# Arvind Rajak @ Vasu (In Jail) v. State of U.P

- **Citation:** (2019) 2 ILRA 1081
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-12
- **Case number:** Amendment by U.P. Act No.24 of 1954
- **Bench:** Karuna Nand Bajpayee
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arvind-rajak-vasu-in-jail-v-state-of-u-p-44561
- **Pages:** 9

## Headnote

1082 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Indian Penal Code, 1860 :- Sections
457,
380
and
411
-
second
bail
application-rejection-
The
recognized
considerations germane on the point to
decide whether an accused ought to be
released on bail or not also includes the
probability of the accused absconding or
fleeing from the course of justice, if
released
on
bail-His
character,
behaviour, means, position and standing
in the society are also relevant-The
likelihood of the offence being repeated
has also been recognized by the Hon'ble
Apex Court as a relevant consideration-
The enormous recoveries of gold and
silver articles and also that of cash at the
instance of applicant cannot be said to
be either frivolous or planted at least at
this stage. (Para 4, 5 & 6)

Bail Application dismissed (E-6)

Precedent followed:

## Text

2 All. Arvind Rajak @ Vasu Vs State of U.P.
1081
correctly held in the judgment of this
Court in Pt. Rishikesh and Another v.
Salma Begum (Smt) [(1995) 4 SCC
718]."

(Emphasis supplied by me)

21. In Engineering Kamgar Union
vs. Electro Steel Castings Ltd. and
another, (2004) 6 SCC 36 (Paras-15 to
24), Hon'ble Supreme Court considered
the question of repugnancy and the
provisions
of
Section
254
of
the
Constitution of India and held that two
different Acts produce two different legal
results, a conflict will arise.

22. In Dharappa vs. Bijapur Coop.
Milk Producers Societies Union Ltd.,
(2007) 9 SCC 109 (Para-12), Hon'ble
Supreme Court held that repugnancy is
said to arise when : (i) there is clear and
direct inconsistency between the Central
and the State Act; (ii) such inconsistency
is irreconcilable, or brings the State Act in
direct collision with the Central Act or
brings about a situation where obeying
one would lead to disobeying the other.

23. In Animal Welfare Board of
India vs. A Nagaraja and others, (2014)
7 SCC 547 (Paras-75 to 79), Hon'ble
Supreme Court held that in order to
decide the question of repugnancy, it must
be shown that the two enactments contain
inconsistent and irreconcilable provisions,
therefore, they cannot stand together or
operate in the same field.

24. For all the reasons afore-stated,
particularly
in
view
of
afore-noted
conflicting views taken by two Benches
of this Court in two decisions namely
Mohd. Afzal (supra) and Hardoi Zila
Sahkari Bank Limited (supra), the
matter is referred to a larger bench to
answer the following questions:

(a)
Under
the
facts
and
circumstances of the case what would be
the minimum period of notice under
Section 106 of the Transfer of Property
Act, 1882 as substituted by the Central
Act No.3 of 2003?

(b) Whether the amendment
made by the Transfer of Property
(Amendment) Act (Central Act No.3 of
2003), would prevail over the U.P.
Amendment by U.P. Act No.24 of 1954
and consequently, the minimum period of
notice would be 15 days?

25. Let the papers be placed before
Hon'ble the Chief Justice to constitute a
larger bench to decide the afore-noted
questions.
----------

(2019)10ILR A 1081

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.09.2019

BEFORE

THE HON'BLE KARUNA NAND BAJPAYEE, J.

Crl. Misc. Bail Application (IIND) No. 32155
of 2019

Arvind Rajak @ Vasu ...Applicant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Qazi Vakil Ahmad

Counsel for the Opposite Party:
A.G.A.
1082 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Indian Penal Code, 1860 :- Sections
457,
380
and
411
-
second
bail
application-rejection-
The
recognized
considerations germane on the point to
decide whether an accused ought to be
released on bail or not also includes the
probability of the accused absconding or
fleeing from the course of justice, if
released
on
bail-His
character,
behaviour, means, position and standing
in the society are also relevant-The
likelihood of the offence being repeated
has also been recognized by the Hon'ble
Apex Court as a relevant consideration-
The enormous recoveries of gold and
silver articles and also that of cash at the
instance of applicant cannot be said to
be either frivolous or planted at least at
this stage. (Para 4, 5 & 6)

