# Udit Arya v. State of U.P

- **Citation:** (2023) 5 ILRA 1846
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-03
- **Case number:** Crl. Misc. Anticipatory Bail Application No. 4560 of 2023
- **Bench:** Krishan Pahal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/udit-arya-v-state-of-u-p-50277
- **Pages:** 5

## Headnote

Criminal Law - Criminal Procedure Code,
1973- Section 438 - Indian Penal Code,
1860 - Sections 498-A - 304-B - 3⁄4
Dowry Prohibition Act- demand of car
and money in dowry- abortion of foetus-
deceased succumbed to injuries- discord
in the family was an admitted factdeceased was living at her parental
home for substantial time-abortion also
took
place
at
her
parental
homeprosecution cannot be converted into an
arena to settle scores-death cannot be
termed
as
"not
under
normal
circumstances"-ingredients of Section
304-B
IPC-misuse
of
dowry
lawsSections 82 and 438 CrPC do not impose
any restriction on filing of anticipatory
bail application by proclaimed offender-
Bail application allowed. (Paras 13 to
19)

HELD: Although a second bail application on
behalf of the accused is not barred and is
maintainable
but
considerations
of
the
grounds of bail are the factors to be taken
into account in it. A second bail application is
always considered on fresh and new grounds
available to the accused after rejection of the
first bail application. It cannot be said that a
second
bail
application
would
not
be
maintainable. The maintainability of such bail
application is there but consideration of the
prayer for bail is subject to the availability of
fresh and new grounds which if not available
would render reviewing the earlier order
rejecting the bail application. In the case of
Babu
Singh
(supra),
the
Court
was
considering a bail application of an accused
who was acquitted by the Sessions Court
against which the St.had filed an appeal
against acquittal in the High Court which was
successful and the findings of the Sessions
Judge were reversed holding the accused
persons guilty and sentencing them for the
offences. Against the said judgment and order
of the High Court, a statutory appeal was
carried to the Apex Court. Before the Apex
Court, a second bail application was filed
which was the consideration in which the said
judgment and order has been passed. The
Apex Court with regards to the maintainability
of a second bail application held that an order
refusing an application for bail does not
necessarily preclude another, on a later
occasion, giving more materials, further
developments and different considerations.
(Para 13)

In so far as the part of the maintainability of a
second bail application is concerned, it is no
more res-integra that the same is maintainable.
The question which arises is whether without
any fresh new and changed circumstances, a
Court should consider a subsequent bail
application ignoring its previous order rejecting
the previous bail application or not. (Para 16)
5 All. Udit Arya Vs. State of U.P.
1847
In the opinion of the Court, the same would not
be possible. A subsequent bail application is
maintainable but consideration of the prayer of
bail would depend on the facts as to whether
fresh and new grounds have been pleaded and
are available or not. (Para 17)

Considering the arguments of learned counsels
for the parties, perusing the records and the law
on the issue, there is no fresh and new ground
available in the present second bail application.
This Court does not find any substantial change
in the circumstance so far as merit of the case is
concerned. This Court does not a find it a fit
case for bail. (Para 19)

Bail Application rejected. (E-14)

List of Cases cited:

## Text

1846 INDIAN LAW REPORTS ALLAHABAD SERIES
"Sambhal" is deleted and replaced by
"Meerut" in the 8th line of paragraph 1
and
just
above
the
conditions
of
anticipatory bail.

4. This order in the correction
application shall form part of the order
dated 24.4.2023.

5. The application is, accordingly,
disposed of.
----------
(2023) 5 ILRA 1846
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.05.2023

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Crl. Misc. Anticipatory Bail Application No. 4560
of 2023
(u/s 438 Cr.P.C.)

