# Vivek Yadav & Anr v. State of U.P. & Anr

- **Citation:** (2024) 2 ILRA 1302
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-21
- **Case number:** Crl. Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 1224 of 2023
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vivek-yadav-anr-v-state-of-u-p-anr-51342
- **Pages:** 11

## Headnote

Criminal law - Code of Criminal procedureSection 362-Anticipatory bail granted with
2 All. Vivek Yadav & Anr. Vs. State of U.P. & Anr.
1303
certain conditions-application by the applicants
seeking deletion of the condition (ii) -restraining the
applicants from leaving India without permission of the
trial Court-anticipatory bail already granted-application
has been filed by the applicants seeking deletion of the
condition (ii) imposed in the aforesaid order restraining
the applicants from leaving India without permission of
the trial Court-trial court declined the permission -
seeking modification of the condition by filing a
miscellaneous application in the decided matter-not
maintainable u/s 362 Cr.P.C.-Application dismissed.
(E-9)

Cases cited:

## Text

1302 INDIAN LAW REPORTS ALLAHABAD SERIES
competent authority to accord sanction to
prosecute under Section 19(1)(c) of the Act
is the time when the Court is called upon to
take cognizance of the offence. Therefore,
the contention raised by the petitioner
against the validity of the sanction
accorded under Section 19(I)(c) of the Act and
the competency of the officer who granted the
sanction are untenable.

17. In R.S. Nayak Vs. A.R. Antulay2, the
five-Judges Bench of the Supreme Court has
observed that existence of a valid sanction is a
pre-requisite to the taking of cognizance of the
enumerated offences alleged to have been
committed. Thus, the said argument of nonavailability of sanction to prosecute at the stage
of FIR or investigation does not carry any force.
Therefore, no sanction is required to investigate
the instant matter.

18. Eminent jurist Benjamin N.
Cardozo in his book 'Nature of the Judicial
Process' at page 70 has stated "The general
framework furnished by the statute is to be
filled in for each case by means of
interpretation, that is, by following out the
principles of the statute. In every case, without
exception, it is the business of the court to
supply what the statute omits, but always by
means of an interpretative function."

19. Learned counsel has failed to highlight
the animosity carried by the police against the
applicant. The applicant has applied for Passport
thrice by altering his name and parentage in them.

20. The satisfaction of the court for granting
protection under Section 438 Cr.P.C. is different
from the one under Section 439 Cr.P.C. while
considering regular bail as settled by the Apex
Court in Satpal Singh Vs. State of Punjab3.

21. The relief of anticipatory bail is aimed
at safeguarding individual rights. While it
serves as a crucial tool to prevent the misuse of
the power of arrest and protects innocent
individuals from harassment, it also presents
challenges in maintaining a delicate balance
between individual rights and the interests of
justice. The tight rope we must walk lies in
striking a balance between safeguarding
individual rights and protecting public interest
as laid down in the latest judgement of the
Supreme Court in Pratibha Manchanda and
another Vs. State of Haryana and another4.

22. In view of the above, the present
anticipatory bail application is found devoid of
merits and is, accordingly, rejected.

23. It is clarified that the observations
made herein are limited to the facts brought in
by the parties pertaining to the disposal of
anticipatory bail application and the said
observations shall have no bearing on the merits
of the case.
----------
(2024) 2 ILRA 1302
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 21.02.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Crl. Misc. Anticipatory Bail Application U/S 438
Cr.P.C. No. 1224 of 2023

Vivek Yadav & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Respondents.

Counsel for the Applicants:
Nadeem Murtaza, Aditya Vikram Singh

Counsel for the Respondent:
G.A., Lalta Prasad Misra, Prafulla Tiwari

Criminal law - Code of Criminal procedureSection 362-Anticipatory bail granted with
2 All. Vivek Yadav & Anr. Vs. State of U.P. & Anr.
1303
certain conditions-application by the applicants
seeking deletion of the condition (ii) -restraining the
applicants from leaving India without permission of the
trial Court-anticipatory bail already granted-application
has been filed by the applicants seeking deletion of the
condition (ii) imposed in the aforesaid order restraining
the applicants from leaving India without permission of
the trial Court-trial court declined the permission -
seeking modification of the condition by filing a
miscellaneous application in the decided matter-not
maintainable u/s 362 Cr.P.C.-Application dismissed.
(E-9)