Bail Application dismissed (E-6)

Precedent followed:

1. Neeru Yadav Vs St. of U.P. in Criminal
Appeal No.1272 of 2015

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

1. This is the second bail application
filed on behalf of applicant Arvind Rajak
@ Vasu seeking his release on bail in
Case Crime No.68 of 2018, u/ss 457, 380,
411
I.P.C.,
Police
Station-Kakadev,
District-Kanpur
Nagar.
First
bail
application of the applicant was rejected
by this Court vide order dated 21.12.2018.

2. Heard learned counsel for the
applicant and learned A.G.A. and also
perused the record.

3. Counsel for the applicant has not
raised any fresh argument but has insisted
that a second look should be given to the
facts of the case. The period of detention
has also been pointed out.

4. Perusal of the earlier bail order shows
that primarily the bail application was rejected
because of a very long criminal history
showing the involvement of applicant in not
less than 33 cases which were registered
against him. Merits of the case cannot be
looked into again and again just because some
further time has lapsed. There is therefore no
reason to take a different view in the matter.
While dealing with an accused of such kind
this Court cannot loose perspective of the
likelihood of the witnesses or evidence being
tampered with and being adversely influenced
under the coercive clout of criminality of the
accused. The involvement of the applicant in
three dozen criminal cases is not an ordinary
circumstance and cannot be lightly ignored. It
is not a usual feature to find people getting
involved or being charged for criminal
offences in such large number. When an
accused with such kind of chequered criminal
history is let loose, he finds unrestricted
opportunities to wield his coercive powers and
tamper with the evidence. The prospect of a
fair trial naturally may get prejudicially
affected and the possibility of prosecution
evidence remaining intact comes under high
peril. It is not needed but to make the factual
situation clear the relevant portion of the order
passed by this Court while rejecting the first
bail application may be extracted herein
below :

"Learned A.G.A. has opposed
the prayer for bail and has submitted that
the applicant is having criminal history of
not less than 33 criminal cases and the
applicant has been found to have been
involved multiple cases of theft and
robbery. The details of which have been
given as follows :

1. Case Crime No.1175/2017,
u/s 457, 380, 411, 413, 414 I.P.C., P.S.-
Naubasta, District-Kanpur Nagar.
2 All. Arvind Rajak @ Vasu Vs State of U.P.
1083

