# Suresh Babu v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2022) 8 ILRA 442
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-16
- **Case number:** Crl. Misc. Anticipatory Bail Appl. U/S 438 Cr.P.C. No. 3532 of 2022
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suresh-babu-v-state-of-u-p-ors-opp-parties-48793
- **Pages:** 5

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 438 (1) - As
per section 438 Cr.P.C. the Anticipatory
Bail Application may be filed either before
Sessions Court or before High Court in as
much as both the aforesaid courts are
having the concurrent jurisdiction. Section
438 (1) Cr.P.C. clearly mandates that if
any anticipatory bail application is filed,
either it may be rejected forthwith or any
interim order may be passed. In other
words if the court wants to know some
information from the other side, the case
may be posted for another date and if the
applicant has got prima facie case and his
apprehension of arrest appears to be
bonafide in a case where the allegations
prima
facie
do
not
corroborate
with
material available on record may grant
interim anticipatory bail.
B. Code of Criminal Procedure, 1973 -
Section 82 -Sneither creates any rider nor
imposes any restrictions in filing anticipatory bail
application by the proclaimed offender inasmuch
as the Hon'ble Apex Court has used the word
'Normally' in re: Lavesh (supra), meaning
thereby
normally
the
anticipatory
bail
application of the proclaimed offender should
not be entertained. It has nowhere been
indicated u/s 438 Cr.P.C. that the proclaimed
offender
would
be
barred
to
file
such
application. As to whether such proclaimed
offender would be granted anticipatory bail or
not
would
depend
upon
the
facts
and
circumstances of the particular issue.

C. If the physical relation has been established
on the false promise of marriage and the
physical relation was consensual in nature and it
lasted for long time, prima facie it may not be
treated as rape but it may be considered as
breach of promise.

Application allowed. (E-12)

List of Cases cited:-

## Text

442 INDIAN LAW REPORTS ALLAHABAD SERIES

19. It is clarified that the observations
made herein are limited to the facts brought
in by the parties pertaining to the disposal
of
bail
application
and
the
said
observations shall have no bearing on the
merits of the case during trial.
----------
(2022) 8 ILRA 442
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.07.2022

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Crl. Misc. Anticipatory Bail Appl. U/S 438 Cr.P.C.
No. 3532 of 2022

Suresh Babu ...Applicant
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicant:
Sri Akhilesh Srivastava, Sri Saksham Srivastava,
Sri V.P. Srivastava (Sr. Adv.)

Counsel for the Opp. Party:
G.A., Sri Anuj Srivastava, Sri Ravendra Singh, Sri
Siddharth Saran, Sri Akhilesh Kumar Mishra

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 438 (1) - As
per section 438 Cr.P.C. the Anticipatory
Bail Application may be filed either before
Sessions Court or before High Court in as
much as both the aforesaid courts are
having the concurrent jurisdiction. Section
438 (1) Cr.P.C. clearly mandates that if
any anticipatory bail application is filed,
either it may be rejected forthwith or any
interim order may be passed. In other
words if the court wants to know some
information from the other side, the case
may be posted for another date and if the
applicant has got prima facie case and his
apprehension of arrest appears to be
bonafide in a case where the allegations
prima
facie
do
not
corroborate
with
material available on record may grant
interim anticipatory bail.
B. Code of Criminal Procedure, 1973 -
Section 82 -Sneither creates any rider nor
imposes any restrictions in filing anticipatory bail
application by the proclaimed offender inasmuch
as the Hon'ble Apex Court has used the word
'Normally' in re: Lavesh (supra), meaning
thereby
normally
the
anticipatory
bail
application of the proclaimed offender should
not be entertained. It has nowhere been
indicated u/s 438 Cr.P.C. that the proclaimed
offender
would
be
barred
to
file
such
application. As to whether such proclaimed
offender would be granted anticipatory bail or
not
would
depend
upon
the
facts
and
circumstances of the particular issue.

C. If the physical relation has been established
on the false promise of marriage and the
physical relation was consensual in nature and it
lasted for long time, prima facie it may not be
treated as rape but it may be considered as
breach of promise.

