Ashok Kumar Upadhayay v. State of U.P. and others) and the Division Bench of this Court vide order

I.P.C. at Police Station Dakshin, District Firozabad with regard to murder of informant's brother. He further submits that the applicant was neither named in the F.I.R. nor his complicity in commission of alleged offence has been described and that after investigation charge sheet was filed against as many as 12 accused persons. During the course of investigation, allegation has been levelled against the applicant that he was posted at Police Station Murar, District Gwalior State of Madhya Pradesh and got a F.I.R. against the accused Ashok Dixit in Case Crime No. 967 of 2007 under Section 34 of Excise Act in order to save his skin from the offence under Section 302 I.P.C. as such, the investigation against the applicant has been kept pending. The petitioner apprehends his arrest, thus the petitioner challenged the F.I.R. dated 12.10.2007 before this Court by means of filing a Criminal Misc. Writ Petition No. 10181 of 2018 (Ashok Kumar Upadhayay Vs. State of U.P. and others) and the Division Bench of this Court vide order dated

23.07.2008 disposed of the writ petition granting protection till submission of police report under Section 173 Cr.P.C. Learned counsel further argued that on

25.10.2008, two independent witnesses namely, Ramesh Yadav and Barelal Yadav had given their statement under Section 161 Cr.P.C. to the effect that a false first information report was registered by the applicant under Section 34 of M.P.Excise Act at Police Station Morar, District Gwalior against the accused Ashok Dixit only to save his skin and relying upon their statements charge sheet no. 3A of 2008 dated 03.11.2008 was filed against the applicant without any sanction, against which the applicant approached this Court by way of filing Criminal Misc. (482) Application No.4080 of 2009 (Niranjan Kumar Upadhyaya Vs. State of U. P and another) in which this Court had granted interim protection. Apart from the aforesaid application under Section 482 Cr.P.C. filed by the applicant, another Criminal Misc. (482) Application was preferred by the police personnels i.e. the then A.S.I. Ram Prakash Gunkiar and H.C. Vijay Bahadur Singh and H.C.Ram Bahadur Yadav being its Criminal Misc. (482) Application No. 32494 of 2009 (Vijay Bahadur Singh and others Vs. State of U.P. and another) and both the applications under Section 482 Cr.P.C. were clubbed and decided by common Judgement and order 19.04.2018, by which both the applications under Section 482 Cr.P.C. were allowed and the proceedings pending before the trial Court was quashed. Learned counsel further argued that the informant challenged the Judgement and order dated 19.04.2018 before Hon'ble Apex Court by way of filing Criminal Appeal Nos. 5267-5268 of 2024 (arising out of S.L.P. (Crl) No. 8239- 8240 of 2018). The aforesaid appeals came up for consideration before Hon'ble Apex Court on 13.12.2024 and while disposing of the said appeals, the Hon'ble Apex Court had observed that the statements of two independent witnesses, i.e., Ramesh Yadav and Bare Lal Yadav, cannot be taken as a gospel truth either especially when they were not examined in Sessions Trial No. 753 and 753A of 2008, respectively, which resulted in conviction of the accused persons as well as accused-Ashok Dixit respectively. Also on the question of sanction, the Apex Court left the issue to be decided by trial Court. Thus after a detailed discussion directed the trial Court to proceed and decide the trial expeditiously within a period of one year from the date of order i.e. 13.12.2024 and the question of sanction only qua respondent nos. 3 (applicant) 4 and 5 (other police personnels) leaving it open to the trial Court to decide at the suitable stage in accordance with law without being prejudice by any of the observations made in that order as well as in the order passed by High Court. The paragraph nos. 79 and 80 of the Judgement and order dated 13.12.2024 passed by Hon'ble Apex Court is quoted below:-

79. Moreover, the statements of the two independent witness i.e., Ramesh Yadav and Barelal recorded on 25.10.2008 by the IO at Dakshin, Firozabad, implicating the respondent no. 1, cannot be taken as a gospel truth either,especially when they were not examined in the Session Trial Nos. 753 and 753A of 2008 respectively which resulted in the conviction of the accused Ashok Dixit. Therefore, we are a bit hesitant to rely on the version of events as stated under these statements recorded under Section 161 CrPC at this stage. It would be best left for the Trial Court to decide the truthfulness and veracity of these statements which allegedly prove the case of the prosecution.

