# Gulam Sarvar v. State of U.P

- **Citation:** (2022) 5 ILRA 185
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-12
- **Case number:** Criminal Misc. Bail Application No. 5491 of 2019
- **Bench:** Krishan Pahal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gulam-sarvar-v-state-of-u-p-48480
- **Pages:** 5

## Headnote

Criminal Law- Code of Criminal Procedure,
1973-
Section
439-
Bail-
Relevant
considerations- It would be inappropriate
to discuss the evidence in depth at this
stage because it is likely to influence the
trial court but from the perusal of the
evidence collected during investigation
and the charge-sheet, it appears that the
complicity
of
the
applicant
is
well
established by the statements of the
Informant
-
In
the
changing
social
circumstances, it has now become obvious
that nobody dares to depose against the
dreaded and hardened criminals out of
fear. The Informant, who himself is a
victim could garner some courage as some
point of time to depose against such high
profile criminals. The crime seems to have
been committed after a well orchestrated
plan to deprive the Informant/victim of
his valuable assets and the culpability of
applicant cannot be ruled out from the
evidence adduced- It is quite clear that an
order of bail cannot be granted in an
arbitrary or fanciful manner. A ratio
decidendi of the judgement of the Apex
Court in Anil Kumar Yadav Vs. State
(N.C.T.) of Delhi and another2, has stated
that in serious crimes, the mere fact that
the accused is in custody for more than
one
year,
may
not
be
a
relevant
consideration to release the accused on
bail.

Where there is prima facie evidence against the
accused
showing his involvement in the
commission of the offence and he is a member
of a dreaded and organised criminal gang, then
merely
because
the
oral
evidence
came
belatedly or that the accused is under
incarceration for more than one year, would in
itself not be a ground to enlarge him on bail.
(Para 15, 16, 17)

Bail Application rejected. (E-3)

Judgements/ Case law relied upon:-

Anil Kumar Yadav Vs State (N.C.T.) of Delhi &
anr., ( 2018) 12 SCC 129

## Text

5 All. Gulam Sarvar Vs. State of U.P.
185
observations shall have no bearing on the
merits of the case during trial.
----------
(2022)05ILR A185
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.05.2022

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Criminal Misc. Bail Application No. 5491 of 2019

Gulam Sarvar ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Mohemmed Amir Naqvi, Amjad Siddiqui,
Bal Keshwar Srivastava, Kapil Mishra, M.
Usman Siddiqui

Counsel for the Opposite Party:
G.A., ASG, SB Pandey

Criminal Law- Code of Criminal Procedure,
1973-
Section
439-
Bail-
Relevant
considerations- It would be inappropriate
to discuss the evidence in depth at this
stage because it is likely to influence the
trial court but from the perusal of the
evidence collected during investigation
and the charge-sheet, it appears that the
complicity
of
the
applicant
is
well
established by the statements of the
Informant
-
In
the
changing
social
circumstances, it has now become obvious
that nobody dares to depose against the
dreaded and hardened criminals out of
fear. The Informant, who himself is a
victim could garner some courage as some
point of time to depose against such high
profile criminals. The crime seems to have
been committed after a well orchestrated
plan to deprive the Informant/victim of
his valuable assets and the culpability of
applicant cannot be ruled out from the
evidence adduced- It is quite clear that an
order of bail cannot be granted in an
arbitrary or fanciful manner. A ratio
decidendi of the judgement of the Apex
Court in Anil Kumar Yadav Vs. State
(N.C.T.) of Delhi and another2, has stated
that in serious crimes, the mere fact that
the accused is in custody for more than
one
year,
may
not
be
a
relevant
consideration to release the accused on
bail.

Where there is prima facie evidence against the
accused
showing his involvement in the
commission of the offence and he is a member
of a dreaded and organised criminal gang, then
merely
because
the
oral
evidence
came
belatedly or that the accused is under
incarceration for more than one year, would in
itself not be a ground to enlarge him on bail.
(Para 15, 16, 17)

Bail Application rejected. (E-3)

Judgements/ Case law relied upon:-

Anil Kumar Yadav Vs State (N.C.T.) of Delhi &
anr., ( 2018) 12 SCC 129

(Delivered by Hon'ble Krishan Pahal, J.)

