# Ankit Kumar Yadav v. State of U.P

- **Citation:** (2023) 4 ILRA 451
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-18
- **Case number:** Crl. Misc. IInd Bail Application No. 51332 of 2022
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ankit-kumar-yadav-v-state-of-u-p-49973
- **Pages:** 5

## Headnote

(A) Criminal Law - Second Bail - Indian
Penal Code, 1860 - Sections 302 & 201 -
First bail application rejected by reasoned order
- co-accused granted bail - subsequent event -
applicant in jail since 03.03.2022 - charges not
framed till date - Suppression of a material fact
by not disclosing application for discharge -
Applicant and co-accused were arrested on the
spot - hammer and phones recovered from their
motorcycle -9 c.m. long with head of diameter
of 4 c.m- Observation of Coordinate Bench -
"recovery of vivo mobile phone" from applicant -
false and planted.(Para -2 to 12 ,16)

HELD:- Observation without consideration of
any
material
on
record
has
no
legal
consequence. No subsequent event of fact or
law which requires consideration of Court in the
present second bail application.(Para - 16,17)

Second Bail application rejected. (E-7)
452 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:

Ramanand @ Nandlal Bharti Vs St. of U.P., 2022
SCC OnLine SC 1396

## Text

4 All. Ankit Kumar Yadav Vs. State of U.P.
451
done by well trained counsellors who have
experience of treating such minor victims
under proper guidance.

30. In view of above, Ministry of
Women
and
Child
Development,
Government of U.P., Lucknow through its
Secretary is directed to ponder on above
referred issue by initiating process of
interaction with all stakeholders in order to
make Child Welfare Committee and its
Members
more
competent,
more
responsible, more generous and more
compassionate to deal with such cases, as
the case in hand.

31. While undertaking above exercise
it shall also take note the provisions of Rule
35 of JJ Rules, 2019 which provides mental
health for children at Child Care Institution.
Sub-rule (5) thereof provides that every
Institution shall have the services of trained
counsellors or collaboration with external
agencies such as child guidance centres,
psychology and psychiatric departments or
similar Government and non-Governmental
agencies, for specialized and regular
individual therapy for child.

32. The object of above exercise is
to
provide
sincere
and
appropriate
counselling to minor victim and exercise
shall
not
be
limited
to
above
observations. It is up to the senior
officers of Department to come up with a
concrete plan in order to achieve the
above referred observations of this Court.

33. Registrar (Compliance) is directed
to send a copy of this order to Secretary,
Ministry
of
Women
and
Child
Development,
Government
of
U.P.,
Lucknow who shall undertake above
exercise and submit report thereof before
this Court.

34. List this matter after six months
before appropriate Bench only for perusal
of report submitted by Secretary, Ministry
of
Women
and
Child
Development,
Government of U.P., Lucknow.
----------
(2023) 4 ILRA 451
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.04.2023

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Crl. Misc. IInd Bail Application No. 51332 of
2022

Ankit Kumar Yadav ...Applicant
Versus
State of U.P. ...Respondent

Counsel for the Applicant:
Dr. D.B. Singh

Counsel for the Respondent:
Sri Sunil Srivastava, A.G.A.

(A) Criminal Law - Second Bail - Indian
Penal Code, 1860 - Sections 302 & 201 -
First bail application rejected by reasoned order
- co-accused granted bail - subsequent event -
applicant in jail since 03.03.2022 - charges not
framed till date - Suppression of a material fact
by not disclosing application for discharge -
Applicant and co-accused were arrested on the
spot - hammer and phones recovered from their
motorcycle -9 c.m. long with head of diameter
of 4 c.m- Observation of Coordinate Bench -
"recovery of vivo mobile phone" from applicant -
false and planted.(Para -2 to 12 ,16)

HELD:- Observation without consideration of
any
material
on
record
has
no
legal
consequence. No subsequent event of fact or
law which requires consideration of Court in the
present second bail application.(Para - 16,17)

Second Bail application rejected. (E-7)
452 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:

Ramanand @ Nandlal Bharti Vs St. of U.P., 2022
SCC OnLine SC 1396

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1. This is second bail application filed
on behalf of applicant who is facing trial in
Case Crime No. 36 of 2022 under Sections
302, 201 I.P.C., Police Station- Chilh,
District- Mirzapur.

