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

- **Citation:** (2008) 1 ILRA 230
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-02-27
- **Case number:** Criminal Misc. Bail Application No. 1421 of 2008
- **Bench:** Ravindra Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/in-jail-v-state-of-u-p-41019
- **Pages:** 3

## Headnote

Code of Criminal Procedure-439-Bailoffence under Section 148, 149, 452,
307-applicant murdered the deceased
who was an eye witness-refused to
compromise-active role-causing injury
assigned to the applicant-not entitled for
bail-Rejected.

Held: Para 7

Considering the facts and circumstances
of the case and submissions made by the
learned counsel for the applicant and the
learned
A.G.A.
and
considering
the
gravity of the offence which is too much,
because in this case the witness in the
earlier murder case has been murdered
by the applicant and other co-accused
person, active role of causing injury is
assigned to the applicant. The case of
the applicant is distinguishable with the
case of Har Pal, Dharam Pal and Hema,
who have been released on bail, by
another bench of this court and without
expressing any merits of the case, the
applicant is not entitled for bail, the
prayer for bail is refused.

## Text

230 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
findings are based on the evidences on
record are neither illegal or perverse.

11. In my view the decisions cited
by the learned counsel for the appellants
referred herein above are not applicable to
the present case on the facts and
circumstances stated above and are
clearly distinguishable on facts.

12. In view of the above, the appeal
has
no merit and is, accordingly,
dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.02.2008

BEFORE
THE HON'BLE RAVINDRA SINGH, J.

Criminal Misc. Bail Application No. 1421 of
2008

Om Pal

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

Counsel for the Applicant:
Sri Arun Kumar Singh

Counsel for the Opposite Party:
A.G.A.

Code of Criminal Procedure-439-Bailoffence under Section 148, 149, 452,
307-applicant murdered the deceased
who was an eye witness-refused to
compromise-active role-causing injury
assigned to the applicant-not entitled for
bail-Rejected.

Held: Para 7

Considering the facts and circumstances
of the case and submissions made by the
learned counsel for the applicant and the
learned
A.G.A.
and
considering
the
gravity of the offence which is too much,
because in this case the witness in the
earlier murder case has been murdered
by the applicant and other co-accused
person, active role of causing injury is
assigned to the applicant. The case of
the applicant is distinguishable with the
case of Har Pal, Dharam Pal and Hema,
who have been released on bail, by
another bench of this court and without
expressing any merits 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 has been filed by
the applicant Om Pal with a prayer that he
may be released on bail in case crime no.
2107
of
2006
under
sections
147,148,149,452,307 and 302 I.P.C. P.S.
Kotwali City district Bijnor.

2. The fact of the case in brief are
that the F.I.R. of this case has been lodged
by Ved Pal Singh on 8.9.2006 at 4.00 a.m.
in respect of the incident which had
occurred in the night of 7/8.9.2006 at
about 3.30 a.m., distance of the police
station was about 8 km from the alleged
place of occurrence, the applicant and
seven other co-accused persons are named
in the F.I.R.. It is alleged that prior the
alleged incident one Tej Pal Singh alias
Roshan was murdered by the co-accused
Rupesh, co-accused Sonu, co-accused
Dinesh and co-accused Som Pal, they
were pressurizing the deceased to settle
the dispute by way of a compromise but
the same was refused by the deceased, in
the night of 7/8.9.2006 at about 3.30 a.m.,
the
applicant and other co-accused
persons armed with sword and country
made pistol came at the roof of the
deceased Tejpal where Updesh and
Ganeshi were also sleeping and caused
injury by using country made pistol, gun
and
sword
and
other
weapons
1 All] Om Pal V. State of U.P.
231
consequently, the deceased Tejpal died
instantaneously and Updesh and Ganeshi
sustained injuries. According to the post
mortem examination report, the deceased
has sustained several ante mortem injuries
in which injury nos. 1 and·4 were
lacerated wounds, injury no. 3 and 6 were
gun shot wounds and injury no.5 and 7
were abrasion. According to the medical
examination report of Ganeshi, he had
sustained 11 injuries, in which injury no.
1,3,4,5,6,7,9,10 and 11 were incised
wounds, and. injury no. 2 and 8 were
lacerated wounds and the injured Updesh
had sustained 2 injuries, in which injury
no. 1 lacerated wound and injury no. 2
was gun shot wound.

3. Heard Sri Arum Kumar Singh 1st,
learned counsel for the applicant, learned
A.G.A. for the State of U.P.

4. It is contended by ·the learned
counsel for the applicant that no specific
weapon has been shown in the hand of the
applicant, and he was not an accused in
the earlier murder case, he was not having
any motive or intention to commit the
alleged offence, no specific weapon has
been shown in the hand of the applicant
but during investigation it has been
alleged that the applicant was armed with
pharsa whereas this weapon has not been
shown in the F.I.R. and the co-accused
Har Pal, Dharam Pal and Hema have been
released on bail by another bench of this
court on 8.8.2007 in criminal misc. Bail
application no. 27263 of 2006, therefore,
the applicant is also entitled to get the
benefit of parity.

