Nanke @ Sahabuddin And 2 Others vs State Of U.P. Thru. Prin. Secy. Home Lko. And 2 Others

HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
AFR
APPLICATION U/S 482 No. - 2922 of 2026
Nanke @ Sahabuddin And 2 Others
.....Applicant(s)
Versus
State Of U.P. Thru. Prin. Secy. Home Lko. And 2
Others
.....Opposite
Party(s)
Counsel for Applicant(s) : Amar Singh
Counsel for Opposite Party(s) : G.A., Pawan Kumar Trivedi
Court No. - 16
HON'BLE SHREE PRAKASH SINGH, J.
1. Short counter affidavit filed today by Mr. Pawan Kumar Trivedi, counsel
for opposite party no. 2 is taken on record.
Heard Mr. Amar Singh, learned counsel for the applicants, Mr. Pawan
2.
Kumar Trivedi, learned counsel for opposite party no. 2, Mr Sushil Kumar
Pandey, learned A.G.A. for the State and perused the records.
3. The present application has been filed with the prayer, to quash the
impugned order 23.02.2026, passed by Learned Additional Session
Judge/Special Judge (POCSO Act), District-Gonda, in Session Case No.
412/2021, arising out of F.I.R No./Case Crime No. 194 of 2020, Police
Station-Paraspur, District- Gonda, by means of which the charge for the
offences punishable under section 376 DA I.P.C and 5 (g)/6 POCSO Act
was proposed to be framed and further applicants were directed to appear
before the Learned Trial Court and to obtain bail, as contained in Annexure
No. 1 to this petition, in the interest of justice.
4. The contentions put forth by learned counsel appearing for the applicants

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is that the First Information Report (FIR) was lodged on 02/08/2020 by the
opposite party no. 2, bearing FIR no. 0194/2020, under sections 354(ka) and
506 IPC at Police Station Paraspur District Gonda, whereafter, the statement
of the alleged prosecutrix was recorded under section 161 of CrPC, wherein,
no allegation of rape is raised by the prosecutrix and on 05/08/2020 she
refused to undergo the medical examination. He submitted that the statement
of the prosecutrix was recorded under section 164 of CrPC, on 20/08/2020,
wherein, the opposite party no. 2 alleged that on 10/08/2020, the applicants
had committed rape upon her, whereas, in the FIR which was lodged on
02/08/2020, showing the date of the incident as 02/08/2020, no such
allegation of committing rape upon the applicants.
5. He argued that subsequent thereof on 13.08.2020, the father of the alleged
prosecutrix, has also moved an application under section 156(3) of CrPC
against the applicants, in the court of the Chief Judicial Magistrate, Gonda,
alleging that on 10/08/2020, the applicants committed rape upon prosecutrix
and prayed for direction to be issued for lodging the first information report.
He submitted that the prosecutrix was called upon for getting her statement
recorded under section 200 of CrPC, to which she did not respond, and as a
result thereof, the complaint was dismissed for want of prosecution. He
submitted that after the investigation in case crime number 0194 of 2020, the
investigating officer filed the charge sheet on 14/09/2020, bearing charge
sheet number 01/2020 under sections 354(ka) and 506 of IPC and 7/8 of the
POCSO Act. He added that after the chargesheet was filed, the applicants
appeared and they have been bailed out, whereafter, the statement of the
PW1 was recorded on 04/09/2025 and the special prosecutor, after the
statement was recorded, moved an application under section 216 of CrPC,
requested for alteration of the charges, to which the trial court considered
and rejected the application and proceeded suo moto in the matter and has
passed the order dated 23/02/2026 impugned herein.

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6. It is argued by counsel for the applicants that while passing the order, the
trial court prima facie found from perusal of the statement of the victim that
there are prima facie charges of offense under section 376 DA of IPC and
under section 5 (g)/6 POCSO Act, therefore, the applicants were called upon
to put their side on the proposed alteration of the charges and it was also
opened in the order that the pleader of applicants be appeared for arguments.
He submitted that up to this stage, the order might be correct, but so far as
the direction that the applicants would appear and get themselves bailed out,
is erroneous and is no way justified, more so, as the criminal procedure code
is concerned, there is no such provision. Further submitted that there is no
law settled by the court of record that in such circumstances, the proposed
accused for altered charges, without adding of the offence, is required to
appear and to get him bailed out.
7. Concluding his arguments, he submitted that unless the charge of offense
are added or altered, there is no need for getting bail of the proposed
accused. He added that it is an admitted position that if the charges are
altered by adding the offenses/sections, such accused is required to get him
bailed out, therefore, fresh bail bonds and sureties are required as per the
gravity of nature of the offenses, therefore, submission is that the order dated
23/02/2026, impugned herein, is erroneous to the extent above.
8. On the other hand, learned counsel appearing for the State has opposed
the contentions aforesaid and submitted that the trial court, while passing the
order dated 23/02/2026, has prima facie reaches to the conclusion that the
charges under section 376DA of IPC and 5 (g)/6 POCSO Act can be added,
as there are sufficient evidence available. He submitted that the statement of
PW1 is enough to show that the ingredients of sections 376DA and 5 (g)/6
POCSO Act are attracted in the present matter.
In support of his contention, he has placed reliance on the judgment
9.

