Uttarakhand High Court
ABA/676/2025 on 23 June, 2025
Author: Rakesh Thapliyal
Bench: Rakesh Thapliyal
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ABA No.676 of 2025
Hon'ble Rakesh Thapliyal, J.
1. Mr. Kartikey Hari Gupta, learned
counsel for the applicants.
2. Mr. Deepak Bhardwaj, learned Brief
Holder for the State.
3. Mr. Ramji Shrivastava, learned counsel
for the respondent.
4. The present applicants are praying for
anticipatory bail in relation to First
Information Report dated 05.03.2025 bearing
FIR No.0018 of 2025, Police Station-
Srinagar, District Pauri Garhwal, wherein the
present applicant and her parents, namely,
Mrs. Sarvesh Shakya and Mr. Mahesh
Shakya were implicated for the offences
punishable under Section 115(2), 318(4),
336(3), 340(2) and 352 of BNS, 2023.
5. The brief facts of the case are that the
applicant No.1 was a divorcee having one
daughter, from her earlier marriage, married
with the son the complainant, namely, Anagh
Ahuja on 17.07.2019. Unfortunately, Anagh
Ahuja died on 02.07.2023. During the period,
when Anagh Ahuja was alive, he has full love
and affection with the daughter of the
applicant-from the earlier marriage, and in
the Institution, where she was studying, the
father’s name Anagh Ahuja is recorded and
not only this, even in the ADHAAR Card as
well as in the passport, the father’s name is
mentioned as Anagh Ahuja.
6. After the death of Anagh Ahuja, some
civil disputes were arisen in between the
complainant and the applicant No.1, which
are pending and even a proceeding was also
initiated by the complainant under the
provisions of Maintenance and Welfare of
Parents and Senior Citizen Act, 2007, in
which the order of eviction was passed, which
has been assailed by the applicant No.1 in a
petition which is pending for adjudication.
7. The FIR has been lodged by the
complainant-the mother in law, of the
applicant No.1 with the allegations that
without valid adoption deed, the name of her
son are recorded in the documents and some
interpolation was also done in the Birth
Certificate of the daughter of the applicant
No.1.
8. The FIR was challenged by the
applicants before this Court by way of a
Criminal Writ Petition i.e. WPCRL No.200 of
2025, wherein the Coordinate Bench of this
Court on 12.03.2025 granted interim
protection to the applicants with a direction
to the Investigating Officer to issue a prior
notice under Section 35(3) of BNSS, 2023
before taking any coercive measures.
9. The counter-affidavit has been filed on
behalf of the complainant-Mr. Ramji
Shrivastava and the same is taken on record.
A preliminary objection has been raised
in the counter-affidavit that the instant
anticipatory bail application is not
maintainable, since the applicants have
already granted interim protection in the
WPCRL No.200 of 2025.
10. In response to the preliminary
objection, Mr. Kartikey Hari Guptal, learned
counsel for the applicants, placed reliance in
one of the judgments of High Court of Andhra
Pradesh at Amaravati in the case of “Pinapala
Uday Bhushan versus State of Andhra
Pradesh“, decided on 26.03.2024, 2024 SCC
OnLine AP 790 by referring para Nos. 6 and
7, which reads as under:-
6. Learned counsel for the petitioner relied upon
a decision reported in Sri. Ramappa @ Ramesh
S/o. Dharmanna v. the State of Karnataka,
wherein it was held that:
“24. Section 41A of the Code operates in
a situation where there is no arrest and
prescribes the course of option to be adopted by
a police officer in case he decides not to arrest
any person. Till the time any person is not
arrested, he is entitled to maintain an
application for grant of anticipatory bail subject
to, of course, the applicability of any other law
to the contrary.
25. Section 41A of the Cr. P.C. defers the
arrest until and unless sufficient evidence is
collected, so as to produce or forward the
accused to the custody of the Court. The
apprehension of arrest, thus does not
completely vanish away on the issuance of
notice of appearance under Section 41A of the
Cr. P.C., and hence, the question being raised in
maintainability of an application under Section
438 Cr. P.C., during the pendency of notice
being issued under Section 41A Cr. P.C. or
during the compliance of the terms of such
notice, is completely unwarranted and is not in
tune with the provision of law. The
apprehension of arrest always does exist even
after issuance of notice of appearance under
Section 41A Cr. P.C., and under such
circumstance the Courts cannot evade to
entertain an application under Section 438 Cr.
P.C.”
7. In the light of the above decision relied by the
learned counsel for the petitioner, this Court
views that there is apprehension of arrest
exists, even after issuance of notice of
appearance it cannot be said that the
anticipatory bail application is not
maintainable.”
By referring the aforesaid judgment,
learned counsel for the applicants submits
that the investigation is still going on and
earlier, criminal writ petition was disposed of
finally with a direction to the investigating
officer to give a prior notice under Section
35(3), and as such, still there is an
apprehension of arrest.
11. On instruction, Mr. Deepak Bhardwaj,
learned State counsel, submits that though
the investigation has already been completed,
however, the charge-sheet has yet not been
produced in the Court.
12. Admittedly, there is a civil dispute in
between the parties, and so far as the
allegation, as alleged in the FIR, is
concerned, this requires investigation,
therefore, though the protection was granted
earlier by the Coordinate Bench of this Court
in Criminal Writ Petition No.200 of 2025, but
since the charge-sheet has yet not been
submitted, therefore, it cannot be ruled out
that there is no apprehension.
13. Be that as it may, issue as raised
requires deliberations.
The complainant has already filed
counter-affidavit.
Let the counter-affidavit be filed by the
State within three weeks. One week’s time,
thereafter, is also granted to the applicant to
file rejoinder-affidavit.
14. List this matter on 28.07.2025.
15. Having considered the submissions of
the learned counsel for the parties and
without expressing any opinion on the merit
of this case, this Court directs that in the
event of arrest of the present applicants, they
shall be released on interim anticipatory bail
on furnishing a personal bond by each of
them to the satisfaction of the arresting
officer.
(Rakesh Thapliyal, J.)
23.06.2025
R.Bisht