# Veer Singh & Ors v. State of U.P. & Anr. 1920 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2024) 5 ILRA 1919
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-31
- **Case number:** Criminal Misc. Anticipatory Bail Application U/S 438 CR.P.C. No. 4767 of 2024
- **Bench:** Shekhar Kumar Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/veer-singh-ors-v-state-of-u-p-anr-1920-indian-law-reports-allahabad-series-51909
- **Pages:** 10

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 438 & 439 - Indian Penal
Code, 1860 - Sections 147, 148, 149, 308,
323, 324, 325, 504 & 506 - 2nd Application
Anticipatory
Bail
-
1st
Anticipatory
Bail
Application was disposed of with direction to
learned court below to consider the same in
terms of the law laid down by the hon'ble Apex
Court - Applicant's Bail Application was rejected
by court below, holding that the Bail Application
moved through counsel is not maintainable -
court observed that, it is admitted position that
applicants herein have well co-operated during
investigation and also furnished their securities
before the investigation officer, thus, applicant
have complied the two conditions referred in
judgment of Apex Court in 'Satendra Kumar
Antil' and therefore the case of the applicant is
covered
under
category
'A'
wherein
a
mechanism has been provided for the offences
punishable with imprisonment up to 7 years to
be adhered by all courts - held, if conditions
mentioned in the order of the hon'ble Supreme
Court in 'Satendra Kumar Antil' case is fulfilled,
the physical presence of the accused person is
not required for consideration of their bail
application u/s 439 Cr.P.C. for the offences
enumerated in Category 'A' - accordingly,
directions issued to court below to consider the
Bail Application of the present applicant in terms
of the law laid down by the hon'ble Apex Court
- present 2nd Anticipatory Bail Application is
disposed of.
(Para - 13, 14, 15, 16)

2nd Anticipatory Bail application Disposed
of. (E-11)

List of Cases cited:

## Text

5 All. Veer Singh & Ors. Vs. State of U.P. & Anr.
1919
solitary evidence of the prosecutrix is
sufficient, provided the same inspires
confidence and appears to be absolutely
trustworthy, unblemished and should be of
sterling quality.

14. In the case of Pappu (supra), the
Apex Court has held that even in a case
where it is shown that the girl is a girl of
easy virtue or a girl habituated to sexual
intercourse, it may not be a ground to
absolve the accused from the charge of
rape. It has to be established that there was
consent by her for that particular occasion
and that consent should be free consent.

15. The Apex Court in re; Phool
Singh v. State of Madhya Pradesh,
(2022) 2 SCC 74, has considered the
judgment of Sham Singh vs. State of
Haryana, (2018) 18 SCC 34, wherein the
Apex Court has observed that the testimony
of the victim is vital and unless there are
compelling reasons which necessitate
looking for corroboration of her statement,
the courts should find no difficulty to act on
the testimony of the victim of sexual assault
alone to convict an accused where her
testimony inspires confidence and is found
to be reliable.

16. Therefore, considering the facts
and circumstances of the present case as
well as the dictums of the Apex Court, as
considered above, I am not inclined to grant
bail to the present applicant.

17. Accordingly, the bail application
is rejected.

18. Since the present applicant is in
jail since 06.03.2022 and the trial in
POCSO cases should be conducted and
concluded with expedition, preferably
within a period of one year in terms of
Section 35 (2) of the POCSO Act,
therefore, I hereby direct the learned Trial
Court to conclude the trial within a period
of nine months from the date of receipt of
copy of this order taking recourse of
Section 309 Cr.P.C. by fixing short dates, if
possible, fix dates on day-to-day basis to
ensure that the examination of all
prosecution witnesses and other witnesses
from both the sides, if any, be completed
expeditiously and if any of the witnesses
does not cooperate in the trial proceedings
properly, the learned Trial Court may take
appropriate coercive steps against such
witness, which is permissible under the
law. Further, no unnecessary adjournment
shall be given to any of the parties so that
the trial in question could be concluded
within the time so stipulated.

