide order
dated
2.1.2021.
The
applicant
had
challenged the said summoning order by
filing a petition u/s 482 Cr.P.C. No. 7639 of
2022, which is still pending before this
Court.

18. Learned counsel has further argued
that the applicant has been summoned
without taking recourse to Section 197
Cr.P.C., as there is no sanction to prosecute
the applicant on record. The instant
proceedings are, thus, abuse of the process
of law and have been maliciously initiated in
order to fulfil the nefarious designs of the
informant. It is stated that the applicant
being a public servant, has apprehension of
his arrest and his unblemished career is at
stake.

19. Several other submissions have
been made on behalf of the applicant to
demonstrate the falsity of the allegations
made against him. The circumstances
which, as per counsel, led to the false
implication of the applicant have also been
touched upon at length. In case, the
anticipatory bail application of the applicant
is allowed, he will not misuse the liberty and
shall cooperate with trial. He has even
cooperated during investigation, as such, he
shall not be arrested during investigation.

20. Relying on its judgement passed in
Arnesh Kumar Vs. State of Bihar1, the
Supreme Court in Md. Asfak Alam Vs. State
of Jharkhand and another2, has stated that
once the charge-sheet was filed and there
was no impediment, at least on the part of
the accused, the court having regard to the
nature of the offences, the allegations and
the maximum sentence of the offences they
were likely to carry, ought to have granted
the bail as a matter of course. However, the
court did not do so but mechanically rejected
and, virtually, to rub salt in the wound
directed the appellant to surrender and seek
regular bail before the trial court. Thus, the
High Court fell into error in adopting such a
casual approach.

21. Learned counsel has further stated
that the applicant was transferred from
Jahangirabad, Bulandshahar on 3.1.2022
and is presently posted at District Ghaziabad
and no notice of summons has been served
to him, as such, he had no knowledge of the
said summoning order dated 2.1.2021. The
petitioner herein was never the title holder
of the land or the tubewell connection in
question herein, as such, the instant
prosecution is an abuse of process of Court.
1616 INDIAN LAW REPORTS ALLAHABAD SERIES

ARGUMENTS ON BEHALF OF
STATE:

22. On the other hand, learned A.G.A.
has vehemently opposed the prayer for grant
of anticipatory bail on the ground that the
applicant is not co-operating in trial and he
has agitated the provisions of Section 482
Cr.P.C, as such, is not entitled for
anticipatory bail in light of the judgement of
this Court passed in Shivam Vs. State of
U.P. and Another3.

23. In rebuttal, learned counsel for the
applicant has stated that the petition u/s 482
Cr.P.C. qua the applicant is still pending. A
copy of the order sheet and the status report
of the said application u/s 482 Cr.P.C. have
been filed as Annexure-21 to the affidavit, as
such,
the
applicant
is
entitled
for
anticipatory bail.

CONCLUSION:

24. Dealing with the issue of
exceptional or special circumstances to
invoke the provisions of Section 438 Cr.P.C.
directly before High Court, this Court in
Vinod Kumar vs. State of Uttar Pradesh4,
has opined as follows:

37. On a conjoint reading of the
aforesaid two decisions, it is manifest that
all that was intended was to put in place a
rule of abstinence and require the individual
to establish the existence of special and
compelling circumstances constraining him
to move the the High Court in the first
instance. On an overall analysis of those
decisions, it may, therefore, be conclusively
held that while there exists no fetter or
restriction upon the High Court entertaining
an application under Section 438 Cr.P.C.
directly it would ultimately depend upon the
discretion of the Judge available to be
exercised in the facts and circumstances of
each case and upon finding special
circumstances which warrant this Court to
invoke its jurisdiction in the first instance
rather than relegating the party to the Court
of Sessions.

...