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4
rendered in the cases of Bijendra and Ors Vs. State of U.P. and Ors
reported in 2006 SCC OnLine All 258 and has referred paragraph 24 and
25, which are quoted hereinunder:-
"24. Learned AGA on the contrary submitted that since the offence is triable by the
court of sessions and it has been held by the apex court in the aforesaid judgment of
Prahlad Singh Bhati (supra) that it would be proper and appropriate that in such case
the Magistrate directs the accused persons to approach court of sessions for purposes
of detting relief of bail is the law laid down by the Supreme Court and therefore,
anything Contrary to it will be illegal.
25. After hearing the learned Counsels for the both sides at a great length and after
analyzing Section 437 Cr. P. C. it transpires that Section 437 relates with bail in cases
of non-bailable offence by the magistrate. So far as the first contention which the
learned Counsel for the applicants advanced, that because the bail has been granted
in the same crime number and therefore by mere change of section accused cannot be
sent to jail is concerned it is to be noted that case crime number is nowhere mentioned
in the aforesaid section, which is the number of police for identification of the case
and is a procedural number of the police station. Crime number has no relation with
bail under Cr. P. C. In this view of the matter the contention of learned Counsel for
the applicant cannot be accepted and is therefore rejected.
Coming to the second contention of the learned Counsel for the applicant that there is
no bar for this Court to direct the Magistrate to accept fresh bail bonds for the newly
added offence triable by Court of Session's it is noted that this direction will amount to
asking the Magistrate to do something de-hors the law. The contention is devoid of
merit. Section 437 Cr.P.C. relates to an offence, therefore, on addition of a new
offence, the accused is required to appear before the court and seek bail. His bail
cannot be considered unless and until he surrenders and is in custody in that offence.
Any accused who is not in custody in an offence can not be granted bail. Custody is
sine qua non for consideration of bail prayer. Consequently when the accused is guilty
of an added offence and is not on bail, he cannot be allowed to furnish bond without
being in Custody in that offence. For getting bail in newly added offences the accused
has to surrendered in that offence. Thus asking the Magistrate to accept fresh bail
bonds in newly added offence will mean granting of bail to the accused in the newly
added offences without he being taken into custody for the said offence and that is not
permissible under the Moreover there is another difficulty, which cannot be alleviated
by the counsel for the applicants. Under the IV provise to Section 437(1), which has
been Inserted by the Code of Criminal Procedure (Amendment) Act No. 25 of 2005,
the offence of under Section 325 and 308 IPC are punishable with seven years of

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imprisonment and consequently without giving an opportunity of hearing to the public
prosecutor they cannot be allowed to furnish fresh bail bonds. The IV proviso, which
has been inserted in the year 2005 now mandates that if a person is guilty of an
offence punishable with imprisonment of seven years or more then, Public Prosecutor
must be given an opportunity of being heard. If this Court, in exercise of its inherent
jurisdiction Under Section 482 Cr. P. C. allows, to the accused to file fresh bail bonds
for the offences punishable with seven years and triable by session's court then it takes
away the right of the public prosecutor to oppose the bail, and the said order will be
against the provisions of law."
10. Referring the aforesaid, he submitted that it has been held that any
accused who is not in custody, cannot be granted bail and further submitted
that fresh bail bonds are required, once the charges are added or altered. He
again has placed reliance on the judgment rendered in the case of
Hamida
Vs. Rashid and Ors. reported in 2008 (1) SCC 474 and has referred to
paragraphs 10 to 12 of the above-said judgment, which are quoted herein
under:-
"10. In the case in hand, the accused respondents could apply for bail afresh after the
offence had been converted into one under Section 304 IPC. They deliberately did not
do so and filed a petition under Section 482 Cr.P.C. in order to circumvent the
procedure whereunder they would have been required to surrender as the bail
application could be entertained and heard only if the accused were in custody. It is
important to note that no order adverse to the accused respondents had been passed
by any Court nor there was any miscarriage of justice or any illegality. In such
circumstances, the High Court committed manifest error of law in entertaining a
petition under Section 482 Cr.P.C. and issuing a direction to the subordinate court to
accept the sureties and bail bonds for the offence under Section 304 IPC. The effect of
the order passed by the High Court is that the accused after getting bail in an offence
under Section 324, 352 and 506 IPC on the very day on which they were taken into
custody, got an order of bail in their favour even after the injured had succumbed to
his injuries and the case had been converted into one under Section 304 IPC without
any Court examining the case on merits, as it stood after conversion of the offence.
The procedure laid down for grant of bail under Section 439 Cr.P.C., though
available to the accused respondents, having not been availed of, the exercise of
power by the High Court under Section 482 Cr.P.C. is clearly illegal and the
impugned order passed by it has to be set aside.
11. learned Counsel for the appellant has submitted that charge under Section 302