Udit Arya ...Applicant
Versus
State of U.P. ...Respondent

Counsel for the Applicant:
Sri Jitendra Prasad, Sri Satya Prakash Rai, Sri
C.L. Pandey (Sr. Advocate)

Counsel for the Respondent:
G.A., Sri Anil Mullick

Criminal Law - Criminal Procedure Code,
1973- Section 438 - Indian Penal Code,
1860 - Sections 498-A - 304-B - 3⁄4
Dowry Prohibition Act- demand of car
and money in dowry- abortion of foetus-
deceased succumbed to injuries- discord
in the family was an admitted factdeceased was living at her parental
home for substantial time-abortion also
took
place
at
her
parental
homeprosecution cannot be converted into an
arena to settle scores-death cannot be
termed
as
"not
under
normal
circumstances"-ingredients of Section
304-B
IPC-misuse
of
dowry
lawsSections 82 and 438 CrPC do not impose
any restriction on filing of anticipatory
bail application by proclaimed offender-
Bail application allowed. (Paras 13 to
19)

HELD: Although a second bail application on
behalf of the accused is not barred and is
maintainable
but
considerations
of
the
grounds of bail are the factors to be taken
into account in it. A second bail application is
always considered on fresh and new grounds
available to the accused after rejection of the
first bail application. It cannot be said that a
second
bail
application
would
not
be
maintainable. The maintainability of such bail
application is there but consideration of the
prayer for bail is subject to the availability of
fresh and new grounds which if not available
would render reviewing the earlier order
rejecting the bail application. In the case of
Babu
Singh
(supra),
the
Court
was
considering a bail application of an accused
who was acquitted by the Sessions Court
against which the St.had filed an appeal
against acquittal in the High Court which was
successful and the findings of the Sessions
Judge were reversed holding the accused
persons guilty and sentencing them for the
offences. Against the said judgment and order
of the High Court, a statutory appeal was
carried to the Apex Court. Before the Apex
Court, a second bail application was filed
which was the consideration in which the said
judgment and order has been passed. The
Apex Court with regards to the maintainability
of a second bail application held that an order
refusing an application for bail does not
necessarily preclude another, on a later
occasion, giving more materials, further
developments and different considerations.
(Para 13)

In so far as the part of the maintainability of a
second bail application is concerned, it is no
more res-integra that the same is maintainable.
The question which arises is whether without
any fresh new and changed circumstances, a
Court should consider a subsequent bail
application ignoring its previous order rejecting
the previous bail application or not. (Para 16)
5 All. Udit Arya Vs. State of U.P.
1847
In the opinion of the Court, the same would not
be possible. A subsequent bail application is
maintainable but consideration of the prayer of
bail would depend on the facts as to whether
fresh and new grounds have been pleaded and
are available or not. (Para 17)

Considering the arguments of learned counsels
for the parties, perusing the records and the law
on the issue, there is no fresh and new ground
available in the present second bail application.
This Court does not find any substantial change
in the circumstance so far as merit of the case is
concerned. This Court does not a find it a fit
case for bail. (Para 19)

Bail Application rejected. (E-14)

List of Cases cited:

1. Criminal Misc. Anticipatory Bail Application
U/s 438 Cr.P.C. No.3532 of 2022

2. Prem Shankar Prasad Vs St.of Bihar & anr.,
reported in AIR 2021 SC 5125

3. Lavesh Vs St.(NCT of Delhi) [(2012) 8 SCC
730: AIROnline 2012 SC 323

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

1. List has been revised.

2. Heard Sri C.L. Pandey, learned
Senior Advocate assisted by Sri Jitendra
Prasad, learned counsel for the applicant,
Sri Anil Mullick, learned counsel for the
informant and Sri V.K.S. Parmar, learned
A.G.A. for the State as well as perused the
record.

3. The present anticipatory bail application
has been filed on behalf of the applicant in
Case Crime No.310 of 2022, registered
under Sections 498-A, 304-B I.P.C. and 3⁄4
Dowry Prohibition Act, at Police Station
Ganga Nagar, District Meerut with a prayer
to enlarge him on anticipatory bail.

PROSECUTION STORY:

4. The marriage of the applicant was
solemnized with the daughter of the
informant
as
per
Hindu
rites
on
13.12.2021. The applicant and other
members of the family are stated to have
subjected her to cruelty for demand of
Rs.60 lakhs and a car as dowry. In the
intervening period in the month of
September, 2022, the deceased is stated
to have undergone the abortion of the
fetus she was carrying in her womb. On
Deepawali i.e. 18.10.2022, the applicant
is stated to have taken the daughter of the
informant to his house. The applicant and
other family members are stated to have
beaten the daughter of the informant as
such the informant had taken her to his
house on 21.10.2022. The condition of
the daughter of the informant deteriorated
as a result of the injuries sustained on
21.10.2022. She is stated to have
succumbed to the injuries on way to
hospital on 22.10.2022.

