# Badey Lal v. State of U.P. Opp. Party

- **Citation:** (2016) 1 ILRA 236
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-02-05
- **Case number:** Bail No. 6864 of 2014
- **Bench:** Bachchoo Lal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/badey-lal-v-state-of-u-p-opp-party-43450
- **Pages:** 3

## Headnote

Cr.P.C.-Section 439-Third bail application
offence under Section 498-A, 304 B IPC and
3⁄4 DP Act-applicant is father-in-law-Hasiya
1 All. Badey Lal Vs. State of U.P.
237
used in murder of deceased recovery on
pointing out of applicant-21 prosecution
witness
examined
who
supported
prosecution version-being head of family
not given information about offence-no
new ground in third bail application-heldnot entitled for bail-rejected.
Held: Para-4
Per contra; learned A.G.A. has opposed the
prayer for bail and argued that the
applicant is father-in-law of the deceased
who is head of the family. In postmortem
report incised wounds have been found on
the body of both the deceased. The Hasia
used in the commission of the murder of
the deceased was also recovered on the
pointing out of the applicant. It has further
been submitted that in this case, the
statements of witnesses of the fact have
been
recorded
in
which
they
have
supported the prosecution version. It has
further been submitted that in this case,
the statements of 13 witnesses have been
recorded by the trial court. The person
who were released on bail are mather-inlaw and Jeth of the deceased. The
applicant is head of the family and no
information with regard to the death of the
deceased has been given to the Police
Station concerned. It has further been
submitted that the second bail application
of the applicant has been rejected on the
merit. There is no new ground in this third
bail application, therefore, the applicant is
not entitled for bail.

## Text

236
 INDIAN LAW REPORTS ALLAHABAD SERIES
Indian Evidence Act a presumption of
civil death exists but the said provision
does not require any declaration by the
Court. A suit for declaration can only be
filed under Section 34 of the Specific
Relief Act. However, such declaration is
to be accompanied by such further relief
as may be necessary. As the Plaintiff did
not seek any relief other than declaration,
therefore, only for this reason the Suit was
dismissed. The appeal against the said
judgment was also dismissed.
7. Nevertheless the petitioner herein
applied for compassionate appointment.
The same has been rejected on the ground
that unless the competent authority gives
a declaration about the civil death of his
father
he
can
not
be
provided
compassionate appointment.
8.