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IPC has been framed against the accused respondents by the trial court and some
subsequent orders were passed by the High Court by which the accused were ordered
to remain on bail for the offence under Section 302 read with Section 34 IPC on
furnishing fresh sureties and bail bounds only on the ground that they were on bail in
the offence under Section 304 IPC. These orders also deserve to be set aside on the
same ground.
12. In the result, the appeal is allowed. The impugned order dated 1.7.2005 passed by
the High Court and all other subsequent orders whereby the accused respondents
were directed to remain on bail for the offence under Section 302 read with Section 34
IPC on furnishing fresh sureties and bail bonds are set aside. The accused
respondents shall be taken into custody forthwith. It is, however, made clear that it
will be open to the accused respondents to apply for bail for the offences for which
they are charged before the appropriate Court and in accordance with law."
11. Placing reliance on the above-said judgment, he submits that it has been
held in so many words, by the Hon'ble Apex Court that the accused has to
apply for bail afresh, after the offense is converted into serious and higher
nature. He submitted that, in fact, the order impugned dated 23/02/2026
reveals that the trial court has reached to the conclusion to alter/add the
charges and that too is of serious in nature, therefore, the applicants are
required to appear and get themselves bailed out, therefore, submission is
that no interference is warranted, in order impugned.
Mr. Pawan Kumar Trivedi, learned counsel appearing for the opposite
12.
party no. 2 has also supported the version of counsel for the State and
submitted that the statement of the victim was not properly recorded by the
investigating officer and once the statement of the prosecutrix was recorded
as PW1 before the trial court, the trial court proceeded to add/alter the
charges. He next submitted that there is no ambiguity or erroneousness in the
order passed by the trial court, as the trial court has gone through the
statement of the alleged victim and then reached to the conclusion to convert
the charges.
In support of his contentions, he has also placed reliance on the judgment
13.

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rendered in the case of Pradeep Ram Versus State of Jharkhand And
Another reported in (2019) 17 SCC 326 and has referred to paragraphs 29
to 31, which are quoted herein under:-
"29. Relying on the abovesaid order, the learned counsel for the appellant submits
that the respondent State ought to get first the order dated 10-3-20162 granting bail to
the appellant cancelled before seeking custody of the appellant. It may be true that by
mere addition of an offence in a criminal case, in which the accused is bailed out,
investigating authorities itself may not proceed to arrest the accused and need to
obtain an order from the court, which has released the accused on the bail. It is also
open for the accused, who is already on bail and with regard to whom serious
offences have been added to apply for bail in respect of new offences added and the
court after applying the mind may either refuse the bail or grant the bail with regard
to new offences. In a case, bail application of the accused for newly added offences is
rejected, the accused can very well be arrested. In all cases, where the accused is
bailed out under orders of the court and new offences are added including offences of
serious nature, it is not necessary that in all cases earlier bail should be cancelled by
the court before granting permission to arrest an accused on the basis of new
offences. The powers under Sections 437(5) and 439(2) are wide powers granted to
the court by the legislature under which the court can permit an accused to be
arrested and commit him to custody without even cancelling the bail with regard to
earlier offences. Sections 437(5) and 439(2) cannot be read into restricted manner
that order for arresting the accused and to commit him to custody can only be passed
by the court after cancelling the earlier bail.
30. Coming back to the present case, the appellant was already into jail custody with
regard to another case and the investigating agency applied before the Special Judge,
NIA Court to grant production warrant to produce the accused before the Court. The
Special Judge having accepted the prayer of grant of production warrant, the accused
was produced before the Court on 26-6-2018 and remanded to custody. Thus, in the
present case, production of the accused was with the permission of the Court. Thus,
the present is not a case where investigating agency itself has taken into custody the
appellant after addition of new offences rather the accused was produced in the Court
in pursuance of production warrant obtained from the Court by the investigating
agency. We. thus do not find any error in the procedure which was adopted by the
Special Judge. NIA Court with regard to production of the appellant before the Court.
In the facts of the present case, it was not necessary for the Special Judge to pass an
order cancelling the bail dated 10-3-20162 granted to the appellant before permitting
the appellant-accused to be produced before it or remanding him to the judicial
custody.

