# Yogendra Kumar Mishra v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2022) 8 ILRA 475
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-06
- **Case number:** Crl. Misc. Anticipatory Bail Appl. No. 20357 of 2021
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yogendra-kumar-mishra-v-state-of-u-p-anr-opp-parties-48908
- **Pages:** 6

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 82 -While
considering anticipatory bail application this
Court has to struck balance between two
factors namely, no prejudice should be
caused to the fair and free investigation
and accused should not be subjected to
harassment,
humiliation
and
unjustified
detention.

B.
If
anyone
has
been
declared
as
absconder/
proclaimed
offender
under
Section 82 Cr.P.C., he is not entitled for
relief of anticipatory bail.

C. The power exercisable Under Section 438
of the Code is somewhat extraordinary in
character and it is to be exercised only in
exceptional cases where it appears that the
person may be falsely implicated or where
there are reasonable grounds for holding
that a person Accused of an offence is not
likely to otherwise misuse his liberty.

Application rejected. (E-12)

List of Cases relied upon:-

## Text

8 All. Yogendra Kumar Mishra Vs. State of U.P. & Anr.
475
Allahabad or certified copy issued from the
Registry of the High Court, Allahabad.

(8) The concerned Court/ Authority/
Official shall verify the authenticity of such
computerized copy of the order from the
official website of High Court Allahabad
and shall make a declaration of such
verification in writing.

16. It may be observed that in the
event of any breach of the aforesaid
conditions, the court below shall be at
liberty to proceed for the cancellation of
applicant's bail.

17. It is clarified that the observations,
if any, made in this order are strictly
confined to the disposal of the bail
application and must not be construed to
have any reflection on the ultimate merit of
the case.
----------
(2022) 8 ILRA 475
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.04.2022

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Crl. Misc. Anticipatory Bail Appl. No. 20357 of
2021

Yogendra Kumar Mishra ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Dharmendra Shukla, Sri Anil Tiwari(Sr. Adv.)

Counsel for the Opp. Party:
G.A., Sri Subhash Chandra Tiwari

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 82 -While
considering anticipatory bail application this
Court has to struck balance between two
factors namely, no prejudice should be
caused to the fair and free investigation
and accused should not be subjected to
harassment,
humiliation
and
unjustified
detention.

B.
If
anyone
has
been
declared
as
absconder/
proclaimed
offender
under
Section 82 Cr.P.C., he is not entitled for
relief of anticipatory bail.

C. The power exercisable Under Section 438
of the Code is somewhat extraordinary in
character and it is to be exercised only in
exceptional cases where it appears that the
person may be falsely implicated or where
there are reasonable grounds for holding
that a person Accused of an offence is not
likely to otherwise misuse his liberty.

Application rejected. (E-12)

List of Cases relied upon:-

1. Prem Shankar Prasad Vs St. of Bihar & anr.,
AIR 2021 SC 5125
(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1. Applicant-Yogendra Kumar Mishra
has approached this Court by way of filing
this Criminal Misc. Anticipatory Bail
Application under Section 438 Cr.P.C. after
rejection of his anticipatory bail application
vide order dated 30.11.2021 passed by
Additional District and Additional District
and Sessions Judge/Special Judge (POCSO
Act), Allahabad, seeking Anticipatory Bail
in Case Crime No. 324 of 2021, under
Sections 376, 506, 328 IPC, 3/4 POCSO
Act and 67 I.T. Act, Police Station Kotwali,
District Prayagraj.