QUESTION D - Exceptional or
Special Circumstances

39. Regard must be had to the fact
that the Constitution Bench in Sibbia had an
occasion to deal with the correctness of the
restrictions as formulated by the Full Bench
of the Punjab and Haryana High Court on
the exercise of power under Section 438
Cr.P.C. Dealing with that aspect the
Constitution Bench clearly held that the
exercise
of
discretion
as
statutorily
conferred
cannot
be
confined
in
a
straitjacket. This simply since it would be
impossible to either prophesize or foresee
the
myriad
situations
in
which
the
jurisdiction of the Court may be invoked. It
was for the aforesaid reasons that the
Constitution Bench held that this aspect
must be left to the judgment and wisdom of
the Court to evaluate and consider whether
special circumstances exist or are evidenced
by the facts of a particular case. The Court
deems it apposite to extract the following
paragraphs from the decision rendered by
the Constitution Bench:-

"13. This is not to say that
anticipatory bail, if granted, must be
granted without the imposition of any
conditions. That will be plainly contrary to
the very terms of Section 438. Though subsection (1) of that section says that the Court
"may, if it thinks fit" issue the necessary
direction for bail, sub-section (2) confers on
the Court the power to include such
conditions in the direction as it may think fit
in the light of the facts of the particular case,
including the conditions mentioned in
clauses (i) to (iv) of that sub-section. The
5 All. Sunil Kumar Vs. State of U.P. & Anr.
1617
controversy therefore is not whether the
Court has the power to impose conditions
while granting anticipatory bail. It clearly
and expressly has that power. The true
question is whether by a process of
construction, the amplitude of judicial
discretion which is given to the High Court
and the Court of Session, to impose such
conditions as they may think fit while
granting anticipatory bail, should be cut
down by reading into the statute condition
which are not to be found therein, like those
evolved by the High Court or canvassed by
the learned Additional Solicitor General.
Our answer, clearly and emphatically, is in
the negative. The High Court and the Court
of Session to whom the application for
anticipatory bail is made ought to be left free
in the exercise of their judicial discretion to
grant bail if they consider it fit so to do on
the particular facts and circumstances of the
case and on such conditions as the case may
warrant. Similarly, they must be left free to
refuse bail if the circumstances of the case
so warrant, on considerations similar to
those mentioned in Section 437 or which are
generally considered to be relevant under
Section 439 of the Code.

14. Generalisations on matters
which rest on discretion and the attempt to
discover formulae of universal application
when facts are bound to differ from case to
case frustrate the very purpose of conferring
discretion. No two cases are alike on facts
and therefore, courts have to be allowed a
little free play in the joints if the conferment
of discretionary power is to be meaningful.
There is no risk involved in entrusting a wide
discretion to the Court of Session and the
High Court in granting anticipatory bail
because, firstly, these are higher courts
manned by experienced persons, secondly,
their orders are not final but are open to
appellate or revisional scrutiny and above
all because, discretion has always to be
exercised by courts judicially and not
according to whim, caprice or fancy. On the
other hand, there is a risk in foreclosing
categories of cases in which anticipatory
bail may be allowed because life throws up
unforeseen possibilities and offers new
challenges. Judicial discretion has to be free
enough to be able to take these possibilities
in its stride and to meet these challenges.
While dealing with the necessity for
preserving judicial discretion unhampered
by rules of general application, Earl
Loreburn, L. C. said in Hyman v. Rose : "I
desire in the first instance to point out that
the discretion given by the section is very
wide........... Now it seems to me that when
the Act is so express to provide a wide
discretion,... it is not advisable to lay down
any rigid rules for guiding that discretion. I
do not doubt that the rules enunciated by the
Master of the Rolls in the present case are
useful maxims in general, and that in
general they reflect the point of view from
which judges would regard an application
for relief. But I think it ought to be distinctly
understood that there may be cases in which
any or all of them may be disregarded. If it
were otherwise, the free discretion given by
the statute would be fettered by limitations
which have nowhere been enacted. It is one
thing to decide what is the true meaning of
the language contained in an Act of
Parliament. It is quite a different thing to
place conditions upon a free discretion
entrusted by statute to the court where the
conditions are not based upon statutory
enactment at all. It is not safe, I think, to say
that the court must and will always insist
upon certain things when the Act does not
require them, and the facts of some
unforeseen case may make the court wish it
had kept a free hand."

