# Banajeet Singh S/o Sri Subedar Singh v. State of U.P

- **Citation:** (2000) 2 ILRA 44
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000-04-30
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/banajeet-singh-s-o-sri-subedar-singh-v-state-of-u-p-39448
- **Pages:** 3

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2000

44
32. Keeping in mind the fact that
accommodation is being used as shop and it is
not easy to find out alternative shop normally
prayer made by the petitioner to grant three
months time to vacate the shop in question
cannot be said to be unjust. The request of the
petitioner is very just and it is, accordingly,
granted.

33. Consequently petitioner, who has
given an undertaking to this Court vide Para 4
of the affidavit referred to above, granted
three months time to vacate the shop in
question subject, however, further to the
following terms and conditions (agreed upon
by the parties before this court) contained
hereinafter:-

1. The
Tenant-petitioner
files
before
concerned Prescribed Authority, on or before
1st March,2000 an application along with his
affidavit giving an unconditional undertaking
to comply with all the conditions mentioned
hereinafter:

2. Petitioner-tenant shall not be evicted from
the accommodation in his tenancy up to 30th
April,
2000.
Tenant-Petitioner,
her
representative/assignee, etc, claiming through
her or otherwise, if any, shall vacate without
objection
and
peacefully
deliver
vacant
possession of the accommodation in question
on or before 30th April, 2000 to the landlord
or landlord's nominee/representative (if any,
appointed and intimated by the landlord) by
giving prior advance notice and notifying to
the landlord by Registered A.D. post (on his
last known address or as may be disclosed in
advance by the landlord n writing before the
concerned Prescribed Authority) time and
date on which Landlord is to take possession
from the tenant.

3. Petitioner shall on or before 1st March,
2000 deposit entire amount due towards rent
etc. up to date i.e. entire arrears of the past, if
any, as well as the rent for the period ending
on the 30th April, 2000.
4. Petitioner and everyone claiming under her
undertake not to 'change' or 'damage' or
transfer/alienate/assign in any manner, the
accommodation in question.

5. In case tenant-petitioner fails to comply
with any of the conditions/or direction/s
contained in this order, landlord shall be
entitled to evict the tenant-petitioner forthwith
from the accommodation in question by
seeking
police
force
through
concerned
prescribed authority.

6. If there is violation of the under taking of
anyone or more of the conditions contained in
this order, the defaulting party shall pay
Rs.25000/- (Rupees Twenty five thousand
only) as damages to the other party besides
rendering
himself/herself
liable
to
be
prosecuted for committing grossest contempt
of the Court.

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2All] Banajeet Singh S/o Sri Subedar Singh V. State of U.P.
45
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By the Court

1. By means of this petition under Section
482 Cr.P.C. the applicant has requested for
permission to file fresh bail bonds in case
no.169 of 1999, State Versus Banajeet under
Section 304 -A I.P.C. now converted under
Section 302 I.P.C., P.S. Akbarpur, district
Kanpur Dehat.

2. I have heard Sri S.R. Verma, learned
counsel for the applicant and the learned
A.G.A.

3. It is contended by the learned counsel
for the applicant that the applicant was
already released on bail, by the court for
offence under Section 304-A I.P.C. However,
the charge sheet have now been submitted
under Section 302 I.P.C. That therefore, the
applicant may be permitted to file fresh bail
bonds for that offence and he is not required
to obtain fresh order for bail. Learned Counsel
for the applicant has referred to the following
cases:

4. Leading case on the point is Ugrasen
Singh and others Versus State of U.P. and
others 1993 (30) A.C.C., 531. This is a
Division Bench decision and in this case the
bail was granted under Sections 336, 504, 506
323, 427 I.P.C. The case was converted under
Section 308 I.P.C. It was observed that the
distinction between Section 323 and 308
I.P.C. can depend upon the allegations, the
correctness, which naturally could not be
altered and are not on the basis of the
alteration wide the report of the police. It was
further observed that when a person is once
granted bail in respect of particular crime, the
subsequent change in the matter of reference
to the section under the offences though it
may be made by the police will remain
subject of consideration by the court.

The above leading case on the point and
was followed the case of Junaid Alam
Versus State of U.P. and another, 1995
A.C.C. (32), 624 where the accused, who
were granted bail for offence under Sections
323, 324, 504 and 506 I.P.C. were permitted
to file fresh bail bonds for change of offence
under Section 307 I.P.C. as they did not
misuse the bail. Similar view was also taken
in the case, Daddan Singh and others
Versus State of U.P. 1994 U.P.Cr.R.332. In
this case, the bail was granted for offence
under Sections 323, 452, 504, 506 I.P.C.
triable by the Magistrate on conversion of
case under Section 308 I.P.C., the applicants
were permitted to file fresh bail bonds. In the
case of Radhey Shyam and others Versus
State of U.P. and others, 1991 (28) A.C.C.
652, the accused were granted bail for offence
under Section 324 I.P.C. and were permitted
to file fresh bail bonds after the conversion of
case under Section 307 I.P.C. In Sumer
Chand and others Versus State of U.P. and
another, 1999(2) J.I.C. 402. It was observed
that if the accused is granted bail on the same
facts, they need not to surrender before the
court and apply for fresh bail in the newly
added sections and the furnishing of fresh bail
bonds is just and proper.

5. I have considered the law laid down in
all these cases carefully but is afraid that none
INDIAN LAW REPORTS ALLAHABAD SERIES [2000

46
of them is of any help to the applicant. The
reason is that the applicant was granted bail
for offence under Section 304-A I.P.C. in
which the applicant is entitled to the bail as of
right under Section 436 Cr.P.C. Therefore,
where the offence alleged by the prosecution
is under Section 304-A I.P.C., the accused is
entitled to the bail without consideration of
the facts. Therefore, it can be presumed that
while granting bail under Section 304-A
I.P.C. to the applicant, the facts were not
considered and he was granted the facility of
the bail as he was entitled to same as of right.
The
bail
which
was
granted
without
consideration of the facts can not be extended
for offence under Section 302 I.P.C. which is
heinous offence. Before granting the bail
under Section 302 I.P.C. therefore, the
consideration of the facts is necessary and the
applicant can not be permitted to file fresh
bail bonds. The petition is therefore,
dismissed.
Petition Dismissed.

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By the Court

1. The petitioner has challenged the order
of vacancy dated 25.11.1999 passed by the
Rent Control and Eviction Officer, respondent
no.1.

2. One Ram Sahodar was tenant of a
portion of premises no. 12/470. Gwaltoli,
Kanpur Nagar. He died in the year 1998.
Respondent no. 2 applied for allotment with
the allegations that as Prem Das, son of Ram
Sahodar- the tenant, had purchased another
portion of the same premises in the year 1986
and he is residing therein, the accommodation
in question be treated as vacant. The Rent
Control and Eviction Officer called for a
report from the Inspector. The Insspector
submitted a report that Ishwar Chand, the
petitioner, grandson of Ram Sahodar, was
found in its possession. Respondent no.1
issued notice to the petitioner to show cause
why the disputed accommodation be not
treated as vacant.

3. The petitioner filed objection stating
that his father, Prem Das, had separated from
his father, Ram Sahodar, in the year 1985 and
had also purchased another portion of the