2. The first bail application of
applicant was rejected by this Court on
14.09.2022 by a reasoned order. In the
order, it was taken note that co-accused
Radhey Shyam Yadav was granted bail by
an order dated 08.07.2022. For reference,
reasons given therein are mentioned
hereinafter :-

"I have given thoughtful consideration
to the contentions raised by learned counsel
for the parties. At the very outset, it is
clarified that the role played by the
accused-applicant is distinct from coaccused
Radhe
Shyam.
From
the
possession of the accused-applicant, the
mobile phone of the deceased was
recovered and on his alleged disclosure
statement a hammer from dickey of his
motorcycle
was
also
recovered. The
accused has disclosed that by playing
deceitful means he took the accused at
lonely place near old railway track on the
promise that he will provide him drink and
a girl will also come there. The blood was
also found on the lower part of the hammer.
On his disclosure, the bloodstained water
bottle was also recovered.

Keeping in view the facts and
circumstances of the case and the evidence
available on record as well as severity of
punishment and the manner in which
murder of Sunil Yadav close relative as
alleged was committed by accused,

I do not find it fit for bail.
Accordingly, the bail application of the
applicant is rejected."

3. Present bail application was filed
on 03.11.2022 i.e. within less than 2
months after the first bail application was
rejected.

4. In the application, averments are
mostly on merit of the case and only
subsequent event is that the applicant is in
jail since 03.03.2022, however, till date
even charges are not framed.

5. On direction of this Court, the Trial
Court has submitted a status report that the
case was referred to Additional Sessions
Judge on 04.06.2022. Applicant and coaccused
have
filed
applications
for
discharge
which
were
dismissed
on
02.03.2023 and thereafter charges were
framed under Sections 302/34 and 201
I.P.C. on same day.

6. Applicant has not disclosed that he
has filed an application for discharge,
therefore, the Trial Court could not be
blamed for that no charge was framed. This
is a suppression of a material fact.

7. It transpires from above referred
facts that after the first bail application was
rejected on 14.09.2022 and till the second
bail application was filed on 03.11.2022,
the trial could not proceed due to discharge
applications filed by applicant and coaccused, therefore, there is no subsequent
event to consider this bail application.

8. Dr. S.B. Singh, learned counsel for
applicant has argued on merit that first bail
application
was
rejected
that
many
4 All. Ankit Kumar Yadav Vs. State of U.P.
453
incriminating materials were recovered on
pointing out of applicant, whereas coaccused was granted bail. Recovery was
false and planted. Learned counsel has
placed reliance upon a judgment passed by
Supreme
Court
in
Ramanand
alias
Nandlal Bharti vs. State of Uttar
Pradesh, 2022 SCC OnLine SC 1396 and
particularly its paragraph 53, that recovery
panchnama in present case was deficient in
all the relevant objects described in said
paragraph. Paragraph 53 of said judgment
is quoted hereinafter :-