15. Judges have to decide cases as
they come before them, mindful of the need
to keep passions and prejudices out of their
1618 INDIAN LAW REPORTS ALLAHABAD SERIES
decisions. And it will be strange if, by
employing judicial artifices and techniques,
we cut down the discretion so wisely
conferred upon the courts, by devising a
formula which will confine the power to
grant anticipatory bail within a straitjacket. While laying down cast-iron rules in
a matter like granting anticipatory bail, as
the High Court has done, it is apt to be
overlooked that even judges can have but an
imperfect awareness of the needs of new
situations. Life is never static and every
situation has to be assessed in the context of
emerging concerns as and when it arises.
Therefore, even if we were to frame a 'Code
for the grant of anticipatory bail', which
really is the business of the legislature, it can
at best furnish broad guide-lines and cannot
compel blind adherence. In which case to
grant bail and in which to refuse it is, in the
very nature of things, a matter of discretion.
But apart from the fact that the question is
inherently of a kind which calls for the use
of discretion from case to case, the
legislature has, in terms express, relegated
the decision of that question to the discretion
of the court, by providing that it may grant
bail "if it thinks fit". The concern of the
courts generally is to preserve their
discretion without meaning to abuse it. It
will be strange if we exhibit concern to
stultify the discretion conferred upon the
courts by law..

..........

26. We find a great deal of
substance in Mr. Tarkunde's submission that
since denial of bail amounts to deprivation
of personal liberty, the Court should lean
against the imposition of unnecessary
restrictions on the scope of Section 438,
especially when no such restrictions have
been imposed by the legislature in the terms
of that section. Section 438 is a procedural
provision which is concerned with the
personal liberty of the individual, who is
entitled to the benefit of the presumption of
innocence since he is not, on the date of his
application for anticipatory bail, convicted
of the offence in respect of which he seeks
bail.
An
overgenerous
infusion
of
constraints and conditions which are not to
be found in Section 438 can make its
provisions constitutionally vulnerable since
the right to personal freedom cannot be
made to depend on compliance with
unreasonable restrictions. The beneficient
provision contained in Section 438 must be
saved, not jettisoned. No doubt can linger
after the decision in Maneka Gandhi that in
order to meet the challenge of Article 21 of
the Constitution, the procedure established
by law for depriving a person of his liberty
must be fair, just and reasonable. Section
438, in the form in which it is conceived by
the legislature, is open to no exception on
the ground that it prescribes a procedure
which is unjust or unfair. We ought, at all
costs, to avoid throwing it open to a
Constitutional challenge by reading words
in it which are not be found therein"

40. On an overall consideration of
the above the Court is of the considered view
that Harendra Singh when interpreted and
understood in the manner indicated above,
rightly balances the issues that arise. While
it was urged that the aforesaid decision
would be per incuriam the views expressed
by our Full Bench in Onkar Nath Agarwal
and the decision of the Constitution Bench
in Sibbia, this Court finds no merit in that
submission since as noted above, even
Onkar
Nath Agarwal
had
envisaged
situations where the High Court may
relegate parties to the Court of Sessions and
refuse to invoke its jurisdiction. Insofar as
Sibbia is concerned, it becomes relevant to
bear in mind that the Constitution Bench
was not dealing with the issue that arises for
our consideration directly. The observations
with regard to the exercise of discretion as
5 All. Sunil Kumar Vs. State of U.P. & Anr.
1619
appearing therein were entered in the
context of the principles formulated by the
Full Bench of the Punjab and Haryana High
Court relating to the exercise of power
under Section 438 itself. The issue of a self
imposed restraint exercised by the High
Court in light of the contemporaneous
jurisdiction conferred on the Court of
Session was not a question directly in issue.
The argument of per incuriam is thus liable
to be and is consequently rejected.