19. However, liberty is given to the
applicant to file another bail application, if
the trial is not concluded within the
aforesaid stipulated time.

20. Let copy of this order be provided
to the learned Trial Court through District
& Sessions Judge, Lucknow by the
Registry of this Court within three working
days for its strict compliance.
----------
(2024) 5 ILRA 1919
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.05.2024

BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV,
J.

Criminal Misc. Anticipatory Bail Application U/S
438 CR.P.C. No. 4767 of 2024

Veer Singh & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties
1920 INDIAN LAW REPORTS ALLAHABAD SERIES

Counsel for the Applicants:
Ajay Sengar, Gunjan Yadav
Counsel for the Opposite Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 438 & 439 - Indian Penal
Code, 1860 - Sections 147, 148, 149, 308,
323, 324, 325, 504 & 506 - 2nd Application
Anticipatory
Bail
-
1st
Anticipatory
Bail
Application was disposed of with direction to
learned court below to consider the same in
terms of the law laid down by the hon'ble Apex
Court - Applicant's Bail Application was rejected
by court below, holding that the Bail Application
moved through counsel is not maintainable -
court observed that, it is admitted position that
applicants herein have well co-operated during
investigation and also furnished their securities
before the investigation officer, thus, applicant
have complied the two conditions referred in
judgment of Apex Court in 'Satendra Kumar
Antil' and therefore the case of the applicant is
covered
under
category
'A'
wherein
a
mechanism has been provided for the offences
punishable with imprisonment up to 7 years to
be adhered by all courts - held, if conditions
mentioned in the order of the hon'ble Supreme
Court in 'Satendra Kumar Antil' case is fulfilled,
the physical presence of the accused person is
not required for consideration of their bail
application u/s 439 Cr.P.C. for the offences
enumerated in Category 'A' - accordingly,
directions issued to court below to consider the
Bail Application of the present applicant in terms
of the law laid down by the hon'ble Apex Court
- present 2nd Anticipatory Bail Application is
disposed of.
(Para - 13, 14, 15, 16)

2nd Anticipatory Bail application Disposed
of. (E-11)

List of Cases cited:

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

2. Satendra Kumar Antil Vs CBI & anr. (2022 SCC
online SC 825) (2021 10 SCC 773),

3. Aman Preet Singh Vs CBI (2021 SCC online SC
941),

4. Siddharth Vs St. of U.P. (2021 SCC online SC
615),
(Delivered by Hon'ble Shekhar Kumar
Yadav, J.)

1. Heard Ms. Gunjan Yadav, learned
counsel for the applicants and Mr. Thakur
Azad Singh and Mr. Ved Mani Tiwari,
learned Additional Government Advocates
for the State.

2. The instant 2nd Anticipatory Bail
Application has been moved by the
applicants with the prayer that applicants
herein be released on anticipatory bail
during pendency of trial in respect of the
impugned Case No.0015 of 2020 (State of
Uttar Pradesh Vs Veer Singh and others)
arising out of Case Crime No. 0618 of
2016, under Sections 147, 148, 149, 323,
504, 506, 324, 325, 308 IPC, P.S. Kotwali
Kalpi, District Jalaun, pending before the
learned CJM, Jalaun at Orai.

3.
 The 1st Anticipatory
Bail
application moved by the applicants was
heard and disposed of vide order dated
20.12.2023 with the following directions:-

"1. This application has been
moved on behalf of the applicant seeking
anticipatory bail in Case Crime No. 0618 of
2016, under Sections 147, 148, 149, 323,
504, 506, 324, 325, 308 IPC, P.S. Kotwali
Kalpi, District Jalaun during the pendency
of trial.

2. Heard Ms Gunjan Yadav,
learned counsel for the applicants as well as
learned A.G.A. for the State and perused
the record.