1. Heard Sri Jyotindra Mishra, learned
Senior Counsel assisted by Sri Kapil
Mishra, learned counsel for the applicant
and Sri Anurag Kumar Singh, learned
counsel for the CBI and also perused the
material available on record.

2. By means of the present bail
application, the applicant seeks bail in Case
Crime No.810 of 2018, under Sections 147,
149, 386, 329, 420, 467, 468, 471, 394,
506, 120-B, 364-A IPC, Police Station-
Krishna Nagar, District- Lucknow, during
the pendency of trial.

BRIEF FACTS OF THE CASE

3. Facts in brief giving rise to the
present
application
are
that
the
Informant/victim
is
a
resident
of
186 INDIAN LAW REPORTS ALLAHABAD SERIES
Alambagh, Lucknow and engaged in the
real estate business having his office at
Gomti Nagar, Lucknow. At the time of
the offence, the accused Atique Ahmad,
Ex-Member
of
Parliament,
Phulpur,
Allahabad was detained in Deoria Jail
and he had tried to pressurize the
Informant for extortion of money for
about two years and out of fear, the
Informant had also given him some
amount as such. The two henchmen of
Atique Ahmad, namely, Mohd. Farooq
and Jaki Ahmad had been trying to extort
money from the Informant for about
several months. The said two accused
persons had also taken possession of the
office of the Informant forcibly and got
their names inducted in the board of the
company and procured digital signatures
of the Informant and his sister Aarti
Jaiswal. Even after that the Informant did
not transfer any shares of the company to
them. On 26.12.2018, another goon of
Atique Ahmad took the Informant to
Deoria Jail where Atique Ahmad along
with his son Umar and 10-12 other
persons were found present. The two
accomplices of Atique Ahmad, namely,
Jafarullah and Gulam Sarvar (the present
applicant) had beaten the Informant
mercilessly thereby breaking his fingers
and causing him several external and
internal injuries. The accused Atique
Ahmad in the jail premises itself got the
companies M.J. Infra Housing Private
Limited,
M.J.
Infra
Green
Private
Limited, M.J. Infra Land L.L.P. Private
Limited and M.J. Infra State Private
Limited transferred forcibly in the name
of his associates Mohd. Farooq and Jaki
Ahmad. The accused Atique Ahmad has
even retained the Fortuner Car of the
Informant bearing No. UP-32 JR 1804
with him. It has also been alleged in the
FIR that the accused Atique Ahmad had
obtained signatures of the Informant on
blank
letter
heads
including
his
resignation letters and also pressurized
the Informant to make forged signatures
of his sister on the blank papers. The
accused Atique Ahmad and his associates
forcibly obtained the digital signatures of
the Informant and his sister and thereby
got the names of their associates inducted
in all the aforesaid companies.

4. The instant FIR has been lodged at
Police Station- Krishna Nagar, Lucknow.
The Supreme Court of India vide its order
dated 23.4.2019 passed in Writ Petition
(Civil) No.699 of 2016 in the matter of
Ashwani Kumar Upadhyay and Others Vs.
Union of India and Others transferred the
investigation of the case to Central Bureau
of Investigation (CBI) and was also
directed to submit quarterly status report of
the investigation to the Court. The main
accused Atique Ahmad was then shifted to
Ahmedabad Jail, Gujarat.

RIVAL CONTENTIONS

5. Sri Jyotindra Mishra, learned
Senior Counsel appearing on behalf of the
applicant has stated that the applicant is
being maliciously prosecuted in the present
case. The jurisdiction of the case falls
within the Police Station- Gomti Nagar,
Lucknow and not Krishna Nagar where the
instant FIR has been initially lodged.
Learned Senior Counsel has further argued
that the statement of the Informant has been
recorded four times by the I.O. and in each
of the subsequent statement, he has
improvised from the previous one. Initially,
the two statements were recorded by the
local police and the subsequent two have
been recorded by the CBI. Absolutely
vague allegation has been made in the
statement of the Informant that the
5 All. Gulam Sarvar Vs. State of U.P.
187
applicant was present in Deoria Jail with
Jafarullah and had even beaten him up
thereby causing grievous hurt to him.

6. As per the prosecution allegation,
one goon of accused Atique Ahmad had
taken Informant forcibly to Deoria Jail by a
Fortuner Car No. UP-32 JR 1804, though it
is impossible that a single unarmed person
would forcibly pickup the Informant at
Lucknow and take him to Deoria Jail and
during such a long distance from Lucknow
to Deoria Jail, the Informant did not raise
any alarm while he had ample opportunity
to do so and resist. The allegation against
the applicant is that his black car was
following the said Fortuner car no. UP-32
JR 1804 of the Informant from Lucknow to
Deoria Jail. He has dropped the Informant
back 100 metres before his house by his car
as the alleged Fortuner of the Informant
was forcibly retained by co-accused Atique
Ahmad. On the way to Deoria Jail, there
are six toll booths and surprisingly, there is
no CCTV footage to indicate that the
applicant had followed the said Fortuner
car of the Informant. There is nothing on
record to suggest that the applicant was in
Deoria jail in connivance with the jail
authorities.

7. Learned Senior Counsel has also
pointed out several contradictions in the
two supplementary statements of the
Informant/victim recorded by the I.O.
regarding the complicity of the applicant.
The prosecution version is doubtful,
suspicious and cannot be relied upon.

8. Learned Senior Counsel for the
applicant has next contended that the
charge-sheet has already been filed in the
matter and the trial is not going forward
and not even the charge has been framed
against the applicant. The CBI is also not
interested in getting the trial concluded
expeditiously as on the last three occasions,
the public prosecutor of the CBI was not
present in the Court and the case was
adjourned only on this ground.

9. Learned Senior Counsel for the
applicant
has
also
relied
upon
the
judgement of Supreme Court passed in the
case of Union of India versus K.A.
Najeeb1, and the relevant para-16 reads as
under:-

"16. This Court has clarified in
numerous
judgments
that
the
liberty
guaranteed by Part III of the Constitution
would cover within its protective ambit not
only due procedure and fairness but also
access to justice and a speedy trial. In
Supreme Court Legal Aid Committee
Representing Undertrial Prisoners v. Union
of India, it was held that undertrials cannot
indefinitely be detained pending trial.
Ideally, no person ought to suffer adverse
consequences of his acts unless the same is
established
before
a
neutral
arbiter.
However, owing to the practicalities of real
life where to secure an effective trial and to
ameliorate the risk to society in case a
potential criminal is left at large pending
trial, Courts are tasked with deciding
whether an individual ought to be released
pending trial or not. Once it is obvious that
a timely trial would not be possible and the
accused has suffered incarceration for a
significant period of time, Courts would
ordinarily be obligated to enlarge them on
bail."

10. Learned Senior Counsel for the
applicant has also submitted that the four
co-accused persons, namely, Irfan, Nitesh
Mishra, Mahendra Kumar Singh and
Pawan Kumar Singh, have already been
enlarged on bail by the court concerned
188 INDIAN LAW REPORTS ALLAHABAD SERIES
passed in Bail Application Nos. 7363 of
2019, 12768 of 2021, 14713 of 2021 and
1786
of
2021,
vide
orders
dated
30.11.2021, 10.12.2021 and 15.12.2021,
respectively. The applicant is languishing in
jail since 18.2.2019 having no criminal
history to his credit, deserves to be released
on bail. In case, the applicant is released on
bail, he will not misuse the liberty of bail
and shall cooperate with the trial.

11. Per contra, Sri Anurag Kumar
Singh, learned counsel for the CBI has
vehemently opposed the bail prayer of the
applicant on the ground that it was the
applicant who had beaten the Informant in
jail premises along with one Jafarullah.
After retaining the alleged Fortuner car by
Atique Ahmad, the Informant was sent
back to his house in the car of applicant
being kidnapped by the co-accused Gulam
Moinuddeen Siddiqui. The applicant is
named in the FIR and his name has also
come up in every statement of the victim.
There is no contradiction or discrepancy in
the statement of the Informant with regard
to the applicant.

12. Learned counsel for the CBI has
further argued that the applicant and the coaccused persons are dreaded criminals of
the area and out of their fear, the Informant
could not dare to depose against them.
Several witnesses have been put under
Witness Protection Programme. He has
further
argued
that
looking
at
the
seriousness and gravity of the subject
matter, the investigation was entrusted to
CBI by the order of Supreme Court and
also the main accused Atique Ahmad has
been shifted to Ahmedabad Jail, Gujarat.
The local police had also filed charge-sheet
against the applicant. The applicant along
with other co-accused persons had also
forced the Informant to put his sister's
forged
signature
on
blank
papers/letterheads.

13. Learned counsel for the CBI has
further submitted that the case of the
applicant is not at par with the other coaccused persons who have been enlarged
on bail. The trial could not proceed further
owing to Covid-19. The offence is not
against a particular person, but against the
society as a whole. Investigation is pending
against the jail officials involved in the said
offence.

14. Learned counsel has fairly
conceded the fact that there is no criminal
history of the applicant but has stated that
he is the main associate of co-accused
Atique Ahmad who had been five times
M.L.A., once an M.P. and a notorious
criminal, against whom 106 cases are
pending trial including the heinous offences
and out of his fear, the FIR has been lodged
after a delay. There is every likelihood that
he shall misuse the liberty of bail as he is
an influential person and the main associate
of Atique Ahmad, therefore, he does not
deserve any indulgence. In case, the
applicant is released on bail, he will misuse
the liberty of bail by extending threat and
intimidation to the prosecution witnesses.

CONCLUSION

15. It would be inappropriate to
discuss the evidence in depth at this stage
because it is likely to influence the trial
court but from the perusal of the evidence
collected during investigation and the
charge-sheet, it appears that the complicity
of the applicant is well established by the
statements of the Informant. The applicant
had followed the alleged Fortuner car of the
Informant to Deoria Jail and beaten him up
in jail premises coercing him to sign the
5 All. Chhotey Lal Vs. U.O.I. N.C.B.
189
papers and had dropped him back near his
house.

16.

In
the
changing
social
circumstances, it has now become obvious
that nobody dares to depose against the
dreaded and hardened criminals out of fear.
The Informant, who himself is a victim
could garner some courage as some point
of time to depose against such high profile
criminals. The crime seems to have been
committed after a well orchestrated plan to
deprive
the
Informant/victim
of
his
valuable assets and the culpability of
applicant cannot be ruled out from the
evidence adduced.

17. It is quite clear that an order of
bail cannot be granted in an arbitrary or
fanciful manner. A ratio decidendi of the
judgement of the Apex Court in Anil
Kumar Yadav Vs. State (N.C.T.) of Delhi
and another2, has stated that in serious
crimes, the mere fact that the accused is in
custody for more than one year, may not be
a relevant consideration to release the
accused on bail.

18. Considering the facts and
circumstances of the case, the nature of
offence,
severity
of
offence,
threat
perception of the witnesses, complicity of
accused, involvement of higher echelons of
society as well as the rival submissions
advanced by the learned counsel for the
parties and without expressing any opinion
on the merits of the case, I am not inclined
to release the applicant on bail.

19. Accordingly, the bail application
of the applicant is rejected.

20. It is clarified that the observations
made herein are limited to the facts brought
in by the parties pertaining to the disposal
of
bail
application
and
the
said
observations shall have no bearing on the
merits of the case during trial.

21. However, it is directed that every
endeavor shall be made by the trial court to
conclude the trial expeditiously, if there is
no other legal impediment.
----------
(2022)05ILR A189
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.04.2022

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Criminal Misc. Bail Application No. 6298 of 2020
&
Criminal Misc. Bail Application No. 1347 of 2022

Chhotey Lal ...Applicant
Versus
U.O.I. N.C.B. ...Opposite Party

Counsel for the Applicant:
Mohd. Salman, Anuj Dayal, Awadhesh
Mishra, Manish Srivastava, Nasreen Bano,
Pramod Kumar

Counsel for the Opposite Party:
A.S.G., Akhilesh Awasthi, Sikha Sinha

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 439- Bail -
Narcotic
Drug
and
Psychotropic
Substances
Act,
1985-
Sections
8(C)/18/29- Section 52(1) - Standing
Order 1/89 dated 13.06.1989 - out of
seven
samples
received,
there
is
a
difference of weight in three samples- two
samples
were
found
less
than
the
minimum quantity of 24 grams- The
recovered contraband is heavy in quantity
- There is compliance of the mandatory
provision of N.D.P.S. Act - The presence of
applicants far away from their usual place
of residence further casts shadow on his
defence - The sample has been taken