# Amit Srivastava v. State Of U.P

- **Citation:** (2016) 8 ILRA 1318
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-19
- **Bench:** Karuna Nand Bajpayee
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amit-srivastava-v-state-of-u-p-44195
- **Pages:** 5

## Headnote

Criminal Procedure Code, 1973 - Bail - Murder case - Appreciation of evidence at bail stage -
Trial already commenced - Bail application in offences under Ss. 147, 148, 149, 302, 201 IPC - Trial had
already commenced and prosecution witnesses were being examined - Held, when trial is in progress,
detailed appreciation of evidence and assessment of testimonial worth is to be left to trial court - High Court
should refrain from entering into intricate evaluation of evidence at bail stage so as to avoid prejudice to
either party - Prima facie material on record disclosed strong case against accused.
Criminal Procedure Code, 1973 - Bail - Parity - Applicability - Co-accused granted bail - Applicant
named in FIR with specific allegations and placed on graver footing - Held, principle of parity not applicable
where role and circumstances of accused are distinguishable - Earlier bail orders of co-accused passed prior
to commencement of trial and on different factual footing.
Criminal Procedure Code, 1973 - Bail - Considerations - Gravity of offence and prima facie
evidence - Allegations based on circumstantial evidence including last seen, motive arising from financial
transactions, extra-judicial confession and documentary material - Held, seriousness of offence coupled with
available evidence and ongoing trial militates against grant of bail - Period of custody not so prolonged as to
justify release.
In Result: Bail application rejected.

## Text

1318 INDIAN LAW REPORTS ALLAHABAD SERIES

(2016) 8 ILRA 1318
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.08.2016

BEFORE

THE HON'BLE KARUNA NAND BAJPAYEE, J.

Criminal Misc. Bail Application No.- 25091 Of 2015

Amit Srivastava
 ...Applicant
Versus
State Of U.P. ...Respondent

Counsel for the Applicant:
H.M. Srivastava, Ajatshatru Pandey, Neeraj Srivastava

Counsel for the Respondent:
Govt. Advocate
Criminal Procedure Code, 1973 - Bail - Murder case - Appreciation of evidence at bail stage -
Trial already commenced - Bail application in offences under Ss. 147, 148, 149, 302, 201 IPC - Trial had
already commenced and prosecution witnesses were being examined - Held, when trial is in progress,
detailed appreciation of evidence and assessment of testimonial worth is to be left to trial court - High Court
should refrain from entering into intricate evaluation of evidence at bail stage so as to avoid prejudice to
either party - Prima facie material on record disclosed strong case against accused.
Criminal Procedure Code, 1973 - Bail - Parity - Applicability - Co-accused granted bail - Applicant
named in FIR with specific allegations and placed on graver footing - Held, principle of parity not applicable
where role and circumstances of accused are distinguishable - Earlier bail orders of co-accused passed prior
to commencement of trial and on different factual footing.
Criminal Procedure Code, 1973 - Bail - Considerations - Gravity of offence and prima facie
evidence - Allegations based on circumstantial evidence including last seen, motive arising from financial
transactions, extra-judicial confession and documentary material - Held, seriousness of offence coupled with
available evidence and ongoing trial militates against grant of bail - Period of custody not so prolonged as to
justify release.
In Result: Bail application rejected.

(Delivered by Hon'ble Karuna Nand Bajpayee, J.)

1. This bail application has been moved seeking the release of applicant on bail in
connection with Case no.11743 of 2015, case Crime No.11 of 2015, u/s 147, 148, 149, 302, 201
I.P.C. Police Station-Mussoorie, District-Ghaziabad.
8 All. Amit Srivastava Vs State Of U.P.
1319
2. Counter affidavit filed by learned A.G.A. on behalf of State and the certified copies of
statements of P.W.-1 and P.W.2 placed by learned counsel for the informant are taken on record.
Rejoinder affidavit filed on behalf of applicant is also taken on record.

