Radheshyam Gupta vs State of U.P. and Another

HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. ANTICIPATORY BAIL APPLICATION U/S 482
BNSS No. - 9719 of 2026
Radheshyam Gupta
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)
Counsel for Applicant(s) : Ashok Kumar Pandey, Virendra Yadav
Counsel for Opposite Party(s) : G.A.

Court No. - 71
HON'BLE VIVEK KUMAR SINGH, J.
1. Heard learned counsel for the applicant, learned A.G.A for the State and
perused the record.
2. The present application has been filed on behalf of the applicant in Case
Crime No.568 of 2026, under Section 409 I.P.C., Police Station Khalilabad,
District Sant Kabir Nagar, with a prayer to grant him anticipatory bail.
3. As per the prosecution case, melted gold weighing 427 grams, kept in a
plastic box, Rs. 49,518/-, and 14 Nepali currency notes related to Case
Crime No. 606 of 2018, under Sections 381, 411, 420, 467, 468 and 471
I.P.C., Police Station Khalilabad, District Sant Kabir Nagar, were handed
over to the applicant by another Head Constable, Sri Vinod Kumar
Mishra, and a charge list was prepared. The said articles were not found
in the police station, and it is further stated that, despite the best efforts
made by the other police officers, contact could not be established with
the applicant. It appears that the aforesaid articles have been
misappropriated by the applicant.
4. Learned counsel for the applicant submits that the applicant is absolutely
innocent and has been falsely implicated in the present case. He has nothing
to do with the alleged offence in spite of that the police are trying to arrest
him. It is further submitted that the applicant was recruited as a police
constable in the Uttar Pradesh Police in 1989 and has been regularly
performing his duties since then. He has an unblemished career. The

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2
missing articles were never handed over to the applicant by his
predecessor, Sri Vinod Kumar Mishra, which is clear from the charge list
appended as Annexure-2 to the application. It is further submitted that Sri
Vinod Kumar Mishra had handed over only 88 articles on 18.10.2022,
and after a few days, 21 articles were handed over to the applicant on
01.11.2022. The charge lists were prepared and duly signed by the
applicant and Sri Vinod Kumar Mishra. From a perusal of the charge lists
dated 18.10.2022 and 01.11.2022, it is manifest that the missing articles
mentioned in the FIR were never handed over to the applicant. He has
been falsely implicated. The department is trying to save Sri Vinod
Kumar Mishra, and therefore, a false allegation has been levelled against
the applicant. Learned counsel for the applicant further submits that the
applicant undertakes to cooperate during investigation and trial and shall
appear as and when required by the Investigating Agency or the Court
concerned. It has also been stated that, in case the applicant is granted
anticipatory bail, he shall not misuse the liberty of bail, shall cooperate with
the investigation, and shall abide by all the conditions that may be imposed
by the Court.
5. On the other hand, learned A.G.A. has opposed the application for
anticipatory bail. It is submitted that the applicant has not come to the Court
with clean hands. He has knowingly and intentionally not filed the charge
list dated 01.11.2022, which was duly signed by the applicant and his
predecessor, Sri Vinod Kumar Mishra. As per the charge list dated
01.11.2022, a total of 65 articles were handed over to the applicant, and the
missing articles, mentioned in the FIR, have been mentioned at Serial No.
58. The charge list dated 01.11.2022 has been made part of the case diary in
Parcha No. 10, dated 14.07.2026, which has been produced before the Court
for perusal. The applicant has misappropriated the articles that were handed
over to him on 01.11.2022. A prima facie offence is made out against the
applicant. Therefore, the present anticipatory bail application is liable to be
dismissed.
6. I have heard the rival submissions of both sides and perused the record.
7. Serious allegations have been levelled against the applicant that he has
misappropriated melted gold weighing 427 grams, Rs. 59,518/-, and 14

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Nepali currency notes. The charge list dated 01.11.2022 containing 65
articles has not been appended to the present anticipatory bail application.
The offences alleged against the applicant are punishable with
imprisonment up to life. The FIR was lodged by the police after due
inquiry. During the course of the inquiry, the statements of the informant,
Govind Saran, Head Constable Vinod Kumar Mishra, and Head
Constable Markanday Singh were recorded, but the present applicant did
not appear before the inquiry officer. The applicant has been named in the
FIR. In view of the facts and circumstances of the case, custodial
interrogation of the applicant is necessary to recover the missing articles
mentioned in the FIR. It has been held in various judgment of the Hon'ble
Supreme Court that bail is a rule but jail is an exception, but so far as
anticipatory bail is concerned, it ought to have been granted in
exceptional cases since it is an extraordinary power.
8. In the case of
Srikant Upadhyay and Others vs. State of Bihar and
Another, (2024) 12 SCC 382 , the Hon'ble Supreme Court has held that the
power to grant anticipatory bail is an extraordinary power. While called
upon to exercise the said power, the Court has to be very cautious as the
grant of interim protection or protection to the accused in serious cases may
lead to miscarriage of justice. When warrant of arrest or proclamation is
issued, the applicant is not entitled to invoking extraordinary power. The
relevant paragraph no. 30 of Srikant Upadhyay (supra) is quoted as under:
"30. We have already held that the power to grant anticipatory bail is an
extraordinary power. Though in many cases it was held that bail is said
to be a rule, it cannot, by any stretch of imagination, be said that
anticipatory bail is the rule. It cannot be the rule and the question of its
grant should be left to the cautious and judicious discretion by the Court
depending on the facts and circumstances of each case. While called upon
to exercise the said power, the Court concerned has to be very cautious
as the grant of interim protection or protection to the accused in serious
cases may lead to miscarriage of justice and may hamper the
investigation to a great extent as it may sometimes lead to tampering or
distraction of the evidence. We shall not be understood to have held that
the Court shall not pass an interim protection pending consideration of
such application as the Section is destined to safeguard the freedom of an