RIVAL CONTENTIONS

(Arguments on behalf of applicant)

5. Learned Senior Counsel for the
applicant has vehemently argued at the
outset that this is clear misuse of dowry
laws as no case is made out against the
applicant. There is not a whisper of
complaint against the applicant or other
family members before institution of the
present FIR. Learned Senior Counsel has
stated that the deceased person was ill and
was suffering from dengue and even the
applicant transfused blood to her on
20.10.2022, the said transfusion certificate
is filed as Annexure No.12 to the affidavit
filed with the bail application.
1848 INDIAN LAW REPORTS ALLAHABAD SERIES

6. Learned Senior Counsel has further
stated that the platelets count of the
deceased person had extremely come down
to a level where blood transfusion was
essential as the applicant had himself
volunteered to do so.

7. Learned Senior Counsel has also
placed much reliance on the inquest report
of the deceased person which indicates that
there was no visible injury on the body of
the deceased person. Learned Senior
Counsel has also vehemently argued that as
per the postmortem report, the cause of
death was "septicaemia due to chronic
illness of multiple organs involvement".
Learned Senior Counsel has stated that the
cause of death is her illness and not the
injuries inflicted by the applicant or any
other family members. The prosecution
story stands falsified on this ground only.
Learned Senior Counsel has further stated
that if such FIR is entertained by the Court,
then there is no question for civil liberty
left as such applicant is entitled for
anticipatory bail. The applicant has no
criminal history to his credit.

8. Learned Senior Counsel has also
placed reliance on the statement of Dr.
Geetanjali Vohra, who happens to be family
doctor of the informant, whereby she has
categorically stated that the deceased
person had acquired complications as a
result of pregnancy she was having and her
fetus in the womb had died after a period of
six months of pregnancy. Learned Senior
Counsel has also placed reliance on the said
statement in detail. To avoid verbiage, the
said details of statement of doctor are not
being mentioned here. Learned Senior
Counsel has also placed reliance on the
various Whatsapp chats between the
applicant and the deceased person, which
indicate that they were living happily.

9. Learned Senior Counsel has also
placed much reliance on the judgment of
this Court passed in Criminal Misc.
Anticipatory Bail Application U/s 438
Cr.P.C. No.3532 of 2022, whereby the
concerned delinquent was enlarged on
anticipatory bail on the ground that
proceedings under Section 82 Cr.P.C. were
initiated subsequent to the filing of the
anticipatory
bail
application
as
such
applicant is also entitled for bail on this
ground as the proceedings under Section 82
Cr.P.C. had taken place on the date of filing
of
anticipatory
bail
application,
i.e.,
29.3.2023 at the trial court. 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. The
applicant has apprehension of his arrest.
Learned
counsel
for
the
applicant
undertakes that he has co-operated in the
investigation and is ready to do so in trial
also failing which the State can move
appropriate application for cancellation of
anticipatory bail. The final report (chargesheet) has not yet been filed.

(Arguments
on
behalf
of
informant/State)

10. Per contra, learned counsel for the
informant has vehemently opposed the
anticipatory bail application on the ground that
the statement of the informant recorded by the
Investigating Officer categorically indicates
that the fetus had expired in her womb and she
was not subjected to treatment by the applicant
and his family members as the said fetus
remained dead for a period of ten days in her
womb. The said negligent act speaks volume
of the applicant having subjected the deceased
person to cruelty.
5 All. Udit Arya Vs. State of U.P.
1849

11. Learned counsel has further stated
that the said case law does not apply to the
present case as the proceedings under
Section 82 Cr.P.C. were already initiated on
24.3.2023 and the bail application was filed
on 29.3.2023. Learned counsel has stated
that as such applicant is also not entitled for
anticipatory bail in the light of the
judgment of the Apex Court passed in
Prem Shankar Prasad vs. State of Bihar
and Another, reported in AIR 2021 SC
5125, whereby it was held that if the
delinquent
is
declared
a
proclaimed
offender and proceedings under Section 82
& 83 Cr.P.C. have been completed, then he
is not entitled for anticipatory bail, as such
the present anticipatory bail application is
liable to be rejected.

12. Learned A.G.A. has also opposed
the
anticipatory
bail
application
and
reiterated the submissions raised by the
learned counsel for the informant.