3. It has been argued by the
learned counsel for the applicants that
5 All. Veer Singh & Ors. Vs. State of U.P. & Anr.
1921
applicants are innocent and they have
apprehension of their arrest in the abovementioned case, whereas there is no
credible evidence against them. Allegations
levelled against the applicants are false.
The investigation of the case has been
completed and charge-sheet has been filed
and cognizance has been taken by the Court
concerned.

4. It is further submitted that
during investigation, the applicants have
been fully cooperative. It is further
submitted that the alleged offences are
punishable with the imprisonment of
maximum
period
of
seven
years.
Applicants have no criminal history. In case
applicants are granted anticipatory bail,
they 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. In this matter, as is evident
from the record, offences levelled against
the applicants are punishable with the
imprisonment upto seven years. After
completion of investigation, charge sheet
has been submitted and cognizance has also
been taken by the Court concerned.

7. In Sushila Aggarwal and others
Vs State (NCT ofDelhi) and another, (2020)
5 SCC 1, the Hon'ble Apex Court has
settled the controversy finally by holding
the anticipatory bail need not be of limited
duration invariably. In appropriate case, it
can continue upto conclusion of trial. It has
been further held therein that anticipatory
bail granted can, depending on the conduct
and behavior of the accused, continue after
filing of the charge sheet till end of trial. It
has been further held by the Hon'ble Apex
Court that while considering an application
for grant of anticipatory bail, the court has
to consider the nature of the offence, the
role of the person, the likelihood of his
influencing the course of investigation, or
tampering
with
evidence
including
intimidating
witnesses,
likelihood
of
fleeing justice, such as leaving the country,
etc. It has further been held that Courts
ought
to
be
generally
guided
by
considerations such as the nature and
gravity of the offences, the role attributed to
the applicant, and the facts of the case,
while
considering
whether
to
grant
anticipatory bail, or refuse it. Whether to
grant or not is a matter of discretion.

8. Hence, considering the settled
principles of law regarding anticipatory
bail, submissions of the learned counsel for
the parties, nature of accusation, role of
applicants and all attending facts an10123d
circumstances
of
the
case,
without
expressing any opinion of the merits of the
case, in my view, it is not a fit case for
anticipatory bail to the applicants till the
end of trial. The prayer made in the
application is refused.

9. However, it is directed that
police and learned trial Court shall strictly
adhere with the directions in regard to arrest
issued by Hon'ble Supreme Court in the
cases of Arnesh Kumar Vs. State of Bihar
(2014) 8 SCC 273 and Satender Kumar
Antil Vs CBI and another, 2022 SCC
OnLine SC 825. In cases where maximum
punishment is upto seven years, arrest and
jail is not necessary. Trial Court and
investigation agency shall take care of the
directions issued in the said judgements. It
is further observed that the bail application
of the applicants, if moved, shall be
considered and decided by the Court
concerned in terms of the law laid down by
the Hon'ble Apex Court in Satender Kumar
Antil (Supra).

10. It is further directed that the
learned court concerned, while considering
the bail application of the applicants in the
light of Satender Kumar Antil case (supra),
1922 INDIAN LAW REPORTS ALLAHABAD SERIES
shall pass an order strictly in compliance of
the directions given in the aforesaid
judgment by the Hon'ble Supreme Court, in
letter and spirit.

11.
The
application
stands
disposed of accordingly."

4. Record reveals that in compliance
of the said order, applicants moved their
bail application under Section 439 Cr.P.C.
in terms of the guide lines issued by the
Hon'ble Apex Court in Satendra Kumar
Antil Vs Central Bureau of Investigation
and another (2021 (10) SCC 773, which
came to be rejected by the learned CJM,
Jalaun at orai vide its order dated
29.03.2024
holding
that
the
bail
application moved by the applicants
through counsel is not maintainable.

