# Criminal Misc. 2nd Bail Application No. 29890 of 2014 Anil Kumar v. State of U.P. Opp. Party

- **Citation:** (2015) 3 ILRA 1358
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-09-23
- **Case number:** Criminal Misc. 2nd Bail Application No. 29890 of 2014
- **Bench:** Karuna Nand Bajpayee
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/criminal-misc-2nd-bail-application-no-29890-of-2014-anil-kumar-v-state-of-u-p-43319
- **Pages:** 3

## Headnote

Cr.P.C.
Section
439-Bail
applicationoffence u/s 376 (2-G), 506, 411 IPCread with Section 3 (1) a SC/ST Actsecond bail-after rejection 4 years gonefrom
ordersheet-not
single
witness
produced by prosecution-accused ought
to be prosecuted and not persecutedconsidering overall circumstance without
considering merit of case-entitled for
bail-application allowed.
Held: Para-6
Looking to the overall nature of facts &
circumstances of the case, the long
period of detention and the fact that the
trial has not made any progress at all,
and in fact has not even begun, I feel
that accused has made out a case of bail.

## Text

1358
 INDIAN LAW REPORTS ALLAHABAD SERIES
satisfaction of the court concerned on the
following conditions :-
(1) The applicant will not make any
attempt to tamper with the prosecution
evidence in any manner whatsoever.
(2) The applicant will personally
appear on each and every date in the court
and his personal presence shall not be
exempted unless the court itself deems it
fit to do so in the interest of justice.
8. It may be observed that in the event
of any breach of the aforesaid conditions, the
court below shall be at liberty to proceed for
the cancellation of applicant's bail.
9.

It
is
clarified
that
the
observations, if any, made in this order
are strictly confined to the disposal of the
bail application and must not be construed
to have any reflection on the ultimate
merits of the case.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.09.2015
BEFORE
THE HON'BLE KARUNA NAND BAJPAYEE, J.
Criminal Misc. 2nd Bail Application No.
29890 of 2014
Anil Kumar
 ...Applicant
Versus
State of U.P.
...Opp. Party
Counsel for the Applicant:
Sri Kuldeep Johri
Counsel for the Opp. Party:
A.G.A.
Cr.P.C.
Section
439-Bail
applicationoffence u/s 376 (2-G), 506, 411 IPCread with Section 3 (1) a SC/ST Actsecond bail-after rejection 4 years gonefrom
ordersheet-not
single
witness
produced by prosecution-accused ought
to be prosecuted and not persecutedconsidering overall circumstance without
considering merit of case-entitled for
bail-application allowed.
Held: Para-6
Looking to the overall nature of facts &
circumstances of the case, the long
period of detention and the fact that the
trial has not made any progress at all,
and in fact has not even begun, I feel
that accused has made out a case of bail.
(Delivered by Hon'ble Karuna Nand
Bajpayee, J.)
1. Heard learned counsel for the
applicant and learned A.G.A.
2. Perused the record.
3. This is second bail application.
The Criminal Misc. First Bail Application
No. 11066 of 2012 has been rejected by
this court on 18.09.2013 by Hon'ble Mrs.
Jayashree Tiwari, J.
4.
Submission of counsel is that since
the rejection of the bail by another Bench on
18.09.2013, two years have elapsed but not
even a single witness has been examined in
court so far. It is pointed out by learned
counsel for the applicant that the applicant is
languishing behind the bars since 30.12.2011
and almost four years he has already spent in
jail. It is further pointed out that while
rejecting the bail application of the applicant
also, this court had observed that it was 'at that
stage' that the court did not find it to be a fit
case for bail. The submission is that ordinarily
apart from the merits of the case, the period of
detention of an accused also remains a
relevant consideration to release or for
3 All] Anil Kumar Vs. State of U.P.
1359
refusing to release the accused on bail. As is
reflected by the observation of court, it
appears that the detention of the applicant was
not considered to be so long that applicant
could have been released on bail on that basis
at that stage. The submission is that though it
is true that after rejection of bail earlier on the
merits of the case there is not much scope to
revisit the facts of the case but it is not an
irrelevant fact that four years have already
been spent by the accused languishing in jail
and the trial has not yet begun. Ordersheets of
the court have also been annexed along with
supplementary affidavit which has been taken
on record and it is apparent from the perusal
of the same that the trial has not at all made
any progress so far. Counsel has also
emphasized upon the fact that the accused has
not been responsible for delaying the trial at
all in any manner whatsoever.
5. Learned A.G.A. opposed the
prayer for bail.
6.
After perusing the record in the
light of the submissions made at the bar and
after taking an over all view of all the facts
and circumstances of this case, it is apparent
from the perusal of the earlier rejection
order that the bail was refused 'at that stage'
and this expression very much finds its
place in the order itself. This is also
apparent that the accused is not responsible
for delaying the trial and period of four
years has elapsed. The trial can not be
procrastinated for an unlimited period of
time and the prosecution can not be allowed
to act as an engine of oppression. The
accused ought to be prosecuted and not
presecuted. If even after keeping the
accused for four years in jail, the
prosecution has not produced even a single
witness it has to bear the brunt of blame
itself. Though it is true that the long period
of detention can not entitle the accused of
all cases to bail regardless of the merit of
their case and the long period of
incarceration can not universally be applied
in a streight-Jacket manner as a cut & dried
formulla for bail without keeping in
perspective the gravity of offence and the
nature of evidence in its support, but this
case does not appear to fall in the category
of such exceptions. Looking to the overall
nature of facts & circumstances of the case,
the long period of detention and the fact that
the trial has not made any progress at all,
and in fact has not even begun, I feel that
accused has made out a case of bail.
7. Let the applicant Anil Kumar
involved in Case Crime No. 342 of 2011,
u/s 376(2G), 506, 341 IPC and section
3(1)12 SC/ST Act, P.S.-Nigohi, DistrictShahjahanpur be released on bail on his
executing a personal bond and two
sureties each in the like amount to the
satisfaction of the court concerned on the
following conditions :-
(1) The applicant will not make any
attempt to tamper with the prosecution
evidence in any manner whatsoever.
(2) The applicant will personally
appear on each and every date in the court
and his personal presence shall not be
exempted unless the court itself deems it
fit to do so in the interest of justice.
(3) The applicant shall personally
appear once in the first week of every
month in the concerned Police Station. In
case of any default, the In-charge, Police
Station
shall
forthwith
inform
the
concerned court about this breach.
8. It may be observed that in the
event of any breach of the aforesaid
conditions, the court below shall be at
liberty to proceed for the cancellation of
applicant's bail.
1360
 INDIAN LAW REPORTS ALLAHABAD SERIES
9.