80.Furthermore, the respondent no. 1 has contended that no departmental inquiry was ever initiated against him in relation to the registration of Case Crime No. 967 of 2007. However, the Trial Court in its order dated 10.07.2015 has made an observation that the respondent nos 1, 3, 4 and 5 respectively were suspended and also subjected to an inquiry. Whether the departmental inquiry was initiated against all the accused respondents or just some of them and the exact findings of the inquiry is also an aspect where there exists some ambiguity.

4. Learned counsel further argued that the allegation levelled against the applicant is that while he was posted at Police Station Murar, District Gwalior State of Madhya Pradesh he had registered a case against the accused Ashok Dixit in Case Crime No. 967 of 2007 under Section 34 of Excise Act with the assistance of ASI Ram Prakash Gunkar, Head Constable Rambaran Singh Yadav and Head Constable Viay Bahadur when as a matter of fact, the applicant was not posted at Police Station Murar. He further submits at the relevant point of time, the applicant was posted at Police Station Shivpuri, as a Station-in-charge however Sri D.S.Kushwaha was posted at Station Incharge of Police Station Murar, District Gwalior, which is evident from the perusal of the transfer order of the Government of Madhya Pradesh, copy of which is annexed as Annexure-11 to the affidavit accompanying the anticipatory bail application. Furthermore the applicant also brought on record Rojnamacha entries obtained through RTI with regard to registration of F.I.R. and perusal of the same goes to show that the applicant's name is not reflected. Thus the applicant has been victimised of false accusation.

5. On the other hand, learned counsel for the informant has opposed the anticipatory bail prayer and argued that in the statement of Sri D.S.Kushwaha, Station House Officer, Police Station Murar, District Gwalior had stated at the behest of the applicant F.I.R. was registered against the accused Ashok Dixit. He further submits that the the Investigating Officer after collecting credible evidence against the applicant, culminated the investigation in submission of charge sheet. Learned counsel has also argued that Hon'ble Apex Court has directed to conclude the trial within a period of one year from the date of order i.e. 13.12.2024 and more than seven months have lapsed, the trial could not proceed frequently on account of non-cooperation of the applicant and therefore the applicant is not entitled for anticipatory bail.

6. In reply to submission advanced by learned counsel for the informant that Sri D.S.Kushwaha Station House Officer, Police Station Morar has stated that at the behest of the applicant F.I.R. was registered at Police Station Morar, learned counsel for the applicant submits that neither his statement has been made a part of the case diary nor he is arrayed in the list of witnesses of the charge sheet. Learned counsel further argued that the applicant is aged about 70 years and keeping in view his old age also, the applicant may be granted anticipatory bail. Learned counsel next argued that the applicant had co-operated during the investigation and undertakes that the applicant will co-operate during trial and he would appear on each and every date. It has been stated that in case, the applicant is granted anticipatory bail, he shall not misuse the liberty of bail and will co-operate with the investigation and would obey all conditions of bail.

7. Learned A.G.A. has also opposed the application for anticipatory bail.

8. It may be stated that in case of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, it has been held by Hon'ble Supreme Court that while deciding anticipatory bail, Court must consider nature and gravity of accusation, antecedent of accused, possibility of accused to flee from justice and that Court must evaluate entire available material against the accused carefully and that the exact role of the accused has also to be taken into consideration.

9. In the instant case, considering the settled principle of law regarding anticipatory bail, submissions of the learned counsel for the parties, nature of accusation, role of applicant and all attending facts and circumstances of the case, without expressing any opinion on merit of the case, a case for anticipatory bail is made out.

10. The anticipatory bail application is allowed.

11. In the event of arrest of the applicant Niranjan Kumar Upadhyay involved in the aforesaid case crime shall be released on anticipatory bail till conclusion of trial on his furnishing a personal bond of Rs. 1,00,000/- with two sureties each in the like amount to the satisfaction of the concerned Court subject to the following conditions :- i) The applicant shall not tamper with the prosecution evidence. ii) The applicant shall not threaten or harass the prosecution witnesses. iii) The applicant shall appear before the trial Court on each and every dates fixed. iv) The applicant shall not commit an offence similar to the offence of which the applicant is accused, or suspected of the commission. v) 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 such person from disclosing facts to the Court or to any police officer or tamper with the evidence.

12. In case of breach of any of the above condition, the trial Court shall be at liberty to cancel the bail of the applicant in accordance with law.

13. It goes without saying that as already directed by Hon'ble Apex Court to conclude the trial within a period of one year from the date of order passed by it i.e.