5. Learned counsel for the applicants
while drawing attention of this Court
towards the order of this Court dated
20.12.2023 and the order dated 29.03.2024
passed by the Chief Judicial Magistrate,
Jalaun submits that this Court while
disposing
of
the
anticipatory
bail
application of the applicants had directed
the trial court to dispose of bail application
of the applicants in light of the law laid
down by the Hon'ble Supreme Court in
Satenddra Kumar Antil (supra), however,
the trial court has dismissed the application
of the applicants on the ground that since
the
applicants
have
not
submitted
themselves to the custody of the trial court,
therefore, the bail application moved
through counsel is not maintainable as they
are not in the custody of the court.

6. It is contended by learned counsel
for the applicants that in view of the
judgement of the Hon'ble Supreme Court
passed in Satendra Kumar Antil (supra),
whereby it is provided that if two
conditions are satisfied i.e. the accused is
not arrested during investigation and
secondly has cooperated throughout in
the investigation including appearing
before Investigating Officer whenever
called
for
the offences,
which
are
categorized in 'A' i.e. offences punishable
with imprisonment upto 7 years of
imprisonment, ordinary summons shall be
issued and if on their non appearance, non
bail warrant may be issued, but the same
may also be cancelled and the bail
application of such accused person on his
appearance may be decided without the
accused being taken in physical custody or
by granting interim bail till the bail
application is decided.

7. It is further submitted that the case
of the applicants is covered in the cases
provided in the category 'A' of the
judgement of Satendra Kumar Antil
(supra). It is further submitted that the
Chief Judicial Officer, without properly
going through the judgement of the Hon'ble
Supreme Court passed in Satendra Kumar
Antil (supra) has passed the order on his
'whims
and
caprice'
while
it
was
specifically provided in Satendra Kumar
Antil (supra) that there is no need to
surrender for the purpose of getting bail
under Section 439 Cr.P.C. for the offences,
which are categorized in category 'A' and
thus it is submitted that a suitable direction
be given to the court below for properly
disposing of the bail application of the
applicants. It is argued that the present
offence is punishable upto seven years,
therefore, the presence of the applicants is
not required at the time of hearing of bail
application. The trial court should have
decided the bail application which has been
filed through counsel without pressing
personal presence of applicants before it.
5 All. Veer Singh & Ors. Vs. State of U.P. & Anr.
1923

8. Learned A.G.A. has raised a
primary objection by contending that the
application has rightly been rejected by the
court below as the same has been filed
under
Section
439
Cr.P.C.,
which
empowers the Court to direct release of a
person on bail, who is accused of an offence
and in custody. The applicants are not in
custody and, therefore, their application
under Section 439 Cr.P.C. was rightly
dismissed as not maintainable. It is further
submitted that though the word "custody"
has been interpreted in a broad sense, still,
at least physical presence of the accused in
the Court is necessary for consideration of
an application under Section 439 Cr.PC.

9. The Hon'ble Supreme Court in
Satendra Kumar Antil (supra) issued
certain guidelines, which is reproduced as
under:

"1. Application for intervention is
allowed.
2. We have been provided assistance both
by Mr. S.V. Raju, learned Additional
Solicitor General and Mr. Sidharth Luthra,
learned senior counsel and there is broad
unanimity in terms of the suggestions made
by learned ASG. In terms of the
suggestions, the offences have been
categorized and guidelines are sought to be
laid down for grant of bail, without
fettering the discretion of the courts
concerned and keeping in mind the
statutory provisions.

"3. We are inclined to accept the
guidelines and make them a part of the
order of the Court for the benefit of the
Courts below. The guidelines are as under:

"Categories/Types of Offences

A) Offences punishable with
imprisonment of 7 years or less not falling
in category B & D.

B) Offences punishable with
death,
imprisonment
for
life,
or
imprisonment for more than 7 years.

C) Offences punishable under
Special
Acts
containing
stringent
provisions for bail like NDPS (S.37),
PMLA
(S.45),
UAPA
(S.43D(5),
Companies Act, 212(6), etc. D) Economic
offences not covered by Special Acts.

Requisite Conditions

1)
Not
arrested
during
investigation.

2) Cooperated throughout in the
investigation including appearing before
Investigating Officer whenever called.