"53. If, it is say of the investigating
officer that the accused appellant while in
custody on his own free will and volition
made a statement that he would lead to the
place where he had hidden the weapon of
offence along with his blood stained clothes
then the first thing that the investigating
officer should have done was to call for two
independent witnesses at the police station
itself. Once the two independent witnesses
arrive at the police station thereafter in their
presence the accused should be asked to
make an appropriate statement as he may
desire in regard to pointing out the place
where he is said to have hidden the weapon
of offence. When the accused while in
custody makes such statement before the
two
independent
witnesses
(panch
witnesses) the exact statement or rather the
exact words uttered by the accused should
be incorporated in the first part of the
panchnama that the investigating officer
may draw in accordance with law. This first
part of the panchnama for the purpose of
Section 27 of the Evidence Act is always
drawn at the police station in the presence
of the independent witnesses so as to lend
credence that a particular statement was
made by the accused expressing his
willingness on his own free will and
volition to point out the place where the
weapon of offence or any other article used
in the commission of the offence had been
hidden. Once the first part of the
panchnama is completed thereafter the
police party along with the accused and the
two
independent
witnesses
(panch
witnesses) would proceed to the particular
place as may be led by the accused. If from
that particular place anything like the
weapon of offence or blood stained clothes
or any other article is discovered then that
part of the entire process would form the
second part of the panchnama. This is how
the law expects the investigating officer to
draw
the
discovery
panchnama
as
contemplated under Section 27 of the
Evidence Act. If we read the entire oral
evidence of the investigating officer then it
is clear that the same is deficient in all the
aforesaid relevant aspects of the matter."

9. Learned counsel has submitted that
aforesaid judgment is a subsequent event and
if the recovery memo is tested with aforesaid
law of preparation of a memo of recovery, the
memo of present case shall have no legal
bearing.

10. Sri Sunil Srivastava, learned A.G.A.
for State submitted that since first bail
application was dismissed on merit, therefore,
consideration of a judgment would be akin to
review the order which is not permissible and
for that applicant has to challenge the order
before Supreme Court and since there is no
subsequent event for consideration, therefore,
this second bail application may be rejected.

11. Learned counsel for applicant has
raised a point of law, therefore, I have
carefully perused the arrest and recovery
memo, a part of record.

12.

According
to
arrest
memo/recovery, the applicant and co-
454 INDIAN LAW REPORTS ALLAHABAD SERIES
accused were intercepted on a road and
were arrested on spot. Both accused
persons have narrated manner of crime and
a hammer and phones were recovered from
their motorcycle and on personal search,
therefore, in present case the procedure that
statement of accused be recorded in
presence of two witnesses at police station
that they wanted to show the incriminating
material does not require. They are not
taken to police station.

13. The memo has disclosed the
informant Arvind Yadav and uncle of
deceased Vijay Kumar also reached at the
place of arrest as well as on the spot of
arrest the accused have stated that they can
point out other incriminating items and the
police party along with witnesses and
accused persons went the place and
incriminating items were recovered on their
pointing out. The names of independent
witness as mentioned in memo are Skand
Verma and Avesh Yadav, therefore, even
the relevant aspects mentioned in paragraph
53 of Ramanand (supra) are prima facie
satisfied.

14.

The
Supreme
Court
in
Ramanand (supra) has considered the
testimony of I.O. therein as well as of
punch witnesses and only thereafter held
that recovery memo was not proved and
proceeded to consider other aspects of
said case also. However, in the present
case, testimony of I.O. and witnesses of
panch are still to be led before Trial
Court, therefore, at this stage, it cannot be
held that memo of recovery is not proved
or it was prepared contrary to procedure
prescribed if any, as well as I have
already mentioned that prima facie, there
is
no
illegality
in
the
arrest
memo/recovery memo even in view of
judgment of Ramanand (supra) and
other aspects will be considered by Trial
Court on basis of evidence.

15. The hammer recovered from
applicant is 9 c.m. long with head of
diameter of 4 c.m. An argument is raised
that nature of injuries could not be caused
by a hammer and size of lacerated
wounds are 4cm x 1.5cm, 3cm x 1cm,
4cm x 1.5cm, 3cm x 1cm, 5cm x 4cm,
8cm x 3cm occipital region #fracture
and Lw on Rt. parietal region with
#fracture,
which
prima
facie
corroborate the size of hammer. 4
laceration is a tear produced by blunt
trauma.
The
force
and
direction
determine
appearance,
depth
and
associated injuries are such as fractures.
Injuries caused by hammer blows are
example of laceration, therefore, prima
facie above argument has also no force.

