# Ashok Kumar v. State of U.P

- **Citation:** (2022) 5 ILRA 208
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-29
- **Case number:** Criminal Misc. Bail Application No. 12587 of 2021
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-kumar-v-state-of-u-p-48489
- **Pages:** 6

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 439 - Bail -
Indian Penal Code, 1860 - Sections 302,
307 & 323 - The Code of Criminal
Procedure, 1973 - Sections 161 & 164 - No
individual should be forcibly subjected to
any of the technique in question whether
in the context of investigation in criminal
case or otherwise and if such technique is
adopted, the outcome thereof would have
no evidentiary value.(Para - 7)

F.I.R. against the four unknown persons -
statement of informant / wife of deceased -
statement of eye witness u/s 161 Cr.P.C. -
transferred
to
crime
branch
for
further
investigation - Polygraph test - leading
question asked from eye witness - whether
present applicant has committed crime in
question - affirmative rreply - such question
could not have been asked while conducting the
polygraph test - disapproved by Hon'ble Apex
Court. Para -3,4,15 )

HELD:-when eye witness and the informant
who is wife of deceased had not alleged
anything against the present applicant while
recording their statement u/s 161 Cr.P.C.
whereas the present applicant was close relative
of the informant then the statement of eye
witness taken while conducting polygraph test
would have no evidentiary value in view of the
dictum of Hon'ble Court in re: Selvi and
others.(Para -16 )

Bail application allowed. (E-7)

List of Cases cited:-
Selvi & ors. Vs St. of Karn. , (2010) 7 SCC 263

## Text

208 INDIAN LAW REPORTS ALLAHABAD SERIES
bail on the ground of parity. It can be
stated with absolute certitude that it was
not a case of parity and, therefore, the
impugned order clearly exposes the nonapplication of mind. That apart, as a matter
of fact it has been brought on record that
the 2nd Respondent has been charge
sheeted in respect of number of other
heinous offences. The High Court has
failed to take note of the same. Therefore,
the order has to pave the path of extinction,
for its approval by this Court would
tantamount to travesty of justice, and
accordingly we set it aside.

32. Our analysis above would
therefore lead to the conclusion that there
has been a manifest failure of the High
Court to advert to material circumstances,
especially the narration of the incident as it
appears in the cross FIR which was lodged
on 13 May 2020. Above all, the High Court
has completely ignored the gravity and
seriousness of the offence which resulted in
five homicidal deaths. This is clearly a case
where the orders passed by the High Court
suffered from a clear perversity."

(emphasis supplied)

29. Notably, the bail of the co-accused
Sunil Kumar Gupta @ Bachcha in Criminal
Misc. Bail Application No.10805 of 2019 has
been rejected by this Court vide order dated
4.1.2022 considering the gravity of offence and
the statement of eye witnesses and the injured
persons.

30. Besides, the bail of another coaccused Rohit Singh has been cancelled by this
Court pursuant to the directions of Hon'ble
Apex Court considering the gravity of the
offence, statements of eye witnesses and the
injured persons as well as the fact that such coaccused persons have misused the liberty of bail
granted by this Court.

31. Therefore, without entering into the
merits of the issue and going through the
material available on record, the statements of
eye witnesses and injured persons recorded
under Section 161 Cr.P.C., checkered criminal
history of the present applicant, I do not find
any good ground to grant bail to the present
applicant as no case for bail is made out.

32. Accordingly, bail application is
rejected.

33. Further, I am not convinced to grant
parity to the present applicant with those coaccused persons who have been granted bail by
this court inasmuch as the present applicant has
got a long criminal history and such history has
not been disclosed or explained in his bail
application or subsequent affidavits, so this fact
alone disentitles him to get parity.

34. Before parting with, it is expected that
the trial shall be concluded with expedition, say,
within a period of one year. Further, the learned
trial court may take all coercive measures as per
law if either of the parties do not co-operate in
the trial properly. The learned trial court shall
fix short dates to ensure that trial is concluded
within a period of nine months in terms of
Section 309 Cr.P.C..
----------
(2022)05ILR A208
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 29.04.2022

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Criminal Misc. Bail Application No. 12587 of
2021

Ashok Kumar ...Applicant
Versus
State of U.P. ...Opposite Party
5 All. Ashok Kumar Vs. State of U.P.
209
Counsel for the Applicant:
Ashish Kumar Rastogi, Anita Singh

Counsel for the Opposite Party:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 439 - Bail -
Indian Penal Code, 1860 - Sections 302,
307 & 323 - The Code of Criminal
Procedure, 1973 - Sections 161 & 164 - No
individual should be forcibly subjected to
any of the technique in question whether
in the context of investigation in criminal
case or otherwise and if such technique is
adopted, the outcome thereof would have
no evidentiary value.(Para - 7)

F.I.R. against the four unknown persons -
statement of informant / wife of deceased -
statement of eye witness u/s 161 Cr.P.C. -
transferred
to
crime
branch
for
further
investigation - Polygraph test - leading
question asked from eye witness - whether
present applicant has committed crime in
question - affirmative rreply - such question
could not have been asked while conducting the
polygraph test - disapproved by Hon'ble Apex
Court. Para -3,4,15 )

HELD:-when eye witness and the informant
who is wife of deceased had not alleged
anything against the present applicant while
recording their statement u/s 161 Cr.P.C.
whereas the present applicant was close relative
of the informant then the statement of eye
witness taken while conducting polygraph test
would have no evidentiary value in view of the
dictum of Hon'ble Court in re: Selvi and
others.(Para -16 )

Bail application allowed. (E-7)

List of Cases cited:-
Selvi & ors. Vs St. of Karn. , (2010) 7 SCC 263

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Ashish Kumar Rastogi,
learned counsel for the applicant and Sri
Rao Narendra Singh, learned AGA for the
State.

2. The present applicant is in jail
Since 18.6.2021 in Case Crime No. 314 of
2018 u/s 302, 307, 323 IPC, P.S. Gosaiganj,
District Lucknow. He has further submitted
that the present applicant has been falsely
implicated in this case as he has not
committed any offence as alleged in the
prosecution story.

3. Attention has been drawn towards
the impugned F.I.R. which is against the
four unknown persons who were beating up
the husband of the informant mercilessly
through sharp edged weapon and batons on
29.5.2018. As per the informant she has
seen those persons through the light of
torch as the incident is a night occurrence
of 9.30 P.M.

4. The police recorded the statement
of informant / wife of the deceased on
31.5.2018. Further, the police recorded the
statement of eye witness Guddu s/o Guru
Prasad u/s 161 Cr.P.C. on 12.1.2019. When
the local police could not investigate the
matter as no reliable evidences could be
collected, matter was transferred to crime
branch for further investigation. The crime
branch again recorded the statement of eye
witness Guddu on 22.5.2020 where he
repeated his earlier version recorded under
section 161 Cr.P.C. The crime branch
conducted the Polygraph test of Guddu s/o
Guru
Prasad
on
15.3.2021.
During
polygraph test the leading question has
been asked from Guddu as to whether the
present applicant has committed crime in
question, he replied in affirmative. As per
learned counsel for the applicant the
leading question could have not been asked
during investigation. However, on the basis
of aforesaid statement of eye witness
210 INDIAN LAW REPORTS ALLAHABAD SERIES
Guddu the police arrested the applicant and
send him jail on 18.6.2021 without
intimating any reason to the applicant or his
family members regarding the offence he
has committed for that he is being arrested.
Thereafter, the police filed charge-sheet on
18.7.2021 implicating the present applicant
on the basis of polygraph test.

5. Learned counsel for the applicant
has drawn attention of this Court towards
para 15 of the bail application wherein it
has been categorically indicated that the
present applicant is son-in-law of the
informant. Therefore, it is beyond any
comprehension that if the informant was
able to recognize the assailants on the date
of incident she could not recognize her
close relative. To be more precise, as per
learned counsel for the applicant had the
offence in question been committed by the
present applicant the informant would have
recognized him being a close relative but
since nothing has been alleged against the
present applicant by the informant or other
witnesses from 29.5.2018, the date of
incident till 5.3.2021 when the polygraph
test of Guddu s/o Guru Prasad was
conducted, therefore, on the basis of
polygraph test the present applicant may
not be implicated.

6. Learned counsel for the applicant
has drawn attention of this Court towards
the dictum of Apex Court in re: Selvi and
others vs. State of Karnataka (2010) 7
Supreme Court Cases 263 referring para
240, 242 and 264 which reads as under :

"240. We must also contemplate
situations where a threat given by the
investigators to conduct any of the
impugned tests could prompt a person to
make incriminatory statements or to
undergo some mental trauma. Especially
in cases of individuals from weaker
sections of society who are unaware of
their fundamental rights and unable to
afford
legal
advice,
the
moth
apprehension of undergoing scientific
tests that supposedly reveal the truth the
act is threatening to administer the
impugned tests could also elicit testimony.
It is also quite conceivable that an
individual may give his/her consent to
undergo the said tests on account of
threats, false promises or deception by her
investigators. For example, a person may
be convinced to give his/her consent after
being promised that this would lead to an
early release from custody or dropping of
charges.
However,
after
the
administration
of
the
tests
the
investigators
may
renege
on
such
promises. In such a case the relevant
inquiry is not confined to the apparent
voluntariness of the act of undergoing the
tests, but also includes an examination of
the totality of circumstances.

242. We can also contemplate a
possibility that even when an individual
freely consents to undergo the tests in
question, the resulting testimony cannot
be readily characterised as voluntary in
nature.
This
is
attributable
to
the
differences between the manner in which
the impugned tests are conducted and an
ordinary interrogation. In an ordinary
interrogation,
the
investigator
asks
questions one by one and the subject has
the
choice
of
remaining
silent
or
answering each of these questions. This
choice is repeatedly exercised after each
question is asked and the subject decides
the nature and content of each testimonial
response. On account of the continuous
exercise of such a choice, the subject's
verbal responses can be described as
voluntary in nature. However, in the
context of the impugned techniques the
5 All. Ashok Kumar Vs. State of U.P.
211
test subject does not exercise such a
choice in a continuous control over the
subsequent responses given during the test
in case of the narcoanalysis technique, the
subject speaks in a drug-induced state and
is clearly not aware of his/her own
responses at the time. In the context of
polygraph examination and the BEAP
tests, the subject cannot anticipate the
contents of the "relevant questions" that
will be asked or the "probes" that will be
shown. Furthermore, the results are
derived
from
the
measurement
of
physiological responses and hence the
subject cannot exercise an effective choice
between remaining silent and imparting
personal knowledge. In light of these
facts, it was contended that a presumption
cannot be made about the voluntariness of
the test results even if the subject had
given prior consent.

264. In light of these conclusions, we
hold that no individual should be forcibly
subjected to any of the techniques in question,
whether in the context of investigation in
criminal cases or otherwise. Doing so would
amount to an unwarranted intrusion into
personal liberty. However, we do leave room for
the voluntary administration of the impugned
techniques in the context of criminal justice
provided that certain safeguards are in place.
Even when the subject has given consent to
undergo any of these tests, the test results by
themselves cannot be admitted as evidence
because the subject does not exercise conscious
control over the responses during the
administration of the test. However, any
information or material that is subsequently
discovered with the help of voluntary
administered test results can be admitted in
accordance with Section 27 of the Evidence
Act, 1872." Emphasis Supplied

7. In the aforesaid judgment the
Hon'ble Apex Court has held that no
individual should be forcibly subjected to
any of the technique in question whether in
the context of investigation in criminal case
or otherwise and if such technique is
adopted, the outcome thereof would have
no evidentiary value.

8. Learned counsel for the applicant
has submitted that during the aforesaid
polygraph test the investigating officer has
asked pin pointed question that 'as to
whether
the
present
applicant
has
committed this offence', this witness has
given reply in affirmative. As per Sri
Rastogi such type of questions are known
as 'leading questions' and those questions
may not be asked during investigation.
Even such leading question may not be
asked during examination-in-chief or reexamination during trial except with the
permission of the Court, however, during
cross-examination such type of questions
may be asked.

9. He has further submitted that
except the aforesaid statement of eyewitness Guddu during polygraph test no
other evidence or material is available with
the prosecution to suggest that the present
applicant
has
committed
offence
in
question. Since the charge-sheet has been
filed, therefore, there is no apprehension of
absconding or tampering of evidence /
witness by the applicant.

10. The learned counsel for the
applicant has given an undertaking on
behalf of applicant that the applicant shall
not misuse the liberty of bail and shall
cooperate with the trial proceedings and
shall abide by all terms and conditions of
bail, if granted.

11. Sri Rao Narendra Singh, learned
AGA has, however, opposed the prayer of
212 INDIAN LAW REPORTS ALLAHABAD SERIES
bail but could not dispute the aforesaid
submissions so raised by the learned
counsel for the applicant. He could also not
dispute the proposition of law in re: Selvi
(supra).

12. Heard learned counsel for the
parties and perused the material available
on record and also perused the dictum of
Hon'ble Apex Court in re: Selvi (supra).

13. Without entering into the merits of
the issue and considering the contents of
F.I.R., statement of informant, of eye
witness and polygraph test dated 5.3.2021
(Annexure no. 8), I find that this is a fit
case of bail.

14. The perusal of polygraph test
dated 5.3.2021 ( Annexure no. 8) reveals
that the investigating officer has asked a
pin-point question vide question no. 1 from
eye witness Guddu s/o late Guru Prasad
that " as to whether Sarhu Ram Prakash
and Damad Ashok had assaulted on the
victim". The said eye-witness replied "Yes".

15. To me instead of asking leading
question from the eye-witness Guddu s/o late
Guru Prasad the prosecution should have
asked as to who were those persons who have
attacked on him and victim. However, even
such question could not have been asked
while
conducting
the
polygraph
test
inasmuch as such test has been disapproved
by the Hon'ble Apex Court in re: Selvi and
others (supra).

16. I am constrained to observe here
that when such eye witness Guddu s/o late
Guru Prasad and the informant who is wife of
deceased had not alleged anything against the
present applicant while recording their
statement u/s 161 Cr.P.C. on 12.1.2019 and
31.5.2018 respectively whereas the present
applicant was close relative of the informant
then the statement of eye witness Guddu s/o
late Guru Prasad taken while conducting
polygraph test would have no evidentiary
value in view of the dictum of Hon'ble Court
in re: Selvi (supra). Therefore, when such
statement of the eye witness in question has
got no evidentiary value in the eyes of law,
the implication of the present applicant in
such case would not be proper subject to
other
circumstantial
evidence
and
corroborative material which would be seen
during trial. In other words, any observation
of this Court in this order would not effect the
trial proceedings in any manner whatsoever
and the trial would be conducted and
concluded strictly in accordance with law.
Whether the present applicant is guilty or not
in the charges framed against him, will be
decided by the trial court on its own merit
after analyzing the evidences that surfaces on
record during the trial.

17. Therefore, In view of the above the
present bail application is allowed.

18. Let the applicant Ashok Kumar,
involved in aforesaid case crime be released
on bail on his furnishing a personal bond and
two sureties each in the like amount to the
satisfaction of the court concerned with the
following
conditions
which
are
being
imposed in the interest of justice:-

(i) The applicant shall file an
undertaking to the effect that he shall not
seek any adjournment on the dates fixed for
evidence when the witnesses are present in
court. In case of default of this condition, it
shall be open for the trial court to treat it as
abuse of liberty of bail and pass orders in
accordance with law.

(ii) The applicant shall remain
present before the trial court on each date
fixed, either personally or through his
5 All. Mohammad Azam Khan Vs. State of U.P.
213
counsel. In case of his absence, without
sufficient cause, the trial court may proceed
against him under Section 229-A of the
Indian Penal Code.

(iii) In case, the applicant misuses
the liberty of bail during trial and in order
to secure his presence proclamation under
Section 82 Cr.P.C. is issued and the
applicant fails to appear before the court on
the date fixed in such proclamation, then,
the trial court shall initiate proceedings
against him, in accordance with law, under
Section 174-A of the Indian Penal Code.

(iv) The applicant shall remain
present, in person, before the trial court on
the dates fixed for (i) opening of the case,
(ii) framing of charge and (iii) recording of
statement under Section 313 Cr.P.C. If in
the opinion of the trial court absence of the
applicant is deliberate or without sufficient
cause, then it shall be open for the trial
court to treat such default as abuse of
liberty of bail and proceed against him in
accordance with law.

(v) The applicant shall not leave
the country without permission of the Court
concerned.

19. Before parting with it is expected
that the trial shall be concluded with
expedition. Further, the learned trial court
may take all coercive measures as per law
if either of the parties do not co-operate in
the trial properly. The learned trial court
shall fix short dates to ensure that trial is
concluded at the earliest.
----------

(2022)05ILR A213
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.05.2022

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.
Criminal Misc. Bail Application No. 40580 of
2021

Mohammad Azam Khan ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Mohammad Khalid, Sri Syed Safdar Ali
Kazmi, Sri Qamrul Hasan Siddiqui, Sri
Imran Ullah

Counsel for the Opposite Party:
G.A., Sri Prasoon Kumar, Sri Sharad
Sharma, Sri Syed Ahmad Faizan, Sri Zaheer
Asghar, Sri Taqi Abidi, Ms. Anjum Fatima,
Sri Syed Farman Ahmad Naqvi (Senior
Adv.)

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 439 - Bail -
Indian Penal Code, 1860 - Sections 420,
467, 468, 471, 447, 201 & 120-B - The
Prevention of Damage to Public Property
Act, 1984 - Section 3 - The Administration
of Evacuee Property Act, 1950 - Section 8
- Enemy Property Act, 1968 - Section 5 -
The Waqf Act, 1995 - Section 36 and 37 -
Proviso to Section 36(2) of the Waqf Act -
Evacuee Property - ''Custodian' of the
State - 'Waqf Property' - 'conflict of
interest' - "Religion is regarded by the
common people as true, by the wise as
false, and by rulers as useful" - "power
corrupts a man and absolute power
corrupts absolutely" - Bail is a right of any
accused and jail is exception. (Para -
38,39,)

Bail application after rejection of second bail -
land in dispute - declared as Enemy Property
swindled by applicant - property surrendered in
the name of religion "ONCE A WAQF
PROPERTY
IS
ALWAYS
A
WAQF
PROPERTY"
as
an
ultimate
weapon
-
applicant to grab the land unlawfully - ashramite
himself under the umbrella of religion - ''the
Waqf property is the property of Almighty' -
applicant, intoxicated on the throne of the
power and position - misused his authority in a
most indecent manner - "If absolute power