It
is
clarified
that
the
observations, if any, made in this order
are strictly confined to the disposal of the
bail application and must not be construed
to have any reflection on the ultimate
merits of the case.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.09.2015
BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE BRIJESH KUMAR
SRIVASTAVA-II, J.
Writ-A No. 34284 of 2015
with Writ-A No. 34289 of 2015
Dr. (Smt.) Rama Srivastava
...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
S.P. Shukla
Counsel for the Respondents:
C.S.C.
(A) Constitution of India, Art.-311(2)-
Dismissal on ground of unauthorized absent
from duty-12.09.02 to 23.06.2005-without
recording reason for not practicable to hold
enquiry-held-illegal, nullity.
Held: Para-16 & 17
16. Unauthorized absence, no doubt, is a
mis-conduct and, if proved in departmental
inquiry conducted in accordance with the
rules, appropriate punishment can be
imposed upon the concerned government
servant
by
appointing
authority.
Dispensation of departmental inquiry is an
exception and cannot be resorted to in a
cursory, casual and whimsical manner. The
authority, if resorted to this exception, owe
a heavy responsibility to show that all
circumstances and conditions justifying
such recourse are strictly followed and
adhered to.
17. In view of the aforesaid exposition of
law and considering the fact that the
impugned order of dismissal nowhere
suggests
or
even
touches
on
the
satisfaction of competent authority that
disciplinary inquiry is not reasonable
practicable, we have no hesitation in
holding that it is a nullity and void ab
initio, being unconstitutional and violative
of Article 311(2) Second Proviso, clause
(b) of Constitution.
(B) Constitution of India, Art.-226-Service
law-petitioner due to long sickness-on
07.12.06 applied for voluntarily retirementwithout accepting or refusing disciplinary
proceeding initiated-clearly illegal without
jurisdiction.
Held: Para-26In the present case, at the time when
petitioner applied for voluntary retirement,
neither any disciplinary inquiry was pending
nor
contemplated.
Therefore,
without
taking decision on petitioner's application
for
voluntary
retirement
initiation
of
disciplinary inquiry by respondents was
clearly illegal and without jurisdiction.
Case Law discussed:
(1985) 3 SCC 398; (1991) 1 SCC 362; AIR 2014
SC 2922; (1978) 2 SCC 202; (1997) 4 SCC 441;
(1995) 1 UPLBEC 146 (SC); Spl. Appeal No. 649
of 1994 decided on 31st January 1995; 2007(2)
UPLBEC 69; (2010) ILR 3 All. 1199=(2011) 2
UPLBEC 992.
(Delivered by Hon'ble Sudhir Agarwal, J.)
1. The petitioner after being selected
through U.P. Public Service Commission
against the post of Medical Officer in
Public, Medical and Heath Services
(hereinafter referred to as the "PMHS"),
was appointed as "Women Medical
Officer" vide letter of appointment dated
09.11.1999. She was posted at Primary
Health Center, Dalmau, District Rai
Bareilly where she joined on 21.02.1991.
She was transferred to Silver Jubilee