2. Case Crime No.1176/2017,
u/s 457, 380, 411, 413, 414 I.P.C., P.S.-
Naubasta, District-Kanpur Nagar.

3. Case Crime No.347/2018, u/s
394, 411 I.P.C., P.S.-Naubasta, DistrictKanpur Nagar.

4. Case Crime No.190/2018, u/s
457, 380, 411, 413, 414 I.P.C., P.S.-
Naubasta, District-Kanpur Nagar.

5. Case Crime No.277/2018, u/s
457, 380, 411, 413, 414 I.P.C., P.S.-
Naubasta, District-Kanpur Nagar.

6. Case Crime No.281/2018, u/s
457, 380, 411, 413, 414 I.P.C., P.S.-
Naubasta, District-Kanpur Nagar.

7. Case Crime No.241/2018, u/s
457, 380, 411, 413, 414 I.P.C., P.S.-
Naubasta, District- Kanpur Nagar.

8. Case Crime No.330/2018, u/s
457, 380, 411, 413, 414 I.P.C., P.S.-
Naubasta, District-Kanpur Nagar.

9. Case Crime No.322/2018, u/s
457, 380, 411, 413, 414 I.P.C., P.S.-
Naubasta, District-Kanpur Nagar.

10. Case Crime No.154/2018,
u/s 457, 380, 411, 413, 414 I.P.C., P.S.-
Naubasta, District-Kanpur Nagar.

11. Case Crime No.270/2018,
u/s 457, 380, 411, 413, 414 I.P.C., P.S.-
Naubasta, District-Kanpur Nagar.

12. Case Crime No.137/2018,
u/s 394, 411 I.P.C., P.S.-Naubasta,
District-Kanpur Nagar.

13. Case Crime No.436/2018,
u/s 392, 411 I.P.C., P.S.-Naubasta,
District-Kanpur Nagar.

14. Case Crime No.362/2018,
u/s 3/25 of Arms Act, P.S.-Naubasta,
District-Kanpur Nagar.

15. Case Crime No.363/2018,
u/s 4/25 of Arms Act, P.S.-Naubasta,
District-Kanpur Nagar.

16. Case Crime No.365/2018,
u/s 41, 411, 413, 414 I.P.C., P.S.-
Naubasta, District-Kanpur Nagar.

17. Case Crime No.366/2018,
u/s 41, 411, 413, 414 I.P.C., P.S.-
Naubasta, District-Kanpur Nagar.

18. Case Crime No.476/2018,
u/s 457, 380, 411, 413, 414 I.P.C., P.S.-
Chakeri, District-Kanpur Nagar.

19. Case Crime No.515/2018,
u/s 457, 380, 411, 413, 414 I.P.C., P.S.-
Chakeri, District-Kanpur Nagar.

20. Case Crime No.283/2018,
u/s 457, 380, 411, 413, 414 I.P.C., P.S.-
Chakeri, District-Kanpur Nagar.

21. Case Crime No.525/2018,
u/s 457, 380, 411, 413, 414 I.P.C., P.S.-
Chakeri, District-Kanpur Nagar.

22. Case Crime No.567/2018,
u/s 380, 411, 413, 414 I.P.C., P.S.-
Chakeri, District-Kanpur Nagar.

23. Case Crime No.552/2018,
u/s 457, 380, 411, 413, 414 I.P.C., P.S.-
Chakeri, District-Kanpur Nagar.

24. Case Crime No.375/2018,
u/s 457, 380, 411, 413, 414 I.P.C., P.S.-
Chakeri, District-Kanpur Nagar.

25. Case Crime No.316/2018,
u/s 380, 411, 413, 414 I.P.C., P.S.-
Chakeri, District-Kanpur Nagar.

26. Case Crime No.517/2018,
u/s 457, 380, 411, 413, 414 I.P.C., P.S.-
Chakeri, District-Kanpur Nagar.

27. Case Crime No.502/2018,
u/s 457, 380, 411, 413, 414 I.P.C., P.S.-
Chakeri, District-Kanpur Nagar.

28. Case Crime No.604/2018,
u/s 380, 411, 413, 414 I.P.C., P.S.-
Chakeri, District-Kanpur Nagar.

29. Case Crime No.21/2018, u/s
457, 380, 411, 413, 414 I.P.C., P.S.-
Kidwai Nagar, District-Kanpur Nagar.

30. Case Crime No.85/2018, u/s
457, 380, 411, 413, 414 I.P.C., P.S.-
Kidwai Nagar, District-Kanpur Nagar.

31. Case Crime No.41/2018, u/s
380, 411, 413, 414 I.P.C., P.S.-Kidwai
Nagar, District-Kanpur Nagar.
1084 INDIAN LAW REPORTS ALLAHABAD SERIES

32. Case Crime No.171/2018,
u/s 457, 380, 411, 413, 414 I.P.C., P.S.-
Vidhnu, District-Kanpur Nagar.

33. Case Crime No.378/2018,
u/s 379, 411 I.P.C., P.S.-Barra, DistrictKanpur Nagar.

Further submission is that the
chequered
history
or
the
criminal
antecedents of accused are sufficient to
indicate that the accused is a habitual
offender and in case he is released on
bail, under the coercive influence of his
criminality it will be difficult for the
witnesses to depose independently without
fear. It is further submitted that in all
likelihood the release of the accused shall
impair the prospects of a fair trial. It is
next submitted that it is also very obvious
that a person of this criminal background
is also very likely to indulge himself in the
activities which shall be detrimental to the
society at large. Further submission is
that the delinquents of such nature wield
enormous
criminal
clout
which
in
consequence very obviously affects a free
trial.
Therefore,
in
the
facts
and
circumstances of the case, the accused
should not be released on bail. Learned
A.G.A. also relied upon the Apex Court
decision Neeru Yadav vs. State of U.P. in
Criminal Appeal No.1272 of 2015 decided
on 29.9.2015 to emphasis upon the
relevance of criminal history in matters of
bail."