13.12.2024 and keeping in mind that more than seven months have lapsed, the trial Court may make all possible endeavours to conclude the trial within stipulated period if require on day today basis. Order Date :- 22.7.2025 S.Ali SHAUKAT ALI High Court of Judicature at Allahabad

I.P.C. at Police Station Dakshin, District Firozabad with regard to murder of informant's brother. He further submits that the applicant was neither named in the F.I.R. nor his complicity in commission of alleged offence has been described and that after investigation charge sheet was filed against as many as 12 accused persons. During the course of investigation, allegation has been levelled against the applicant that he was posted at Police Station Murar, District Gwalior State of Madhya Pradesh and got a F.I.R. against the accused Ashok Dixit in Case Crime No. 967 of 2007 under Section 34 of Excise Act in order to save his skin from the offence under Section 302 I.P.C. as such, the investigation against the applicant has been kept pending. The petitioner apprehends his arrest, thus the petitioner challenged the F.I.R. dated 12.10.2007 before this Court by means of filing a Criminal Misc. Writ Petition No. 10181 of 2018 (Ashok Kumar Upadhayay Vs. State of U.P. and others) and the Division Bench of this Court vide order dated

23.07.2008 disposed of the writ petition granting protection till submission of police report under Section 173 Cr.P.C. Learned counsel further argued that on

25.10.2008, two independent witnesses namely, Ramesh Yadav and Barelal Yadav had given their statement under Section 161 Cr.P.C. to the effect that a false first information report was registered by the applicant under Section 34 of M.P.Excise Act at Police Station Morar, District Gwalior against the accused Ashok Dixit only to save his skin and relying upon their statements charge sheet no. 3A of 2008 dated 03.11.2008 was filed against the applicant without any sanction, against which the applicant approached this Court by way of filing Criminal Misc. (482) Application No.4080 of 2009 (Niranjan Kumar Upadhyaya Vs. State of U. P and another) in which this Court had granted interim protection. Apart from the aforesaid application under Section 482 Cr.P.C. filed by the applicant, another Criminal Misc. (482) Application was preferred by the police personnels i.e. the then A.S.I. Ram Prakash Gunkiar and H.C. Vijay Bahadur Singh and H.C.Ram Bahadur Yadav being its Criminal Misc. (482) Application No. 32494 of 2009 (Vijay Bahadur Singh and others Vs. State of U.P. and another) and both the applications under Section 482 Cr.P.C. were clubbed and decided by common Judgement and order 19.04.2018, by which both the applications under Section 482 Cr.P.C. were allowed and the proceedings pending before the trial Court was quashed. Learned counsel further argued that the informant challenged the Judgement and order dated 19.04.2018 before Hon'ble Apex Court by way of filing Criminal Appeal Nos. 5267-5268 of 2024 (arising out of S.L.P. (Crl) No. 8239- 8240 of 2018). The aforesaid appeals came up for consideration before Hon'ble Apex Court on 13.12.2024 and while disposing of the said appeals, the Hon'ble Apex Court had observed that the statements of two independent witnesses, i.e., Ramesh Yadav and Bare Lal Yadav, cannot be taken as a gospel truth either especially when they were not examined in Sessions Trial No. 753 and 753A of 2008, respectively, which resulted in conviction of the accused persons as well as accused-Ashok Dixit respectively. Also on the question of sanction, the Apex Court left the issue to be decided by trial Court. Thus after a detailed discussion directed the trial Court to proceed and decide the trial expeditiously within a period of one year from the date of order i.e. 13.12.2024 and the question of sanction only qua respondent nos. 3 (applicant) 4 and 5 (other police personnels) leaving it open to the trial Court to decide at the suitable stage in accordance with law without being prejudice by any of the observations made in that order as well as in the order passed by High Court. The paragraph nos. 79 and 80 of the Judgement and order dated 13.12.2024 passed by Hon'ble Apex Court is quoted below:-

79. Moreover, the statements of the two independent witness i.e., Ramesh Yadav and Barelal recorded on 25.10.2008 by the IO at Dakshin, Firozabad, implicating the respondent no. 1, cannot be taken as a gospel truth either,especially when they were not examined in the Session Trial Nos. 753 and 753A of 2008 respectively which resulted in the conviction of the accused Ashok Dixit. Therefore, we are a bit hesitant to rely on the version of events as stated under these statements recorded under Section 161 CrPC at this stage. It would be best left for the Trial Court to decide the truthfulness and veracity of these statements which allegedly prove the case of the prosecution.

80.Furthermore, the respondent no. 1 has contended that no departmental inquiry was ever initiated against him in relation to the registration of Case Crime No. 967 of 2007. However, the Trial Court in its order dated 10.07.2015 has made an observation that the respondent nos 1, 3, 4 and 5 respectively were suspended and also subjected to an inquiry. Whether the departmental inquiry was initiated against all the accused respondents or just some of them and the exact findings of the inquiry is also an aspect where there exists some ambiguity.

