# Suraj Harijan v. State of U.P. & Anr

- **Citation:** (2023) 8 ILRA 664
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-31
- **Case number:** Crl. Misc. Anticipatory Bail Application No. 1179 of 2023
- **Bench:** Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suraj-harijan-v-state-of-u-p-anr-50697
- **Pages:** 5

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Section 438 - Indian Penal Code,
1860 - Section 461 - Indian Telegraph
Act, 1933 - Section 25 - Application for
Anticipatory Bail - offence of theft - FIR -
applicant's name was not named in the FIR - no
incriminating evidence was directly recovered
from him - The court noted that the applicant
had previously been given liberty to file a
regular bail application but had not done so -
court finds that, the allegations against the
applicant
were
based
on
circumstantial
evidence, and there was no direct evidence
linking him to the crime - held, there is no
justification to proceed with the present
anticipatory bail application as it is legally not
maintainable - hence - applicant is directed to
file a regular bail application as per the
guidelines laid down by the Supreme Court in
similar cases - accordingly, application is
rejected. (Para - 20, 21)

Application Rejected. (E-11)

List of Cases cited:

## Text

664 INDIAN LAW REPORTS ALLAHABAD SERIES
the cross-examination of P.W.4 S.I. V.P.
Singh is not concluded on the date of his
arrival, it shall be concluded on the next
date subject to payment of additional cost
of Rs.4,000/- to the witness.

18. Subject to aforesaid conditions,
the present application u/s 482 Cr.P.C. is
allowed in part regarding summoning of
Investigating Officer, P.W.4 S.I. V.P. Singh.
However, the prayer regarding summoning
of
P.W.2
Dr.
S.K.
Agarwal
and
Investigating
Officer
of
C.B.C.I.D.,
Ghanshyam Ahirwar, is rejected
----------
(2023) 8 ILRA 664
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.07.2023

BEFORE

THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Crl. Misc. Anticipatory Bail Application No. 1179
of 2023
(U/s 438 Cr.P.C)

Suraj Harijan ...Applicant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicant:
Sri Deepak Kumar Tripathi

Counsel for the Respondents:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Section 438 - Indian Penal Code,
1860 - Section 461 - Indian Telegraph
Act, 1933 - Section 25 - Application for
Anticipatory Bail - offence of theft - FIR -
applicant's name was not named in the FIR - no
incriminating evidence was directly recovered
from him - The court noted that the applicant
had previously been given liberty to file a
regular bail application but had not done so -
court finds that, the allegations against the
applicant
were
based
on
circumstantial
evidence, and there was no direct evidence
linking him to the crime - held, there is no
justification to proceed with the present
anticipatory bail application as it is legally not
maintainable - hence - applicant is directed to
file a regular bail application as per the
guidelines laid down by the Supreme Court in
similar cases - accordingly, application is
rejected. (Para - 20, 21)

Application Rejected. (E-11)

List of Cases cited:

1. Satender Kumar Antil Vs C.B.I. & ors. -
(2022) 10 SCC 51,

2. Siddharth Vs St. of U.P. & anr - (2022) 1 SCC
676,

3. Aman Preet Singh Vs C.B.I. through Director -
2021 SCC OnLine SC 941,

4. Arnesh Kumar Vs St. of Bihar - (2014) 8 SCC
273,

5. Motion Vs C.B.I.- (2004) 72 DRJ 629,

6. Gaya Prasad Ramlal Vs St. of Mah. - AIR 1971
SC 1112.

(Delivered by Hon'ble Nalin Kuamr
Srivastava, J)

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

2. Apprehending his arrest the present
application has been moved on behalf of
the applicant - Suraj Harijan seeking
anticipatory bail in Case Crime No. 124 of
2021, under Section 461 IPC and Section
25 Indian Telegraph Act, Police Station-
Harpur Budahat, District- Gorakhpur.