5. In the case of Neeru Yadav vs. State
of U.P. in Criminal Appeal No.1272 of
2015 decided on 29.9.2015 the Apex
Court had the occasion to reflect upon the
criminal history of a particular accused
and the observations made by the Apex
Court in that regard may be apt to recall
in this context. The relevant extracts of
the aforesaid case may be quoted herein
below :

"1. The present appeal, by
special leave, on a summary glance may
appear that a victim who might have an
axe to grind against the accused, the
respondent no.2 herein, and further to
wreck his vengeance has approached this
Court seeking cancellation of his bail,
possibly
being
emboldened
by
the
inaction of the State authorities who have
chosen to maintain sphinx like silence or
decided to assume the stagnated posture
of a splendid sculpture of Rome, and
invigorated by the thought that he can
singularly carry the crusade, without any
support, for he has a cause to vindicate by
valiantly exposing the legal infirmities in
the order passed by the High Court
admitting the 2nd respondent to bail and
also unconceal the lackadaisical attitude
of the State, but on a keener scrutiny the
initial impression melts away and the
perversity of the order impugned gets
unrolled. Be it stated, at a narrow level it
may look like a combat between two
individuals, but when analytical scrutiny
is done and the State is compelled to wake
up from its slumber, the unveiling of facts
reveal the contestation between the
accord and the discord, the scuffle betwixt
the sacrosanctity and the majesty of law
on one hand and the maladroit ingenious
efforts to get the benefit by the abuse of
process of the Court on the other. The
analysis has to be made, that being an
imperative command, between the honest
nidification and the surreptitious edifice.

2. Mr. Pradeep Kumar Yadav,
learned counsel for the appellant, with all
the distress and the intellectual agony at
his command, has submitted that the High
Court without appropriate analysis and
even without being fully apprised of the
fact situation, solely on the basis of
parity, as if it is the only foundation or for
that matter, the comet that has come off to
2 All. Arvind Rajak @ Vasu Vs State of U.P.
1085
shine, has enlarged the respondent no.2
on bail totally being oblivious that no
accused, however influential he may be or
clever he thinks to be, cannot be allowed
to nullify the sanctity and purity of law
and jettison the age old values "truth in
action" and "the firm and continuous
desire to render to every one which is
due", the two fundamental pillars of
justice. The plea, submits Mr. Yadav,
apart from cleverness also shows an
attempt of the nonchalant mind of the
respondent No 2 to engage in fertile
imagination possibly thinking that the
ground of parity is the real structure of
palladium to bring the nemesis of the
prosecution and put the Court in a
situation to choose between Scylla and
Charybdis. And, at this juncture, we must
state that both the appellant and the State
(though at a later stage) have become
Argus-eyed and destroyed the ingenious
foundation so astutely built by the
accused.

3. ............. It was contended
before the High Court that an omnibus
role had been ascribed to him and the
other accused persons that they had
indulged
in
general
firing
as
a
consequence of which one person had
died, for he had received three gun shot
injuries. It was also contended that there
was no credible evidence against the
accused persons. The real plank of
submission before the High Court, as is
perceptible, was that prayer for bail in
respect of 11 accused persons including
Mitthan Yadav had already been allowed,
and there was no justification to deny him
the said benefit as he was similarly
placed.

4. The prayer for bail was
resisted
by
the
Public
Prosecutor
contending, inter alia, that there was
indiscriminate firing by the accused
person causing fatal injuries. The High
Court, after hearing both the parties, has
passed following order:-

"In view of above facts,
considering the nature of allegation,
severity of punishment and period of
detention, without expressing any opinion
on merit, it is a fit case for bail.

Let the applicant Budhpal
@ Buddhu be enlarged on bail on his
furnishing a personal bond with two
heavy sureties each in the like amount to
the satisfaction of court concerned in case
crime no. 237 of 2013 under Section 147,
148, 149, 302, 307, 394, 411, 454, 506,
120-B, 34 I.P.C. Police Station Kavi
Nagar, District Ghaziabad with the
following conditions:

(i) The applicant will not tamper
with the evidence during the trial.

