# (IN JAIL) v. State of U.P - **Citation:** (2006) 1 ILRA 80 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2006-01-27 - **Case number:** Criminal Misc. Bail Application No. 21348 of 2004 - **Bench:** R.C. Deepak - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/in-jail-v-state-of-u-p-40803 - **Pages:** 4 ## Headnote Code of Criminal Procedure S-439-Bail Application offence under section 376. 506, 120 B IPC victim a worker in an institution named "Rapid Road Auto Agency" Sanjai Palace Agra-who was to secure customer for Registration of their vehicles- applicant accused person taken her to a semi constructed home all the four accused committed rape from (2.30 P.M. to 4 P.M. duly supported by medical report-one of the accused was granted Bail for short term-due to his terror and physical violence the victim and her family shifted to Aligarh-which resulted suicide-hence the Bail application was already rejected. Bail application of others co-accused rejected with direction to surrender before the court below forthwith-failing of which- 1 All] Arun V. State of U.P. 81 direction issued for coercive measures to ensure their arrest. Held: Para 8 & 9 The bail application of accused-applicant Arun son of Subhash Lawaniya in case crime no. 284 of 2004 under section 376, 506, 120B IPC and Section 3(2)5SC/ST Act pertaining to police station New Agra, District Agra is hereby rejected. He is directed to surrender before the court below forthwith and in case of failure to do so, the court below shall initiate coercive measure provided under law to ensure his arrest and his remand. I have only discussed the facts and circumstances of the case available on record and any finding in this regard shall in no way influence the trial court in deciding the case on merit. ## Text 80 INDIAN LAW REPORTS ALLAHABAD SERIES [2006 vague statement has been made that his mother does not maintain the petitioner, but he has failed to show who is maintaining him or how the petitioner is surviving. Thus, the court is not inclined to accept the first argument raised on behalf of the petitioner. 5. The second argument urged on behalf of the petitioner is that in an identical matter, appointment had been given to one Sharad Dixit by the District Inspector of Schools, Farrukhabad/ Kannauj, even though his mother Smt. Sushila Dixit was employed in another institution, while the petitioner is being discriminated. In support of his contention, the petitioner has relied upon a decision of the Apex Court in the case of Surya Kant Kadam v. State of Karnataka and others [AIR 2001 S.C. 2415]. 6. Article 14 is not available to perpetuate illegality and the High Court cannot issue directions that a mistake be perpetuated on the ground of discrimination or hardship. This principle has been upheld by the Apex Court in the cases of Yogesh Kumar and others v. Government of N.C.P. Delhi and others [A.I.R. 2003 S.C. 1241] Jallundhar Improvement Trust v. State of Punjab and others [A.I.R. 2003 S.C. 620] and State of Punjab v. Dr. Rajiv Sarwal [1999 (9) S.C.C. 240]. The facts of the case of Smt. Susheela Dixit have not been disclosed. Assuming that the petitioner is similarly placed, in view of the principles enshrined above, the appointment of Mr. Dixit would be illegal. Having perused the judgment in the case of Suryakant Kadam (Supra), it is apparent that it does not apply to the present set of facts. 7. For the reasons given above, I do not find that it is a fit case for interference under Article 226 of the Constitution of India. Rejected. Petition dismissed. --------- APPELLATE JURISDICTION CRIMINAL SIDE DATED ALLAHABAD 27.01.2006 BEFORE THE HON'BLE R.C. DEEPAK, J. Criminal Misc. Bail Application No. 21348 of 2004 Arun ...Applicant (IN JAIL). Versus State of U.P. ...Opposite Party Counsel for the Applicant: Sri Jagdish Sengar Sri V.P. Srivastava Sri Ajit Kumar Singh Solanki Counsel for the Opposite Party: Sri Nasiruzzaman Sri A.N. Mulla A.G.A. Code of Criminal Procedure S-439-Bail Application offence under section 376. 506, 120 B IPC victim a worker in an institution named "Rapid Road Auto Agency" Sanjai Palace Agra-who was to secure customer for Registration of their vehicles- applicant accused person taken her to a semi constructed home all the four accused committed rape from (2.30 P.M. to 4 P.M. duly supported by medical report-one of the accused was granted Bail for short term-due to his terror and physical violence the victim and her family shifted to Aligarh-which resulted suicide-hence the Bail application was already rejected. Bail application of others co-accused rejected with direction to surrender before the court below forthwith-failing of which- 1 All] Arun V. State of U.P. 81 direction issued for coercive measures to ensure their arrest. Held: Para 8 & 9 The bail application of accused-applicant Arun son of Subhash Lawaniya in case crime no. 284 of 2004 under section 376, 506, 120B IPC and Section 3(2)5SC/ST Act pertaining to police station New Agra, District Agra is hereby rejected. He is directed to surrender before the court below forthwith and in case of failure to do so, the court below shall initiate coercive measure provided under law to ensure his arrest and his remand. I have only discussed the facts and circumstances of the case available on record and any finding in this regard shall in no way influence the trial court in deciding the case on merit. (Delivered by Hon'ble R.C. Deepak, J.) 1. Heard Sri J.S. Sengar, learned counsel for the accused- applicant, Sri Nasiruzzaman, learned counsel for the complainant, learned A.G.A. for the State and perused the record. 2. The facts of the case are such that expose the man's brutality or display of beastly power to satiate the lust against the person of a helpless woman. She was a worker in an institution named Rapid Road Auto Agency, Sanjay Palace, Agra. Her duty was to secure customers for registration of their vehicles. The accused-applicant called her on a false pretext for providing her 2-3 customers who want to get their vehicles registered. She initially declined to go out and asked the accused-applicant to come with customers to her office. The accusedapplicant came on his motorcycle to her office along with Sakir - co-accused. She was called out and taken on the same vehicle for the so called customers, but as per their plan, the accused drove her to a semi-constructed house, that on reaching the said house she noticed the presence of Saket and Bunty. Soon thereafter, two of the four went upstairs to smoke. Those two present were also named by her in the F.I.R. From this, it becomes clear that all the persons were known to her person, but the belief was shattered when co-accused Sachin and Yogendra started to misbehave with her despite her protest. They fell her on a cot and she was ravished one by one by all the four persons. This trauma was faced by her, that after the commission of the dastardly crime upon her. The co-accused Sachin drove her back. She narrated her tale of woes to her officers of the department. She also asked them not to disclose these facts to her father, who is a heart patient. She thereafter returned to her house and rested. Thereafter, she again went to her office on the next date wherein she was present in the office till evening. In the evening, when she went to toilet she fell unconscious and after regaining her consciousness she made the impugned F.I.R. In the process of being ravished or otherwise she had suffered injuries on her skull as well. In such circumstances, if these facts or omissions or if there is incoherence in the F.I.R. it is the most natural effect of the trauma that she suffered on her person allegedly at the hands of the accused-applicant and the other co-accused probability cannot be ruled out that she might have been pushed off the vehicle to eliminate her evidence at any later stage. The injuries could have been suffered subsequently in the said process. 3. I do not find any valid reason to have any doubt in her statement made 82 INDIAN LAW REPORTS ALLAHABAD SERIES [2006 under Section 164 Cr.P.C. so far as it relates to the role attributed to this accused-applicant, she has categorically named the accused-applicant one of the participant of this case of gang rape of her's. The question that the incident did not occure on 11.8.2004 at 12.30 p.m., it cannot be believed at this stage. The medical officer has made a categorical statement in this regard that the incident could have occurred at the alleged time and date. The relevant portion of the statement is as follows : "Dinank 11.8.2004 12:30 baje se 4:00 baje rape hona sambhav hai. Skin thodi see kati thi jo jor jabardasti balatkaar karne per aana sambhav hai". The accusedapplicant claims himself to be the student of B.Sc. On the ground of his appearance in the examination of the said class, he was released on short-term bail vide order dated 25.2.2005 and till today he is availing the liberty granted to him. While releasing the applicant on short-term bail, the following conditions were imposed upon him: 4. The applicant shall furnish an undertaking also before the C.J.M. concerned that he will not indulge in any criminal activities and will not cause either any threat or any physical violence to the injured/complainant and their family members and to the witnesses of the case. If any such report is made by any of the above person either to the court or the police, it shall be properly inquired into and if any substance therein is found, it shall be open for the court below to report to this Court so that the bail may be cancelled. 