3. The prosecution story as unfolded
in the FIR is that on 24.11.2021 at 7.10 AM
8 All. Suraj Harijan Vs. State of U.P. & Anr.
665
Technician Shreyansh Yadav working in a
Door Sanchar Vodafone Mobile Tower
IN1231083 informed the informant that 4
batteries have been stolen from the battery
bank by breaking the lock of the main gate
by some unknown person. FIR was lodged
on
24.11.2021
at
16.16
hours
and
investigation started.

4. It has been submitted by the
learned counsel for the applicant that the
applicant
is
innocent
and
he
has
apprehension of arrest in the abovementioned case, whereas there is no
credible evidence against him. Allegations
levelled against the applicant are false.
Investigation is going on in the matter. It is
further submitted that the applicant is not
named in the FIR and no incriminating
article has been recovered from any place
under control or from possession of the
present applicant. In case applicant is
granted anticipatory bail, he shall not
misuse the liberty of bail and would obey
all conditions of bail.

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

6. At the very outset it appears from
perusal of the record that earlier in Cr.
Misc. Anticipatory Bail Application No.
8413 of 2022 the applicant Suraj Harijan
and co-accused Vikas Gupta had been
given liberty by this Court to file regular
bail application before the court concerned
and with the observation that since the
offence alleged against the applicant was
punishable with the imprisonment for a
maximum period of seven years and they
had
no
apprehension
of
arrest,
the
anticipatory bail application was disposed
of in the aforesaid terms vide order dated
6.9.2022.
However,
no
regular
bail
application in the light of the law laid down
by Hon'ble Apex Court in the case of
Satender Kumar Antil v. CBI and Others
(2022) 10 SCC 51, Siddharth v. State of
U.P. & Anr. (2022) 1 SCC 676 and Aman
Preet Singh v. C.B.I. through Director
2021 SCC OnLine SC 941 was moved
before the trial Court as directed by this
Court and anticipatory bail application was
moved by the present applicant before the
Sessions Court subsequently, which was
not permissible under law to the applicant
but however the factum of anticipatory bail
application moved before and disposed of
by this Court was brought to the knowledge
of the Court of Additional Session Court,
Court No. 2, Gorakhpur which entertained
and disposed of the said application.

7. There is a statutory provision that if
the anticipatory bail application has been
entertained by the High Court itself then
after its disposal in any way the same
applicant has no legal right to move
anticipatory bail application before the
Sessions Court in the same matter. Section
438 (7) Cr.P.C as amended in the state of
Uttar Pradesh lays down the legislative
scheme and expressly provides that "(7) If
an application under this section has been
made by any person to the High Court, no
application by the same person shall be
entertained by the Court of Session."

8. Now in order to circumvent the
express provisions of law this Court has
been approached to entertain and consider
the anticipatory bail application of the
applicant after rejection of the same by the
Sessions Court and by this Court, as well.

9. The order dated 6.9.2022 passed by
this Court in Cr. Misc. Anticipatory Bail
Application U/S 438 Cr.P.C. No. 8413 of
2022 commands a specific direction to the
applicant in that matter to move regular bail
666 INDIAN LAW REPORTS ALLAHABAD SERIES
application before the Court concerned
within 15 days from the date of the order,
which was to be heard and disposed of
expeditiously by the Court below in view
of the law laid down in the case of
Satender Kumar Antil v. CBI and Others
(2022) 10 SCC 511, Siddharth v. State of
U.P. & Anr. (2022) 1 SCC 676 and Aman
Preet Singh v. C.B.I. through Director
2021 SCC OnLine SC 941. Since the said
order was not complied with by the
applicant he was not entitled to file second
anticipatory bail before the High Court as
the sanctity of the order of this Court could,
in no circumstance, be permitted to have
faded into oblivion.

10. In a similar matter Mohd. Sharif
Siddiqui v. The State of Uttar Pradesh
and Anr. SLP No. 11316 of 2022
(07.12.2022
-
SC
Order)
:
MANU/SCOR/125299/2022 the Hon'ble
Apex Court passed the following order on
07.12.2022, which is referred herein below:

"Considering the fact that the earlier
anticipatory bail application was preferred
and the same came to be withdrawn with
liberty to surrender before the trial Court
and apply for regular bail, thereafter
second anticipatory bail application shall
not be maintainable, more particularly, in
the absence of any changed circumstances.

