# Durgesh Pathak @ Rohit Pathak v. State Of U.P

- **Citation:** (2016) 8 ILRA 1175
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-03
- **Bench:** Karuna Nand Bajpayee
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/durgesh-pathak-rohit-pathak-v-state-of-u-p-44155
- **Pages:** 6

## Headnote

G.A., Shri M. Shahanshah

Held -
Paragraph 1 (Introduction & Applicant's Arguments): The Court heard the arguments of the applicant's
counsel and the Additional Government Advocate (A.G.A.), and perused the record. The applicant's counsel
submitted that the incident occurred on December 13, 2015, and a Non-Cognizable Report (N.C.R.) was
lodged the next day by the deceased child's grandfather. In this initial report, the grandfather stated that the
child had a squabble with someone, received a thrashing, and was referred to the hospital, where he died
later that day.

Paragraph 2 (Inquest and Subsequent Implication): The applicant's counsel highlighted that during the
inquest proceedings on December 15, 2015, the child's father was a witness. The inquest witnesses jointly
opined that an "unknown person" killed the deceased with a motive of sodomy. No specific accused was
named until December 17, 2015, when the father gave a statement to the Investigating Officer (I.O.) claiming
that, while traveling to the hospital, the child gave an oral dying declaration naming the applicant as the
assailant who attempted to sodomize and strangulate him.

Paragraph 3 (Arguments on Fabricated Evidence): The counsel argued that it is unbelievable and
inexplicable that the grandfather and father would completely fail to mention the applicant's identity in the
N.C.R. and the inquest if they already knew it. Instead, they explicitly labeled the assailant as an "unknown
person" during the inquest. The defense contended that this subsequent implication was a fabricated
afterthought by the I.O. to solve the case, noting that there is no other evidence connecting the applicant to
the crime, and the deceased's chain was recovered by police independently, not at the instance of the
accused. The applicant has been jailed since December 18, 2015, with no early trial conclusion in sight, and
promised to cooperate fully if released.

Paragraph 4 (Prosecution's Opposition): The A.G.A. and the informant's counsel opposed the bail. They
argued that the grandfather filed the N.C.R. while the father was taking the child to the hospital, explaining
the omission of the name. They also noted that the applicant has one prior criminal case. Furthermore, they
contended that under Section 174 of the Cr.P.C., the scope of an inquest is limited to finding the cause of
1176 INDIAN LAW REPORTS ALLAHABAD SERIES

death, not identifying the accused, so the omission of the name at that stage should not cast doubt on the
prosecution's case.

Paragraph 5 (Defense Rejoinder on Inquest Scope): In reply, the applicant's counsel elaborated that
while naming an accused is not legally mandatory during an inquest, if witnesses choose to give a description
of the culprit, that description matters. They argued there is a qualitative difference between simply omitting a
name and explicitly labeling an assailant as "unknown." If the father knew the applicant's identity via a dying
declaration (admissible under Section 32 of the Indian Evidence Act), declaring the culprit as an "unknown
person" at the inquest creates a loud, irreconcilable contradiction that severely damages his credibility.
Paragraph 6 (Court's Decision): After considering the arguments, reviewing the evidence, evaluating the
length of detention, noting the unlikelihood of an early trial conclusion, and finding no evidence of potential
tampering, the Court decided to grant bail to the applicant.

Paragraph 7 & Conditions (Operative Order): The Court ordered the release of the applicant, Durgesh
Pathak @ Rohit Pathak (involved in Case Crime No. 2370 of 2015, under Section 304 I.P.C., P.S. Kotwali
Dehat, District Mirzapur), upon executing a personal bond and two sureties. The release is subject to two
conditions: the applicant must not tamper with evidence and must personally appear on every court date.

Paragraph 8 & 9 (Final Directives): The Court authorized the lower court to cancel t

## Text

8 All. Durgesh Pathak @ Rohit Pathak Vs State Of U.P.
1175
(2016) 8 ILRA 1175
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.08.2016

BEFORE

THE HON'BLE KARUNA NAND BAJPAYEE, J.

Criminal Misc. Bail Application No.- 16947 Of 2016

Durgesh Pathak @ Rohit Pathak ...Applicant
Versus
State Of U.P. ...Opposite party

Counsel for the Applicant:
Shri Brijesh Sahai, Shri Rajiv Dwivedi

Counsel for the Opposite Party:
G.A., Shri M. Shahanshah

Held -
Paragraph 1 (Introduction & Applicant's Arguments): The Court heard the arguments of the applicant's
counsel and the Additional Government Advocate (A.G.A.), and perused the record. The applicant's counsel
submitted that the incident occurred on December 13, 2015, and a Non-Cognizable Report (N.C.R.) was
lodged the next day by the deceased child's grandfather. In this initial report, the grandfather stated that the
child had a squabble with someone, received a thrashing, and was referred to the hospital, where he died
later that day.

