Dismissed¶28

Ram Balak Soni and 3 Others v. State of U.P.

Anticipatory bail – maintainability

Allahabad HC17 Nov 2024ABAIL/10880/2024

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Case brief

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What is this about?

Allahabad High Court; anticipatory bail S.438 Cr.P.C. rejected as not maintainable; U.P. statutory bar S.438(6)(b) - offences punishable with death; Ss.302/307 IPC added during investigation to FIR Case Crime No. 95 of 2024, PS Pipri, Kaushambi; process u/S.82 Cr.P.C. and NBWs; SIT investigation; Prathvi Raj Chauhan AIR 2020 SC 1036 distinguished (SC/ST Act S.18/18-A context); Asha Dubey v. State of M.P. Crl.A. 4564/2024 referred; single judge Ashutosh Srivastava, J.; decided 18.11.2024; Neutral Citation 2024:AHC:198513.

What did the court decide?

Section 438(6)(b) Cr.P.C., as applicable to the State of Uttar Pradesh, expressly excludes from the benefit of Section 438 all offences in which death sentence can be awarded. ¶16

Ram Balak Soni and 3 Others Vs State of U.P. — Narcotics (NDPS) | Allahabad HC (2024)

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether an anticipatory bail application under Section 438 Cr.P.C. is maintainable in a case involving Section 302 IPC (an offence punishable with death) after issuance of process under Section 82 Cr.P.C., given the bar in Section 438(6)(b) as applicable to Uttar Pradesh. +1 more

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Court's answer

Section 438(6)(b) Cr.P.C., as applicable to the State of Uttar Pradesh, expressly excludes from the benefit of Section 438 all offences in which death sentence can be awarded.

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Ratio / Principle

Punishment under Sections 302 and 307 IPC can result in a death sentence being awarded on conviction, so the case falls within the Section 438(6)(b) exclusion.

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Key takeaways

Because the specific statutory bar in Section 438(6)(b) applies to the Sections 302/307 IPC case, the anticipatory bail application is not maintainable and is rejected.ratio¶28
The Court found that Prathvi Raj Chauhan relates to a complaint under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and concerns the bar created by Sections 18 and 18-A(i) of that Act, and therefore does not displace the Section 438(6)(b) bar applicable here.ratio¶25

Detailed headnote1 paragraphs

Anticipatory bail - maintainability - Section 438(6)(b) Cr.P.C. as applicable to Uttar Pradesh bars anticipatory bail in offences in which death sentence can be awarded - applicants sought pre-arrest bail in Case Crime No. 95 of 2024, Police Station Pipri, District Kaushambi (initially Ss.147, 148, 323, 504, 506, 308 IPC; Ss.302 and 307 IPC added during investigation on the death of the injured), after process under S.82 Cr.P.C. - reliance on Prathvi Raj Chauhan (AIR 2020 SC 1036) and Asha Dubey (Crl.A. 4564 of 2024) rejected: Prathvi Raj Chauhan pertains to the SC/ST (Prevention of Atrocities) Act, 1989 bar under Ss.18 and 18-A(i), not the U.P. death-penalty exclusion - since conviction under Ss.302/307 IPC can attract death sentence, application held not maintainable and rejected (Ashutosh Srivastava, J., 18.11.2024).

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A. F. R.

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Neutral Citation No. - 2024:AHC:198513

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Court No. - 69

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Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 10880 of 2024

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Applicant :- Ram Balak Soni And 3 Others Opposite Party :- State of U.P. Counsel for Applicant :- Ashwani Kumar Mishra,Manish Kumar Dwivedi,Sandeep Kumar Keshari,Vivek Srivastava Counsel for Opposite Party :- Ajay Kumar, Harish Chandra Gupta,G.A.

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Hon'ble Ashutosh Srivastava,J.

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Heard Shri Ashwani Kumar Mishra, learned counsel for the applicants, Shri Ajay Kumar, learned counsel for the informant and learned A.G.A. for the Stateopposite party, and perused the material placed on record.

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This application under Section 438 Cr.P.C. has been filed on behalf of applicants Ram Balak Soni, Awinash Soni, Ashutosh Soni and Dharmraj Soni, seeking anticipatory bail in Case Crime No. 95 of 2024, under Sections 323, 504, 506, 120-B, 34, 302, 307 I.P.C., Police Station Pipri, District Kaushambi.

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Learned counsel for the applicants submits that initially the FIR was registered against the applicants under Sections 147, 148, 323, 504, 506, 308 I.P.C. During investigation on the death of injured, Section 302 and 307 were added. The weapon of offence i.e. country made pistol and iron rod were falsely planted upon the applicants. But till date, no such recovery has been effected from the possession or pointing out of the applicants. Learned counsel for the applicants submits that there are two eye witnesses of the occurrence, who are the sons of the deceased and except this, rest of the witnesses are formal witnesses.