Application allowed. (E-12)

List of Cases cited:-

1. Lavesh Vs State (NCT of Delhi) (2012)8 SCC
730

2. St. of M.P. Vs Pradeep Sharma (2014)2 SCC
171

3. Prem Shankar Prasad Vs St.of Bihar (Criminal
Appeal No. 1209 of 2021(SC))

4. Sonu@Subhash Kumar Vs St. of U.P. & anr.
(Criminal Appeal No. 233 of 2021(SC)) arising
out of SLP (Criminal) No. 11218 of 2019

5. Sushila Agarwal Vs St. (NCT of Delhi) 2020
SCC Online SC 98
(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri V.P. Srivastava, learned
Senior Advocate assisted by Sri Akhilesh
Srivastava and Sri Saksham Srivastava,
learned counsel for the applicant, learned
AGA and Sri Siddharth Saran and Sri
8 All. Suresh Babu Vs. State of U.P. & Ors.
443
Akhilesh Kumar Mishra, learned counsel
who have filed 'Vakalatnama' for the
informant / complainant, same is taken on
record.

2. Learned counsel for the applicant
has
filed
one
second
supplementary
affidavit enclosing therewith the true copy
of the anticipatory bail application filed
before the sessions court, the same is taken
on record.

3.

The
present
applicant
is
apprehending his arrest in Case Crime No.
02 of 2021 u/s 323, 504, 506, 313, 376, 377
IPC, P.S. Baghpat, District Baghpat (U.P.).
It has been submitted that the applicant has
been falsely implicated in this case as he
has not committed any offence as alleged in
the F.I.R.

4. The learned AGA as well as learned
counsel for the informant / complainant
have raised preliminary objection regarding
maintainability of the present anticipatory
bail application on the ground that the
proclamation u/s 82/83 Cr.P.C. has been
issued against the applicant, so his
anticipatory bail application may not be
entertained and no order in such application
can be passed. Therefore, I would firstly
advert
to
such
objection
regarding
maintainability.

5. As per second supplementary
affidavit
the
Annexure
S.A.-1
is
anticipatory bail application of the present
applicant filed before the sessions court u/s
438 Cr.P.C. on 16.3.2022 and such
application has been rejected on 5.4.2022.
While rejecting the anticipatory bail
application the sessions court has indicated
that the proclamation under section 82
Cr.P.C. has been issued against the accused.
It has been informed at the Bar that such
proclamation u/s 82 Cr.P.C. has been issued
on 24.3.2022. Therefore, when the present
applicant
filed
his
anticipatory
bail
application he was not declared as
proclaimed offender but he was declared
proclaimed offender during the pendency
of his anticipatory bail application before
the learned sessions court.

6. As per section 438 Cr.P.C. the
anticipatory bail application may be filed
either before sessions court or before High
Court inasmuch as both the aforesaid courts
are having a concurrent jurisdiction.
Section 438 (1) Cr.P.C. clearly mandates
that if any anticipatory bail application is
filed, either it may be rejected forthwith or
any interim order may be passed. In other
words if the court wants to know some
information from the other side, the case
may be posted for another date and if the
applicant has got prima facie case and his
apprehension of arrest appears to be
bonafide in a case where the allegations
prima facie do not corroborate with
material available on record may grant
interim anticipatory bail. However, in the
present case the proclamation u/s 82 Cr.P.C.
has been issued during the pendency of the
application. Apex Court in re: Lavesh vs.
State (NCT of Delhi) (2012) 8 SCC 730,
State of Madhya Pradesh vs. Pradeep
Sharma reported in (2014) 2 SCC 171 and
Prem Shanker Prasad vs. State of Bihar
(Criminal Appeal No. 1209 of 2021) has
imposed bar to entertain such application if
filed by the proclaimed offender. In the
present
case
at
the
time
of
filing
anticipatory bail application the applicant
was not proclaimed offender.