Shri
Amit
Kumar
Singh
Bhadauriya, learned counsel for the
opposite parties 2 and 3 relies upon a
Circular of the Board dated 16.08.1996
which requires a declaration about the
civil death by the competent authority.
9. A perusal of the said circular does
not indicate any declaration is required under
it from a Court. It only refers to the
satisfaction of a competent authority which
in this case appears to be the authority
competent
to
provide
compassionate
appointment. In any case in view of the
judgments cited herein above, the said
circular can not come in the way if the
conditions for applicability of Section 108 of
the Indian Evidence Act are satisfied.
Moreover, in the present case, it has been
averred
that
the
death-cum-retirement
benefits consequent to the death of the father
have been released in favour of the petitioner
and other family members, therefore, this
raises a presumption about the disappearance
and civil death of the father having been
accepted by the opposite parties themselves
otherwise even this benefit would not have
been extended.
10. In view of the aforesaid, the
order impugned can not be sustained and
the same is quashed. The competent
authority which is empowered to provide
compassionate appointment is directed to
have a re-look at the matter in the light of
the observations and the pronouncements
referred herein above, after ascertaining
the correct factual position as regards the
acceptance or otherwise of the final report
submitted as referred above, and take a
decision regarding the entitlement of the
petitioner to compassionate appointment
within a period of two months from the date
a certified copy of this order is submitted.
Consequences shall follow as per law.
11. With the aforesaid observations,
the writ petition is disposed of.
-------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 05.02.2016
BEFORE
THE HON'BLE BACHCHOO LAL, J.
Bail No. 6864 of 2014
Badey Lal
 ...Applicant
Versus
State of U.P.
...Opp. Party
Counsel for the Applicant:
Vishnu Kumar Srivastava
Counsel for the Opp. Party:
Govt. Advocate
Cr.P.C.-Section 439-Third bail application
offence under Section 498-A, 304 B IPC and
3⁄4 DP Act-applicant is father-in-law-Hasiya
1 All. Badey Lal Vs. State of U.P.
237
used in murder of deceased recovery on
pointing out of applicant-21 prosecution
witness
examined
who
supported
prosecution version-being head of family
not given information about offence-no
new ground in third bail application-heldnot entitled for bail-rejected.
Held: Para-4
Per contra; learned A.G.A. has opposed the
prayer for bail and argued that the
applicant is father-in-law of the deceased
who is head of the family. In postmortem
report incised wounds have been found on
the body of both the deceased. The Hasia
used in the commission of the murder of
the deceased was also recovered on the
pointing out of the applicant. It has further
been submitted that in this case, the
statements of witnesses of the fact have
been
recorded
in
which
they
have
supported the prosecution version. It has
further been submitted that in this case,
the statements of 13 witnesses have been
recorded by the trial court. The person
who were released on bail are mather-inlaw and Jeth of the deceased. The
applicant is head of the family and no
information with regard to the death of the
deceased has been given to the Police
Station concerned. It has further been
submitted that the second bail application
of the applicant has been rejected on the
merit. There is no new ground in this third
bail application, therefore, the applicant is
not entitled for bail.
(Delivered by Hon'ble Bachchoo Lal, J.)
1. This third bail application has been
moved on behalf of the applicant Badey Lal
who is involved in Case Crime No. 665 of
2011, under sections 498A, 304B, 302 IPC
and 3/4 D.P. Act, P.S. Gilaula, District
Shrawasti. The first bail application of the
applicant was rejected on 12.11.2013 for
non- prosecution and the second bail
application of the applicant was rejected on
merit on 9.4.2014 by another bench of this
Court.
2. Heard learned counsel for the
applicant, learned A.G.A. for the State
and perused the record.
3.
Learned counsel for the applicant
submits that the applicant is father-in-law of
the deceased. There is general allegation
against the applicant. No specific role has
been assigned to the applicant. It has further
been submitted that the applicant has not
committed the alleged offence. False
allegation has been made against the
applicant. It has further been submitted that
co-accused Bitta Devi and Nan Babu
mother-in-law and Jeth of the deceased
have already been granted bail by another
bench of this Court vide orders dated
27.2.2013
and
5.2.2013
respectively,
therefore, the applicant is also entitled for
bail. There is no criminal history against the
applicant and is in jail since 12.6.2011.
4.
Per contra; learned A.G.A. has
opposed the prayer for bail and argued that the
applicant is father-in-law of the deceased who
is head of the family. In postmortem report
incised wounds have been found on the body
of both the deceased. The Hasia used in the
commission of the murder of the deceased
was also recovered on the pointing out of the
applicant. It has further been submitted that in
this case, the statements of witnesses of the
fact have been recorded in which they have
supported the prosecution version. It has
further been submitted that in this case, the
statements of 13 witnesses have been
recorded by the trial court. The person who
were released on bail are mather-in-law and
Jeth of the deceased. The applicant is head of
the family and no information with regard to
the death of the deceased has been given to
the Police Station concerned. It has further
been submitted that the
second
bail
application of the applicant has been rejected
on the merit. There is no new ground in this
238
 INDIAN LAW REPORTS ALLAHABAD SERIES
third bail application, therefore, the applicant
is not entitled for bail.
5. Considering the facts and
circumstances of the case and without
expressing any opinion on the merits of
the case, I am not inclined to release the
applicant on bail.
6. Consequently, the prayer for bail of
the applicant Badey Lal is hereby refused
and the bail application is rejected.
7. However, the trial court is directed
to proceed with the trial and conclude the
same expeditiously preferably within a
period of four months from the date of
production of the certified copy of this order.
-------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.02.2016
BEFORE
THE HON'BLE RAJAN ROY, J.
Service Single No. 6978 of 2015
Connected with
Service Single No. 6979 of 2015, Service
Single No. 7302 of 2015, Service Single
No.7304 of 2015, Service Single No. 7326 of
2015, Service Single No. 7338 of 2015,
Service Single No.7341 of 2015, Service Single
No. 7344 of 2015, Service Single No. 7346 of
2015, Service Single No. 7347 of 2015,
Service Single No. 6809 of 2015, Service
Single No. 7424 of 2015, Service Single No.
7425 of 2015, Service Single No. 7434 of
2015, Service Single No.7435 of 2015, Service
Single No. 7436 of 2015, Service Single No.
7445 of 2015, Service Single No. 7446 of
2015, Service Single No. 7474 of 2015 and
Service Single No. 7558 of 2015
Shailendra Kumar
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sanjay Mishra
Counsel for the Respondents:
C.S.C., R.K.S. Suryavanshi
U.P. Intermediate Education Act 1921Section 16 E (II)-payment of salary-short
terms appointment-without creation of post
under Section-9-or continuance of such
teachers
beyond
academic
sessionappointment made by management-dehors to rules-liability can not be fastened
upon state exchequer-even on substantive
vacancy after 2002-can be appointed under
Section 16 of Act 1982 in view of regulation
21 of Act 1921.
Held: Para-15
In the case of an appointment against
temporary vacancy in terms of Section 16E(11) of the U.P. Intermediate Act, 1921 a
teacher may be entitled for salary but only
till the end of academic session and not
beyond
that,
that
too,
only
if
the
appointment
is
against
a
post
sanctioned/created as per Section 9 of the
U.P. High School and Intermediate Colleges
(Payment of Salaries of Teachers and other
Employees) Act 1971 (hereinafter referred
to as 'the Act 1971).
Case Law discussed:
(2004) 3 UPLBEC 2671; [2010 (28) LCD 1375];
2015 (33) LCD 2402
(Delivered by Hon'ble Rajan Roy, J.)
1. Heard learned counsel for the
parties.
2.
All these writ petitions involve
same issue relating to the entitlement of the
Committee of Management to make
appointment
of
teachers
against
substantive
vacancies
and
the
consequential entitlement of such teachers
to salary from the State-Exchequer.