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Learned AGA as well as learned counsel for the first informant have vehemently opposed the prayer for bail by submitting that initially the applicants were booked for offences under Section 308 IPC and subsequently, on the death of deceased, applicants were booked under Section 307 and 302 IPC. The SIT investigation is going on. Applicants are not co-operating in the investigation. Process of non bailable warrants have been ordered to be issued by the Court concerned.

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Learned AGA has also raised preliminary objection with regard to maintainability of present application raising a plea that anticipatory bail application filed in a case involving Section 302 IPC and after issuance of process under Section 82 Cr.P.C. is not maintainable.

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Learned counsel for the applicant in rebuttal to the preliminary objection raised

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by learned AGA as regards the maintainability of the Criminal Misc. Anticipatory Bail Application under Section 438 Cr.P.C. submits that merely by implicating the applicants under Section 302 and 307 IPC would not attract the bar under Section 438 Cr.P.C. and the allegations as set out in the FIR have to make out a prima facie case for attracting Section 302 and 307 IPC. Reliance is placed upon a decision of the Apex Court in the case of Prathvi Raj Chauhan versus Union of India and others, reported in AIR 2020 Supreme Court 1036 wherein in Paragraph 10 and 11 of the said judgment, which lays down the proposition as pressed by the learned counsel for the applicant. Reliance has also been placed upon the decision of Apex Court in case of Asha Dubey versus The State of Madhya Pradesh , passed in Criminal Appeal No. 4564 of 2024 decided on 12.11.2024

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It is submitted that the anticipatory bail application would be maintainable despite implication under Section 302 & 307 IPC and issuance of process under Section 82 Cr.P.C.

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I have heard learned counsel for the applicant as well as learned AGA and perused the record.

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As regards the plea regarding the maintainability of the Anticipatory Bail Application is concerned, the Court find that Section 438 Sub Clause 6 (b) as applicable to the State of Uttar Pradesh clearly states that the provisions of Section 438 shall not be applicable to the offences, in which death sentence can be awarded. .

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The provision of Section 438 Cr.P.C. Sub Clause 6 applicable to the State of Uttar Pradesh is reproduced as under:-

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"438. (6) Provisions of this Section shall not be applicable,-

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(a) to the offences arising out of,-

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(i) in Unlawful Activities (Prevention) Act, 1967:

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(ii) the Narcotic Drugs and Psychotropic Substance Act, 1985;

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(iii) the Official Secret Act, 1923;

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(v) the Uttar Pradesh Gangsters and Anti Social Activities (Prevention) Act, 1986.

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(b) in the offences, in which death sentence can be awarded ."

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So far as the reliance upon the decision of the Apex Court in the case of Prathvi Raj Chauhan (supra) , the Court finds that it relates to a complaint filed under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act (33 of 1989). Section 18 A (ii) provides that the provisions of Section 438 of the Cr.P.C. would not apply to a case under the 1989 Act notwithstanding any

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judgment or order or direction of the Court. The Lordships' of Hon'ble Apex Court after dealing with the provisions of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act as also Section 438 of the Cr.P.C. held that if the complaint filed under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act did not make out a prima facie case for the applicability of the provisions of the Act, 1989, the bar created by Section 18 and 18 A (i) would not be applicable. Learned counsel for the applicant has attempted to demonstrate that initially the offence against the applicant was under Section 147, 148, 323, 504, 506, 308 IPC and subsequently, Section 302 and 307 IPC were added during trial and hence, prima facie offence involving Section 302 and 307 IPC was not made out and the Anticipatory Bail Application is liable to be entertained in the light of the decision of the Apex Court in the case of Prathvi Raj Chauhan (supra) and Asha Dubey (supra) .

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Admittedly, the FIR, as it stands today, is under an offence under Section 302 and 307 IPC, which have been included during investigation apart from its other sections. The punishment in the above sections can result in a death sentence being awarded to the applicant, if convicted under Section 302 & 307 IPC.

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In view of above specific bar contained in provision Section 438 Cr.P.C., Sub Clause 6 (b), the present anticipatory bail application seeking anticipatory bail in Section 302 and 307 IPC is held not maintainable. Hence, rejected .

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Order Date :- 18.11.2024 Ravi Prakash

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(Ashutosh Srivastava, J.)

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Digitally signed by :- RAVI PRAKASH High Court of Judicature at Allahabad

Ram Balak Soni and 3 Others v. State of U.P.

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Ram Balak Soni and 3 Others v. State of U.P.

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