The High Court has rightly rejected
the second anticipatory bail application.
The
Special
Leave
Petition
stands
dismissed. Pending applications stand
disposed of."

11. The legal position as to the filing
of the second and successive anticipatory
bail application is settled in a plethora of
judgements that the same can be filed only
where there are change in circumstances to
enable the petitioner to establish his
entitlement for anticipatory bail in view of
the change in circumstances.

12. In G.R. Ananda Babu v. State of
T.N. and Another, 2021 SCC OnLine SC
176 the Honble Apex Court promulgated
the dictum of law on the point and held
thus-

"7. As a matter of fact, successive
anticipatory bail applications ought not to
be entertained. The specious reason of
change in circumstances cannot be invoked
for
successive
anticipatory
bail
applications, once it is rejected by a
speaking order and that too by the same
Judge."

13. Recourse may also be taken from
a categorical finding given by the Hon'ble
Apex Court on the issue in Md. Shamim
Khan v. The State of Jharkhand SLP
(Crl) No. 9449 of 2021 (16.12.2021 - SC
Order)
:
MANU/SCOR/53999/2021
which was made like this : "Even before us,
the learned counsel for the petitioner is
unable
to
show
any
change
of
circumstances to invoke the jurisdiction of
filing second application under Section 438
of the Code before the High Court.

We deprecate such practice of filing
second bail application under Section 438
of the Code after the first being rejected."

14. In the similar matter the Kerala
High Court in Bipin Sunny v. State of
Kerala, 2023 SCC OnLine Ker 5570 held
like this-

"13. Coming to the question regarding
filing of anticipatory application before the
Sessions
Court,
after
dismissal
of
anticipatory bail plea by the High Court,
8 All. Suraj Harijan Vs. State of U.P. & Anr.
667
that too, after suppressing the adverse
order from the High Court, cannot be
justified for any reason. Therefore, in order
to keep judicial discipline in tact, in cases
where the High Court rejected anticipatory
bail plea, second or successive anticipatory
bail applications, pointing out change in
circumstances, have to be filed before the
High Court and not before the Sessions
Court."

15. In Suresh Chand v. State of
Rajasthan 2001 SCC Online Raj 534
dealing with the question whether after
rejection of anticipatory bail application by
the High Court, the accused is entitled to
make second bail application before the
Sessions Court under Section 438 Cr.P.C.,
it was propounded that after rejection of
bail application under Section 438 Cr.P.C.
by the High Court second anticipatory bail
application is not maintainable. Further,
after rejection of bail application made by
the accused petitioner before the High
Court under Section 438 Cr.P.C. second
bail application for the same relief is not
maintainable even before the High Court
and the Sessions Judge has absolutely no
jurisdiction
to
entertain
the
second
anticipatory bail application.

16. The Courts should always be
circumspect
while
exercising
their
jurisdiction in any sphere of law as
jurisdiction is an ornament of the Court
which is embedded in it and cannot be
created or assumed by any artificial means.
If there is a statutory prohibition for
exercise of jurisdiction by a Court such
jurisdiction cannot be exercised as what is
prohibited by law directly, cannot be done
indirectly. At the same time it must always
be borne into mind that non-pleading of
issue of jurisdiction will not clothe the
Court with jurisdiction when expressly
barred by any statute. Since by way of legal
provision provided under Section 438 (7)
Cr.P.C. as applicable in present case
consideration for grant of anticipatory bail
to an accused by a Sessions Court is barred,
in case prior to that, anticipatory bail
application had already been filed and
disposed of by the High Court, hence, the
Sessions Courts should be very vigilant to
cross their legal limitations, as omitted in
the present case.