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31. In view of the foregoing discussions, we arrive at the following conclusions in
respect of a circumstance where after grant of bail to an accused, further cognizable
and non-bailable offences are added:
31.1. The accused can surrender and apply for bail for newly added cognizable and
non-bailable offences. In event of refusal of bail, the accused can certainly be
arrested.
31.2. The investigating agency can seek order from the court under Section 437(5) or
439(2) CrPC for arrest of the accused and his custody.
31.3". The court, in exercise of power under Section 437(5) or 439(2) CrPC, can
direct for taking into custody the accused who has already been granted bail after
cancellation of his bail. The court in exercise of power under Section 437(5) as well
as Section 439(2) can direct the person who has already been granted bail to be
arrested and commit him to custody on addition of graver and non-bailable offences
which may not be necessary always with order of cancelling of earlier bail.
31.4. In a case where an accused has already been granted bail, the investigating
authority on addition of an offence or offences may not proceed to arrest the accused,
but for arresting the accused on such addition of offence or offences it needs to obtain
an order to arrest the accused from the court which had granted the bail."
14. Referring the aforesaid, he submitted that the law has already been
settled by the Apex Court that when there is reason to alter the charge to the
serious offenses and subsequently the charges are added, such accused has to
move bail application in respect of newly added offenses, in the court
concerned.
15. He next has placed reliance on the judgment rendered in the case of
Sumit Versus State of U.P. and Anr reported in 2026 SCC OnLine SC
and has referred paragraphs 31 & 34, which are read as under:-
186
"31. The aforesaid question was looked into and answered by this Court in Pradeep
Ram vs. State of Jharkhand and another reported in 2019 Crl. L.J. 3801, wherein this
Court after discussing various decisions, more particularly, the decision in Prahlad
Singh Bhati vs. NCT Delhi and another reported in (2001) 4 SCC 280 held that with

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the addition of a new cognizable and nonbailable offence more particularly of a
serious nature, the accused becomes disentitled to the liberty earlier granted to him in
relation to the offences for which the FIR came to be registered.
34. In such circumstances referred to above, we arrive at following conclusions in
respect of a circumstance whereafter the grant of bail to an accused, further
cognizable and nonbailable offences are added: -
(i) The accused can surrender and apply for bail for newly added cognizable and non-
bailable offences. In the event of refusal of bail, the accused can certainly be arrested.
(ii) The investigating agency can seek order from the court under Sections 437(5) or
439(2) of Cr.P.C. respectively for arrest of the accused and his custody.
(iii) The Court, in exercise of its power under Sections 437(5) or 439(2) of Cr.P.C.
respectively, can direct for taking into custody the accused who has already been
granted bail after cancellation of his bail. The Court in exercise of its power under
Section 437(5) as well as Section 439(2) respectively can direct the person who has
already been granted bail to be arrested and commit him to custody on addition of
graver and non-cognizable offences which may not be necessary always with order of
cancelling of earlier bail. (iv) In a case where an accused has already been granted
bail, the investigating authority on addition of an offence or offences may not proceed
to arrest the accused, but for arresting the accused on such addition of offence or
offences it needs to obtain an order to arrest the accused from the Court which had
granted the bail."
16. Placing reliance on the above-said judgment, he submitted that it has
been held that in case of adding or altering the charges, of non-bailable and
cognizable offenses or more serious offences, the accused has to move a bail
application, therefore, the learned trial court has rightly considered the
statement of PW1 and on the basis of said statement, the offenses under
sections 376DA of IPC and 5 (g)/6 POCSO Act have been proposed to be
altered, therefore, the applicants are not entitled for any relief.
Upon considering the submissions of counsel for the parties and after
17.
perusal of the material placed on record, it transpires that when the alleged
prosecutrix has lodged the first information report, on 02.08.2020, there was
no allegation regarding committal of rape upon her, whereas the story