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individual against unwarranted arrest and we say that such orders shall
be passed in eminently fit cases. At any rate, when warrant of arrest or
proclamation is issued, the applicant is not entitled to invoke the
extraordinary power. Certainly, this will not deprive the power of the
Court to grant pre-arrest bail in extreme, exceptional cases in the interest
of justice. But then, person(s) continuously, defying orders and keep
absconding is not entitled to such grant."
9. In the case of P. Chidambaram vs. Directorate of Enforcement, (2019)
, the Hon'ble Apex Court has held that arrest is a part of procedure
9 SCC 24
of the investigation to secure not only the presence of the accused but
several other purposes. The power under Section 438 of Cr.P.C./482 of
B.N.S.S. has to be exercised sparingly. The privilege of the pre-arrest bail
should be granted only in exceptional cases. The relevant paragraph no. 69
of P. Chidambaram (supra) is reproduced as under:
" 69. Ordinarily, arrest is a part of procedure of the investigation
to secure not only the presence of the accused but several other
purposes. Power under Section 438 Cr.P.C. is an extraordinary
power and the same has to be exercised sparingly. The privilege
of the pre-arrest bail should be granted only in exceptional cases.
The judicial discretion conferred upon the court has to be
properly exercised after application of mind as to the nature and
gravity of the accusation; possibility of the applicant fleeing
justice and other factors to decide whether it is a fit case for
grant of anticipatory bail. Grant of anticipatory bail to some
extent interferes in the sphere of investigation of an offence and
hence, the court must be circumspect while exercising such power
for grant of anticipatory bail. Anticipatory bail is not to be
granted as a matter of rule and it has to be granted only when the
court is convinced that exceptional circumstances exist to resort
to that extraordinary remedy. "
10. It would be apposite to refer herein to a judgment of the Hon'ble
Supreme Court titled as Kishor Vishwasrao Patil vs. Deepak Yashwant
, relevant paragraph nos.14
Patil and another, 2022 SCC OnLine SC 2528
and 15 whereof read as under:

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5
"14....................
74. Ordinarily, arrest is a part of the process of the
investigation intended to secure several purposes. There may
be circumstances in which the accused may provide
information leading to discovery of material facts and
relevant information. Grant of anticipatory bail may hamper
the investigation, Pre-arrest bail is to strike a balance
between the individual's right to personal freedom and the
right of the investigating agency to interrogate the accused
as to the material so far collected and to collect more
information which may lead to recovery of relevant
information........
6...........
75. Observing that the arrest is a part of the investigation
intended to secure several purposes, in Adri Dharan Das v.
State of W.B. [Adri Dharan Das v. State of W.B., (2005) 4
SCC 303: 2005 SCC (Cri) 933] , it was held as under: (SCC
p. 313, para 19)
"19. Ordinarily, arrest is a part of the process of
investigation intended to secure several
purposes. The accused may have to be
questioned in detail regarding various facets of
motive, preparation, commission and aftermath
of the crime and the connection of other persons,
if any, in the crime. There may be circumstances
in which the accused may provide information
leading to discovery of material facts. It may be
necessary to curtail his freedom in order to
enable the investigation to proceed without
hindrance and to protect witnesses and persons
connected with the victim of the crime, to prevent
his disappearance, to maintain law and order in
the locality. For these or other reasons, arrest
may become an inevitable part of the process of