CONCLUSION:

13. It is to be noted that the applicant
has no criminal antecedents to his credit. It
is an admitted fact that there were discord
in the family as the deceased person was
living at her parental home for a substantial
period of time as the said abortion is even
stated to have taken place at her parental
home. After bare perusal of the case laws
filed by the rival parties, I would like to
take note of the judgment passed in Prem
Shankar Prasad (supra), whereby much
reliance has been made on the judgment
passed in Lavesh vs. State (NCT of Delhi)
[(2012) 8 SCC 730: AIROnline 2012 SC
323)] in paragraph 16 as under:-

"16. Recently, in Lavesh vs. State
(NCT of Delhi) [(2012) 8 SCC 730:
AIROnline 2012 SC 323)], this Court (of
which both of us were parties) considered
the scope of granting relief under Section
438 vis-a-vis a person who was declared as
an absconder or proclaimed offender in
terms of Section 82 of the Code. In para 12,
this Court held as under : (SCC p. 733)

"12.
From
these
materials
and
information, it is clear that the present
appellant
was
not
available
for
interrogation and investigation and was
declared as 'absconder'. 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."

14. It is true that in the judgment passed
in Lavesh (supra), the said applicant was not
enlarged
on
anticipatory
bail
as
the
proceedings under Section 82 Cr.P.C. were
complete. In the case of Lavesh (supra)
there was no question of granting anticipatory
bail. "Normally", when the accused was
absconding
and
declared
proclaimed
absconder, the core of judgment in Lavesh
(supra) was in the expression "normally" and
when the accused absconded or concealed
himself to avoid the execution of warrant.

15. Neither the proceedings under
Section 82 Cr.P.C. nor Section 438 Cr.P.C.
impose any restriction in the filing of
anticipatory
bail
application
by
the
proclaimed offender. Even in the Lavesh
(supra) while laying down the law, the
Supreme Court has used word "normally".

16. Section 438 Cr.P.C. was inserted
to the Code as it was seen that the
1850 INDIAN LAW REPORTS ALLAHABAD SERIES
influential persons try to implicate their
rivals in false cases for the purpose of
disgracing them by detaining them in jail
for some time. It is true, such powers are to
be exercised in exceptional cases. The
prosecution cannot be permitted to be
converted into an arena to settle scores.

17. The deceased has expired as a result
of "septicaemia due to chronic illness of
multiple organs involvement". Thus, the death
cannot be termed as "not under normal
circumstances" as envisaged under Section 304B I.P.C. The ingredients of Section 304-B I.P.C.
do not stand fulfilled. This case seems to be a
misuse of the dowry laws.

18. After hearing the rival contentions,
going through the record, considering the nature
of accusations and antecedents of the applicant
and taking into note the very fact that the cause
of death has been opined to be septicaemia due
to
chronic
illness
of
multiple
organs
involvement and also that there was no
complaint against the applicant or his family
members before the death of the deceased
person and also that no visible injury has been
observed on the body of the deceased person
internally or externally, the applicant is liable to
be enlarged on anticipatory bail in view of the
judgment of Supreme Court in the case of
"Sushila Aggarwal Vs. State (NCT of Delhi),
(2020) 5 SCC 1". The future contingencies
regarding the anticipatory bail being granted to
applicant shall also be taken care of as per the
aforesaid judgment of the Apex Court.

19. In view of the above, the anticipatory
bail application of the applicant is allowed. Let
the accused-applicant- Udit Arya be released
forthwith in the aforesaid case crime (supra) on
anticipatory bail till the conclusion of trial on
furnishing a personal and two sureties each in
the like amount to the satisfaction of the court
concerned with the following conditions:-

(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 the previous permission of the court;

(iv). that in case charge-sheet is submitted
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;

(vii). that in case of breach of any of the
above conditions the court below shall have the
liberty to cancel the bail.

20. It is made clear that observations
made hereinabove are exclusively for deciding
the instant anticipatory bail application and shall
not affect the trial.
----------
(2023) 5 ILRA 1850
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.04.2023

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Crl. Misc. Anticipatory Bail Application No. 12954
of 2022
(u/s 438 Cr.P.C.)

Princess Mahi @ Saher Naqvi ...Applicant
Versus
State of U.P. ...Respondent

Counsel for the Applicant: