# Gaurav @ Gaura (In Jail) v. State of U.P

- **Citation:** (2022) 4 ILRA 144
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-05
- **Case number:** Crl. Misc. Bail Application No. 13747 of 2021
- **Bench:** Krishan Pahal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gaurav-gaura-in-jail-v-state-of-u-p-48419
- **Pages:** 6

## Headnote

of accusations, the nature of evidence in
support, the severity of punishment which
conviction will entail, the character of the
accused-applicant, circumstances which are
peculiar
to
the
accused,
reasonable
apprehension of securing the presence of the
accused
at
the
trial,
the
reasonable
apprehension of the witnesses being tampered
with, the larger interest of the public/State and
other circumstances, but without expressing any
opinion on the merits of the case, granted bail
to the applicant. (Para 24)
Bail Application Allowed. (E-10)

List of Cases cited:-

## Text

144 INDIAN LAW REPORTS ALLAHABAD SERIES
abuse of liberty of bail and pass orders in
accordance with law.

(ii) The applicant shall remain
present before the trial court on each date
fixed, either personally or through his
counsel. In case of his absence, without
sufficient cause, the trial court may proceed
against him under Section 229-A of the
Indian Penal Code.

(iii) In case, the applicant misuses
the liberty of bail during trial and in order
to secure his presence proclamation under
Section 82 Cr.P.C. is issued and the
applicant fails to appear before the court on
the date fixed in such proclamation, then,
the trial court shall initiate proceedings
against him, in accordance with law, under
Section 174-A of the Indian Penal Code.

(iv) The applicant shall remain
present, in person, before the trial court on
the dates fixed for (i) opening of the case,
(ii) framing of charge and (iii) recording of
statement under Section 313 Cr.P.C. If in
the opinion of the trial court absence of the
applicant is deliberate or without sufficient
cause, then it shall be open for the trial
court to treat such default as abuse of
liberty of bail and proceed against him in
accordance with law.

(v) The applicant shall not leave
the country without permission of the Court
concerned.

18. Before parting with it is expected
that the trial shall be concluded with
expedition. Further, the learned trial court
may take all coercive measures as per law
if either of the parties do not co-operate in
the trial properly. The learned trial court
shall fix short dates to ensure that trial is
concluded at the earliest.
----------
(2022)04ILR A144
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.01.2022

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Crl. Misc. Bail Application No. 13747 of 2021

Gaurav @ Gaura ...Applicant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Zia
Naz
Zaidi,
Sri
Atul
Kumar,
Sri
Dharmendra Pratap Singh, Sri Praveen
Singh, Sri Brijesh Sahai (Senior Adv.)

Counsel for the Opposite Party:
G.A.

A. Bail - The Court after considering the nature
of accusations, the nature of evidence in
support, the severity of punishment which
conviction will entail, the character of the
accused-applicant, circumstances which are
peculiar
to
the
accused,
reasonable
apprehension of securing the presence of the
accused
at
the
trial,
the
reasonable
apprehension of the witnesses being tampered
with, the larger interest of the public/State and
other circumstances, but without expressing any
opinion on the merits of the case, granted bail
to the applicant. (Para 24)
Bail Application Allowed. (E-10)

List of Cases cited:-

1. Pawan kumar Pandey Vs St. of U.P. 2007 (1)
JIC 680 (Allahabad)

2. Sanjay Chandra Vs Central Bureau of
Investigation AIR 2012 SC 830

3. Mayakala Dharamaraja Vs St.of Telangana
(2020) 2 SCC 743

4. Lachman Dass Vs Resham Chand Kaler AIR
2018 SC 599

5. CBI Vs Vijay Sai Reddy (2013) 7 SCC 452
4 All. Gaurav @ Gaura Vs. State of U.P.
145
6. Kanwar Singh Meena Vs St. of Raj. AIR 2013
SC 296

7. Kamlapati Trivedi Vs St. of W.B. 1979 AIR
(SC) 777

8. U.O.I. Vs Shiv Shankar Keshari (2007) 7 SCC
798

9. Dataram Singh Vs St. of U.P. & anr. (2018) 3
SCC 22 (followed)
(Delivered by Hon'ble Krishan Pahal, J.)

1. Heard Mr. Brijesh Sahai, learned
Senior Advocate assisted by Mr. Zia Naz
Zaidi, learned counsel for the applicant, Mr.
Ajeet Kumar Singh, learned Additional
Advocate General assisted by Mr. Vibhav
Anand Singh, learned A.G.A. for the State
and perused the record.

2. This bail application under Section
439 of Code of Criminal Procedure has been
filed by the applicant seeking enlargement on
bail in Case Crime No. 0583 of 2020, under
Section 8/21 N.D.P.S. Act, 1985 at Police
Station Khatauli, District Muzaffar Nagar.

3. Rejoinder affidavit filed today is
taken on record.

4. In compliance of the order dated
9.11.2021, S.S.P., Muzaffar Nagar, namely,
Mr. Abhishek Yadav has filed an affidavit
wherein it has been stated that the order dated
4.10.2021 was not communicated by the
office of Government Advocate as well as the
deponent was not aware of the said order and
as such he could not file his affidavit.

5. In the compliance affidavit, it has
been stated that there are 49 criminal cases
registered against the applicant. As per
DCRB report, out of 49 cases 48 cases have
been registered at P.S. Khatauli, District
Muzaffar Nagar and one case i.e., Case
Crime No. 420 of 2011 under Section 60
Excise Act r/w Section 272, 273 I.P.C. was
registered at P.S. Mansoorpur, District
Muzaffar Nagar. It is further stated in
paragraph No. 7 of the said affidavit that due
to typographical error Police Station of Case
Crime No. 420 of 2011 has been typed as
Mansoorpur in place of Khatauli. The report
provided by DCRB has been annexed as
Annexure No. 2 to the compliance affidavit.

6. The explanation referred in the
affidavit is found plausible and accepted.
The personal presence of S.S.P. Muzaffar
Nagar is hereby dispensed with.

7. Now coming to the merits of the
case.

8. Learned counsel for the applicant
has submitted that the applicant has been
falsely implicated in the present case. The
applicant has been arrested by the police
and from his possession 102.66 gram
Alprazolam is said to have been recovered.
He has further submitted that nothing has
been recovered from the possession of the
applicant and the alleged recovery is false
and fabricated. It is further submitted that
there is no chemical analysis report to
prove that the recovered contraband is
actually
the
Alprazolam
powder
or
something else. Learned counsel for the
applicant submits that at the time of arrest,
mandatory provisions of Section 50 of
NDPS Act have not been complied with.
Lastly, it is also been submitted by learned
counsel for the applicant that he has been
implicated in several criminal cases by the
police for the reason that the father of the
applicant has made several complaints
against the police officials of District
Muzaffar Nagar.
146 INDIAN LAW REPORTS ALLAHABAD SERIES

9. It has been vehemently argued by
Mr. Brijesh Sahay, learned Senior Counsel
for the applicant that the animus of the
police towards the applicant is evident from
the fact that the recovery of 102.66 gram
Alprazolam has been deliberately shown
from the possession of the applicant to
make it fall in the category of commercial
quantity. The recovery of more than 100
gram Alprazolam falls in the category of
commercial quantity. The recovery is a
sham.

10. 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.
The
applicant
is
languishing in jail since 29.12.2020. He
undertakes that he will not misuse the
liberty, if granted, therefore, he may be
released on bail.

11. On the other hand, learned
Additional Advocate General opposed the
application on the ground that applicant has
criminal history of 48 cases and most of
them have been lodged before filing of the
said complaint against the police officials.
He further submits that criminal antecedent
of the accused is to be seen while granting
the bail. Their relevance cannot be totally
ignored.

12. Per contra, learned counsel for the
applicant submits that applicant has already
been acquitted in five criminal cases
whereas the prosecution in 17 has already
came to an end. It is also submitted that the
applicant has already been granted bail by
this Court as well as by the lower Court in
21 criminal cases after considering the
merits of the case. It is further submitted by
learned counsel for the applicant that
criminal history attributed to the accused
applicant is due to the application dated
26.4.2002 which has been filed by the
father of the applicant against the police
officials. It has also been admitted in the
compliance report filed by the S.S.P. that
the then Senior Superintendent of Police,
Muzaffar Nagar directed the Circle Officer,
Khatauli to inquire into the aforesaid matter
and submit a report. It has also been fairly
admitted by the learned counsel Additional
Advocate General that an investigation into
the allegations levelled by father of
applicant was also taken up by the
C.B.C.I.D. against the police officials.

13. In support of his contention
learned counsel for the applicant also
placed reliance on the case of Pawan
Kumar Pandey Versus State of U.P.
reported
in
[2007
(1)
JIC
680
(Allahabad)] where the accused was
allegedly involved in the commission of
murder punishable u/s 302 I.P.C., it has
been held by the Court that if the accused is
otherwise entitled to bail, the same should
not be refused simply on the ground of
criminal antecedent. It is also argued that
the accused in the said case was wanted in
56 criminal cases. Further more the said
criminal history of the applicant has
already
been
explained
in
the
supplementary affidavit filed on 23.8.2021.

14. The matter of foisting of frivolous
cases against the applicant has already been
dealt with by this Court in order dated
9.11.2021. The same is not being reiterated
to avoid repetition.

15. The object of grant of bail to an
accused of an offence is neither punitive
nor preventive in nature. The true object
behind granting of bail is to secure
appearance of accused during trial. The
courts owe more than verbal respect to the
4 All. Gaurav @ Gaura Vs. State of U.P.
147
principle that punishment begins after
convictions and that every man is deemed
to be innocent until duly tried and found
guilty. From the earlier times, it was
appreciated that detention in custody
pending completion of trial could be a
cause of great hardship. Apart from the
question of prevention being the object of a
refusal of bail, one must not lose sight of
the fact that any imprisonment before
conviction has a substantial punitive
content and it would be improper for any
court to refuse bail as mark of disapproval
of former conduct whether the accused has
been convicted for it or not.

16. It has been opined by the Apex
Court in AIR 2012 SC 830 Sanjay
Chandra
vs.
Central
Bureau
of
Investigation that if bail to an accused
under Section 437 or 439 Cr.P.C. is refused
by the Court and he is detained in jail for
an indefinite period of time and his trial is
likely to take considerable time, the same
would be violative of his fundamental right
as to 'Personal liberty' guaranteed by
Article 21 of the Constitution of India. It
has also been opined that seriousness of the
offence should not be treated as the only
ground for refusal of bail.

17. At the stage of consideration of
bail it cannot be decided whether offer
given to the applicant and his consent
obtained was voluntary. These are the
questions of fact which can be determined
only during trial and not at the present
stage. In case of prima facie noncompliance of mandatory provision of
Section 50 the accused is entitled to be
released on bail within the meaning of
Section 37 of N.D.P.S. Act.

18. Interpreting the provisions of bail
contained u/s 437 & 439 Cr.P.C., the Supreme
Court has laid down following considerations
for grant or refusal of bail to an accused in a
non-bailable offence:-

(i) Prima facie satisfaction of the
court in support of the accusations.

(ii) Nature of accusation.

(ii)
Evidence
in
support
of
accusations.

(iv) Gravity of the offence.

(v) Punishment provided for the
offence.

(vi)
Danger
of
the
accused
absconding or fleeing if released on bail.

(vii) Character/criminal history of
the accused.

(viii) Behavior of the accused.

(ix) Means, position and standing of
the accused in the Society.

(x) Likelihood of the offence being
repeated.

(xi) Reasonable apprehension of the
witnesses being tampered with.

(xii) Danger, of course, of justice
being thwarted by grant of bail.

(xiii) Balance between the rights of
the accused and the larger interest of the
Society/State.

(xiv) Any other factor relevant and
peculiar to the accused.

(xv) While a vague allegation that
the accused may tamper with the evidence or
witnesses may not be a ground to refuse bail,
but if the accused is of such character that his
mere presence at large would intimidate the
witnesses or if there is material to show that he
will use his liberty to subvert justice or tamper
with the evidence, then bail will be refused.

(See: Mayakala Dharamaraja vs.
State of Telangana, (2020) 2 SCC 743 and
Lachman Dass vs. Resham Chand Kaler, AIR
2018 SC 599.)

19.

While
disposing
of
bail
applications u/s 437/439 Cr.P.C., courts
148 INDIAN LAW REPORTS ALLAHABAD SERIES
should assign reasons while allowing or
refusing an application for bail. But
detailed reasons touching the merit of the
matter should not be given which may
prejudice the accused. What is necessary is
that the order should not suffer from nonapplication of mind. At this stage a detailed
examination of evidence and elaborate
documentation of the merit of the case is
not required to be undertaken. Though the
court can make some reference to materials
but it cannot make a detailed and in-depth
analysis of the materials and record
findings on their acceptability or otherwise
which is essentially a matter of trial. (See:
CBI vs V. Vijay Sai Reddy, (2013) 7 SCC
452and Kanwar Singh Meena vs. State of
Rajasthan, AIR 2013 SC 296.)

20. According to Halsbury's Laws of
England - " the effect of granting bail is
not to set the defendant (accused) free, but
to release him from custody of law and to
entrust him to the custody of his sureties
who are bound to produce him to appear at
his trial at a specified time and place."

21. According to Law Commission's
268th report (2017), ''Bail' essentially
means the judicial interim release of a
person suspected of a crime held in
custody, on entering into a recognizance,
with or without sureties, that the suspect
would appear to answer the charges at a
later date; and includes grant of bail to a
person accused of an offence by any
competent authority under law.

22. In Kamlapati Trivedi vs. State of
West Bengal, 1979 AIR (SC) 777, the
Supreme Court of India observed that bail
is devised as a technique for effecting a
synthesis of two basic concepts of human
values, namely the right of the accused to
enjoy his personal freedom and the public
interest; subject to which, the release is
conditioned on the surety to produce the
accused person in Court to stand trial.

23. The Apex Court in the Case of
Union of India vs. Shiv Shankar Keshari,
(2007) 7 SCC 798 has held that the court
while considering the application for bail
with reference to Section 37 of the Act is
not called upon to record a finding of not
guilty. It is for the limited purpose
essentially confined to the question of
releasing the accused on bail that the court
is called upon to see if there are reasonable
grounds for believing that the accused is
not guilty and records its satisfaction about
the existence of such grounds. But the court
has not to consider the matter as if it is
pronouncing a judgment of acquittal and
recording a finding of not guilty.

24. Considering the facts of the case
and keeping in mind, the ratio of the Apex
Court's judgment in the case of Union of
India vs. Shiv Shankar Keshari (spura),
larger mandate of Article 21 of the
constitution of India, the nature of
accusations, the nature of evidence in
support thereof, the severity of punishment
which conviction will entail, the character
of the accused-applicant, circumstances
which
are
peculiar
to
the
accused,
reasonable possibility of securing the
presence of the accused at the trial,
reasonable apprehension of the witnesses
being tampered with, the larger interest of
the public/ State and other circumstances,
but without expressing any opinion on the
merits, I am of the view that it is a fit case
for grant of bail.

25. Keeping in view the nature of the
offence, evidence on record regarding
complicity of the accused, larger mandate
of the Article 21 of the Constitution of
4 All. Sneha Kumari @ Gungun Vs. State of U.P. & Anr.
149
India and the dictum of Apex Court in the
case of Dataram Singh Vs. State of U.P.
and another reported in (2018) 3 SCC 22
and without expressing any opinion on the
merits of the case, the Court is of the view
that the applicant has made out a case for
bail. The bail application is allowed.

26. Let the applicant- Gaurav @
Gaura, who is involved in aforementioned
case crime be released on bail on his
furnishing a personal bond and two sureties
each in the like amount to the satisfaction
of the court concerned subject to following
conditions (Further, before issuing the
release order, the sureties be verified):-

(i) The applicant shall file an
undertaking to the effect that he shall not
seek any adjournment on the date fixed for
evidence when the witnesses are present in
Court. In case of default of this condition, it
shall be open for the Trial Court to treat it
as abuse of liberty of bail and pass orders
in accordance with law.

(ii) The applicant shall remain
present before the Trial Court on each date
fixed, either personally or through his
counsel. In case of his absence, without
sufficient cause, the Trial Court may
proceed against him under Section 229-A
IPC.

(iii)
In
case,
the
applicant
misuses the liberty of bail during trial and
in
order
to
secure
his
presence
proclamation under Section 82 Cr.P.C.,
may be issued and if applicant fails to
appear before the Court on the date fixed in
such proclamation, then, the Trial Court
shall initiate proceedings against him, in
accordance with law, under Section 174-A
IPC.

(iv) The applicant shall remain
present, in person, before the Trial Court
on dates fixed for (1) opening of the case,
(2) framing of charge and (3) recording of
statement under Section 313 Cr.P.C. If in
the opinion of the Trial Court absence of
the applicant is deliberate or without
sufficient cause, then it shall be open for
the Trial Court to treat such default as
abuse of liberty of bail and proceed against
him in accordance with law.

27. In case of breach of any of the
above conditions, it shall be a ground for
cancellation of bail.

28. It is made clear that observations
made in granting bail to the applicant shall
not in any way affect the learned trial Judge
in forming his independent opinion based
on the testimony of the witnesses.
----------
(2022)04ILR A149
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.03.2022

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Revision No. 195 of 2022

Sneha Kumari @ Gungun ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Prashant Rai

Counsel for the Opposite Parties:
A.G.A.,
Sri
Pradeep
Kumar
Rai,
Sri
Deependra Kumar

A. Criminal Law - Juvenile Justice (Care
and Protection of Children) Act, 2015 -
Section 12 - The Court after considering the
nature of evidence, the period of detention
already undergone, the likelihood of early
conclusion of trial and also the absence of any
convincing material to indicate the possibility of