3. Heard Shri G.S. Chaturvedi, learned senior counsel assisted by Shri Ajatshatru Pandey,
counsel for the applicant.

4. Submission of counsel for the applicant is that the name of accused-applicant has been
mentioned in the F.I.R. without any parentage only on the basis of suspicion and the entire case
rests upon circumstantial evidence and the last seen circumstance has been disclosed by one Ankur,
who is brother of deceased Umesh Nagar, after a gap of five days. It has been further submitted that
the applicant is an Ex-Manager of Axis Bank and had knowledge of financial transactions and
hence, the applicant being close friend of the deceased used to invest his money through him, and
certificates in lieu of the same had been given to the deceased after investing the same. The next
submission is that in fact the relationship of applicant with the deceased was very cordial and was
like family relationship and as the deceased had given large amounts of money to various other
persons also, the possibility of his murder by any of them cannot be ruled out and the Investigating
Officer has not probed this aspect of the matter and has proceeded with the investigation on the
basis of one private diary of the deceased which was allegedly being maintained by him in respect
of money transactions and the description of money transactions were showing the period of 2009,
2012 and 2013. Further submission of counsel is that the said alleged private diary of the deceased
has been relied upon for implication of applicant, whereas the signature of the deceased and the
handwriting in the alleged private diary appear to be different and it cannot be said authentically
that the alleged private diary belonged to Umesh Nagar. It has also been pointed out that the coaccused Lokesh @ Lucky and Chandra Prakash @ Tiger have already been released on bail by
another Benches of this Court vide orders dated 25.3.2015 and 31.3.2015 respectively. It has been
also submitted that as the present accusation does not find support from any substantive material
against the applicant and whatever material is being alleged against the applicant is nothing but
suspicion, the accused-applicant is liable to be released on bail in view of bail orders passed with
regard to co-accused. It has also been pointed out that the applicant is languishing in jail since
11.01.2015, and therefore, the applicant may be released on bail.

5. Heard learned A.G.A. for the State and Shri Adesh Kumar, learned counsel for the
informant and perused the record.

6. Learned A.G.A. and learned counsel for the informant have vehemently opposed the bail
application and have submitted that the materials which have been collected against the applicant
during the course of investigation and the totality of circumstances are such which put the case of
applicant on graver footing than the co-accused who have been enlarged on bail by another Bench.
Applicant has been nominated as accused in the F.I.R. with specific allegation that the deceased
was having monitory transactions with accused-applicant since long and on 03.01.2015 the
deceased left his house after informing that he would go to Amit (applicant) to get his money
returned back which was long due and when the deceased did not come back home, his brother
1320 INDIAN LAW REPORTS ALLAHABAD SERIES

(informant) called on two mobile numbers of the deceased out of which one was switched off and
the another was not being picked up. That aroused the suspicion and when the informant contacted
the accused-applicant, he was not given any clear information and was misled by applicant by
saying that the deceased had left and parted with the applicant, whereupon the informant started
searching his brother during which the four-wheeler of the deceased was found parked near Imantac
College and dead-body of the deceased was found lying on the back seat of four-wheeler. Further
submission is that there is also the evidence of one another brother of the deceased namely Ankur
who has stated that huge amount of money belonging to deceased was due upon the accusedapplicant and when he had visited Indirapuram, Ghaziabad on 3.1.2015 for his own work, at about
9.30 P.M. he had seen that Deepak Tomar, Navneet Khatik, Sabbir, Chandra Prakash @ Tiger,
Lucky @ Logesh, the accused Amit and the deceased were sitting in the Electric goods shop of
Deepak, which is situated near Ashiana Arket Green Four Way and the four-wheeler of his
deceased brother and four-wheeler of accused were also parked there and all the persons were heard
talking to the effect that today account of Amit and Umesh would be cleared and in his presence
they went away from said two four-wheelers towards the house of Amit. Thereafter he found the
four-wheeler of his deceased brother standing near Imantac College, wherein the dead body of his
brother was found. It has been contended that the said witness Ankur being younger brother of the
deceased was very much disturbed due to murder of his elder brother and was not in a position to
get his statement recorded soon thereafter. Further submission is that the record reveals that the
accused-applicant has also confessed his guilt giving an extra judicial confession made before the
witnesses Deepak who is friend of accused and one Manoj. It has also been contended that the
private diary of the deceased, which was being maintained by him with regard to the financial
transactions, is a vital piece of evidence and the handwriting contained therein has been identified
by the informant, who being brother of the deceased was well acquainted with the handwriting of
deceased and the entries in said private diary disclose that in the year 2009 total Rs.4 lacs were
given by the deceased to the accused-applicant and in the year 2012, 2013 and 2014 a total amount
of Rs.1,33,29,000/- (rupees one crore thirty three lac twenty nine thousand) was given by the
deceased to the accused-applicant on different dates and the said private diary has been made part
of the case diary. Submission is that the total amount of money of deceased, which was due against
the accused-applicant is itself very strong circumstance in respect of his guilt and explains the
strong motive of the applicant to commit the crime. It was also contended that if the entries
contained in the case diary were related to the investments made by the deceased in routine then
there was no question for the deceased to have referred or talked about the amount of money being
due on the applicant. The evidence in this regard is consistent from the very outset that the
applicant owed money and the deceased had made the visit on the fateful day to applicant with
regard to the same in the expectation to get it back.

7. Learned counsel for the informant has also informed that the trial of the accusedapplicant has already commenced and the statements of P.W.-1 and P.W.-2 have been recorded,
certified copies of the same have been filed today. Submission is that the perusal thereof would
reveal that the evidence produced in trial touches upon the merits of the case contained therein. It
was further pointed out that the case of co-accused is not only distinguishable on merit from that of
the present applicant, but it is also noteworthy that the bail order of co-accused dated 25.3.2015 and
8 All. Amit Srivastava Vs State Of U.P.
1321
31.3.2015 were passed prior to recording of the testimonies of P.W.-1 and P.W.-2 by the court
below which were recorded from 26.8.2015 and at that stage the trial had not commenced.
Contention is that benefit of parity is not apt to be extended to the accused-applicant who is the
prime mover behind the crime in question and was nominated as accused from the very outset.