7. Learned AGA has also informed
that on 13.5.2022 the further proclamation
of section 83 Cr.P.C. has been issued
against the present applicant.
444 INDIAN LAW REPORTS ALLAHABAD SERIES

8. Be that as it may, at the time of
filing anticipatory bail application on
16.3.2022 the present applicant was not
proclaimed offender, therefore, the bar so
imposed by the Apex Court would be
considered in the light of intent and purport
of said judgments wherein the proclaimed
offender has been restrained to get any
relief in the application of anticipatory bail.
In the present case the applicant was not
declared as a proclaimed offender on
16.3.2021, the date of filing anticipatory
bail, therefore, to me such bar could not
restrain the present applicant to file his
anticipatory bail application before this
Court under same section i.e. section 438
Cr.P.C. and, therefore, his anticipatory bail
application may be heard and disposed of
finally on merits.

9. Notably,sub-section 6 of section
438 Cr.P.C. provides as under :

438(6)Cr.P.C.:
Provisions
of
this
section shall not be applicable.-

(a) to the offences arising out of .-

(i) the Unlawful Activities (Prevention)
Act,1967;

(ii)
the
Narcotic
Drugs
and
Psychotropic Substances Act, 1985;

(iii) the Official Secret Act, 1923;

(iv) the Uttar Pradesh Gangsters and
Anti-Social
Activities
(Prevention
)
Act,1986.

(b) in the offences, in which death
sentence can be awarded.

Besides, section 82 Cr.P.C. neither
creates
any
rider
nor
imposes
any
restrictions in filing anticipatory bail
application by the proclaimed offender
inasmuch as the Hon'ble Apex Court has
used the word 'Normally' in re: Lavesh
(supra), meaning thereby normally the
anticipatory
bail
application
of
the
proclaimed
offender
should
not
be
entertained. Therefore, only in the aforesaid
case / cases the provisions of anticipatory
bail application would not be applicable. It
has nowhere been indicated u/s 438 Cr.P.C.
that the proclaimed offender would be
barred to file such application. As to
whether such proclaimed offender would
be granted anticipatory bail or not would
depend upon the facts and circumstances of
the particular issue and also on the basis of
bar, so imposed by the Apex Court in re:
Lavesh (supra), Pradeep Sharma (supra)
and
Prem
Shankar
Prasad
(supra).
Therefore, in view of the facts and
circumstances of the issue in question, I do
not accept the objection, so raised by the
learned counsel for the opposite parties
regarding maintainability of the present
application
for
the
reason
that
the
proclamation u/s 82/83 Cr.P.C. has been
issued against the applicant.

10. Before adverting to the merits of
the case, I am of the considered opinion
that the process of law should not be
flouted and the person against whom the
investigation is going on, he / she must
cooperate with the investigation strictly in
accordance with law.

11. In the present case the learned
counsel for the applicant has submitted that
the false and misconceived allegations have
been levelled against the present applicant
by the informant by lodging F.I.R. after a
delay of one year three months and twenty
three days and no explanation of such delay
has been given in the F.I.R. The allegations
are that on the pretext of false promise of
marriage the applicant has exploited and
established physical relation with the
informant, however, the applicant is now
denying for the marriage. Recently the
Apex Court in re; Sonu @ Subhash
Kumar vs. State of U.P. & another
8 All. Suresh Babu Vs. State of U.P. & Ors.
445
passed in Criminal Appeal No. 233 of
2021 arising out of SLP (Crl.) No. 11218
of 2019 has made distinction as to what
would be a 'rape' in such circumstances and
what would be the 'breach of promise'. As
observed by the Apex court, if the physical
relation has been established on the false
promise of marriage and the physical
relation was consensual in nature and it
lasted for long time, prima facie it may not
be treated as rape but it may be considered
as breach of promise.

12. It is made clear here that I am not
giving any finding on that aspect for the
reason that the investigation is going on
and it is expected that the investigating
officer shall conduct and conclude the
investigation strictly in accordance with
law without being influenced from any
finding of this order.

13. Learned counsel for the applicant
has drawn attention of this Court towards
one F.I.R. it has been enclosed as Annexure
no. 13 bearing No. 0315 of 2016 u/s 420,
376, 354(B),147, 323, 504, 506, 452 IPC,
P.S. Baghpat, District Baghpat, wherein the
informant of the present case is also
informant of that case and there are five
accused persons in such case. In that case
almost similar allegations relating to rape
etc. have been leveled.