(No need to forward such an
accused along with the charge sheet
(Siddharth v. State of U.P., 2021 SCC
OnLine SC 615)

CATEGORY A

After
filing
of
charge
sheet/complaint taking of cognizance

a) Ordinary summons at the 1st
instance/including permitting appearance
through Lawyer.

b) If such an accused does not
appear despite service of summons, then
Bailable Warrant for physical appearance
may be issued.

c) NBW on failure to appear
despite issuance of Bailable Warrant.

d) NBW may be cancelled or
converted
into
a
Bailable
Warrant/Summons
without
insisting
physical appearance of accused, if such an
application is moved on behalf of the
accused before execution of the NBW on an
undertaking of the accused to appear
physically on the next date/s of hearing.

e) Bail applications of such
accused on appearance may be decided w/o
the accused being taken in physical custody
or by granting interim bail till the bail
application is decided.

CATEGORY B/D
1924 INDIAN LAW REPORTS ALLAHABAD SERIES

On appearance of the accused in
Court pursuant to process issued bail
application to be decided on merits."

CATEGORY C

Same as Category B & D with the
additional condition of compliance of the
provisions of Bail under NDPS S.37, 45
PMLA, 212(6) Companies Act 43 d(5) of
UAPA, POSCO etc.

4. Needless to say that the
category A deals with both police cases and
complaint cases.

5. The trial Courts and the High
Courts will keep in mind the aforesaid
guidelines
while
considering
bail
applications. The caveat which has been put
by learned ASG is that where the accused
have not cooperated in the investigation nor
appeared before the Investigating Officers,
nor answered summons when the Court
feels that judicial custody of the accused is
necessary for the completion of the trial,
where further investigation including a
possible recovery is needed, the aforesaid
approach
cannot give
them benefit,
something we agree with.

6. We may also notice an aspect
submitted by Mr. Luthra that while issuing
notice to consider bail, the trial Court is not
precluded from granting interim bail taking
into consideration the conduct of the
accused during the investigation which has
not warranted arrest. On this aspect also we
would give our imprimatur and naturally
the bail application to be ultimately
considered, would be guided by the
statutory provisions.

7. The suggestions of learned
ASG which we have adopted have
categorized a separate set of offences as
"economic Offences" not covered by the
special Acts. In this behalf, suffice to say on
the submission of Mr. Luthra that this Court
in Sanjay Chandra vs.CBI, (2012) 1 SCC
40 has observed in para 39 that in
determining whether to grant bail both
aspects have to be taken into account:

a) seriousness of the charge and

b) severity of punishment.

Thus, it is not as if economic
offences are completely taken out of the
aforesaid guidelines but do form a different
nature of offences and thus the seriousness
of the charge has to be taken into account
but simultaneously, the severity of the
punishment imposed by the statute would
also be a factor.

8. We appreciate the assistance
given by the learned counsels and the
positive approach adopted by the learned
ASG.

9. The SLP stands disposed of
and the matter need not be listed further.

10. A copy of this order be
circulated to the Registrars of the different
High Courts to be further circulated to the
trial Courts so that the unnecessary bail
matters do not come up to this Court.

11. This is the only purpose for
which we have issued these guidelines, but
they are not fettered on the powers of the
Courts.

12. Pending applications stand
disposed of."

10. The aforesaid directions of
Hon'ble Supreme Court in Satendra
Kumar Antil (supra) has been again
reiterated in the judgement in Aman Preet
Singh Vs CBI, through Director : 2021
SCC OnLine SC 941 by the Hon'ble
Supreme Court and had held as under:

"9. In our view, the purport of
Section 170 Cr.P.C. should no more be in
doubt in view of the recent judgment passed
by us in Siddharth v. State of Uttar Pradesh
(Criminal Appeal No. 838/2021), 2021
SCC OnLine SC 615). In fact we put to
5 All. Veer Singh & Ors. Vs. State of U.P. & Anr.
1925
learned senior counsel whether he has come
across any view taken by this Court qua the
said provision. Learned counsel also refers
to judgments of the High Court which we
have referred to in that judgment while
referring to some judicial pronouncements
of this Court on the general principles of
bail. The only additional submission made
by learned counsel is that while the relevant
paragraphs of the judgment of the Delhi
High Court in Court on its Own Motion Vs
Central Bureau of Investigation, (2004)
72 DRJ 629 have received the imprimatur
of this Court, the extracted portions from
the judgment of the Delhi High Court did
not include para 26. The said paragraph
deals with directions issued to the criminal
Courts and we would like to extract the
portion of the same as under:

"26. Arrest of a person for less
serious or such kinds of offence or offences
those can be investigated without arrest by
the police cannot be brooked by any
civilized society.

Directions
for
Criminal
Courts:

(i) Whenever officer-in-charge of
police station or Investigating Agency like
CBI files a charge-sheet without arresting
the accused during investigation and does
not produce the accused in custody as
referred in Section 170, Cr.P.C. the
Magistrate or the Court empowered to take
cognizance or try the accused shall accept
the charge-sheet forthwith and proceed
according to the procedure laid down in
Section 173 Cr.P.C. and exercise the
options available to it as discussed in this
judgment. In such a case the Magistrate or
Court shall invariably issue a process of
summons and not warrant of arrest.

(ii)
In
case
the
Court
or
Magistrate exercises the discretion of
issuing warrant of arrest at any stage
including the stage while taking cognizance
of the chargesheet, he or it shall have to
record
the
reasons
in
writing
as
contemplated under Section 87 Cr.P.C. that
the accused has either been absconding or
shall not obey the summons or has refused
to appear despite proof of due service of
summons upon him.

(iii) Rejection of an application
for exemption from personal appearance on
any date of hearing or even at first instance
does not amount to non-appearance despite
service of summons or absconding or
failure to obey summons and the Court in
such a case shall not issue warrant of arrest
and may either give direction to the accused
to appear or issue process of summons.

(iv) That the Court shall on
appearance of an accused in a bailable
offence release him forthwith on his
furnishing a personal bond with or without
sureties as per the mandatory provisions of
Section 436, Cr.P.C.

(v) The Court shall on appearance
of an accused in non-bailable offence who
has
neither
been
arrested
by
the
police/Investigating
Agency
during
investigation nor produced in custody as
envisaged in Section 170 Cr.P.C. call upon
the accused to move a bail application if the
accused does not move it on his own and
release him on bail as the circumstance of
his having not been arrested during
investigation or not being produced in
custody is itself sufficient to entitle him to
be released on bail. Reason is simple. If a
person has been at large and free for several
years and has not been even arrested during
investigation, to send him to jail by refusing
bail suddenly, merely because charge-sheet
has been filed is against the basic principles
governing grant or refusal of bail.

Xxxxxxxxxx"

10. A reading of the aforesaid
shows that it is the guiding principle for a
Magistrate while exercising powers under
1926 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 170, Cr.P.C. which had been set
out.
The
Magistrate
or
the
Court
empowered to take cognizance or try the
accused has to accept the charge sheet
forthwith and proceed in accordance with
the procedure laid down under Section 173,
Cr.P.C. It has been rightly observed that in
such a case the Magistrate or the Court is
required to invariably issue a process of
summons and not warrant of arrest. In case
he seeks to exercise the discretion of
issuing warrants of arrest, he is required to
record the reasons as contemplated under
Section 87, Cr.P.C. that the accused has
either been absconding or shall not obey the
summons or has refused to appear despite
proof of due service of summons upon him.
In fact the observations in Sub-para (iii)
above by the High Court are in the nature
of caution.