Cases cited:

1. Nazma Vs Javed Alias Anjum; 2013 1 SCC 376,

2. A.P. SRTC & ors. Vs Abdul Kareem; 2007 2 SCC
466

3. Barun Chandra Thakur Vs Ryand Augustine Pinto
& anr.;2019 SCC OnLine 1899

4. Ramadhar Sahu Vs The St. of Maharasthra, in SLP
(Crl.) No. 11130 of 2023 decided on 16.10.2023

5. Atul Shukla Vs St. of M.P., (2019) 17 SCC 299

6. Hari Singh Mann Vs Harbhajan Singh Bajwa,
(2001) 1 SCC 169

7. Nazma Vs Javed Alias Anjum: (2013) 1 SCC 376

8. A.P.SRTC & ors. Versus Abdul Kareem ; 2007 2
SCC 466

9. Bhavnagar University Vs Palitana Sugar Mill (P)
Ltd.: (2003) 2 SCC 111

10. Jagdish Arora and Ajay Arora Vs Union of Indian :
2022 (3) CriminalCC 384

11. Atul Shukla Vs St. of M.P. & Another (2019) 17
SCC 299

12. Parvez Noorodin Lokhandwalla Vs St. of
Maharashtra: (2020) 10 SCC77

(Delivered by Hon'ble Subhash Vidyarthi, J.)

Order on IA-03/2024

1. Heard Sri Vikas Tiwari and Sri
Nadeem Murtaza, the learned counsel for the
applicants, Sri Puneet Kumar Yadav, the learned
State Counsel and Dr. Lalta Prasad Misra and
Sri Prafulla Tiwari, the learned counsel for the
opposite party no. 2 and perused the record.

2. The applicants were granted interim
anticipatory bail in F.I.R. No. 896 of 2021,
under Sections 409 and 420 I.P.C., Police
Station Gomti Nagar, District Lucknow, by
means of an order dated 23.05.2023 passed by
this court, subject to the following conditions:-

(i) The applicants 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 tamper with
the evidence;

(ii) The applicants shall not leave
India without the previous permission of the
court;

(iii) (iii)The applicants shall not
pressurize/ intimidate the prosecution witness;

(iv) (iv)The applicants shall appear
before the trial court on each date fixed unless
personal presence is exempted;

(v) In case of breach of any of the
above conditions the court below shall have the
liberty to cancel the bail;

3. The interim anticipatory bail already
granted to the applicants by means of the order
dated 23.05.2023, was confirmed by means
of an order dated 27.10.2023 and it was
provided that the aforesaid order shall
continue to remain in force till pendency of
the trial.

4. This application has been filed by
the applicants seeking deletion of the
condition (ii) imposed in the aforesaid
order restraining the applicants from
1304 INDIAN LAW REPORTS ALLAHABAD SERIES
leaving India without permission of the
trial Court.

5. In the affidavit filed in support of
the
application
for
deletion
of
the
condition, it has been stated that the
applicant no.2 had approached the trial
court seeking permission to leave India to
meet her children, who are studying
abroad, but the trial court declined the
permission. The applicants challenged the
order passed by the trial court refusing
permission for her travel abroad by filing
application under Section 482 Cr.P.C. No.
6743 of 2023. During pendency of that
application, the interim anticipatory bail
order dated 23.05.2023 was made absolute
by the order dated 27.10.2023 and the
applicants contend that the application
under Section 482 Cr.P.C. No. 6443 of
2023 has become infructuous. Now they
have moved this application for invoking
the inherent powers of this court for
deletion of the condition.

6. The applicants have stated that the
applicant no.1 is a businessman and is the
Managing Director of a Company known
as 'Piscesia Power Transmission Pvt. Ltd.'
(P.P.T.P.L). The company is working in a
joint-venture with a Turkish Company
named as 'Savronik Elektronik Sanayi Ve
Ticaret A.S.' for carrying out some projects
of national importance across India. The
applicant no.1 has to travel abroad for
business purposes as he is having tie ups
with some companies in other countries.
Daughter of the applicants is currently
studying at Amity School, Dubai, U.A.E in
standard IX and has been staying with the
applicant no. 2 whereas the applicants' son
aged about 19 years is studying in Boston,
USA. The applicant no. 2 is employed in a
Hotel at U.A.E since 21.01.2023. She had
returned to India to participate in the
proceedings of the case but in light of the
restrictions imposed by the interim order
dated 23.05.2023, she is unable to travel
and report for her job. The applicants have
undertaken to appear before the trial court
as when directed and not to abscond from
the process of law.

7. The opposite party no.2 has filed
objections against the application wherein a
preliminary
objection
regarding
maintainability of the application has been
raised stating that Section 362 Cr.P.C.
provides that:- no court, when it has signed
its judgment or final order disposing of a
case, shall alter or review the same except
to correct a clerical or arithmetical error."
It has been stated that the application filed
for deletion of the condition amounts to an
application seeking review of the order
passed by this court, which is not
maintainable.

8. It has further been stated in the
application that the condition sought to be
deleted itself contains a provision that the
applicants can travel abroad with the
permission of the court. The applicants had
sought permission from the trial Court and
they have filed an application under
Section 482 Cr.P.C. challenging the order
passed
by
the
trial
court
refusing
permission for their travel abroad which is
still pending and, therefore, the applicants
cannot seek the same relief by filing the
instant application.

9. In support of the preliminary
objection, the learned counsel for the
opposite party no.2 has relied upon the
decision of the Hon'ble Supreme Court in
Nazma vs. Javed Alias Anjum; 2013 1
SCC 376, A.P. SRTC and Others Vs.
Abdul Kareem; 2007 2 SCC 466 and
Barun Chandra Thakur Vs. Ryand
2 All. Vivek Yadav & Anr. Vs. State of U.P. & Anr.
1305
Augustine Pinto and another; 2019 SCC
OnLine 1899.

10. Replying to the preliminary
objections, the learned counsel for the
applicants placed reliance on a decision of
the Hon'ble Supreme Court in the case of
Ramadhar Sahu Vs. The State of
Maharasthra, in SLP (Crl.) No. 11130 of
2023 decided on 16.10.2023.

11. Section 438 was omitted from
Cr.P.C. in the State of U.P. by U.P. Act No.
16 of 1976 with effect from 28-11-1975.
The following new Section 438 has been
introduced in Cr.P.C. in the State of U. P.
vide U.P. Act No. 4 of 2019, which
received the assent of the President on 1-62019 and was published on 6-6-2019: -

"438. Direction for grant bail to
person apprehending arrest.-(1) Where
any person has reason to believe that he
may be arrested on accusation of having
committed a non-bailable offence, he may
apply to the High Court or the Court of
Session for a direction under this section
that in the event of such arrest he shall be
released on bail; and that Court may, after
taking into consideration, inter alia, the
following factors, namely-

(i) the nature and gravity of the
accusation;

(ii) the antecedents of the applicant
including the fact as to whether he has
previously undergone imprisonment on
conviction by a Court in respect of any
cognizable offence;

(iii) the possibility of the applicant to
flee from justice; and

(iv) where the accusation has been
made with the object of injuring or
humiliating the applicant by having him so
arrested;

either reject the application forthwith
or issue an interim order for the grant of
anticipatory bail:

Provided that where the High Court
or, as the case may be, the Court of
Session, has not passed any interim order
under this sub-section or has rejected the
application for grant of anticipatory bail, it
shall be open to an officer in-charge of a
police station to arrest, without warrant,
the applicant on the basis of the accusation
apprehended in such application.

(2) Where the High Court or, as the
case may be, the Court of Session,
considers it expedient to issue an interim
order to grant anticipatory bail under subsection (1), the Court shall indicate therein
the date, on which the application for grant
of anticipatory bail shall be finally heard
for passing an order thereon, as the Court
may deem fit, arid if the Court passes any
order granting anticipatory bail, such
order shall include inter alia the following
conditions, namely-

(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,

(iii) that the applicant shall not leave
India without the previous permission of
the Court; and

(iv) such other conditions as may be
imposed under sub-section (3) of Section
437, as if the bail were granted under that
section.

Explanation.-The final order made
on an application for direction under subsection (1); shall not be construed as an
interlocutory order for the purpose of this
Code.
1306 INDIAN LAW REPORTS ALLAHABAD SERIES

(3) Where the Court grants an interim
order under sub-section (1), it shall
forthwith cause a notice being not less than
seven days notice, together with a copy of
such order to be served on the Public
Prosecutor and the Superintendent of
Police, with a view to give the Public
Prosecutor a reasonable opportunity of
being heard when the application shall be
finally heard by the Court.

(4) On the date indicated in the
interim order under sub-section (2), the
Court shall hear the Public Prosecutor
and
the
applicant
and
after
due
consideration of their contentions, it may
either confirm, modify or cancel the
interim order.

(5) The High Court or the Court of
Session, as the case may be, shall finally
dispose of an application for grant of
anticipatory bail under sub-section (1),
within thirty days of the date of such
application;

(6) 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.
(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."

(Emphasis supplied)

12. The conditions that were imposed
in the order dated 23.05.2023 granting
interim anticipatory bail to the applicants,
were in accordance with the statutory
mandate contained in sub-Section (2) of
Section 438 Cr.P.C., as it applies to the
State of UP.

13. Sub-Section (4) of Section 438
Cr.P.C. empowers the Court to confirm,
modify or cancel the interim order after
hearing the Public Prosecutor and the
applicant and after due consideration of
their contentions. After hearing the learned
Counsel for the parties, this Court had
passed the final order dated 27.10.2023,
whereby it confirmed the order dated
23.05.2023 granting interim anticipatory
bail to the applicants subject to the
aforesaid conditions.

14. The applicants have sought
deletion of the condition on the ground that
the applicant no. 2 is serving abroad, the
applicant no.1 has to frequently travel
abroad in connection with his business and
their children are studying abroad in two
different countries.

15. The fact that the applicant no. 2 is
serving abroad, was not disclosed in the
anticipatory bail application filed by the
applicants. It was a relevant factor, which
ought to have been disclosed to this court.
The fact of an accused person serving
abroad would increase the likelihood of his
unavailability to face the trial. This factor
might have influenced the discretion of the
court
at the time
of
deciding the
anticipatory bail application. The applicants
have disclosed this fact for the first time in
the application for deletion of condition
filed after the interim anticipatory bail was
granted to them and after the same was
confirmed while the application was
decided finally. This conduct of the
applicants would weigh heavily against
2 All. Vivek Yadav & Anr. Vs. State of U.P. & Anr.
1307
them while deciding their application
seeking to invoke the inherent powers of
this Court which are meant to secure the
ends of justice.

16. While opposing the application,
the learned Counsel for the opposite party
no. 2 has submitted that after the
anticipatory bail application was disposed
off finally, this Court became functus
officio and it has no authority to pass any
further order regarding that application.

17. Section 362 Cr.P.C. provides that
"No court, when it has signed its judgment
or final order disposing of a case, shall
alter or review the same except to correct a
clerical or arithmetical error." The prayer
for deletion of the condition that the
applicants will not leave India without the
previous permission of the trial Court, does
not seek correction of any clerical or
arithmetical error and deletion of the
condition will amount to a modification of
the order after final disposal of the
anticipatory bail application.

18. In Atul Shukla v. State of M.P.,
(2019) 17 SCC 299, A first information
report was registered for the offences under
Sections 364 and 323 read with Section 34
I.P.C. and a charge-sheet was filed on
08.09.2016. A petition under Section 482
Cr.P.C. was filed for quashing of the F.I.R.
In the meantime, charges were framed on
24.04.2017. On 20.07.2018, the High Court
dismissed the petition under Section 482 in
the following terms: -

"6.
Considering
the
circumstances, this petition under Section
482 Cr.P.C. has no merit. The petitioner
may challenge the framing of charge under
appropriate provisions.

7. With the above observation,
this petition is dismissed."

After the above order, the second
respondent filed another petition under
Section 482, praying for recall and
modification of the order dated 20-7-2018.
The High Court allowed the petition and
recalled its earlier order dated 20-7-2018.
Allowing the appeal, the Hon'ble Supreme
Court held "In view of the specific bar
which is contained in Section 362, we are
of the view that the impugned order of the
High Court is unsustainable. Such an
application for review or modification
could not have been entertained."

19. In Hari Singh Mann v.
Harbhajan Singh Bajwa, (2001) 1 SCC
169, the Hon'ble Supreme Court held that:
-

"8. We have noted with disgust
that the impugned orders were passed
completely ignoring the basic principles of
criminal law. No review of an order is
contemplated under the Code of Criminal
Procedure. After the disposal of the main
petition on 7-1-1999, there was no lis
pending in the High Court wherein the
respondent
could
have
filed
any
miscellaneous petition. The filing of a
miscellaneous petition not referable to any
provision of the Code of Criminal
Procedure or the rules of the court,
cannot be resorted to as a substitute of
fresh
litigation.
The
record
of
the
proceedings produced before us shows that
directions in the case filed by the
respondents were issued apparently without
notice to any of the respondents in the
petition. Merely because Respondent 1 was
an Advocate, did not justify the issuance of
directions at his request without notice of
the other side. The impugned orders dated
1308 INDIAN LAW REPORTS ALLAHABAD SERIES
30-4-1999 and 21-7-1999 could not have
been passed by the High Court under its
inherent power under Section 482 of the
Code of Criminal Procedure. The practice
of filing miscellaneous petitions after the
disposal of the main case and issuance of
fresh directions in such miscellaneous
petitions
by
the
High
Court
are
unwarranted,
not
referable
to
any
statutory provision and in substance the
abuse of the process of the court.

(Emphasis supplied)

20. In Nazma vs. Javed Alias
Anjum: (2013) 1 SCC 376 relied upon by
the learned Counsel for the opposite party
no. 2, the Hon'ble Supreme has held that:-

"12. We are of the view that the High
Court has committed a grave error in not
only
entertaining
the
criminal
miscellaneous application in a disposed of
writ petition, but also passing an order not
to arrest the 1st respondent till the
conclusion of the trial. Grant of bail or not
to grant, is within the powers of the regular
Criminal Court and the High Court, in its
inherent jurisdiction, not justified in
usurping their powers. Once the criminal
writ petition has been disposed of, the
High Court becomes functus officio and
cannot entertain review petitions or
miscellaneous applications except for
carrying out typographical or clerical
errors. In the instant case, the High Court
has entertained a petition in a disposed of
criminal writ petition and granted reliefs,
which is impermissible in law."

21. In A.P.SRTC and Others Versus
Abdul Kareem ; 2007 2 SCC 466, the
Hon'ble Supreme Court deprecated the
attempt to seek a review under the guide of
making an application for clarification.

22. In Ramadhar Sahu (Supra), the
appellant had been granted bail by means
of an order dated 28.04.2023 passed by the
High Court of Madhya Pradesh, wherein it
is
recorded
that
the
appellant
had
volunteered to deposit a sum of Rs.
65,92,460/-.
The
order
contained
a
condition that he had to deposit Rs. 10
lakhs
before
the
trial
court
and
Rs.55,92,460/- was to be deposited under
protest within a period of three months
from the date of his release. The appellant
was released on bail on depositing Rs. 10
lakhs but thereafter he failed to deposit the
remaining amount and he surrendered on
24.07.2023. After having gone into custody
again, the appellant again applied for bail
mainly on the ground of parity, as a coaccused had already been granted bail. The
fresh application for bail was rejected by
the High Court, stating that in the event the
appellant
was
granted
bail
without
compliance of the condition specified in the
earlier
order
that
would
constitute
modification of the order, which is
prohibited by Section 362 Cr.P.C. In the
aforesaid factual background the Hon'ble
Supreme Court observed that:-

"An order for refusal of bail however,
inherently carries certain characteristics of
an interlocutory order in that certain
variation or alteration in the context in
which a bail plea is dismissed confers on
the detained accused right to file a fresh
application for bail on certain changed
circumstances. Thus, an order rejecting
prayer for ball does not disempower the
Court from considering such plea afresh if
there is any alteration of the circumstances.
Conditions of bail could also be varied if a
case is made out for such variation based
on that factor. Prohibition contemplated in
Section 362 of the Code would not apply in
such cases."
2 All. Vivek Yadav & Anr. Vs. State of U.P. & Anr.
1309

23. The aforesaid observations in
Ramadhar Sahu (Supra) were made by the
Hon'ble Supreme Court in the background
of the peculiar facts of the case where the
earlier the applicant was granted bail
subject to the condition of his depositing
Rs. 10 lakhs prior to his release on bail and
Rs.55,92,460/- within three months from
the date of his release. The appellant did
not deposit the balance amount and
surrendered to custody. Thereafter, he filed
a fresh application mainly on the ground of
parity. In these circumstances, the Hon'ble
Supreme Court held that granting of bail
without imposing the condition which was
there in the earlier bail order, would not
amount to variation of the condition of the
bail orders as the fresh bail application had
to be considered on its merits keeping in
view the changed circumstances, which in
that case were grant of bail to an coaccused person.

24. In Bhavnagar University v.
Palitana Sugar Mill (P) Ltd.: (2003) 2
SCC 111, the Hon'ble Supreme Court held
that "A decision, as is well known, is an
authority for which it is decided and not
what can logically be deduced therefrom. It
is also well settled that a little difference in
facts or additional facts may make a lot of
difference in the precedential value of a
decision."

25. Therefore, Ramadhar Sahu
(supra) has to be read in light of the
factual background of the case and it does
not laid down a law of universal
application that variance or deletion of
conditions imposed in an order granting
bail to an accused person is permissible
by way of modification of order in spite
of the provision contained in Section 362
Cr.P.C.

26. The learned counsel for the
applicants next relied upon a decision of a
Division Bench of the Madhya Pradesh,
Jabalpur in the case of Jagdish Arora and
Ajay Arora Vs. Union of Indian : 2022
(3)
CriminalCC
384,
wherein
an
application under Section 482 Cr.P.C. was
filed seeking modification of final order
granting bail under Section 439 of Cr.P.C.
subject to the condition that "the applicants
shall submit their passports, if any, before
the trial Court and shall not leave India
without prior permission of this Court."
The Learned counsel for the prosecuting
agency had relied upon the judgment in the
case of Atul Shukla vs. State of M.P. &
Another (2019) 17 SCC 299 to contend
that no recall, review or modification of an
order passed under Cr.P.C. is permissible
by exercise of inherent powers under
Section 482 Cr.P.C. However, power to
correct a condition, subject to which a bail
order is passed, is vested with the Court
under Section 439(1)(b) of Cr.P.C., but the
same cannot be exercised by invoking
inherent powers u/S. 482 of Cr.P.C. as it is
a power to be independently exercised on
the invocation of aggrieved person.

27. The Madhya Pradesh High Court
held in Jagdish Arora (Supra) that Section
439(1)(b) Cr.P.C. empowers the High Court
to modify any condition imposed by a
Magistrate while passing an order of bail
u/S. 437 of Cr.P.C. whereas Section
439(1)(a) of Cr.P.C. empowers the High
Court to release a person on bail but when
doing so in connection with offences
punishable with imprisonment of seven
years or more under Chapter VI, XVI and
XVII of I.P.C. or of abetment or conspiracy
or attempt to commit such offences, the
High Court in its discretion may impose
any condition considered necessary in the
1310 INDIAN LAW REPORTS ALLAHABAD SERIES
attending facts and circumstances. The
Madhya Pradesh High Court held that: -

"8.1 It is also settled that grant of
bail is a rule whereas its denial is an
exception. Once bail is granted subject to
certain conditions by the High Court u/S.
439(1)(a) of Cr.P.C. as is the case herein,
the power to modify or delete the
conditions subject to which bail is granted,
is also inherently vested with the High
Court.