4. Learned counsel further argued that the allegation levelled against the applicant is that while he was posted at Police Station Murar, District Gwalior State of Madhya Pradesh he had registered a case against the accused Ashok Dixit in Case Crime No. 967 of 2007 under Section 34 of Excise Act with the assistance of ASI Ram Prakash Gunkar, Head Constable Rambaran Singh Yadav and Head Constable Viay Bahadur when as a matter of fact, the applicant was not posted at Police Station Murar. He further submits at the relevant point of time, the applicant was posted at Police Station Shivpuri, as a Station-in-charge however Sri D.S.Kushwaha was posted at Station Incharge of Police Station Murar, District Gwalior, which is evident from the perusal of the transfer order of the Government of Madhya Pradesh, copy of which is annexed as Annexure-11 to the affidavit accompanying the anticipatory bail application. Furthermore the applicant also brought on record Rojnamacha entries obtained through RTI with regard to registration of F.I.R. and perusal of the same goes to show that the applicant's name is not reflected. Thus the applicant has been victimised of false accusation.

5. On the other hand, learned counsel for the informant has opposed the anticipatory bail prayer and argued that in the statement of Sri D.S.Kushwaha, Station House Officer, Police Station Murar, District Gwalior had stated at the behest of the applicant F.I.R. was registered against the accused Ashok Dixit. He further submits that the the Investigating Officer after collecting credible evidence against the applicant, culminated the investigation in submission of charge sheet. Learned counsel has also argued that Hon'ble Apex Court has directed to conclude the trial within a period of one year from the date of order i.e. 13.12.2024 and more than seven months have lapsed, the trial could not proceed frequently on account of non-cooperation of the applicant and therefore the applicant is not entitled for anticipatory bail.

6. In reply to submission advanced by learned counsel for the informant that Sri D.S.Kushwaha Station House Officer, Police Station Morar has stated that at the behest of the applicant F.I.R. was registered at Police Station Morar, learned counsel for the applicant submits that neither his statement has been made a part of the case diary nor he is arrayed in the list of witnesses of the charge sheet. Learned counsel further argued that the applicant is aged about 70 years and keeping in view his old age also, the applicant may be granted anticipatory bail. Learned counsel next argued that the applicant had co-operated during the investigation and undertakes that the applicant will co-operate during trial and he would appear on each and every date. It has been stated that in case, the applicant is granted anticipatory bail, he shall not misuse the liberty of bail and will co-operate with the investigation and would obey all conditions of bail.

7. Learned A.G.A. has also opposed the application for anticipatory bail.

8. It may be stated that in case of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, it has been held by Hon'ble Supreme Court that while deciding anticipatory bail, Court must consider nature and gravity of accusation, antecedent of accused, possibility of accused to flee from justice and that Court must evaluate entire available material against the accused carefully and that the exact role of the accused has also to be taken into consideration.

9. In the instant case, considering the settled principle of law regarding anticipatory bail, submissions of the learned counsel for the parties, nature of accusation, role of applicant and all attending facts and circumstances of the case, without expressing any opinion on merit of the case, a case for anticipatory bail is made out.

10. The anticipatory bail application is allowed.

11. In the event of arrest of the applicant Niranjan Kumar Upadhyay involved in the aforesaid case crime shall be released on anticipatory bail till conclusion of trial on his furnishing a personal bond of Rs. 1,00,000/- with two sureties each in the like amount to the satisfaction of the concerned Court subject to the following conditions :- i) The applicant shall not tamper with the prosecution evidence. ii) The applicant shall not threaten or harass the prosecution witnesses. iii) The applicant shall appear before the trial Court on each and every dates fixed. iv) The applicant shall not commit an offence similar to the offence of which the applicant is accused, or suspected of the commission. v) 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 such person from disclosing facts to the Court or to any police officer or tamper with the evidence.

12. In case of breach of any of the above condition, the trial Court shall be at liberty to cancel the bail of the applicant in accordance with law.

13. It goes without saying that as already directed by Hon'ble Apex Court to conclude the trial within a period of one year from the date of order passed by it i.e.

13.12.2024 and keeping in mind that more than seven months have lapsed, the trial Court may make all possible endeavours to conclude the trial within stipulated period if require on day today basis. Order Date :- 22.7.2025 S.Ali SHAUKAT ALI High Court of Judicature at Allahabad