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subsequently has been twisted. Fact remains that the father of the prosecutrix
had also instituted an application under section 156(3) of CrPC, though the
complainant never went to the court to get statement recorded, under Section
200 of CrPC, which resulted into the dismissal of the application for want of
prosecution.
18. After the statement of the prosecutrix was recorded before the trial court,
as PW1 and the allegation of the committal of rape was levelled, the public
prosecutor moved an application, under Section 216 of CrPC, whereas the
trial court while rejecting the application, has rightly proceeded suo moto, to
consider the alteration of the charges.
19. The question herein is, that whether at the stage of proposed
alteration/conversion of the charges under section 216 of CrPC, the accused
has to apply for bail, while surrendering him before the trial court? When
this court examines the aforesaid questions in facts and law, it is apparent
that, undoubtedly, the trial court has the power to alter or convert the charge
thereby invoking the powers under Section 216 of CrPC. The trial court,
while passing the order impugned herein, has directed the applicant/accused
persons so as to surrender them and get them bailed out.
20. From perusal of the impugned order, it is apparent that the proceeding of
alteration/addition of the charges is underway. The charges has still not been
altered, though, those are proposed of, under section 376DA of IPC and 5
(g)/6 POCSO Act. The order clearly discloses that the trial court has still not
reached to the final conclusion that the charges would be altered and added
under the aforementioned sections/offenses. Meaning thereby that there is no
alteration of charges at this stage and the applicants are still the proposed
accused persons, for the charges under sections 376DA of IPC and 5 (g)/6
POCSO Act.

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21. The law relied upon by the counsel for the State in Hamida (supra) and
Bijendra (supra) are very clear in its terms. The ratio is apparent that only
those accused persons will apply for bail afresh, once the offenses/sections
are converted into higher charges/offenses. It is not the ratio that prior
addition or alteration of the charges, such accused are required to get him
bailed out, therefore, the ratio of abovenoted judgments would not apply so
far as the factual matrix of the present case is concerned.
Secondly, the law referred by counsel for opposite party no. 2, of
22.
Pradeep Ram (supra) and Sumit(supra), has also laid down that for the newly
added offenses, such accused persons can be arrested and has to apply for
bail. But the situation is all together different herein, as the procedure
undertaken, invoking the provision of section 216 of CrPC, is not matured
and is underway, therefore, the law cited by the counsel for the opposite
party no. 2 also do not cover the field of the present case.
23. It is long settled law that a little difference in facts or additional facts
may make a lot of difference in the precedential value of a decision. In fact,
those precedents should be followed if it marks the path of justice and,
therefore, the Judgment of court should not be read mechanically. The ratio
of any decision can be interpreted in the background of facts of the case.
Hon'ble Apex Court has settled this issue in the case of Government of
Karnataka Vs. Gowramma reported in AIR 2008 SC 863. Thus it is apt to
say that the aforenoted laws, discussed above, are not applicable in the facts
and circumstances of the present matter.
24. So long as the factual matrix of the present case is concerned, the trial
court, vide the impugned order, has directed the applicants to appear and
obtain bail though the charge under Section 376 (d) A of IPC and 5 (g) 6 of
POCSO Act has still not been framed. The Court has afforded the
opportunity of hearing to the applicant on the proposed alteration of the

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charges, which infact mean that the charges may or may not be altered.
Therefore, at this stage, there seems to be no justiciability or lawfulness for
direction to the applicants to surrender and get them bailed out.
In the aforesaid background, this Court finds that the order impugned is
25.
erroneous and against the settled proposition of law, thus, the same is
unsustainable.
26. Consequently, the order dated 23-02-2026 is hereby set aside, to the
extent of the direction made to the applicants/accused persons, to get them
bailed out.
27. It is clarified that the rest of the order shall remain intact and the trial
court is directed to proceed in accordance with law.
28. With the aforesaid observations, the present application is hereby partly
at the admission stage, as the question of law is hereby decided.
allowed,

May 13, 2026
Mayank
(Shree Prakash Singh,J.)
Digitally signed by :-
MAYANK PRATAP SINGH
High Court of Judicature at Allahabad,
Lucknow Bench
Digitally signed by :-
MAYANK PRATAP SINGH
High Court of Judicature at Allahabad,
Lucknow Bench