# Babloo Srivastava @ Om Prakash Srivastava (In Jail) v. State of U.P. & Ors

- **Citation:** (2020) 11 ILRA 326
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020
- **Case number:** J. Criminal Misc. Writ Petition No. 2470 of 2016
- **Bench:** Ramesh Sinha, Shamsher Bahadur Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/babloo-srivastava-om-prakash-srivastava-in-jail-v-state-of-u-p-ors-44298
- **Pages:** 6

## Headnote

A. Criminal Law - Code of Criminal
Pracedure- Section 161 - Indian Evidence
Act, 1872- Section 25 - The Extradition Act,
1962- Section 21- The bar under Section 21
of the Act, 1962 will operate from stage of
cognizance not for investigation because if
certain formalities are required then it is
duty of Investigation Officer to take care of
them. (Para 14)

The petitioner charged for kidnapping and
extortion was found and arrested in Singapore. He
was handed over by the Singapore Authorities
under the Extradition Agreement between the
Republic of India and the Singapore. The petitioner
contended in view of provisions of Section 21 of
the Act of 1962 that he could not be tried for the
aforesaid offence as his extradition decree does
not bear aforesaid crime number. To which the
Court held that the formality of the provision of
Section 21 of the Act, 1962 are for trial and not for
investigation. The stage of investigation is
prior to the stage of cognizance and the
trial.(Para 5, 9, 12, 13)

Writ Petition Rejected. (E-10)

List of Cases cited:-

## Text

326 INDIAN LAW REPORTS ALLAHABAD SERIES

6. The Apex Court in Bhuwan Mohan
Singh vs Meena & Ors (2015) 6 SCC 353, in
para 2 has held:

"Regard being had to the solemn
pledge at the time of marriage and also in
consonance with the statutory law that
governs the field, it is the obligation of the
husband to see that the wife does not become
a destitute, a beggar. A situation is not to be
maladroitly created whereunder she is
compelled to resign to her fate and think of
life
?dust
unto
dust?.
It
is
totally
impermissible. In fact, it is the sacrosanct
duty to render the financial support even if
the husband is required to earn money with
physical labour, if he is able bodied. There is
no escape route unless there is an order from
the Court that the wife is not entitled to get
maintenance from the husband on any legally
permissible grounds."

7. In above law and facts of the present
case, there is no failure of appreciation of
facts and law, nor any under exercise or over
exercise or mis-exercise of jurisdiction in
both the impugned orders.

8. Accordingly, this Revision merits
dismissal. Dismissed as such.
----------
(2020)11ILR A326
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.10.2016

BEFORE
THE HON'BLE RAMESH SINHA, J.
THE HON'BLE SHAMSHER BAHADUR SINGH,
J.

Criminal Misc. Writ Petition No. 2470 of 2016

Babloo Srivastava @ Om Prakash Srivastava
 ...Petitioner (In Jail)
Versus
State of U.P. & Ors. ...Respondents
Counsel for the Petitioner:
Sri Brijesh Sahai, Sri Avdhesh Kumar Tiwari,
Dipti Tiwari, Sri Vijay Singh Gaur

Counsel for the Respondents:
A.G.A., Sri Deepak Dubey. Not Known

A. Criminal Law - Code of Criminal
Pracedure- Section 161 - Indian Evidence
Act, 1872- Section 25 - The Extradition Act,
1962- Section 21- The bar under Section 21
of the Act, 1962 will operate from stage of
cognizance not for investigation because if
certain formalities are required then it is
duty of Investigation Officer to take care of
them. (Para 14)

The petitioner charged for kidnapping and
extortion was found and arrested in Singapore. He
was handed over by the Singapore Authorities
under the Extradition Agreement between the
Republic of India and the Singapore. The petitioner
contended in view of provisions of Section 21 of
the Act of 1962 that he could not be tried for the
aforesaid offence as his extradition decree does
not bear aforesaid crime number. To which the
Court held that the formality of the provision of
Section 21 of the Act, 1962 are for trial and not for
investigation. The stage of investigation is
prior to the stage of cognizance and the
trial.(Para 5, 9, 12, 13)

Writ Petition Rejected. (E-10)

List of Cases cited:-

1. Daya Singh Lahoriya Vs Union of India &
ors.. (2001) 4 SCC 516

2. Abu Salem Vs St. of Mah. (2010) 11 SCC
214

3. Swiss Timing Limited Vs CBI Criminal M.C.
No. 18 of 2012

(Delivered by Hon'ble Ramesh Sinha, J.
 & Hon'ble Shamsher Bahadur Singh, J.)

1. Heard Shri Brijesh Sahai, learned
counsel for the petitioner and Shri Vikas
Sahai,
learned
AGA
for
the
State.
11 All. Babloo Srivastava @ Om Prakash Srivastava Vs. State of U.P. & Ors.
327

2. By means of present petition, under
Article 226 of the Constitution of India, the
petitioner has prayed for following reliefs;

I. To issue a writ, order or
direction in the nature of certiorari
quashing the FIR dated 6.9.2015 lodged by
respondent no.4 in case crime no.260/2015,
u/s 364A, 395, 412, 342 and 120B IPC P.s.
Kotwali, District Allahabad and the order
dated 21.12.2015.

II. To issue any other writ, order
or directions which this Hon'ble Court may
deem fit and proper under the fact and
circumstances of the case.

III. To award cost of the petition.

3. Necessary facts leading to present
petition are that one Rahul Mahendra S/o
late Sri Omkarnath Mahendra, R/o 10A,
Aokland Road, P.S. Kotwali, District
Allahabad lodged First Information Report
with averments that his younger brother
Pankaj Mahendra after closing his business
at Pratishthan M/s Bhagatram Jai Narain,
45,
Jawahar
Square,
Police
Station
Kotwali, Allahabad generally used to return
back at above residence in between 7.30 to
7.35 P.M. On 5.9.2015, when he did not
reach at home and his Cell Phone
No.9415289628 was found switched off,
then a suspicion arose about his missing in
mysterious circumstances. Next day, i.e.,
on 6.09.2015 on information of the
informant,
First
Information
Report
No.0193 was registered at Case Crime
No.260 of 2015, under Section 364A, 120B
IPC at Police Station Kotwali, District
Allahabad against unknown persons for
offences punishable under Section 364A,
120B IPC. As his Car No.UP 70VD-1000
was found near Lord Hanuman Temple at
Sangam, Allahabad and it was apprehended
that he has been kidnapped for ransom,
therefore, a police team was constituted and
kidnapped Pankaj Mahendra was recovered
from the custody of Vikal Srivastava alias
Golu, Mahendra Yadav, Sacchinand Yadav
and Chandra Mohan Yadav alias Bablu.
They
have
been
charge-sheeted
for
offences punishable uunder Sections 364A,
120B, 342, 395, 412 IPC and Bholu alias
Bholu Yadav, Arun
Singh Chauhan,
Kartike Pandey alias Guddu Pandey and
Bablu Srivastava alias Om Prakash were
suspected of hatching conspiracy and
against
above
accused
persons
the
investigation is still going on, as per
statement of Sri Vikas Sahai, AGA for
State.
The
Investigating
Officer
has
obtained 'B' warrant against the petitioner
on 21.12.2015 from the Chief Judicial
Magistrate, Allahabad.

4. The petitioner challenged the First
Information
Report
and
order
dated
21.12.2015 on the ground that FIR against
him is a nefarious design for some ulterior
motive and the name of the petitioner has
surfaced in crime in the statement under
section 161 Cr.P.C of co-accused Vikal
Srivastava. The statement of co-accused
has no relevance in view of the provision
under Section 25 of the Indian Evidence
Act, 1872 ( in short 'Act,1872') and
kidnapped Pankaj Mahendra has not named
the petitioner in his statement under
Section 161 Cr.P.C.

5. On behalf of the petitioner, a
rejoinder affidavit was filed on 9.5.2016,
and there it has been averted that in view of
provision of Section 21 of the Extradition
Act, 1962 ( in short 'Act, 1962'), the
petitioner could not be tried for aforesaid
offence as his extradition decree does not
bear the aforesaid crime number.

6. In the rejoinder affidavit, it has
been further averted that Hon'ble Apex
328 INDIAN LAW REPORTS ALLAHABAD SERIES
Court in case of Daya Singh Lahoriya Vs.
Union of India and others, 2001(4) SCC
516 and Abu Salem Vs. State of
Maharashtra, 2010 (11) SCC 214 and by
the Hon'ble Delhi High Court in Swiss
Timing Limited Vs. CBI decided on
March, 2012 in Criminal M.C. No.18 of
2012, has interpreted the provision of
Section 21 of the Act, 1962 and observed
that a fugitive cannot be tried for any other
offence, which has not been mentioned in
extradition decree. Therefore, the FIR
deserves to be quashed.

7. Above ground also has been made
as part of petition to challenge the first
information report.

8. The petitioner prays for quashing
of FIR as well as order dated 21.12.2015
passed by Chief Judicial Magistrate,
Allahabad issuing 'B' Warrant on request of
Investigating Officer for judicial custody of
the petitioner in crime no.260 of 2015. The
order dated 21.12.2015 has attained finality
as petitioner preferred a Criminal Revision
No.7 of 2010 before the Session Judge,
Allahabad which has been dismissed on
21.01.2016. Further, an application, under
Section 482 Cr.P.C No.1866 of 2016,
Bablu Srivastava Vs. State of U.P. and
another was filed before this Court and the
same was dismissed on 25.1.2016 and
order
dated
21.12.2015
was
upheld.
Therefore, as the order dated 25.1.2016 has
not been challenged before Hon'ble Apex
Court, the relief of quashing the order dated
21.12.2015 passed by Chief Judicial
Magistrate, Allahabad cannot be granted.

9. Learned counsel for petitioner
further contends that the petitioner was
found and arrested in Singapore in August,
1995
and
under
the
Extradition
Arrangement between the Republic of India
and the Singapore, the petitioner was
extradited by State of Singapore and was
handed over to Indian Authorities. The
warrant of surrender for the fugitive (the
petitioner) is as under:-

"WARRANT FOR SURRENDER OF
FUGITIVE

To the Director of Prisons to Mr.
Sharad Kumar (Indian Passport No. 0275309), Mr. Harbhajan Ram (Indian
Passport No. 0-317006), and Mr. D.P.
Singh (Indian Passport No.0-222527).

Whereas Om Prakash Srivastava
@ Arun Kumar Aggarwal @ Babloo
(referred to in this Warrant as the fugitive)
who is accused of the following offences:-

(i) conspiracy to commit murder
of one L.D. Arora, an offence punishable
under Section 120-B read with Section 302
of the Indian Penal Code, 1860;

(ii) murder of one Ram Pratap
Singh Chauhan, an offence punishable
under Section 302 of the Indian Penal
Code, 1860;

(iii) conspiracy to commit murder
of one Lalit Kumar Suneja, an offence
punishable under Section 120-B read with
Section 302/34 of the Indian Penal Code,
1860; and

(iv) conspiracy to kidnap one
Vishwanath Mittal, an offence punishable
under Section 120-B read with Section 341,
365, 324 and 307 of the Indian Penal Code
alleged to have been committed within the
jurisdiction of the Republic of India, was
delivered into the custody of you the
Director of Prisons by Warrant dated the
11th day of August, 1995, in pursuance of
the Extradition Act:

NOW,
THEREFORE,
I,
the
Minister for Law, in pursuance of the
Extradition Act, hereby order:-

(a) you, the Director of Prisons,
to deliver the fugitive into the custody of
11 All. Babloo Srivastava @ Om Prakash Srivastava Vs. State of U.P. & Ors.
329
the said Mr. Sharad Kumar (Indian
Passport No. 0-275309), Mr. Harbhajan
Ram (Indian Passport No. 0- 317006), and
Mr. D.P. Singh (Indian Passport No. 0222627); and

(b) you, the said Mr. Sharad
Kumar (Indian Passport No. 0- 275309),
Mr. Harbhajan Ram (Indian Passport No.
0- 317006), and Mr. D.P. Singh (Indian
Passport No. 0-222627), to receive the
fugitive into your custody and to convey
him to a place in or within the jurisdiction
of the Republic of India and there surrender
him to some person appointed to receive
him.

Given
under
my
hand
at
Singapore this 30th day of August, 1995.
Sd/-
(S.Jayakumar)
Minister for Law
Republic of Singapore"

10. The submission of the learned
counsel for the petitioner is that Case
Crime No.260 of 2015 does not find place
in Extradition Decree, therefore, in view of
provision under Section 21 of the Act,
1962, and Law propounded in aforesaid
cases, the petitioner cannot be tried without
fulfilment of conditions stipulated in
aforesaid section and, therefore, the FIR is
liable to be quashed.

11. Section 21 of the Act, 1962
provides as follows;

"21.
Accused
or
convicted
person surrendered or returned by foreign
State not to be tried for certain offences.--
Whenever any person accused or convicted
of an offence, which, if committed in India
would be an extradition offence, is
surrendered or returned by a foreign State,
such person shall not, until he has been
restored or has had an opportunity of
returning to that State, be tried in India for
an offence other than--

(a) the extradition offence in
relation to which he was surrendered or
returned; or

(b) any lesser offence disclosed
by the facts proved for the purposes of
securing his surrender or return other than
an offence in relation to which an order for
his surrender or return could not be
lawfully made; or

(c) the offence in respect of
which the foreign State has given its
consent."

12. A bare reading of aforesaid
section and case laws relied by petitioner in
rejoinder affidavit, it transpires that the
formality of the provision of Section 21 of
the Act, 1962 are for trial and not for
investigation.

13. In Code of Criminal Procedure,
1973, viz., Chapter XIV "conditions
requisite for initiation of proceedings"
containing Sections 190 to 210, Chapter
XIII containing Sections 225 to 235 and
dealing with "trial before a Court of
Session" pursuant to the committal order
under Section 209 and in Chapter XIX "
trial of warrant cases by Magistrate "
containing Section 238 to 250 etc. deals
with procedures of cognizance and the trial
in criminal cases. The stage of investigation
is prior to the stage of cognizance and the
trial. The Hon'ble Apex Court in case of
Union of India & others Vs. Maj. Gen.
Madan Lal Yadav, 1996 SSC (4) 127 has
propounded that it is settled law that under
the Code trial commences with cognizance
of offence and processes are issued to the
accused for his appearance etc. Equally, in
a session trial, the Court considers the
committal order under Section 209 Cr.P.C
by the Magistrate and proceeds further. It
330 INDIAN LAW REPORTS ALLAHABAD SERIES
takes cognizance of offence from that stage
and proceeds with trial. The trial begins
with taking of cognizance of the offence
and taking further steps to conduct the trial.

14. In view of the above discussion
and law propounded by Hon'ble Apex
Court, the bar under Section 21 of the Act,
1962 will operate from stage of cognizance
not for investigation because if certain
formalities are required then it is duty of
Investigating Officer to take care of them.
So far as evidenciary value of confessional
statement of co-accused under Section 161
Cr.P.C in view of provision of Section 25
of the Act, 1872 is concerned, there is no
dispute that on the basis of confessional
statement of an accused he or other
accomplice
cannot
be
convicted
but
investigation may proceed without any
legal bar to find out truthness of accusation.

15. The learned AGA contends that the
petitioner is known habitual offender as
petitioner while in jail, has involved himself
in serious criminal activity of threatening
and extortion and FIR has been lodged by
Rahul Mahendra on 05.09.2015 at about
23.50 pm as Case Crime No. 260 of 2015
under Sections 364-A, 120-B IPC Police
Station Kotwali, District Allahabad against
unknown persons and the kidnapping in the
above mentioned case relates to a renowned
jeweler of Allahabad. The Allahabad Police
team on 07.09.2015 recovered Pankaj
Mahendra from District Fatehpur from
possession of accused Vikalp Srivastava @
Golu, Manhendra Yadav, Sachchidananad
Yadav @ Sachita Yadav and Chandra
Mohan Yadav @ Bablu Yadav and also
arrested them. The police team also
recovered 9 mm pistol, live cartridges,
country made pistol 315 bore, 3 mobile sims
and on further investigation the police team
found involvement of Bablu Srivastava @
Om
Prakash
Srivastava.
During
investigation police team found that Bablu
Srivastava @ Om Prakash Srivastava, who
is maternal uncle of accused Vikalp
Srivastava and is presently detained in
Central Jail Bareilly, hatched the conspiracy
for kidnapping of Pankaj Mahendra for the
demand of Rs. 10 crores. The police team
also found that the said conspiracy was
hatched by Bablu Srivastava @ Om Prakash
Srivastava
alongwith
other
co-accused
persons at District Court Lucknow, while he
had came for his appearance in a case 25
days prior to the incident. The police after
investigation has already submitted charge
sheet against Vikalp Srivastava @ Golu,
Vinit
Parihar,
Sachchidananad
@
Sachchidanand, Mahendra Yadav, Chandra
Mohan Yadav @ Bablu Yadav, Sankalp
Srivastava and Sandeep Chaudhary @
Rajesh Kumar Yadav under Sections 364-A,
120-B, 342, 395 and 412 IPC before the
Court concerned, whereas investigation with
regard to accused Bablu Srivastava @ Om
Prakash Srivastava, Bholu Yadav @ Bholu,
Arun Singh and Kartikeya Pandey is still
pending and after collecting evidence
against Bablu Srivastava @ Om Prakash
Srivastava the Investigating Officer had
moved an application for issuance of 'B'
warrant against him, who is lodged in
Central Jail Bareilly. On 21.12.2015 'B'
warrant was issued against him by Chief
Judicial Magistrate, Allahabad which has
already been served in Central Jail, Bareilly.

16. In view of above, discussion, the
submissions made on behalf of petitioner
have no legs to stand and in the result, we
are of the considered view that the F.I.R do
not deserves to be quashed.

17. The petition lacks merits and
is,accordingly, dismissed.
----------
11 All. Devendra Singh Parihar Vs. State of U.P. & Ors.
331
(2020)11ILR A331
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.10.2020

BEFORE
THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAUMITRA DAYAL SINGH, J.

Criminal Misc. Writ Petition No. 10492 of 2020

Devendra Singh Parihar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ramesh Kumar Singh

Counsel for the Respondents:
A.G.A.

A. U.P. Co-operative Societies Act, 1965
- Section 68, 70, 103, 105, 122-A - U.P.
Primary Agricultural Credit Co-operative
Centralized Service Rules, 1976 - IPC:
Section 405, 409 - General Clauses Act,
1897 - Section 26 - Practice & Procedure
- The allegations made in the impugned
FIR, prima facie, discloses commission
of an offence of criminal breach of trust,
which is cognizable and non-bailable
offence. Hence, merely because the
impugned
FIR
may
not
disclose
commission of an offence punishable
under Section 409 IPC the same is not
liable to be quashed because in any case
it discloses commission of a cognizable
offence. (Para 10)

An FIR is not to be quashed if it
discloses commission of a cognizable
offence unless there is a legal bar with
regard to its institution/lodgment in the
manner in which it has been lodged or
instituted. (Para 8)

There is nothing in the Act, 1965 which
may
expressly
or
impliedly
bar
prosecution of an employee or member
or office bearer of a co-operative society
in the State of Uttar Pradesh for an
offence
punishable
under
IPC,
if
otherwise
the
ingredients
of
that
offence are made out. Further, the
offence of criminal breach of trust as
defined
under
Section
405
IPC
is
qualitatively different from any of the
offences specified in section 103 or any
provisions of the Act, 1965. Therefore a
cooperative society, employee/servant
or
member
or
an
office-bearer,
notwithstanding the provisions of the
Act, 1965 can be prosecuted for an
offence punishable under Penal Code,
provided the necessary ingredients of
that offence are made out. (Para 20)

Writ Petition Rejected. (E-10)

List of cases cited:-

1. St. of Mah. Vs Laljit Rajshi Shah & ors. AIR
2000 SC 937: (2000) 2 SCC 699 (Distinguished)

2. Vijayander Kumar & ors. Vs St. of Raj. & anr.
(2014) 3 SCC 389

3. P. Swaroopa Rani Vs M. Hari Narayana @
Hari Babu (2008) 5 SCC 765

4. St. of Raj. Vs Hat Singh (2003) 2 SCC 152

5. St. of (NCT of Delhi) Vs Sanjay (2014) 9 SCC
772

6. St. of Mah. Vs Sayyed Hassan Subhan
Criminal Appeal No. 1195 of 2018 arising out of
Special Leave Petition (Criminal) No. 4475 of
2016

7. St. of A.P. Vs Ramchandra Rabidas (2019) 10
SCC 75

(Delivered by Hon'ble Manoj Misra, J.
& Hon'ble Saumitra Dayal Singh, J.)

1. Heard learned counsel for the
petitioner; learned A.G.A. for respondents
no.1 and 2; and perused the record.

2. The instant petition seeks quashing
of the first information report (for short