Allahabad High Court

VIRENDRAversusSTATE OF U.P.

Decided: 29 September 2026
Bench: VIVEK KUMAR SINGH

Holding

The Court allowed the anticipatory bail application, finding that the applicant was entitled to bail pending trial.

Summary

Virendra was named in an FIR for offences under Sections 147, 148, 302 and 149 IPC but the investigating officer did not file a charge‑sheet against him, exonerating him after investigation. After the trial of co‑accused concluded, the trial court, on an application under Section 319 CrPC/358 BNSS, summoned Virendra to face trial, a move made eight years after the investigation. Virendra filed an anticipatory bail application, contending his innocence, the lack of any charge‑sheet, the unexplained delay, and that no custodial interrogation was required. The State opposed, alleging his participation in the murder. The Court, relying on the principle that a person not arrested during investigation should not be suddenly detained after a charge‑sheet, and citing Aman Preet Singh v. CBI, held that the applicant had made out a case for anticipatory bail and granted it with standard conditions.

Issues considered

Whether anticipatory bail should be granted to an accused who was summoned under Section 319 CrPC/358 BNSS after a long delay and without a charge‑sheet against him.
Whether the delay in moving the summons application and the exoneration by the investigating officer justify bail.

Legislation cited

Code of Criminal Procedure, 1973 — s. 170, 173, 313, 319, 358, 87
Indian Penal Code — s. 147, 148, 149, 302

Subjects

anticipatory bail
Section 319 CrPC
Section 358 BNSS
delay in summons
exoneration by investigating officer
murder
IPC
bail jurisprudence
non‑bailable offence

Judgment

HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. ANTICIPATORY BAIL APPLICATION U/S 482 BNSS No.
- 10252 of 2026

Virendra
.....Applicant(s)
Versus

State of U.P.
.....Opposite
Party(s)

Counsel for Applicant(s) : Amit Kumar Tripathi, Faizan Siddiqui,
Mohammad Osama Ansari, Pratibha
Ojha
Counsel for Opposite Party(s) : G.A.

Court No. - 72
HON'BLE VIVEK KUMAR SINGH, J.

1. Heard learned counsel for the applicant and 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. 135 of 2015, under Sections 147, 148, 302/149 of I.P.C.,
Police Station Achnera, District Agra with a prayer to grant him
anticipatory bail.

3. Learned Senior 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 the applicant. The applicant along with other co-
accused were nominated in the first information report dated 17.04.2015.
It is alleged in the first information report that the applicant and other co-
accused participated in the alleged offence. The Investigating Officer
commenced the investigation and the same was completed by him on
14.09.2015 and that the chargesheet was submittted against co-accused
Mukesh, Rakesh and Dinesh. The applicant and other co-accused, who
were nominated in the F.I.R., were exonerated by the investigating
officer. The learned Magistrate took cognizance of the offence and
thereafter the case was committed to the court of sessions, where charges
were framed upon the co-accused. They pleaded not guilty and claimed to
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2

be tried. It is further submitted that after framing of charges, the
prosecution adduced evidence and statements of PW-1 Rajbir (brother of
the deceased), PW-2 Smt. Kamlesh (wife of the deceased) were recorded
during the course of trial on 27.06.2016 and 30.07.2018 respectively and
thereafter the application under Section 319 Cr.P.C. / 358 BNSS was
moved on 09.07.2026 by the prosecution to summon the applicant and
other co-accused to face criminal trial. The said application moved under
Section 319 Cr.P.C. / 358 BNSS was allowed by the learned trial court
vide order dated 09.07.2026. The summoning order dated 09.07.2026
attained its finality.

4. Further submission was made by learned Senior Counsel for the
applicant that statement of PW-2 was recorded on 30.07.2018, but no
application was moved on her behalf just after completion of her
statement. In the present case, all the prosecution witnesses have been
examined during course of trial and the prosecution has relied upon
statements of as many as ten prosecution witnesses. After recording of
statement of PW-10, the statement of accused Mukesh, Rakesh and
Dinesh were recorded on 30.03.2026 u/s 313 Cr.P.C. When the trail was
about to be concluded, an application was moved by the ADGC
(Criminal) on 09.07.2026 with a prayer to summon the applicant and
other co-accused who was not chargesheeted by the investigating officer.
It was not made clear by the ADGC as to why such an application was not
moved after completion of statement of PW-2 Smt. Kamlesh on
30.07.2016. The other witnesses were formal in nature and they did not
take name of the applicant as an accused. No application was moved
under Section 319 of Cr.P.C./358 of B.N.S.S. for the past eight years. The
learned court concerned very surprisingly at the fag end of the trial,
allowed the application and summoned the applicant to face criminal trial
vide order dated 09.07.2026.

