# (In Jail) v. State of U.P

- **Citation:** (2006) 2 ILRA 784
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-05-04
- **Case number:** Criminal Misc. Bail Application No. 3497 of 2006
- **Bench:** Ravindra Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/in-jail-v-state-of-u-p-40658
- **Pages:** 3

## Headnote

Code
of
Criminal
Procedure-439-Bail
Application-offence under Section 498-A,
304-B I.P.C.-unnatural death within 5
months
of
marriage-allegation
of
demand of dowry and cruelty in dying
declaration role of applicant specifiedheld-not entitled for bail.

Held: Para 5

Considering the fact and circumstances
of the case and the submission made by
the learned counsel for the applicant and
the learned A.G.A., and considering the
fact that the deceased died within 5
months of her marriage, the death is
unnatural, the allegation of demand of
dowry
and
cruelty
is
against
the
applicant, there is a dying declaration of
the deceased in which specific role of
committing the murder of the deceased
has been attributed to the applicant and
without expressing any opinion on the
merit of the case, the applicant is not
entitled for bail. The prayer for bail is
refused.

## Text

784 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
impugned order dated 17.8.2005 and
remit the writ petition back for a fresh
consideration in accordance with law.

The appeal is, accordingly, allowed.
No order as to costs.
Appeal Allowed.
---------
APPELLATE JURISDICTION
CRIMINAL JURISDICTION
DATED: ALLAHABAD 04.05.2006

BEFORE
THE HON'BLE RAVINDRA SINGH, J.

Criminal Misc. Bail Application No. 3497 of
2006

Saurabh

 ...Applicant (In Jail)
Versus
State of U.P.

...Opposite Party

Counsel for the Applicant:
Sri R.K. Yadav

Counsel for the Opposite Party:
Sri S.P.S. Rathore
A.G.A.

Code
of
Criminal
Procedure-439-Bail
Application-offence under Section 498-A,
304-B I.P.C.-unnatural death within 5
months
of
marriage-allegation
of
demand of dowry and cruelty in dying
declaration role of applicant specifiedheld-not entitled for bail.

Held: Para 5

Considering the fact and circumstances
of the case and the submission made by
the learned counsel for the applicant and
the learned A.G.A., and considering the
fact that the deceased died within 5
months of her marriage, the death is
unnatural, the allegation of demand of
dowry
and
cruelty
is
against
the
applicant, there is a dying declaration of
the deceased in which specific role of
committing the murder of the deceased
has been attributed to the applicant and
without expressing any opinion on the
merit of the case, the applicant is not
entitled for bail. The prayer for bail is
refused.

(Delivered by Hon'ble Ravindra Singh, J.)

1. This application is filed by the
applicant Saurabh with a prayer that he
may be released on bail in case crime no.
112 of 2005 under section 498 A, 304 B
I.P.C. P.S. Kasiraj district Etah.

2. The prosecution story, in brief is
that in the present case the F.I.R. has been
lodged by Rajesh Kumar, brother of the
deceased Smt. Baby alias Pinky on
15.5.2005 at 6.00 p.m. in respect of the
incident which had occurred in the night
of 26/27.4.2005 at 4.30 a.m. It is alleged
that the marriage of the deceased was
solemnized
with
the
applicant
on
15.12.2004. The amount of Rs. 2 lacs was
defrayed in the marriage but the in laws of
the deceased were not satisfied with the
dowry given to them. They were
demanding motor cycle and Rs.50,000/-
and to fulfill the demand of dowry they
were torturing the deceased physically
and mentally. In the night of 26/27.4.2005
at about 4.30 a.m. the applicant and other
co-accused poured acid and petrol on the
deceased, consequently, she received
injuries she was taken to the hospital. The
first informant was given an information
about the treatment of his sister in the
hospital he went there and saw her
condition. Thereafter he lodged the F.I.R.

3. Heard Sri Radhakrishna Yadav
learned counsel for the applicant; learned
A.G.A. and Sri S.P. Rathore, learned
counsel for the complainant.

It is alleged by the learned counsel
for the applicant:-
2 All] Saurabh V. State of U.P.
785
I.
That there was no demand of dowry
and the deceased was never subjected to
cruelty to full fill the demand of dowry.
She was always maintained as a house
wife in a cool and calm atmosphere. She
did not receive any injury as alleged by
the prosecution. The deceased received
injury accidentally due to short-circuits of
electric wire. She was taken to the C.H.C.
Kasiraj
where
she
was
medically
examined and referred to better hospital.
She was also admitted by the applicant in
the hospital, during her treatment blood
was given to her by the family members
of the applicant and the applicant
provided medical aid and borne the heavy
expenses.