8. After considering the submissions made at the Bar and perusing the record, this Court is
of the view that when the trial is already in progress, it shall not be proper to pass any order on
merits of the case on the basis of the statements given in the court. The matter is already within the
realm of the trial court now and the accused should get the final verdict with regard to his
innocence or guilt from the trial court itself on the basis of thorough appreciation of evidence
produced in the trial. Weighing the evidence, analysing the testimonial worth of witnesses and
thereby making a judicial assessment of the same can more appropriately be done by the trial court.
Going into the intricate details and the subtle appreciation of facts at this stage when the trial is
already progressing, are all matters relating to trial. Any order passed by this Court on merits after
assessing the testimonies of prosecution witnesses produced in the trial court or after assessing the
material collected during investigation might seriously impair the independent dispassionate
assessment of the trial court. This Court, therefore, abstains to pass any detailed order on the point
of bail on that basis at this stage of the trial, lest it may cause prejudice to either side. Suffice it to
say that the record discloses enough material to make out strong prima facie case against the
accused and there is enough material to substantiate the charge against him. The case of applicant is
also on a much graver footing than the co-accused who have been enlarged on bail by another
Bench and so the principle of parity also cannot be brought into application. The perusal of the bail
order with regard to co-accused Lokesh @ Lucky itself reveals that while considering his bail it
was very much noted and considered by the Court that unlike applicant he was not nominated in the
F.I.R. as accused.

9. In a case of this gravity along with the nature of evidence which is available on record
against applicant, the detention of the applicant can also not be said to be so long drawn out which
may constitute a legitimate ground enough to set him at liberty or may persuade the Court to grant
him bail on that basis.

10. Looking to the nature of offence, its gravity and the evidence in support of it and the
overall circumstances of this case and also keeping in perspective the fact that trial has already
commenced and the prosecution witnesses are being examined, this Court is of the view that the
applicant has not made out a case for bail. Therefore, the prayer for bail of the applicant is rejected.

11. It is clarified that the observations, if any, made in this order are strictly confined to the
disposal of the bail application and must not be construed to have any reflection on the ultimate
merits of the case.
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1322 INDIAN LAW REPORTS ALLAHABAD SERIES

(2016) 8 ILRA 1322
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.08.2016

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ C No.- 28105 Of 2011

The Handicraft And Handlooms Exports Corp. Of India & Anr. ...Petitioners
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Gautam Baghel, Vinay Saran

Counsel for the Respondents:
C.S.C., Dinesh Pratap Singh, Sohan Lal Yadav, Vishwa Ratna Dwivedi

Industrial Disputes - Appropriate Government - Determination - Jurisdiction of Labour Court
- Petitioner, a Government company with 100% shareholding and deep control of Central Government, held
to be "State" under Article 12 - Held, appropriate Government for reference of industrial dispute is Central
Government and not State Government - Reference made by State Government under U.P. Industrial
Disputes Act incompetent - Labour Court lacked jurisdiction.
Industrial Disputes - Reference - Jurisdictional issue - Plea raised at later stage - Though plea
of jurisdiction not specifically taken in written statement, same can be raised at any stage as it goes to root of
matter - Court can examine jurisdictional issue in writ proceedings to avoid multiplicity of litigation.
Industrial Disputes - Burden of proof - Employer-employee relationship - Continuous service
- Onus lies on workmen to establish appointment and continuous working (240 days) - Labour Court failed
to record findings on date of appointment, nature of engagement and completion of 240 days - Award
suffers from lack of evidence and proper adjudication.
Contract Labour - Sham contract - Determination - Finding that contract system was sham recorded
without proper analysis of evidence and statutory provisions - Mere existence of contract document of later
period insufficient to infer absence of valid contract system.
Writ Jurisdiction - Interference with award - Remand and liberty - Award vitiated both on merits
and jurisdiction - Instead of remand to State Labour Court, liberty granted to workmen to approach
appropriate Government (Central Government) for fresh reference - Direction issued for expeditious
adjudication.
In Result: Writ petition allowed; impugned award set aside; liberty granted to workmen to seek reference
before appropriate Government; directions issued for expeditious adjudication.

Cases cited:
Steel Authority of India vs. National Union Waterfront Workers and others(2001) 7 SCC 1
Range Forest Officer vs. S.T. Hadimani(2002) 3 SCC 25
National Textile Corporation Limited vs. Naresh Kumar Badrikumar Jagad and other(2011) 12 SCC 695
National Textile Corporation U.P. Limited vs. State of U.P.2004 (2) LBESR 984