41. The legal position which
consequently
emerges
is
that
notwithstanding the concurrent jurisdiction
being conferred on the High Court and the
Court of Session for grant of anticipatory
bail under Section 438 Cr.P.C., strong,
cogent, compelling reasons and special
circumstances must necessarily be found to
exist in justification of the High Court being
approached first and without the avenue as
available before the Court of Sessions being
exhausted. Whether those factors are
established or found to exist in the facts of a
particular case must necessarily be left for
the Court to consider in each case.

42.
What
would
constitute
"special circumstances" in light of the
nature of the power conferred, must also be
left to be gathered by the Judge on a due
evaluation of the facts and circumstances of
a particular case. It would perhaps be
imprudent to exhaustively chronicle what
would be special circumstances. As noticed
above, it would be impossible to either
identify or compendiously propound what
would constitute special circumstances.
Sibbia spoke of the "imperfect awareness of
the needs of new situations". It is this
constraint which necessitates the Court
leaving it to the wisdom of the Judge and the
discretion vested in him by statute. Without
committing the folly of attempting to
exhaustively
enunciate
what
would
constitute special circumstances or being
understood to have done so, the High Court
would be justified in entertaining a petition
directly in the following, amongst other,
circumstances:-

(A)
Where
bail,
regular
or
anticipatory, of a coaccused has already
been rejected by the Court of Sessions;

(B) Where an accused not residing
within the jurisdiction of the concerned
Sessions Court faces a threat of arrest;

(C) Where circumstances warrant
immediate protection and where relegation
to the Sessions Court would not subserve
justice;

(D) Where time or situational
constraints warrant immediate intervention.
These and other relevant factors would
clearly constitute special circumstances
entitling a party to directly approach the
High Court for grant of anticipatory bail.

...

...

55. In light of what has been held
above, the Court records its conclusions on
the questions formulated as under:-

A. Section 438 Cr.P.C. on its plain
terms does not mandate or require a party to
first approach the Sessions Court before
applying to the High Court for grant of
anticipatory bail. The provision as it stands
does not require an individual first being
relegated to the Court of Sessions before
being granted the right of audience before
this Court.

B. Notwithstanding concurrent
jurisdiction being conferred on the High
Court and the Court of Session for grant of
anticipatory bail under Section 438 Cr.P.C.,
strong, cogent, compelling and special
circumstances must necessarily be found to
exist in justification of the High Court being
approached first without the avenue as
available before the Court of Sessions being
exhausted. Whether those factors are
established or found to exist in the facts of a
1620 INDIAN LAW REPORTS ALLAHABAD SERIES
particular case must necessarily be left for
the Court to consider in each individual
matter.

C. The words "exceptional" or
"extraordinary" are understood to mean
atypical, rare, out of the ordinary, unusual or
uncommon. If the jurisdiction of the Court
as conferred by Section 438 Cr.P.C. be
circumscribed or be recognised to be moved
only in exceptional situations it would again
amount to fettering and constricting the
discretion otherwise conferred by Section
438 Cr.P.C. Such a construction would be in
clear conflict of the statutory mandate. The
ratio of Harendra Singh must be recognised
to be the requirement of establishing the
existence
of
special,
weighty
and
compelling reasons and circumstances
justifying the invocation of the jurisdiction
of this Court even though a wholesome
avenue of redress was available before the
Court of Sessions

D. What would constitute "special
circumstances" in light of the nature of the
power conferred, must be left to be gathered
by the Judge on a due evaluation of the facts
and circumstances of a particular case. It
would
be
imprudent
to
exhaustively
chronicle
what
would
be
special
circumstances. It is impossible to either
identify or compendiously postulate what
would constitute special circumstances.
Sibbia spoke of the "imperfect awareness of
the needs of new situations". It is this
constraint which necessitates the Court
leaving it to the wisdom of the Judge and the
discretion vested in him by statute.