2. Sri Anil Tiwari, learned Senior
Advocate has vehemently argued that it is
a
fit
case
for
anticipatory
bail.
Undisputedly the applicant is a married
person having a wife and son whereas
Opposite
Party
No.
2
(Informant)
476 INDIAN LAW REPORTS ALLAHABAD SERIES
alongwith her daughter (a minor girl and
victim) are living separately from her
husband. The Informant is a Teacher in a
School where applicant is working as
Class-IV employee in same school. It is
admitted
case
that
applicant
has
consensual relationship with Informant
and Informant and her daughter are
staying with him. There are cordial
relationship with the son of applicant with
the daughter of First Informant as brother
and sister. In support of this submission
learned Senior Advocate has relied on the
photographs and whatsapp chat history
which are part of record. Learned Senior
Advocate also submits that their relations
were very cordial and he has purchased a
land in his name as well as in the name of
Opposite Party No. 2 and an agreement to
sell is also on record. The relationship
become strained when First Informant,
though not legally divorced, insisted
applicant to get merry which was not
possible for applicant because he is a
married person. In these circumstances,
applicant withdrew the money deposited
towards agreement to sell. All these
circumstances made the First Informant
annoyed and, therefore, a false FIR was
lodged wherein false allegation of rape
against applicant, not only with First
Informant but with her minor daughter,
was levelled. All the alleged incidents
mentioned in FIR are very old. So far the
allegation of rape with minor daughter is
concerned, it is the case of First Informant
that applicant himself communicated to
her
about
the
incident,
therefore,
considering
that
it
is
absolutely
improbable, a case of anticipatory bail is
made out. Learned Senior Advocate has
also fairly submits that after the Trial
Court rejected applicant's anticipatory
bail, not only non-bailable warrant was
issued against applicant but proceedings
were also initiated under Sections 82 and
83 Cr.P.C.

3. Sri Munne Lal, learned A.G.A.
appearing for State and Sri Subhash
Chandra Tiwari, Advocate appearing for
Opposite Party No. 2, have vehemently
opposed the aforesaid submissions. They
submitted that First Informant as well as
her minor daughter have made a categorical
statement
against
applicant
in
their
statements recorded under Section 164
Cr.P.C. that they were raped on multiple
times taking benefit of their separation and
trust imposed by First Informant and her
daughter
with
applicant.
They
also
submitted that applicant is not cooperating
with investigation process, therefore, not
only non bailable warrant was issued but
now proceedings under Sections 82 and 83
Cr.P.C. have also been initiated against
applicant,
therefore,
no
case
for
anticipatory bail is made out.

4. I have heard learned counsel for
rival parties and perused the material
available on record.

5. Few factors and parameters, which
this Court has to consider for exercising
discretion
for
grant
or
refusal
of
anticipatory bail are nature and gravity of
accusation, exact role of the accused, his or
her antecedents, possibility of the accused
to flee from justice, likelihood to repeat
similar
or
other
offence.
Whether
accusation are made only with the object of
injury and causing humiliation to the
accused or case is of large magnitude with
possible effect on a large number of people.
Greater care and caution is required while
considering cases under Section 34 and 149
IPC. Further consideration of threat to
complainant and witnesses and tempering
of evidences are other relevant factors.
8 All. Yogendra Kumar Mishra Vs. State of U.P. & Anr.
477

6. While considering anticipatory bail
application this Court has to struck balance
between two factors namely, no prejudice
should be caused to the fair and free
investigation and accused should not be
subjected to harassment, humiliation and
unjustified detention. This Court is justified
to impose conditions spelt out in Section
437 Cr.P.C. and also other restrictive
conditions if deem necessary in the facts
and circumstances of a particular case
including limit of the anticipatory bail but
not in routine manner. An Anticipatory Bail
Application has to be based on concrete
facts (and not vague or general allegations)
relatable to offence and why the applicant
reasonably apprehends his or her arrest, as
well as his version of the facts.

7. Before considering the case of
applicant on merit with regard to prayer for
anticipatory bail, I have to consider that
since there are proceedings initiated against
applicant under Sections 82 and 83 Cr.P.C.,
whether in the facts and circumstances of
present case, the applicant is entitled for
anticipatory bail or not.

8. In this regard it is relevant to rely
upon the judgment passed by Supreme
Court in Prem Shankar Prasad vs. State
of Bihar and another, AIR 2021 SC
5125 where in similar facts since
proceedings under Sections 82 and 83
Cr.P.C. were initiated, the Supreme Court
has relied on the judgment passed in
State of Madhya Pradesh v. Pradeep
Sharma,
(2014)
2
SCC
171
and
reiterated that if anyone has been
declared
as
absconder/
proclaimed
offender under Section 82 Cr.P.C., he is
not entitled for relief of anticipatory bail.
The relevant paragraphs of the judgement
in Prem Shankar Prasad (supra) are
reproduced as under:

"7.2. Despite the above observations
on merits and despite the fact that it was
brought to the notice of the High Court that
Respondent No. 2-Accused is absconding
and even the proceedings Under Sections
82-83 of Code of Criminal Procedure have
been initiated as far as back on 10.01.2019,
the High Court has just ignored the
aforesaid relevant aspects and has granted
anticipatory bail to Respondent No. 2Accused by observing that the nature of
accusation is arising out of a business
transaction. The specific allegations of
cheating, etc., which came to be considered
by learned Additional Sessions Judge has
not at all been considered by the High
Court. Even the High Court has just
ignored
the
factum
of
initiation
of
proceedings Under Sections 82-83 of Code
of Criminal Procedure by simply observing
that "be that as it may". The aforesaid
relevant aspect on grant of anticipatory
bail ought not to have been ignored by the
High Court and ought to have been
considered by the High Court very
seriously and not casually.

7.3. In the case of State of Madhya
Pradesh v. Pradeep Sharma (Supra), it is
observed and held by this Court that if
anyone
is
declared
as
an
absconder/proclaimed offender in terms of
Section 82 of Code of Criminal Procedure,
he is not entitled to relief of anticipatory
bail. In paragraph 14 to 16, it is observed
and held as under:

14. In order to answer the above
question, it is desirable to refer to Section
438 of the Code which reads as under:

438. Direction for grant of 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
478 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

The above provision makes it clear
that the power exercisable Under Section
438 of the Code is somewhat extraordinary
in character and it is to be exercised only in
exceptional cases where it appears that the
person may be falsely implicated or where
there are reasonable grounds for holding
that a person Accused of an offence is not
likely to otherwise misuse his liberty.

15. In Adri Dharan Das v. State of
W.B. (2005) 4 SCC 303 this Court
considered the scope of Section 438 of the
Code as under: (SCC pp. 311-12, para 16)
16. Section 438 is a procedural provision
which is concerned with the personal
liberty of an individual who is entitled to
plead innocence, since he is not on the date
of application for exercise of power Under
Section 438 of the Code convicted for the
offence in respect of which he seeks bail.
The applicant must show that he has
'reason to believe' that he may be arrested
in a non-bailable offence. Use of the
expression 'reason to believe' shows that
the belief that the applicant may be
arrested must be founded on reasonable
grounds. Mere 'fear' is not 'belief' for which
reason it is not enough for the applicant to
show that he has some sort of vague
apprehension that someone is going to
make an accusation against him in
pursuance of which he may be arrested.
Grounds on which the belief of the
applicant is based that he may be arrested
in non-bailable offence must be capable of
being examined. If an application is made
to the High Court or the Court of Session,
it is for the court concerned to decide
whether a case has been made out for
granting of the relief sought. The provisions
cannot be invoked after arrest of the
Accused. A blanket order should not be
generally passed. It flows from the very
language of the Section which requires the
applicant to show that he has reason to
believe that he may be arrested. A belief
can be said to be founded on reasonable
grounds only if there is something tangible
to go by on the basis of which it can be said
that the applicant's apprehension that he
may be arrested is genuine. Normally a
direction should not issue to the effect that
the applicant shall be released on bail
'whenever arrested for whichever offence
whatsoever'. Such 'blanket order' should
not be passed as it would serve as a blanket
to cover or protect any and every kind of
allegedly unlawful activity. An order Under
Section 438 is a device to secure the
individual's liberty, it is neither a passport
to the commission of crimes nor a shield
8 All. Yogendra Kumar Mishra Vs. State of U.P. & Anr.
479
against any and all kinds of accusations
likely or unlikely. On the facts of the case,
considered in the background of the legal
position set out above, this does not prima
facie appear to be a case where any order
in terms of Section 438 of the Code can be
passed.

16. Recently, in Lavesh v. State (NCT
of Delhi) (2012) 8 SCC 730, 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.

It is clear from the above decision
that
if
anyone
is declared
as an
absconder/proclaimed offender in terms of
Section 82 of the Code, he is not entitled
to the relief of anticipatory bail.

Thus the High court has committed
an error in granting anticipatory bail to
Respondent No. 2-Accused ignoring the
proceedings Under Section 82-83 of Code
of Criminal Procedure."

 (emphasis supplied)

9. In the present case, Trial Court vide
order dated 10.01.2022 has noted that
despite proclamation for applicant being
absconder issued under Section 82 Cr.P.C.
and in this regard publication was also
made in newspaper, the applicant remained
absconding, therefore, by the said order
Trial Court issued order for attachment of
property, movable or immovable or both,
belongs
to
proclaimed
person,
i.e.,
applicant, under the provisions of Section
83 Cr.P.C. Therefore, the facts and
circumstances of present case squarely
covers by the judgment passed by Supreme
Court in Prem Shankar Prasad (supra).

10. At this stage, this Court also deals
with the rival submissions made by parties
on merit.

11. On the basis of record available it
appears
that
applicant
first
inspired
confidence of victims and when they
imposed complete trust on him, not only
applicant violated the trust of First
Informant but her minor daughter also. The
averments made in the statements recorded
under Section 164 Cr.P.C. also depict that
applicant not only raped the First Informant
but also raped her minor daughter. There
are allegation that applicant has certain
unsolicited video clips also and he has put
threat to viral it and blackmailed the victim
and her mother.

12. In view of above discussion the
applicant is not entitled for anticipatory bail
on the ground that applicant was not only
declared proclaimed offender under Section
82 Cr.P.C. but proclamation of attachment
of property was also issued under Section
83 Cr.P.C. and, therefore, as held in Prem
Shankar Prasad (supra) applicant is not
entitled
for
anticipatory
bail.
Even
otherwise, on merit also, considering the
specific averments made under Section 164
Cr.P.C. by First Informant as well as her
minor daughter, there are very serious
480 INDIAN LAW REPORTS ALLAHABAD SERIES
allegations against the applicant and,
therefore, no case for anticipatory bail is
made out on merit also.

13. The application is accordingly
rejected.

14. However, two weeks time is
granted to applicant to surrender before
Trial Court and to move an application for
bail. In case such an application is filed by
applicant, Trial Court is directed to decide
the same expeditiously considering the
judgment passed by Supreme Court in
Satender
Kumar Antil vs. Central
Bureau of Investigation and another,
(2021) 10 SCC 773.
----------
(2022) 8 ILRA 480
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.08.2022

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Crl. Misc. Bail Application No. 54497 of 2021

Nitin Verma ...Applicant
Versus
Union of India & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Kaustubh Srivastava, Sri Kandarp Srivastava,
Sri Ashish Deep Verma, Sri Azad Khan

Counsel for the Respondents:
A.S.G.I., Sri Dhananjay Awasthi

Civil Law - Central Goods & Services Tax
Act , 2017 - Section 132(1) B(1) : Applicant
implicated on the statement of a co-accused-
who has already been granted bail -earlier the
applicant had been granted anticipatory bail -
department had initiated proceedings-Applicant
not in a position to influence the case.

Bail Application allowed. (E-9)
List of Cases cited:

1. St. of Bihar Vs Amit Kumar, 2017 (13) SCC
751

2.Y.S. Jagan Mohan Reddy Vs C.B.I., (2013) 7
SCC 439,

3.Chhaya Devi Vs U.O.I., 2021 (52) GSTL 390
(Alld.),

4.Dataram Singh Vs St. of U.P. & anr., (2018) 3
SCC 22

5.Sanjay Chandra Vs C.B.I., (2012) 1 SCC 40:

6.
P.
Chidambaram
Vs
Directorate
of
Enforcement, (2020) 13 SCC 791

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

1. Heard Sri Ashish Deep Verma and
Sri Azad Khan, Advocates, the learned
counsel for the applicant and Sri Dhananjay
Awasthi, the learned counsel for the
C.G.S.T. and Customs.

2. The instant application has been
filed seeking release of the applicant on
bail in Case No. IV - CE (9) CP / Agra /
Nitin / 25119 251/2019, under Sections 132
(1) (B) (I), Central Goods & Services Tax
Act, 2017 (which will hereinafter be
referred to as ''the CGST Act'), Police
Station Hari Parvat, District Agra during
pendency of trial in the Court below.

3. As per the prosecution case, the
officials of Central Goods & Services Tax
& Central Excise, Commissionerate Agra
were investigating a case of huge evasion
of GST on the basis of an intelligence input
that the applicant is indulging in issuing
bogus invoices without supply of goods, in
the name of fake firms created by him. On
20.12.2019, a team of certain officers of
Anti Evasion Branch, CGST & Central
Excise, Commissionerate Agra conducted a