(ii) The applicant will not
pressurize/intimidate
the
prosecution
witness.

(iii) The applicant will appear
before the trial court on the date fixed,
unless personal presence is exempted.

In case of breach of any of the
above conditions, the court below shall be
at liberty to cancel the bail." The said
order is the subject matter of assail in the
present appeal by special leave.

5. At the outset we are obliged
to clarify that it is not an appeal seeking
cancellation of bail in the strictest sense.
It actually calls in question the legal
pregnability of the order passed by the
High Court. The prayer for cancellation
of bail is not sought on the foundation of
any kind of supervening circumstances or
breach of any condition imposed by the
High Court. The basic assail is to the
manner in which the High Court has
exercised its jurisdiction under Section
439 CrPC while admitting the accused to
bail. To clarify, if it has failed to take into
1086 INDIAN LAW REPORTS ALLAHABAD SERIES
consideration
the
relevant
material
factors,
it
would
make
the
order
absolutely
perverse
and
totally
indefensible. That is why there is a
difference between cancellation of an
order of bail and legal sustainability of an
order granting bail. [See State of U.P. v.
Marmani
Tripathi[1],
Puran
v.
Rambilas[2], Narendra K. Amin v. State
of Gujrat[3], and Prakash Kadam v.
Ramprasad Vishwanah Gupta[4].]

6. ....................

7. ..................

8. It is interesting to note that
learned counsel for the appellant and the
learned counsel for the State submitted
that the respondent no.2 is still in jail
despite the order of bail as he is involved
in so many cases. We will take up the said
issue at a later stage. It is submitted by
Mr. Yadav, learned counsel for the
appellant that despite the factum of
criminal history pointed out before the
High Court, it has given it a glorious
ignore
which
the
law
does
not
countenance.
The
solitary
and
the
singular grievance which is propounded
with solidity that the High Court should
have dwelt upon the same and thereafter
decided the matter. Mr. Dash, learned
senior counsel (though the State has not
moved any application for setting aside
the order of bail granted by the High
Court
for
the
reasons
which
are
unfathomable) unhesitatingly accepted
the said submission. In the additional
affidavit, an independent chart has been
filed by the State and we find that apart
from the present case, there are seven
cases pending against the respondent
no.2. ........."

9. ................

10. ................

11. .................

12. In Prasanta Kumar Sarkar
v. Ashis Chatterjee [8], while dealing with
the court's role to interfere with the power
of the High Court to grant bail to the
accused, the Court observed that it is to
be seen that the High Court has exercised
this discretion judiciously, cautiously and
strictly in compliance with the basic
principles laid down in catena of
judgments on that point. The Court
proceeded to enumerate the factors:-

"9.
...
among
other
circumstances, the factors [which are] to
be borne in mind while considering an
application for bail are:

(i) whether there is any
prima facie or reasonable ground to
believe that the accused had committed
the offence;

(ii) nature and gravity of
the accusation;

(iii)
severity
of
the
punishment in the event of conviction;

(iv) danger of the accused
absconding or fleeing, if released on
bail;

(v) character, behaviour,
means, position and standing of the
accused;

(vi)
likelihood
of
the
offence being repeated;

(vii)
reasonable
apprehension of the witnesses being
influenced; and

(viii) danger, of course, of
justice being thwarted by grant of bail."

13. We will be failing in our
duty if we do not take note of the concept
of liberty and its curtailment by law. It is
an established fact that a crime though
committed against an individual, in all
cases it does not retain an individual
character. It, on occasions and in certain
offences, accentuates and causes harm to
the society. The victim may be an
2 All. Arvind Rajak @ Vasu Vs State of U.P.
1087
individual, but in the ultimate eventuate,
it is the society which is the victim. A
crime, as is understood, creates a dent in
the law and order situation. In a civilised
society, a crime disturbs orderliness. It
affects the peaceful life of the society. An
individual can enjoy his liberty which is
definitely of paramount value but he
cannot be a law unto himself. He cannot
cause harm to others. He cannot be a
nuisance to the collective. He cannot be a
terror to the society; and that is why
Edmund Burke, the great English thinker,
almost two centuries and a decade back
eloquently spoke thus:-