5. It is alleged that on being released on short-term bail, the applicant and coaccused Sachin extended threats and illtreated the victim and on account of this the family of the victim shifted to Alighrh from Agra where to she was threatened and due to torture and mental agony she committed suicide on 22.7.2005. The first information report relating to this subsequent offence was lodged on 23.7.2005 at Aligarh against the accusedapplicant and co-accused Sachin. 6. The prayer for bail of the coaccused Sachin has already been rejected by Hon'ble Justice Ravindra Sing vide order dated 29.9.2005 passed on criminal misc. bail application no. 864 of 2005. 7. Taking into account the entire facts and circumstances of the case emerging from the record, tat the conduct of the accused-applicant and his abuse of the privileges of interim bail granted to him, I arrive at irresistible conclusion that the accused-applicant miserably failed to make out a case for bail. 8. The bail application of accusedapplicant Arun son of Subhash Lawaniya in case crime no. 284 of 2004 under section 376, 506, 120B IPC and Section 3(2)5SC/ST Act pertaining to police station New Agra, District Agra is hereby rejected. He is directed to surrender before the court below forthwith and in case of failure to do so, the court below shall initiate coercive measure provided under law to ensure his arrest and his remand. 9. I have only discussed the facts and circumstances of the case available on record and any finding in this regard shall in no way influence the trial court in deciding the case on merit. 1 All] Ashok Kumar Srivastava V. U.P. Public Services Tribunal, U.P. and others 83 10. Let a copy of this order be furnished to the learned A.G.A. free of cost for intimating the authority concerned. Application Rejected. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 18.11.2005 BEFORE THE HON'BLE DR. B.S. CHAUHAN, J. THE HON'BLE SHISHIR KUMAR, J. Civil Misc. Writ Petition No. 48590 of 1999 Ashok Kumar Srivastava ...Petitioner Versus U.P. Public Services Tribunal and others ....Respondents Counsel for the Petitioner: Sri K.N. Mishra Sri P.K. Srivastava Counsel for the Respondents: S.C. Constitution of India Art. 311 (2)- Departmental enquiry and Criminal Proceeding-difference explained-even after acquittal in criminal proceeding-the punishment of dismissal in departmental proceeding can not be altered-standard proof of both proceedings-held-quite different-nor can be termed as double jeopardy. Held: Para 12 and 21 The question of considering reinstatement after decision of acquittal or discharge by a competent criminal court arises only and only if the dismissal from services was based on conviction by the criminal court in view of the provisions of Article 311 (2) (b) of the Constitution or analogous provisions in the statutory rules applicable in a case. In a case where enquiry had been held independently of the criminal proceedings, acquittal in a criminal court is of no help. The law is otherwise. Even if a person stood acquitted by a criminal court, domestic enquiry can be held, the reason being that the standard of proof required in a domestic enquiry and that in a criminal case are altogether different. Thus, there can be no doubt regarding the settled legal proposition that as the standard of proof in both the proceedings is quite different, and the termination is not based on mere conviction of an employee in a criminal case, the acquittal of the employee in criminal case cannot be the basis of taking away the effect of departmental proceedings. Nor such an action of the department can be termed as double jeopardy. The submission made in this regard is untenable in view of the law discussed herein above. Case law discussed: AIR 1982 SC-1249 AIR 1917 P.C.-3 AIR 1921 Cal. 584 AIR 1926 P.C.-136 1995 (6) SCC-45 1997 (4) SCC-662 AIR 2003 SC-2182 AIR 1955 SC-566 AIR 1971 SC-1244 AIR 1999 SC-1416 AIR 2004 SC-4144 AIR 1967 SC-223 AIR 2004 SC-4127 2004 (8) SCC-200 (Delivered by Hon'ble Dr. B.S. Chauhan, J.) 1. This writ petition has been filed for setting aside the judgment and order dated 30.7.1999, passed by the U.P. Public Services Tribunal, Lucknow, hereinafter called the "Tribunal", dismissing the claim petition of the petitioner against the order of removal from service dated 16.7.1997.