11. Insofar as the present case is
concerned and the general principles under
Section 170 Cr.P.C., the most apposite
observations are in sub-para (v) of the High
Court judgment in the context of an accused
in a non-bailable offence whose custody
was not required during the period of
investigation. In such a scenario, it is
appropriate that the accused is released on
bail as the circumstances of his having not
been arrested during investigation or not
being produced in custody is itself
sufficient to entitle him to be released on
bail. The rationale has been succinctly set
out that if a person has been enlarged and
free for many years and has not even been
arrested during investigation, to suddenly
direct his arrest and to be incarcerated
merely because charge sheet has been filed
would be contrary to the governing
principles for grant of bail. We could not
agree more with this."
(Emphasis mine)

11. Again, the Hon'ble Supreme Court
in Siddharth Vs State of UP, 2021 SCC
OnLine SC 615 opined as follows:

"9. We are in agreement with the
aforesaid view of the High Courts and
would like to give our imprimatur to the
said judicial view. It has rightly been
observed on consideration of Section 170
Cr.P.C. that it does not impose an obligation
on the Officer-in-charge to arrest each and
every accused at the time of filing of the
charge-sheet. We have, in fact, come across
cases where the accused has cooperated
with the investigation throughout and yet
on the charge-sheet being filed non-bailable
warrants
have
been
issued
for
his
production premised on the requirement
that there is an obligation to arrest the
accused and produce him before the court.
We are of the view that if the investigating
officer does not believe that the accused
will abscond or disobey summons he/she is
not required to be produced in custody. The
word "custody" appearing in Section 170
Cr.P.C. does not contemplate either police
or judicial custody but it merely connotes
the presentation of the accused by the
investigating officer before the court while
filing the charge-sheet.

10. We may note that personal
liberty is an important aspect of our
constitutional mandate. The occasion to
arrest an accused during investigation
arises
when
custodial
investigation
becomes necessary or it is a heinous crime
or where there is a possibility of influencing
the witnesses or accused may abscond.
Merely because an arrest can be made
because it is lawful does not mandate that
arrest must be made. A distinction must be
made between the existence of the power to
arrest and the justification for exercise of it.
If arrest is made routine, it can cause
incalculable harm to the reputation and
5 All. Veer Singh & Ors. Vs. State of U.P. & Anr.
1927
self-esteem of a person. If the investigating
officer has no reason to believe that the
accused will abscond or disobey summons
and has, in fact, throughout cooperated with
the investigation we fail to appreciate why
there should be a compulsion on the officer
to arrest the accused."

12. After going through the above
quoted case laws of the Hon'ble Supreme
Court, it is thus very much clear that on
completion of two conditions mentioned in
Satendra Kumar Antil (Supra) i.e. accused
is not arrested during investigation and,
secondly, has cooperated throughout in the
investigation including appearing before
Investigating Officer whenever called, a
mechanism has been provided for the
offences punishable with imprisonment
upto 7 years of imprisonment for offences
placed in category in 'A' and perusal of the
procedure/mechanism provided in category
'A' would reveal that at the first instance
after filing of the charge sheet/complaint
and after taking of cognizance, summons
will be issued and that too with the
permission to appear through the lawyer
and if such an accused is not appearing
despite service of summons then bailable
warrants should be issued for their physical
appearance and on their failure to appear
despite issuance of bailable warrants, non
bailable warrants may be issued subject to
the condition that non bailable warrants
may be cancelled or converted into bailable
warrants/summons
without
insisting
physical presence of the accused person(s),
if any application is moved on behalf of the
accused persons for cancellation of the
warrants. However, it is in clause (e) of the
paragraph 3 pertaining to the category 'A'
cases, it is provided that the bail application
of such accused persons on appearance may
be decided without the accused being taken
in physical custody or by granting interim
bail till the bail application is finally
decided.

13. It is the admitted position that
the applicants herein have well cooperated during investigation and also
furnished their securities before the
Investigating
Officer
during
Investigation and there is no objection
that they have not cooperated during
investigation, thus, have complied the
two conditions referred in judgement of
Apex Court in Satendra Kumar Antil
(supra) and therefore, their case is also
covered under Category 'A' wherein a
mechanism has been provided for the
offences punishable with imprisonment
up to 7 years of imprisonment to be
adhered by all courts.