E. While the Explanation may
have created an avenue for an aggrieved
person to challenge an order passed under
Section 438(1), it cannot be construed or
viewed as barring the jurisdiction of the
High Court from entertaining an application
for
grant
of
anticipatory
bail
notwithstanding that prayer having been
refused by the Court of Sessions.

F. Till such time as the question
with respect to the period for which an order
under Section 438 Cr.P.C. should operate is
answered by the Larger Bench, the Court
granting anticipatory bail would have to
specify that it would continue only till the
Court summons the accused based on the
report that may be submitted under Section
173(2) Cr.P.C. whereafter it would be open
for the applicant on appearance to seek
regular bail in accordance with the
provisions made in Section 439 Cr.P.C.

25. The aforesaid view has been
affirmed by the Constitution Bench of this
Court in Ankit Bharti v. State of U.P.5, and
the following order was passed:

"20. We would consequently
answer the Reference by holding that the
decision in Vinod Kumar does not merit any
reconsideration or explanation. As rightly
held in that decision, there can be no
exhaustive
or
general
exposition
of
circumstances in which an applicant may be
held entitled to approach the High Court
directly. The Court would clearly err in
attempting to draw a uniform code or dictum
that may guide the exercise of discretion
vested in the Court under Section 438 of the
Criminal Procedure Code. The discretion
wisely left unfettered by the Legislature
must be recognised as being available to be
exercised dependent upon the facts and
circumstances of each particular case. The
contingencies spelled out in Vinod Kumar as
illustrative of special circumstances may,
where duly established, constitute a ground
to petition the High Court directly.

21. The special circumstances the
existence of which have been held to be a
sine qua non to the entertainment of an
application for anticipatory bail directly by
5 All. Sunil Kumar Vs. State of U.P. & Anr.
1621
the High Court must be left for the
consideration of the Hon'ble Judge before
whom the petition is placed and a decision
thereon taken bearing in mind the facts and
circumstances of that particular cause.
However
special
circumstances
must
necessarily exist and be established as such
before the jurisdiction of the High Court is
invoked. The application must rest on a
strong foundation in respect of both the
apprehension of arrest as well as in
justification of the concurrent jurisdiction of
the High Court being invoked directly. The
factors
enumerated
in Vinod
Kumar
including (A) and (B) as constituting special
circumstances do not merit any review
except to observe that the existence of any
particular
circumstance
must
be
convincingly established and not rest on
vague allegations.

22. In light of the aforesaid, we
answer the Reference as follows:-

Question (i) and (iv) clearly do not
merit any elucidation for it is for the
concerned Judge to assess whether special
circumstances do exist in a particular case
warranting the jurisdiction of the High Court
being
invoked
directly.
We
answer
Questions (ii) and (iii) in the negative and
hold that Vinod Kumar does not merit any
reconsideration or further explanation. It
would be for the concerned Judge to form an
opinion in the facts of each particular case
whether special circumstances do exist and
stand duly established."

26. Applying the judgements of this
Court passed in Vinod Kumar (supra) and
Ankit Bharti (supra), an exception may be
drawn in the instant case to entertain the
anticipatory bail application directly by this
Court without taking recourse to the
provision u/s 438 Cr.P.C. at the District and
Sessions Court.

27. On due consideration to the
arguments advanced by the learned counsel
for the parties, the case of the applicant
being a public servant and coupled by the
fact that there is no sanction to prosecute u/s
197
Cr.P.C.
and
also
taking
into
consideration the fact that the applicant has
no criminal antecedents to his credit, being
a public servant, and at present being posted
at Ghaziabad, and the case laws referred
above and in view of the law laid down by
the Supreme Court in the case of "Sushila
Aggarwal Vs. State (NCT of Delhi)6, the
applicant
is
entitled
to
be
granted
anticipatory bail in this case.

28. Without expressing any opinion
upon ultimate merits of the case either ways
which may adversely affect the trial of the
case, the anticipatory bail application of the
applicant is allowed.