17. One more aspect which makes the
present application devoid of consideration
for grant of anticipatory bail has been taken
cognizance of by this Court that in para 4
of
the
affidavit
annexed
with
the
anticipatory bail application, the present
application has been termed as the first
anticipatory bail application and it is
deposed that no previous application under
Section 438 Cr.P.C. has been filed or
pending before this Court or its Lucknow
Bench for the same cause of action. On the
very face of record, it is certainly
suppression
of
a
material
fact
as
Anticipatory Bail Application No. 8413 of
2022 had already been filed and disposed
of by this Court in this matter vide order
dated 6.9.2022 and it indubitably negates
the prayer made by the applicant for grant
of anticipatory bail in his favour.

18. The view taken by this Court
derives support from the judgement passed
by the Hon'ble Apex Court in Arunima
Baruah v. Union of India, (2007) 6 SCC
120 wherein it was held as hereunder

"12. It is trite law that so as to enable
the court to refuse to exercise its
discretionary jurisdiction suppression must
be of material fact. What would be a
material fact, suppression whereof would
disentitle the appellant to obtain a
668 INDIAN LAW REPORTS ALLAHABAD SERIES
discretionary relief, would depend upon the
facts and circumstances of each case.
Material fact would mean material for the
purpose of determination of the lis, the
logical corollary whereof would be that
whether the same was material for grant or
denial of the relief. If the fact suppressed is
not material for determination of the lis
between the parties, the court may not
refuse
to
exercise
its
discretionary
jurisdiction. It is also trite that a person
invoking the discretionary jurisdiction of
the court cannot be allowed to approach it
with a pair of dirty hands."

19. A similar view has been taken in
Prestige Lights Ltd. v. State Bank of
India, (2007) 8 SCC 449 wherein
denuding the claim of a person not coming
before the Court with clean hands, it was so
observed by the Hon'ble Apex Court :

"35. ............If the applicant does not
disclose full facts or suppresses relevant
materials
or
is
otherwise
guilty
of
misleading the court, the court may dismiss
the action without adjudicating the matter."

20. Hence, in view of the settled law,
there is no justification to proceed with the
present anticipatory bail application as it is
legally not maintainable and has been
moved with suppression of material facts.

21. With these observations and
without making any comment upon the
lackadaisical
approach
of
the
court
concerned which has been cavalier to
entertain the anticipatory bail application
which was legally not maintainable before
it, it is held that the present application is
not maintainable, and is accordingly,
rejected.
----------
(2023) 8 ILRA 668
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.08.2023

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Crl. Misc. Anticipatory Bail Application No. 1703
of 2023
(U/s 438 Cr.P.C)

Dharmapal Gautam @ Bhikhari Gautam
 ...Applicant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicant:
Shakti Krishna Chaube, Praveen Tripathi

Counsel for the Respondents:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 437(3), 438, 438(2),
438(I)(Iv) & 439(2) - Indian Penal Code,
1860 - Sections 120(B), 255, 259, 260,
272, 273, 419, 420, 467, 468 & 471 --
Constitution Of India,1950 - Article - 21 -
Excise Act, 1910- Section 60 - Prevention
Of Corruption Act, 1988 - Sections -
13(1)(D) & 13(2) - Prevention Of Money
Laundering Act, 2002- Sections 3 & 4 -
Indian Evidence Act, 1872 - Section 27-
Anticipatory Bail Application - FIR - allegations
are involved the recovery of illicit liquor and
certain injections from the applicant's premises
- investigation - charge-sheet - applicant taken
grounds
that
custodial
interrogation
was
unnecessary - court finds that, no independent
person has witnessed the alleged recovery
proceedings, - there is serious conflict in the
narration made by the police itself in the
recovery memo and in the FIR - no exceptional
grounds existed to deny the bail - hence,
applicant's application for granting anticipatory
bail is allowed - however, in the event of
arrest/appearance of applicant, before the trial
court, he shall be released on bail on his
furnishing a personal bond and two sureties,
each in the like amount, to the satisfaction of