Paragraph 2 (Inquest and Subsequent Implication): The applicant's counsel highlighted that during the
inquest proceedings on December 15, 2015, the child's father was a witness. The inquest witnesses jointly
opined that an "unknown person" killed the deceased with a motive of sodomy. No specific accused was
named until December 17, 2015, when the father gave a statement to the Investigating Officer (I.O.) claiming
that, while traveling to the hospital, the child gave an oral dying declaration naming the applicant as the
assailant who attempted to sodomize and strangulate him.

Paragraph 3 (Arguments on Fabricated Evidence): The counsel argued that it is unbelievable and
inexplicable that the grandfather and father would completely fail to mention the applicant's identity in the
N.C.R. and the inquest if they already knew it. Instead, they explicitly labeled the assailant as an "unknown
person" during the inquest. The defense contended that this subsequent implication was a fabricated
afterthought by the I.O. to solve the case, noting that there is no other evidence connecting the applicant to
the crime, and the deceased's chain was recovered by police independently, not at the instance of the
accused. The applicant has been jailed since December 18, 2015, with no early trial conclusion in sight, and
promised to cooperate fully if released.

Paragraph 4 (Prosecution's Opposition): The A.G.A. and the informant's counsel opposed the bail. They
argued that the grandfather filed the N.C.R. while the father was taking the child to the hospital, explaining
the omission of the name. They also noted that the applicant has one prior criminal case. Furthermore, they
contended that under Section 174 of the Cr.P.C., the scope of an inquest is limited to finding the cause of
1176 INDIAN LAW REPORTS ALLAHABAD SERIES

death, not identifying the accused, so the omission of the name at that stage should not cast doubt on the
prosecution's case.

Paragraph 5 (Defense Rejoinder on Inquest Scope): In reply, the applicant's counsel elaborated that
while naming an accused is not legally mandatory during an inquest, if witnesses choose to give a description
of the culprit, that description matters. They argued there is a qualitative difference between simply omitting a
name and explicitly labeling an assailant as "unknown." If the father knew the applicant's identity via a dying
declaration (admissible under Section 32 of the Indian Evidence Act), declaring the culprit as an "unknown
person" at the inquest creates a loud, irreconcilable contradiction that severely damages his credibility.
Paragraph 6 (Court's Decision): After considering the arguments, reviewing the evidence, evaluating the
length of detention, noting the unlikelihood of an early trial conclusion, and finding no evidence of potential
tampering, the Court decided to grant bail to the applicant.

Paragraph 7 & Conditions (Operative Order): The Court ordered the release of the applicant, Durgesh
Pathak @ Rohit Pathak (involved in Case Crime No. 2370 of 2015, under Section 304 I.P.C., P.S. Kotwali
Dehat, District Mirzapur), upon executing a personal bond and two sureties. The release is subject to two
conditions: the applicant must not tamper with evidence and must personally appear on every court date.

Paragraph 8 & 9 (Final Directives): The Court authorized the lower court to cancel the bail if any
conditions are breached. Finally, it clarified that the observations made in this order are strictly limited to
deciding the bail application and will have no bearing on the final merits of the trial.