II.
That the deceased was caught by fire
accidentally, the younger brother of the
applicant namely Gaurav tried to save her
life who also suffered burn injuries. He
was medically examined on 27.4.2005, he
received superficial to deep burn injuries.

III. That the deceased was forcibly taken
by the first informant against her wishes
from the hospital of Kasganj to district
Hospital Farrukhabad where she died.

IV. That the applicant gave information
to the first informant on that information
the first informant came to the hospital
and the deceased was tutored by the first
informant and others and a tutored dying
declaration was recorded on 27.4.2005.

4. It is opposed by the learned
A.G.A. and the learned counsel for the
complainant by submitting:-

I.
That the death of the deceased was
unnatural, she died due to burn
injuries within five months of her
marriage. There was a demand of
dowry. She was subjected to cruelty
to fulfill the same. The applicant is
the husband. He is the main
accused. The dying declaration of
the deceased was recorded on
27.4.2005 at 11.30 a.m. in which
she clearly stated that she was
beaten
by
the
applicant
and
kerosene was poured on her by the
applicant, thereafter, she was set on
fire. She has made allegation which
is against the applicant. She did not
make any allegation against other
family
members,
in
such
a
circumstances the applicant may not
be released on bail.

5.

Considering
the
fact
and
circumstances of the case and the
submission made by the learned counsel
for the applicant and the learned A.G.A.,
and considering the fact that the deceased
died within 5 months of her marriage, the
death is unnatural, the allegation of
demand of dowry and cruelty is against
the applicant, there is a dying declaration
of the deceased in which specific role of
committing the murder of the deceased
has been attributed to the applicant and
without expressing any opinion on the
merit of the case, the applicant is not
entitled for bail. The prayer for bail is
refused.

6. Accordingly this application is
rejected.
Application Rejected.
---------
786 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.07.2006

BEFORE
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petition No. 4897 of 2003

Huzbar Uddin Khan

...Petitioner
Versus
Director General of Police and others

 ...Respondents

Counsel for the Petitioner:
Sri Shashi Nandan
Sri Anurag Jauhari

Counsel for the Respondents:
S.C.

U.P. Government Servant Conduct of
Rules,
1956-Rule
28-Punishment
Dismissal-petitioner
working
as
Sub
Inspector-promised to marry a lady but
failed to do with fact that so-from
enquiry report incident of love affairs not
confirmed-complainent being fully aware
the petitioner a married man having two
childeren-provision of section 28 not
attrected-punishment
of
dismissalwholly dispropationate punishment of
withholding 25% back wages-awarded.

Held: Para 43,50,52,58

In my opinion, Rule 28 does not apply in
the present case. From the record, it is
also clear that the petitioner has not
been afforded an opportunity to the
amended charge sheet dated 10.6.2001
and the enquiry officer has submitted his
report dated 28.8.2001.

In view of the aforesaid proposition of
law, discussed above, there is no doubt
to this effect that this Court while
exercising power under Article 226 of
the Constitution of India can only
interfere when the Court comes to the
conclusion that the punishment which
has
been
awarded
is
highly
disproportionate and the same shocks
the conscience of the Court in the sense
that it was in defiance of logic or moral
standards. From the perusal of the
record, it clearly goes to show that the
charges levelled against the petitioner
does not come under the definition of
''misconduct' as defined above. From the
perusal of Rule 28 of the Conduct Rules,
in my opinion, this also does not cover
the
charges
levelled
against
the
petitioner. The complaint made by the
lady does not come in relation to the
performance
of
the
petitioner's
in
service. There is no charge against the
petitioner that he was ever having any
illicit relation with that lady. From the
record,
it
is
also
clear
that
the
complainant was fully aware that the
petitioner
was
married
having
two
children.

In view of the aforesaid facts and
circumstances
and
in
view
of
the
definition of ''misconduct', I am of the
opinion, that awarding punishment of
dismissal from service to petitioner is
wholly disproportionate and cannot be
sustained as this Court is of the view
that the complaint and allegations do not
constitute a misconduct.

In special facts and circumstances of the
present case, as narrated above, this
Court without remitting the matter to
the
disciplinary
authority
while
exercising the power under Article 226
of
the Constitution of India, itself
substituting
the
punishment
to
the
petitioner. Justice will be served if a
punishment to the petitioner to the tune
of withholding 25% of back wages is
awarded from the date of dismissal till
the date of reinstatement. This will be
sufficient in the facts and circumstances
of the present case.
Case law discussed:
2001 (2) ESC (Alld.) 719
2002 (1) ESC (Alld.) 341
2004 (2) UPLBEC-1461
2003 (8) SCC-9
1987 (3) SCC-1