29. In the event of arrest of the
applicant, Sunil Kumar involved in the
aforesaid case crime number, shall be
released on anticipatory bail till the
conclusion of trial on furnishing a personal
bond with two sureties each in the like
amount to the satisfaction of the Presiding
Officer/Court
Concerned,
with
the
conditions that:-

i. that the applicant shall make
himself available for interrogation by a
police officer as and when required;

ii. that the applicant shall not,
directly or indirectly make any inducement,
threat or promise to any person acquainted
with the facts of the case so as to dissuade
him from disclosing such facts to the court
or to any police officer or tamper with the
evidence;

iii. that the applicant shall not
leave India without previous permission of
the court;
1622 INDIAN LAW REPORTS ALLAHABAD SERIES

iv. that the applicant shall not
tamper with the evidence during the trial;

v. that the applicant shall not
pressurize/
intimidate
the
prosecution
witness;

vi. that the applicant shall appear
before the trial court on each date fixed
unless personal presence is exempted;

30. In case of breach of any of the
above conditions, the court concerned shall
have the liberty to cancel the bail granted to
the applicant.

31. It is made clear that observations
made in granting anticipatory bail to the
applicant shall not in any way affect the
learned
trial
Judge
in
forming
his
independent opinion based on the testimony
of the witnesses.
----------
(2024) 5 ILRA 1622
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.05.2024

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE AJIT KUMAR, J.

Matters Under Article 227 No. 8279 of 2022

Pramila Tiwari ...Petitioner
Versus
Anil Kumar Mishra & Ors. ...Respondents

Counsel for the Petitioner:
Anand Kumar Singh, Dinesh Kumar Singh,
Rahul Sahai, Vinod Kr. Pandey

Counsel for the Respondents:
Rituvendra Singh Nagvanshi, Uday Bhan
Mishra

(A) The Constitution of India, 1950 -
Matters under Article 227 - Supervisory
jurisdiction - Reference to answer - The
Uttar Pradesh Zamindari Abolition and Land
Reforms Act, 1950 - (U.P. Amended Act , 27
of 2004) - Section 169(3) - compulsory
registration of Will, The Indian Registration
Act, 1908 - Section 17 - registration of
documents and deeds , Section 40 - Persons
entitled to present wills and authorities to
adopt - The Government of India Act, 1935 -
The Constitution of India, 1950 - Article
245(2) , 246, 249 ,252 , 253 ,251 & 254 -
Every legislation must ensure certainty as to
its application and exercise of power under it
- Object of 2004 Amendment - to prevent
forged wills and promote justice, economic
stability, and rule of law - Agriculture reforms
are influenced by socio-economic conditions
of villagers in remote areas.(Para -25,34)

Two contradictory views by two Co -ordinate
benches - regarding compulsory registration of wills
under the U.P.Z.A. & L.R. Act 1950 - Reference to
answer - whether compulsory registration of will ,
introduced in Section 169(3) of the U.P.Z.A. & L.R.
Act, 1950 by the Amendment Act namely U.P. Act
No. 26 of 2004, is prospective or retrospective in
nature.

HELD:- Amendment of Section 169(3) of the
U.P.Z.A.L.R. Act, which requires a Will to be
compulsorily registered, is void to the extent it
provides for registration of Will as it is repugnant to
Section 17 read with Section 40 of the Indian
Registration Act, 1908. Wills in Uttar Pradesh are
not required to be registered. Petition be laid before
Bench concerned for decision on merits.(Para - 36,
37,38)

Reference answered. (E-7)

List of Cases cited:

1. Sobnath Dube, In the Matter of: Late
Kashinath Dube , 2015 (0) SCC (All) 674

2. Jahan Singh Vs St. of U.P. & ors , (Writ
Petition No.1570 of 2017)

3. Rani Purnima Devi & anr. Vs Kumar
Khagendra Narayan Dev & anr , AIR 1962
567

4. Babu Ram Vs Santokh Singh (deceased) , 2019
(14) SCC 162