(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. Submission of the counsel for the applicant is that the incident took place on 13.12.2015
and the N.C.R. with regard to the incident was lodged on next day i.e. on 14.12.2015 at 2.10 p.m.
by the grand-father of the deceased. Further submission is that in this N.C.R. which was the first
information in point of time about the occurrence, the version given by the grand-father of the
deceased was to the effect that on the preceding day i.e. 13.12.2015 the deceased who was a child
had picked up some sqabble with somebody and it appeared that some body has given him a
thrashing as a result of which he was referred to Banaras Hindu University Varanasi. It was further
pointed out by the counsel that the deceased had died on 14.12.2015 at 6.00 p.m. in the Hospital.
The inquest proceeding of the deceased was also performed on 15.12.2015. It has been emphasized
by the counsel that in the inquest proceeding the father of the deceased was himself one of the
witnesses of inquest. Counsel has drawn the attention of the court to the inquest proceeding which
has been annexed as annexure 3 to the application showing that during the inquest of deceased
when the opinion of the inquest witnesses was procured then it was expressed by the inquest
witnesses that the deceased was playing in a grove on 13.12.2015 and an 'unknown person' took
him to field and probably killed him with the motive of committing sodomy. Further submission is
that though till the inquest was prepared the name of any accused did not surface but when the
father of the deceased namely, Panchu Yadav was examined on 17.12.2015 he disclosed the name
of the applicant as the culprit and gave the statement to the I.O. that while the deceased was being
8 All. Durgesh Pathak @ Rohit Pathak Vs State Of U.P.
1177
carried to the hospital, he had disclosed to him the fact that while he was flying a kite the applicant
caught hold of him and dragged him to Arahar field and wanted to sodomize him and when he
resisted the applicant tried to strangulate him and made assault upon him and snatched away the
chain which he was bearing and threw it in the field. Submission is that had there been any truth in
this assertion of the father of the deceased that he had been told the name of the culprit and the
other details of entire murderous assault made upon the deceased by the applicant, then there is no
earthly explanation as to why and under what circumstances the aforesaid fact could remain
undisclosed earlier. Contention is that it is unthinkable that even though the N.C.R. of the case
would be lodged by none else than the grand-father of the deceased and yet he would neither know
as to who was the assailant nor would he disclose the identity of applicant therein. It is also wholly
inexplicable as to how and why the assailant was disclosed as an 'unknown person' specifically
even at the stage of inquest proceeding during the course of which the father of the deceased
himself was present and was also a signatory of the same as witness. Submission is that it is so
manifestly demonstrable that this subsequent introduction implicating the applicant is nothing but
the brain child of the I.O. who some how in order to work out the case has falsely implicated the
applicant in the case. Further submission is that apart from the claim of the father of the deceased of
having heard the oral dying declaration of the deceased implicating the applicant, there is
absolutely no evidence to connect the applicant with crime. Even the chain belonging to the
deceased has been recovered by the police on its own and not at the instance of the accused. Further
submission is that in the aforesaid circumstances the falsity of the allegation made against the
applicant is apparent on the face of record. Several other submissions in order to demonstrate the
falsity of the allegations made against the applicant have also been placed forth before the Court.
The circumstances which, according to the counsel, led to the false implication of the accused have
also been touched upon at length. It has been assured on behalf of the applicant that he is ready to
cooperate with the process of law and shall faithfully make himself available before the court
whenever required. It has also been submitted that the applicant is languishing in jail since
18.12.2015 and in the wake of heavy pendency of cases in the Court, there is no likelihood of any
early conclusion of trial.

4. Learned A.G.A. and learned counsel for the informant have opposed the prayer for bail
and submitted that N.C.R. was lodged by the grand-father of the deceased while the deceased was
taken by the father of deceased to the hospital and therefore, the omission of the applicant's name in
the N.C.R. can be attributed to the same reason. Further submission is that there is also one criminal
case registered against the applicant before this crime and the applicant has not come up with clean
hands in the court.It has also been submitted by the first informant's counsel that the scope of
inquest proceedings u/s 174 of Cr.P.C. is very limited and it is beyond the scope of such
proceedings to ascertain the identity of the accused. It is not at all required that the name of accused
should also be mentioned in the inquest proceedings or should also be disclosed by the witnesses.
Contention, therefore, is that the omission of applicant's name in the inquest proceedings should not
and can not constitute any legitimate basis to reflect any doubt against the complicity of the
applicant in the crime or his identity.
1178 INDIAN LAW REPORTS ALLAHABAD SERIES