14. Learned Senior Advocate has
submitted that in such F.I.R. the informant /
complainant has disclosed her name as
Jyoti d/o Saheb Singh whereas in the
present case she has disclosed her name as
Smt. Rakhi @ Jyoti d/o Jaipal Singh,
however, both the persons are same.
Further, she is saying herself as a divorcee
of one Mr. Deepak whereas she has not
shown the decree of divorce. As per
statements of independent witnesses which
are enclosed as Annexure no. 5, she is
living in her house with her husband and
she has earlier implicated some more
persons also on the same allegations.
Learned Senior Advocate has further
submitted that the aforesaid fact creates
doubt on the prosecution story. He has
further submitted that as a matter of fact
this is a case of false implication of the
present applicant who is a government
servant, serving on the post of Junior
Engineer in the Electricity Department at
Baghpat. He was the tenant of the
informant / complainant and having ulterior
motive and extraneous design in her mind
she implicated the applicant falsely. One
fact has come to the notice of this Court
that there was one more case against the
present applicant bearing Case Crime No.
300 of 2019 u/s 409, 120B IPC, P.S.
Baghpat, District Baghpat, wherein he has
been granted bail by this Court on
21.1.2020 in Crl. Misc. Bail Application
No. 43820 of 2019.

15. On account of apprehension of
arrest being a government servant he could
not
properly
cooperate
with
the
investigation because if he is arrested and
sent to judicial custody, he would suffer
irreparable loss in his service. However, he
has assured that if the liberty of the present
applicant is protected, he shall definitely
cooperate with the investigation properly
and shall abide by the directions, so issued
by the investigating officer relating to the
investigation.

16. Learned AGA as well as learned
counsel for the informant / complainant has
vehemently
opposed
the
prayer
of
anticipatory bail and have submitted that
just after rejection of anticipatory bail
application by the learned sessions court
the applicant has filed his surrender
446 INDIAN LAW REPORTS ALLAHABAD SERIES
application before the court concerned on
25.4.2022 but he did not surrender. Further,
despite the proclamation u/s 82/83 Cr.P.C.
having been issued the present applicant is
avoiding the process of law, therefore, he is
not entitled for any protection.

17. Having heard learned counsel for
the parties and having perused the material
available on record and also considering
the fact that one more F.I.R. was lodged by
the informant / complainant against the
other persons more or less on the same
allegations of rape etc. wherein her name
and her father's name is different, the
instant F.I.R. has been lodged after the
unexplained delay of one year three months
and twenty three days and the undertaking
of the applicant that he shall cooperate with
the investigation, I find it appropriate that
the liberty of the present applicant be
protected till filing of the charge-sheet, if
any in view of dictum of "Sushila
Aggarwal Vs. State (NCT of Delhi)-2020
SCC online SC 98". However, considering
the facts and circumstances of the present
case and the fact that the present applicant
has not appeared before the investigating
officer as yet, therefore, I hereby fix the
date as 25.7.2022 directing the applicant to
appear before the investigating officer on
that date, failing which the benefit of this
order will not be available to the applicant.
He shall further abide by the directions of
the investigating officer for the purposes of
investigation and shall not misuse the
liberty of bail. If at any time it is found that
applicant is misusing the liberty of bail, any
appropriate application may be filed by the
opposite parties including State for seeking
cancellation of this anticipatory bail.

18. Therefore, it is directed that in
the event of arrest, applicant- Suresh
Babu, shall be released on anticipatory
bail in the aforesaid case crime number on
his furnishing a personal bond of Rs.
50,000/- with two sureties each in the like
amount to the satisfaction of the arresting
authority/
court
concerned
with
the
following conditions:-

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

2. 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;

3. that the applicant shall not leave
India without the previous permission of
the court;

4. that in default of any of the
conditions
mentioned
above,
the
investigating officer shall be at liberty to
file
appropriate
application
for
cancellation of anticipatory bail granted to
the applicant;

5.
that
the
applicant
shall
not
pressurize/
intimidate
the
prosecution
witness;

In
view
of
above,
the
present
anticipatory bail application is disposed of.
----------
(2022) 8 ILRA 446
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 27.07.2022

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Crl. Misc. Bail Appl. No. 3722 of 2022

Ram Sajeevan @ Babu ...Applicant
Versus
State of U.P. & Ors. ...Opp. Parties