8.2. The power of amending or
deleting any condition, subject to which
bail order u/S. 439(1)(a) of Cr.P.C. is
granted, is however not expressly provided
in Cr.P.C. Thus, the only course available
for
seeking
and
granting
modification/deletion of such a condition is
by invoking the inherent powers of this
Court u/S. 482 of Cr.P.C. to ensure the ends
of justice.

8.3. Section 482 of Cr.P.C. saves
inherent powers of this Court to be
exercised inter alia to secure the ends of
justice. The ends of justice can only be
secured when in absence of any express
provision this Court is not prevented from
deleting/modifying any of the conditions
subject to which an order of bail u/S.
439(1)(a) of Cr.P.C. is passed. If such
inherent
powers
are
otherwise
not
available to this Court u/S. 482 of Cr.P.C.,
then object of insertion of Section 482 of
Cr.P.C. would stand defeated and this
Court would be rendered a toothless tiger.

9. The Legislature while enacting
the Code of Criminal Procedure could
never have approved a situation where this
superior Court is handicapped to exercise
its inherent powers to modify/delete a
condition imposed u/S. 439(1)(a) of Cr.P.C.
despite
existence
of
compelling
circumstances merely because of absence
of enabling provision in the Cr.P.C.

9.1. The object behind bestowing
inherent powers in this Court is to do
complete justice and to prevent miscarriage
of justice. The inherent powers are saved
with this Court to be exercised in such
circumstances where cause for doing
complete justice or preventing failure of
justice exists, but there is no express
provision in Cr.P.C. As such Constitutional
Courts are saved with such inherent powers
to do complete justice without being
inhibited or disabled by absence of
enabling provision."

Although the Madhya Pradesh High
Court has mentioned in the judgment the
learned State Counsel's contention that as
per the law laid down in Atul Shukla vs.
State of M.P. & Another (2019) 17 SCC
299 no recall, review or modification of an
order passed under Cr.P.C. is permissible
by exercise of inherent powers under
Section 482 Cr.P.C., it did not deal with this
contention.

28. Moreover, in Jagdish Arora
(Supra) the accused had not filed a
Miscellaneous Application for modification
or deletion of the condition filed in the bail
application itself after its final decision,
rather he had filed a fresh application filed
under Section 482 Cr.P.C. Therefore, even
the Division Bench of the Madhya Pradesh
has not laid down in Jagdish Arora
(supra) that after final decision of a bail
application, the court granting bail can
modify or delete any condition that was
there in the bail order, by filing a
miscellaneous application in the decided
case.

29. In the present case also, the
applicants had filed an application before
the trial Court seeking permission to travel
abroad. The application was rejected and
2 All. Vivek Yadav & Anr. Vs. State of U.P. & Anr.
1311
the order of rejection was challenged by
filing an application under Section 482
Cr.P.C. No. 6443 of 2023 and that
application is still pending. Even if the
applicants contend that the application has
become infructuous as a final order has
been passed on 27.10.2023 confirming the
order, it is open to the applicants to file a
fresh application seeking permission from
the trial Court or to file a fresh application
under Section 482 Cr.P.C. However,
seeking modification of the condition by
filing a miscellaneous application in the
decided matter for deletion of condition,
would not be maintainable in view of the
provision contained in Section 362 Cr.P.C.
and in view of the law laid down by the
Hon'ble Supreme Court in Atul Shukla vs.
State of M.P. & Another (2019) 17 SCC
299.

30. The learned counsel for the
applicants has next submitted that a coaccused person Shailendra Yadav was
arrested in the present case and he has been
enlarged on bail and no such condition has
been imposed in the order granting bail to
the aforesaid co-accused. Shailendra Yadav
was granted bail under Section 437 Cr.P.C,
which does not mandate imposing any such
condition, as are required to be imposed
while granting anticipatory bail to any
person under Section 438 Cr.P.C. The
applicants
were
granted
interim
anticipatory bail by means of the order
dated 23.05.2023 and the condition, which
is being sought to be deleted by the
applicants, was imposed in accordance with
the mandatory provision contained in
Section 438(2) Cr.P.C. as it applies to the
State of U.P.