16. It is also relevant to mention
here that coordinate Bench has observed
that "recovery of vivo mobile phone"
from applicant is false and planted and
the same does not belong to deceased.
However, it appears that it was an
observation without consideration of any
material on record, therefore, it has no
legal consequence as well as role
assigned to co-accused is of providing a
hammer
to
applicant
and
causing
disappearance of dead body, whereas role
assigned to present applicant to cause
multiple injuries to deceased.

17. In view of above, there is no
subsequent event of fact or law which
requires consideration of this Court in the
present second bail application.

18. The second bail application is
hereby rejected.
----------
4 All. Smt. Jyoti Vs. Ankit Dubey
455
(2023) 4 ILRA 455
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.03.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Civil Revision No. 80 of 2022

Smt. Jyoti ...Revisionist
Versus
Ankit Dubey ...Opp. Party

Counsel for the Revisionist:
Sri Gaurav Tripathi

Counsel for the Opp. Parties:
Sri Puneet Bhadauriya

A. Family Law - Family Court Act, 1984 -
Sections 10(1), 19(1) & 19(5) - Civil
Procedure Code - S. 115 - Revision -
Maintainability
-
Order
passed
on
amendment application - Interlocutory
order having the trapping of 'Judgment' is
appealable u/s 19 or not - Held, upon a
reading of Sections 10(1) and 19(5) of the
Act of 1984 together, the position that
emerges is that no revision from an order
of the Family Court is competent except
one that arises from a final order passed
under Chapter IX of the Code of Criminal
Procedure
-
The
party,
therefore,
aggrieved by an interlocutory order may
question it in appeal, if it has the
trappings of a judgment, or so to speak is
an order of moment pronouncing upon
rights of parties - There is no avenue of a
revision under Section 115 of the Code
open to a party aggrieved by an order of
the Family Court - High Court held
revision not maintainable. (Para 20, 23
and 24)
Revision dismissed. (E-1)
List of Cases cited:
1. Sudhanshu Gupta Vs Komal Gupta; 2019 (5)
AWC 4434
2. Smt. Raj Shri Agarwal @ Ram Shri Agarwal &
anr. Vs Sudheer Mohan & ors.; 2022 (5) AWC
4192
3. Major Raja P. Singh Vs Smt. Surendra
Kumari; AIR 1991 Raj 133
4. Kanupriya Vs Ashutosh Agrawal; AIR 2017 Utt
166
5. Smt. Kiran Bala Srivastava Vs Jai Prakash
Srivastava; 2005 (23) LCD 1
6. Yogish Arora Vs Smt. Jennette Yogish Arora
@ Miss Jennettee Dsouza; 2018 (9) ADJ 379
7. Sana Afrin Vs Zohaib Khan; AIR 2021 All 40
(Delivered by Hon'ble J.J. Munir, J.)

This civil revision is directed against
an order of Smt. Renu Singh, Additional
Principal Judge, Family Court, Etawah
dated May the 31st, 2022, allowing the
respondent's
application,
seeking
amendment to his petition for divorce
under Section 13 of the Hindu Marriage
Act, 1955 (for short, 'the HMA').

2. A petition under Section 13 of
HMA was instituted by the sole respondent,
Ankit Dubey against the revisionist, Smt.
Jyoti Dubey before the Principal Judge,
Family Court, Agra, which was numbered
on the file of the Principal Judge, Family
Court, aforesaid as HM Petition No.291 of
2017. A decree for divorce was sought on
the ground of cruelty.

3. It appears that the wife, who is a
resident of Etawah, has secured a transfer
of proceedings from the Principal Judge,
Family Court, Agra to the Family Court at
Etawah. The petition for divorce as
aforesaid is pending before the Additional
Principal Judge, Family Court, Etawah.
This fact is not stated on record, but that is
the only logical conclusion to be drawn
considering
that
the
proceedings
commenced before the Family Court, Agra