"Men are qualified for civil
liberty, in exact proportion to their
disposition to put moral chains upon their
own appetites; in proportion as their love
to justice is above their rapacity; in
proportion
as
their
soundness
and
sobriety of understanding is above their
vanity and presumption; in proportion as
they are more disposed to listen to the
counsel of the wise and good, in
preference to the flattery of knaves.
Society cannot exist unless a controlling
power upon will and appetite be placed
somewhere and the less of it there is
within, the more there must be without. It
is ordained in the eternal constitution of
things that men of intemperate minds
cannot be free. Their passions forge their
fetters[9].

14. E. Barrett Prettyman, a
retired Chief Judge of US Court of
Appeals had to state thus:-

"In an ordered society of
mankind there is no such thing as
unrestricted liberty, either of nations or of
individuals. Liberty itself is the product of
restraints; it is inherently a composite of
restraints; it dies when restraints are
withdrawn. Freedom, I say, is not an
absence of restraints; it is a composite of
restraints. There is no liberty without
order.
There
is
no
order
without
systematised restraint. Restraints are the
substance without which liberty does not
exist. They are the essence of liberty. The
great problem of the democratic process
is not to strip men of restraints merely
because they are restraints. The great
problem is to design a system of restraints
which
will
nurture
the
maximum
development of man's capabilities, not in
a massive globe of faceless animations
but as a perfect realisation, of each
separate human mind, soul and body; not
in mute, motionless meditation but in
flashing, thrashing activity.[10]"

15. This being the position of
law, it is clear as cloudless sky that the
High Court has totally ignored the
criminal antecedents of the accused. What
has weighed with the High Court is the
doctrine of parity. A history- sheeter
involved in the nature of crimes which we
have reproduced hereinabove, are not
minor offences so that he is not to be
retained in custody, but the crimes are of
heinous nature and such crimes, by no
stretch of imagination, can be regarded
as jejune. Such cases do create a thunder
and
lightening
having
the
effect
potentiality of torrential rain in an
analytical mind. The law expects the
judiciary to be alert while admitting these
kind of accused persons to be at large
and, therefore, the emphasis is on
exercise of discretion judiciously and not
in a whimsical manner.

16. ................

17. ...............

18. ........... we may repeat with
profit that it is not an appeal for
cancellation of bail as the cancellation is
not
sought
because
of
supervening
circumstances. The annulment of the
order passed by the High Court is sought
1088 INDIAN LAW REPORTS ALLAHABAD SERIES
as many relevant factors have not been
taken into consideration which includes
the criminal antecedents of the accused
and that makes the order a deviant one.
Therefore, the inevitable result is the
lancination of the impugned order.