5. Learned counsel for the applicant while placing his rejoinder submission has tried to
elaborate upon the scope of inquest proceedings. It has been contended that though it is not
necessary to disclose the name of accused in the inquest proceedings as a matter of Law or as a
matter of any Rule but if some witnesses of the inquest who are also eyewitnesses of the occurrence
or are also the witnesses of some relevant fact having the knowledge about the name of the accused
who committed the crime, do on their own volition give out the description of the culprit then such
description of the culprit or the name as disclosed by them shall have to be looked into by the court.
Submission is that if the description of the culprit given out at the time of inquest proceeding is in
contradiction with the name of the accused facing trial then it shall be very relevant fact to be
considered and weighed by the court in order to adjudge the truthfulness or the falsehood of the
subsequent implication. According to counsel if a witness of inquest who is also eyewitness of the
incident of murder discloses the name of a particular accused as the assailant and then subsequently
he changed the version and introduced another name of assailant then the contraction of such a
nature will substantially detract the evidentiary value of such witness and will also cut at the root of
veracity of such witness. In such kind of situation the dichotomy in the name of the culprit and the
contradiction with regard to his identity cannot be explained away by resorting to the plea that the
earlier contradictory disclosure made at the stage of inquest proceedings was not necessary for the
witness to make and that the witness was not bound under law to disclose the name of the accused
during the course of inquest proceedings or that it is beyond the scope of proceedings u/s 174
Cr.P.C. to ascertain the name of the accused. In fact those cases where the name of the accused
remained undisclosed during the course of inquest proceedings and those cases where a
contradictory description has been given in the course of inquest proceedings about the identity of
the accused, both of them are on entirely different footing. In the present case the father of the
deceased claims to have accompanied his son to the hospital and during his journey the deceased is
said to have disclosed the entire details of assault made on him by the applicant. Such a statement
said to have been made by the deceased is tantamount to his dying declaration admissible u/s 32 of
Indian Evidence Act and would have been a very crucial evidence against the applicant. It is so
noteworthy that after the deceased died in the hospital, the same father having full knowledge about
the complicity of the applicant in the crime, having full knowledge of the fact that the applicant was
responsible for the murder of his son, was made the witness of the inquest proceedings. Yet when
he was enquired by the police Officer and his opinion was procured he described the assailant to be
of 'unknown identity'. According to counsel, a complete omission to make any mention about the
accused or his identity is qualitatively and entirely a different proposition of fact in comparison to
the situation where the assailant or the accused has been described to be of 'unknown identity'.
Contention of the counsel is that had the father chosen not to give any description about the
assailant at all and had he chosen not to make any mention about the accused at the time of inquest,
it would have been a very different matter. But if the father of the deceased has chosen to give out
the description of the accused then all the logical inference which such description is capable to
give rise to shall inevitably follow and there will be no escape out from it. According to counsel,
the aforesaid contradiction is too loud to be lightly ignored or be soft-pedaled. The counsel has
emphasized upon the distinction between the two situations, one where the name of the accused has
not been mentioned in the inquest proceedings, and the other were the accused has been described
as some 'unknown person' and has tried to expatiate upon applicant's innocence and his false
8 All. Durgesh Pathak @ Rohit Pathak Vs State Of U.P.
1179
implication which according to the counsel is nothing but the result of subsequent afterthought and
confabulations.

6. After perusing the record in the light of the submissions made at the bar and after taking
an overall view of all the facts and circumstances of this case, the nature of evidence, the period of
detention already undergone, the unlikelihood of early conclusion of trial and also the absence of
any convincing material to indicate the possibility of tampering with the evidence, this Court is of
the view that the applicant may be enlarged on bail.

7. Let the applicant-Durgesh Pathak @ Rohit Pathak, involved in Case Crime No.2370 of
2015, u/s 304 I.P.C., P.S.-Kotwali Dehat, District- Mirzapur 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.

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.
------------
1180 INDIAN LAW REPORTS ALLAHABAD SERIES

(2016) 8 ILRA 1180
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.08.2016

BEFORE

THE HON'BLE RITU RAJ AWASTHI, J.

Misc. Single/Writ Petition No.- 17288 Of 2016

Ram Lakhan ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Shri Anurag Narian Srivastava

Counsel for the Respondents:
C.S.C.

Held -
Paragraph 1-3: Core Challenge and Procedure
The petitioner approached the High Court challenging an order dated July 16, 2016, which cancelled his fair
price shop license. The primary grounds for the challenge were that the Sub Divisional Magistrate (SDM)
passed the order under administrative pressure from the District Magistrate (DM) of Hardoi, and that the SDM
lacked any legal authority to review or recall his own final order. Given the straightforward question of law
involved, the Court decided the matter finally with the consent of both parties without waiting for a formal
counter-affidavit.

Paragraph 4: Background of the Dispute
The petitioner's license was initially suspended on April 16, 2016, following an inquiry into irregularities
reported by a complainant. After considering the petitioner's explanation, the SDM (Respondent No. 3) passed
a final order on June 7, 2016, choosing not to cancel the license. Instead, the SDM confiscated the security
deposit, imposed a penalty of Rs. 5,000 with a warning, and fully restored the fair price shop. Subsequently, a
third party filed a fresh complaint with the DM, who then directed the SDM to recall the restoration order due
to the seriousness of the allegations. Acting on these administrative dictates, the SDM recalled his order and
re-suspended the license.

Paragraph 5-7: Arguments and Subsequent Inquiries
The petitioner's counsel argued that the SDM lacks statutory review powers and failed to apply independent
mind. The State's standing counsel countered that the DM acted in public interest given the gravity of the
essential commodity distribution fraud. They noted that a fresh investigation by the Regional Food Officer had
since commenced, a formal charge-sheet had been issued, and the final decision was pending the petitioner's
response.

Paragraph 8-9: Reviewing the Scope of the Legal Authority