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6
investigation. The legality of the proposed arrest
cannot be gone into in an application under
Section 438 of the Code. The role of the
investigator is well defined and the jurisdictional
scope of interference by the court in the process
of investigation is limited. The court ordinarily
will not interfere with the investigation of a
crime or with the arrest of the accused in a
cognizable offence. An interim order restraining
arrest, if passed while dealing with an
application under Section 438 of the Code will
amount to interference in the investigation,
which cannot, at any rate, be done under Section
438 of the Code."
76. In Siddharam Satlingappa Mhetre v. State of
Maharashtra and Others, (2011) 1 SCC 694: (2011) 1 SCC
(Cri) 514] , the Supreme Court laid down the factors and
parameters to be considered while dealing with anticipatory
bail. It was held that the nature and the gravity of the
accusation and the exact role of the accused must be
properly comprehended before arrest is made and that the
court must evaluate the available material against the
accused very carefully. It was also held that the court should
also consider whether the accusations have been made only
with the object of injuring or humiliating the applicant by
arresting him or her.
77. After referring to Siddharam Satlingappa Mhetre
[Siddharam Satlingappa Mhetre v. State of Maharashtra,
(2011) 1 SCC 694: (2011) 1 SCC (Crl) 514] and other
judgments and observing that anticipatory bail can be
granted only in exceptional circumstances, in Jai Prakash
Singh v. State of Bihar [Jai Prakash Singh v. State of
Bihar, (2012) 4 SCC 379: (2012) 2 SCC (Cri) 468] , the
Supreme Court held as under: (SCC p. 386, para 19)

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"19. Parameters for grant of anticipatory bail in
a serious offence are required to be satisfied and
further while granting such relief, the court must
record the reasons therefor. Anticipatory bail
can be granted only in exceptional
circumstances where the court is prima facie of
the view that the applicant has falsely been
enroped in the crime and would not misuse his
liberty. (See D.K. Ganesh Babu v. P.T.
Manokaran [D.K. Ganesh Babu v. P.T.
Manokaran, (2007) 4 SCC 434 :(2007) 2 SCC
(Cri) 345], State of Maharashtra v. Mohd. Sajid
Husain Mohd. S. Husain [State of
Maharashtra v. Mohd. Sajid Husain Mohd. S.
Husain, (2008) 1 SCC 213: (2008) 1 SCC (Cri)
176] and Union of India v. Padam Narain
Aggarwal [Union of India v. Padam Narain
Aggarwal, (2008) 13 SCC 305: (2009) 1 SCC
(Cri) 1].) "
Economic offences
78. Power under Section 438 CrPC being an extraordinary
remedy, has to be exercised sparingly; more so, in cases of
economic offences. Economic offences stand as a different
class as they affect the economic fabric of the society. In
Directorate of Enforcement v. Ashok Kumar Jain
[Directorate of Enforcement v. Ashok Kumar Jain, (1998) 2
SCC 105: 1998 SCC (Cri) 510] , it was held that in economic
offences, the accused is not entitled to anticipatory bail."
15. In Sushila Agrawal and others v. State (NCT of Delhi) and Another
, Constitution Bench of this Court held that
reported in (2020) 5 SCC 1
while considering an application for grant of pre-arrest bail the Court
has to consider the nature of the offence, the role of the person, the
likelihood of his influencing the course of investigation, or tampering
with evidence or likelihood of fleeing justice. The Court held:-

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"92.4. Courts ought to be generally guided by considerations
such as the nature and gravity of the offences, the role
attributed to the applicant, and the facts of the case, while
considering whether to grant anticipatory bail, or refuse it.
Whether to grant or not is a matter of discretion; equally
whether and if so, what kind of special conditions are to be
imposed (or not imposed) are dependent on facts of the case,
and subject to the discretion of the court."
11. As per the allegations put forth in the FIR, serious allegations have been
levelled against the applicant. The investigation is at a preliminary stage, and
the custodial interrogation of the applicant is necessary to unearth the truth.
Learned counsel for the applicant has failed to demonstrate that the case
registered against the applicant is false. At this stage, there is no material on
record to hold that a prima facie case is not made out against the applicant.
The material that has come on record and the preliminary investigation,
appear to establish a reasonable basis for the accusations.
12. In view of this Court, the parameters of granting regular bail and
anticipatory bail are different and it is not necessary that the grounds which
are sufficient to enlarge an accused on regular bail must also be sufficient to
enlarge him on anticipatory bail. Further, the Constitution Bench of the
Apex Court in the case of
Gurbaksh Singh Sibbia and others Vs. State of
Punjab, (1980) 2 SCC 565 also observed that the power to grant
anticipatory bail is an extraordinary power and therefore in view of this
Court being extraordinary power it cannot be used in routine manner.
13. Therefore, considering the facts and circumstances of the case discussed
above, in my view, applicant is not entitled to be released on anticipatory
bail.
14. Accordingly, the instant anticipatory bail application stands dismissed .
15. Interim order granted earlier vide order dated 18.09.2026 stands vacated.
16. Registrar (Compliance) is directed to send a copy of this order to the
learned court concerned through fastest mode, who shall communicate this
order to the investigating officer concerned, who shall proceed further in

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accordance with law.
(Vivek Kumar Singh,J.)
October 14, 2026
Radhika
Digitally signed by :-
RADHIKA VISHWAKARMA
High Court of Judicature at Allahabad