31. The learned counsel for the
applicants has lastly submitted that the
complainant is also an accused in a
criminal case initiated by the applicants by
filing an F.I.R. and in the order granting
bail to the complainant also no such
conditions
have
been
imposed.
The
complainant has been granted bail under
Section 439 Cr.P.C., like the aforesaid
Shailendra Yadav, and he has not been
granted anticipatory bail under Section 438
Cr.P.C. Therefore, the non-imposing of
condition which is mandatory under
Section 438 Cr.P.C. and not mandatory
under Section 439 Cr.P.C, cannot be a
ground for deletion of the condition in an
order granting anticipatory bail to the
applicants under Section 438 Cr.P.C.

32. The learned counsel for the
applicants submitted that the application for
deletion of condition has been filed under
Section 482 Cr.P.C. However, this is a
miscellaneous application filed in the
decided application and it is not a fresh
application under Section 482 Cr.P.C. The
applicants are very well aware of the mode
and manner of filing fresh applications
under
Section
482
Cr.P.C.
and
the
applicants have themselves already filed an
application under Section 482 Cr.P.C. No.
6443 of 2023, challenging the order passed
by the trial court refusing permission for
their
travel
abroad.
However,
this
application
has
been
filed
as
a
miscellaneous
application
after
final
decision of the application under Section
438 Cr.P.C. by means of the order dated
27.10.2023, after which the court became
functus
officio and
can
only
order
correction of clerical or arithmetical
mistakes in the order dated 27.10.2023 and
it cannot modify the order by deleting the
condition.

33. The applicants have placed
reliance on a decision of the Parvez
Noorodin Lokhandwalla Vs. State of
1312 INDIAN LAW REPORTS ALLAHABAD SERIES
Maharashtra:
(2020)
10
SCC
77.
However, the question of entertainablity of
a
miscellaneous
application
seeking
modification of an order after final decision
of the case, was not involved in that case
and, therefore, that case is of no relevance
for decision of this issue.

34. In view of the aforesaid
discussions, I find that the miscellaneous
application for deletion of a condition after
final decision of the Anticipatory Bail
Application No. 1224 of 2023, is not
maintainable
and
the
application
is
accordingly dismissed as such.
----------
(2024) 2 ILRA 1312
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 08.02.2024

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Crl. Misc. Bail Application No. 1311 of 2024

Vikas Singh ...Applicant
Versus
State of U.P. ...Respondent

Counsel for the Applicant:
Trilok Nath Yadav

Counsel for the Respondent:
G.A.

Bail; Delay in Trial--First bail application
rejected- in judicial custody for more than six
years- More than one year has passed since the
first bail application was rejected- no possibility
to conclude the trial shortly-these reasons may
be considered as fresh grounds to allow
Sectionond bail application. Bail Application
allowed. (E-9)

Cases cited:

1. U.O.I.Vs K.A. Najeeb,AIR 2021 Supreme
Court 712

2. Paras Ram Vishnoi Vs The Director, Central
Bureau of Investigation- Criminal Appeal No.
693 of 2021 (Arising out of SLP (Crl) 3610 of
2020)

3. Gokarakonda Naga Saibaba Vs St. of Mah.,
(2018) 12 SCC 505

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri T.N. Yadav, learned
counsel for the applicant and learned
A.G.A. for the State.

2. It has been submitted by the
learned counsel for the applicant that this is
second bail application and the applicant is
in jail since 15.1.2018 in Case Crime No.
6/2018
u/s
302,
201/34
IPC,
P.S.
Jahangirganj, District Ambedkar Nagar. It
has been submitted that the applicant has
been falsely implicated in this case as he
has not committed any offence as alleged.

3. The first bail application bearing
Bail Application No. 4266 of 2022 has
been rejected by this Court vide order dated
25.1.2023, which reads as under :

"Heard learned counsel for the
applicant and the learned Additional
Government Advocate for the State.

As per learned counsel for the
applicant, the present applicant (Vikas
Singh S/O Lakhan Singh Alias Laxman
Singh)
is
languishing
in
jail
since
15.01.2018 in Case Crime No.06 of 2018,
under Sections 302/201/ 34 I.P.C., Police
Station-Jahangirganj,
District-Ambedkar
Nagar.

After arguing the matter at some
length, learned counsel for the applicant