19. Resultantly, the appeal is
allowed and the order passed by the High
Court is set aside. ..........."

6. The perusal of aforesaid case law
reveals that a very strict view against the
accused on the point of bail has been
adopted by the Hon'ble Supreme Court for
the reason of the accused having a shady
past blemished with criminal antecedents.
The Apex Court therefore, had proceeded
to cancel the bail that had already been
granted by the High court on the ground
of parity with co-accused without giving
due consideration to the criminal history
of the accused. It may not be out of place
to mention here that in the case of Neeru
Yadav (supra) the accused was said to
have a criminal history of only seven
cases out of which ofcourse two cases
were that of murder. But even a fleeting
glance on the criminal history of the
present accused would show that he
appears to have been involved in almost
similar kind of offences of committing
lurking trespass, of committing theft and
possessing theft property in such large
number that he may be termed to be an
incorrigible
offender
beyond
all
possibilities of reformation or corrective
redemption. Even the present case at
hand, in which the applicant seeks his bail
relates to the offence under Sections 457
and 380 I.P.C. and the contents of the
F.I.R. would show that at the time of
incident the informant's family had gone
to attend the marriage and the informant
had also gone to Lucknow in connection
with some matter and after having
returned from there, he found his gate
closed
from
inside
which
aroused
suspicion. Somehow he managed his
entry in his house from the roof of his
neighbour and then he found that the
window had been broken and the articles
were thrown hither and thither, safe was
found opened and it was discovered that
the licensee pistol and a lot of gold
jewellery and cash had been stolen away.
During the course of investigation the
accused was arrested and on being
questioned by the police, he spilled the
beans and made shocking disclosures
about the enormous number of crimes of
almost similar nature committed by him.
Huge amount of recoveries were effected
at his instance, the details of which have
been narrated in Annexure No.3 which is
memo of recovery and which relate to
large number of thefts committed by him.
Shocking number of thefts committed by
the applicant and the huge number of
consequential
recoveries
of
highly
valuable jewellery of gold and silver and
cash does not leave any doubt at least at
this stage that there is no dearth of
incriminating evidence available against
him pointing towards his guilt and guilty
mind. Prima facie at this stage, unless the
conclusion of the trial shows otherwise
later on, the accused appears to be a
menace to the society and a peril
overhanging
all
the
citizens
who
ceaselessly toil to earn an honest living.
The recognized considerations germane
on the point to decide whether an accused
ought to be released on bail or not also
includes the probability of the accused
absconding or fleeing from the course of
justice, if released on bail. His character,
behaviour, means, position and standing
in the society are also relevant. The
likelihood of the offence being repeated
has also been recognized by the Hon'ble
2 All. M/S Flipkart India Pvt. Ltd. Vs State of U.P. & Ors.
1089
Apex Court as a relevant consideration.
The enormous recoveries of gold and
silver articles and also that of cash at the
instance of applicant cannot be said to be
either frivolous or planted at least at this
stage. It is not difficult to see that the
involvement of applicant in different
criminal offences over a period of time
speaks
about
the
delinquency
and
depraved nature of the offender and in the
considered opinion of this Court with
such
long
criminal
history
in
the
background, it does not appear judicially
prudent to release the applicant on bail.

7. For all these reasons therefore,
this Court does not see any good fresh
ground to take a different view in the
matter than the one that has already been
taken by this Court earlier.

8. Second bail application thus
stands dismissed.
----------

(2019)10ILR A 1089

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.08.2019

BEFORE

THE HON'BLE BHARATI SAPRU, J.
THE HON'BLE PIYUSH AGRAWAL, J.

Writ Petition (Tax) No. 760 of 2017

M/S Flipkart India Pvt. Ltd. ...Petitioner
Versus
Sate of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Nishant Mishra, Sri Tarun Gulati, Sri
Ravi Kant

Counsel for the Respondents:
C.S.C.

A. U.P. Value Added Tax Act, 2008 - Section
29(6) - U.P. Value Added Tax Rules - Rule 72
- Central Sales Tax Act, 1956 (hereinafter
referred to as 'CST Act').-An order passed in
gross violation of the provision of the Act and
without proper service of notice upon the
petitioner is liable to be set aside-The
petitioner prayed for quashing of the
assessment orders dated 31.03.2017 for
Assessment Years 2012 - 13 and 2013-14
under the U.P. VAT Act as also CST Act, on
the ground that one was passed after the
limitation prescribed and the other, ex-parte
without any opportunity of hearing -
Allowing this petition, the High Court held -
The assessment orders dated 31.03.2017 for
the Assessment Year 2012-13 were beyond
the extended period of limitation prescribed
u/s 29(6). (Para 13, 14 & 15)

B. U.P. Value Added Tax Rules - Rule
72(h) mandates that in addition to
sending
a
personal
notice
through
process server, sending of notice by
registered post is mandatory. Where
notices were not sent by registered post,
presumption of service of notice through
the process server cannot arise. (Para 24)
C. The respondents were aware of the
change in address of the assessee on
account of two prior rounds of litigation with
the petitioner, yet notice by a fixation was
served
at
the
earlier
address.
The
assessment orders were passed without
proper service of notice upon the assessee
and were set-aside. (Para 20, 21, 23, 27 & 29)
Writ
petition
challenges
orders
dated
31.03.2017, for the assessment years 2012-13
and 2013-14.

Writ Petition allowed (E-4)

Precedent followed: -

1. Writ Tax No. 80 of 2016, Writ Tax No. 168
of 2016 (Para 20)
2. Writ Tax No. 546 of 2016 (Para 21)