5. It is further submitted by the learned counsel for the applicant that first
informant is not an eye-witness and PW-2 Smt. Kamlesh claimed herself
to be witness of the alleged incident, however, their testimonies are not
corroborated with medical evidence. It is alleged in the F.I.R. that the
deceased was done to death by sharp edged weapon, however, post-
mortem report, appended as Annexure No. 3 makes it clear that injuries
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3

were caused by blunt weapon. The criminal history of two cases have
been explained in paragraph 41 of the affidavit.

6. It is further submitted that the applicant were exonerated by the
Investigating Officer and, prima facie, his complicity in the alleged
offence were not found after due investigation. The applicant has have
been summoned in the present case on the whims of the prosecution. The
applicant is ready to face criminal trial. The investigation has already
been completed in this matter and no complicity of the applicant in the
alleged offence was found. There is no requirement of custodial
interrogation of the applicant. Learned counsel for the applicant further
submits that the applicant undertakes to cooperate during trial and shall
appear as and when required by 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 trial court, and shall
abide by all the conditions that may be imposed by the Court.

7. On the other hand, learned A.G.A. as well as learned counsel for the
informant have opposed the application for anticipatory bail. It is further
submitted that prosecution case is consistent in respect of involvement of
the applicant and other co-accused. The deceased was brutally killed by
the applicant and other co-accused who were nominated in the F.I.R. and
that the deceased sustained as many as 11 injuries on his person.

8. I have heard the rival submissions of both sides and perused the record.

9. The applicant was nominated in the first information report but no
charge-sheet was submitted against him. The complicity of the applicant
was not found by the Investigating Officer in the alleged crime. He has
been summoned by the learned trial court to face criminal trial by
exercising powers under Section 319 Cr.P.C. / 358 BNSS and there is no
requirement of custodial interrogation of the applicant. Learned counsel
for the informant could not satisfactorily explain regarding the delay in
moving the application under Section 319 of Cr.P.C./358 of B.N.S.S.. It
was not made clear by him as to why such an application was not moved
either by the informant or by the wife of the deceased just after
completion of their statements before the trial court. Considering the
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4

submissions made by learned counsel for the parties, this Court is of the
view that the applicants have made out a case for grant of anticipatory
bail.

10. In Aman Preet Singh v. CBI, (2022) 13 SCC 764, the Hon'ble Apex
Court has held that :

"11. A reading of the aforesaid shows that it is the guiding principle for a
Magistrate while exercising powers under Section 170CrPC which had
been set out. The Magistrate or the Court empowered to take cognizance
or try the accused has to accept the charge-sheet forthwith and proceed in
accordance with the procedure laid down under Section 173CrPC. It has
been rightly observed that in such a case the Magistrate or the Court is
required to invariably issue a process of summons and not warrant of
arrest. In case he seeks to exercise the discretion of issuing warrants of
arrest, he is required to record the reasons as contemplated under Section
87 Cr.P.C that the accused has either been absconding or shall not obey
the summons or has refused to appear despite proof of due stheirervice of
summons upon him. In fact the observations in sub-para (iii) above by the
High Court are in the nature of caution.

12. In sofar as the present case is concerned and the general principles
under Section 170Cr.P.C, the most apposite observations are in sub-para
(v) of the High Court judgment in the context of an accused in a non-
bailable offence whose custody was not required during the period of
investigation. In such a scenario, it is appropriate that the accused is
released on bail as the circumstances of his having not been arrested
during investigation or not being produced in custody are itself sufficient
to entitle him to be released on bail. The rationale has been succinctly set
out that if a person has been enlarged and free for many years and has not
even been arrested during investigation, to suddenly direct his arrest and
to be incarcerated merely because charge-sheet has been filed would be
contrary to the governing principles for grant of bail. We could not agree
more with this."

11. Considering the settled principle of law regarding anticipatory bail,
submissions of the learned counsel for the parties, nature of accusation,
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role of applicant and all attending facts and circumstances of the case,
without expressing any opinion on merits, and the case of the applicant is
squarely covered by the aforesaid judgments, a case for anticipatory bail
is made out.

12. Accordingly, the anticipatory bail application is allowed with
following directions:-

(i) In the event of arrest/appearance of the applicant-Virendra involved in
aforesaid case shall be released on anticipatory bail till the conclusion of
trial, before the competent Court on his furnishing a personal bond of
Rs.50,000/- with two sureties each of the like amount to the satisfaction of
the court concerned;

(ii) The applicant shall co-operate during trial and shall report to the court
concerned as and when required for the purpose of fair trial.

(iii) 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 him from disclosing such facts to the Court; and

(iv) The applicant shall not leave India without the previous permission of
the Court.

13. In default or misuse of any of the conditions, the Public Prosecutor/
Investigating Officer/ first informant-complainant is at liberty to file
appropriate application for cancellation of anticipatory bail granted to the
applicant, before the concerned court.

(Vivek Kumar Singh,J.)
September 30, 2026
Lalit Shukla

Digitally signed by :-
LALIT KUMAR SHUKLA
High Court of Judicature at Allahabad

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