14. Thus, the above mentioned law
reports would reveal that the Hon'ble
Supreme Court has set a complete
mechanism for the offences punishable
with upto 7 years of imprisonment in the
above Satender Kumar Antil (supra),
Aman Preet Singh, (supra) and Siddharth
(supra). Moreover, when an accused
appear before the trial Court through
counsel for grant of bail under Section 439
Cr.P.C. for the offences punishable upto 7
years of imprisonment or less, and he has
fully co-operated during investigation and
has not been arrested while submitting the
charge sheet by the Investigating Officer,
they can be deemed to be under custody of
Court and their application in the said
offences under Section 439 Cr.P.C. moved
through counsel, cannot be solely rejected
on the technical ground that it is not
maintainable as he has not submitted
himself either to the custody of the court or
he has not been arrested by the police and
in the circumstances, it is left to the court to
consider the said request of applicants as
1928 INDIAN LAW REPORTS ALLAHABAD SERIES
per the said guidelines and principles. On
appearance of accused through counsel
before Court would always amount to
deemed custody and, thus, in terms of the
above judgements, their bail application
was required to be decided, consequent
upon their appearance through counsel
before the court on issuance of the process,
without the applicants being taken into
physical custody or by granting them
interim bail till the disposal of their bail
application.

15.

Having
considered
the
submissions of learned counsel for the
applicants and after going through the
record of the case as well as the case laws
dealt herein above, it is crystal clear that if
the conditions mentioned in the order of the
Hon'ble Supreme Court in Satendra
Kumar Antil (supra) is fulfilled, the
physical presence of the accused person to
the custody of the court is not required for
considering of their bail under Section 439
Cr.P.C. for the offences enumerated in
Category 'A'.

16. Accordingly, the present 2nd
Anticipatory Bail Application is disposed
of with the direction to the applicants to
move a fresh bail application before the
court concerned under Section 439 Cr.P.C.
within 15 days from today and in case the
fresh bail application is moved by the
applicants, the court concerned shall
dispose of the same without insisting the
applicants to submit themselves to the
custody of the court, strictly in accordance
with law laid down by the Apex Court in the
above mentioned cases.
----------
(2024) 5 ILRA 1928
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.05.2024

BEFORE

THE HON'BLE AJAY BHANOT, J.

Criminal Misc. Bail Application No. 4880 of 2024

Anurudh ...Applicants
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicants:
Fakhr uz Zaman

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161, 164, 164-A
& 439 - Indian Penal Code, 1860 -
Sections

363,
366
&
376(3)
-
The Protection of Children from Sexual
Offences (POCSO) Act, 2012 - Sections
3, 4(2) & 27 - Constitution of India,1950
- Article 21, 227 - juvenile justice (care
and protection of children) Act, 2015-
Section 94 - Application for Bail - Bail
jurisdiction - the question of law - nature of
legal duty cast on the police to draw up a
medical report determining the age of victim
while investigating POCSO Act offences - in
the instant case, the medical report pertaining
to the victim's age as contemplated in Section
164-A Cr. PC r/w Section 27 of the POCSO Act,
was not produced by the police authority -
court finds that, the issue of medical
determining the Victim's Age in POCSO Act
offences has been regularly vexing the court's
- held, (i) in the light of law laid down by the
Full Bench of this Court in Chandrapal Singh
Case, it can be safely St.d that the directions
contained in Pradeep Kumar Chauhan' case
are
not
binding
judicial
authority
for
determination of the Victim's Age by the
competent medical authority u/s 164-A r/w
u/s 27 of the POCSO Act, (ii) the police
authority are directed to strictly comply with
the direction of tis court in Aman' Case and
ensure its compliance, (iii) lack of compliance
of the directions of this case in Monish's Case
and lately Aman's Case by the trial courts
while deciding the bail applications under the