5. It is further contended by the
learned counsel for the applicant that the
applicant
is
innocent,
he
has
not
committed the alleged offence, but he has
been falsely implicated due to village
party bandi.

6. In reply to the above contention, it
is submitted by the learned A.G.A. that in
the present case the deceased has been
murdered by the applicant and other coaccused persons because he was not
agreed for compromise in the earlier
murder case because he was a star witness
in that case, the applicant and other coaccused persons have committed the
murder of the deceased and caused injury
on the person of the injured, F.I.R. has
been promptly lodged, the applicant is
closely associate with the co-accused who
are also accused in the earlier murder
case, the co-accused Har Pal, Dharam Pal
and Hema have been released on bail after
considering
the
statements
of
the
witnesses under section 161 Cr.P.C. in
which the role of causing injury to the
injured and the deceased by lathi was
shown and the injury caused by lathi was
simple in nature. The case of the applicant
is not on the same footing with the above
mentioned co-accused, therefore, he is not
entitled for bail and the gravity of the
offence is too much.

7. Considering the facts and
circumstances
of
the
case
and
submissions made by the learned counsel
for the applicant and the learned A.G.A.
and considering the gravity of the offence
which is too much, because in this case
the witness in the earlier murder case has
been murdered by the applicant and other
co-accused person, active role of causing
injury is assigned to the applicant.. The
case of the applicant is distinguishable
with the case of Har Pal, Dharam Pal and
Hema, who have been released on bail, by
another bench of this court and without
expressing any merits of the case, the
232 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
applicant is not entitled for bail, the
prayer for bail is refused.

8. Accordingly this application is
refused. Application rejected.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.02.2008

BEFORE
THE HON'BLE AMAR SARAN, J.

Criminal Misc. Application No. 840 of 2008

Sushil Kumar Budhiya ...Applicant/Petitioner
Versus
Sushil Kumar Singh & others ...Respondents

Counsel for the Applicant/Petitioner:
Sri R.S. Chauhan
Sri Shree Kannan Kapoor

Counsel for the Respondents:
Sri Vinod Kumar Mishra
A.G.A.

Code of Criminal Procedure-Section-482Summoning order on application under
Section 156 (3)-offence under Section
406 I.P.C.-challenged on the ground for
same act of transaction proceeding
under
negotiable
instrument
already
going on-held-No bar.

Held: Para 12

But in a case like the present, where the
offence
could
be
both
under
the
Negotiable Instrument Act as well as for
certain provisions of the penal Code, I
see no bar for the prosecution of the
applicant for both the offences.
Case law discussed:
AIR 2000 SC 754, (1999) 8 SCC 686, AIR 1992
SC 604, (1999) 3 SCC 259, 1999 Cri LJ 1833,
AIR 1992 SC 604, AIR 2006 SUPREME COURT
2780, (2000) SCC 539, AIR 2005 SC 2436, AIR
2004 SUPREME COURT 4674, (200 1) 7 SCC
659
(Delivered by Hon'ble Amar Saran. J.)

1. Heard learned counsel for the
applicant and Shri Vinod Kumar Mishra,
learned Additional Government Advocate
representing the State.

2. An application under Section
156(3) of the Code of Criminal Procedure
(hereinafter referred to as the Code) dated
24.8.2002, which was treated as a
complaint after the statements of the
witnesses under Sections 200 and 202 of
the Code were recorded, the summoning
order dated 23.9.2002 and the order dated
13.0.2006 passed by the Additional Chief
Judicial Magistrate, Court No.1, Varanasi
in case No. 9051 of 2004 (Sushil Kumar
Vs.
Budhia
Roadways
and
others)
rejecting the objections and refusing to
discharge the applicant under Section 406
IPC have been challenged by means of
this application.

3. The allegations in the application
under Section 156(3) Cr.P.C. filed by the
complainant
Sushil
Kumar
Singh,
Manager of Harish Chandra Krishna
Vitran Kendra were that the complainant
was running a petrol pump, which used to
supply fuel to the firm of the applicant
namely Budhia Roadways Private Limited
and in a fraudulent manner the applicant
and the other directors of the said firm
had obtained fuel, whose outstanding bills
for payment rose to the tune of
Rs.3,25,000/- (rupees three lac twenty
five thousand) for which a cheque was
given, which was dishonoured on account
of the fact that there was no money in the
applicant's firm account. When the
complainant received information from
the bank on 27.5.2007, then on enquiry he
learnt that Om Prakash Budhia, Sushil
Budhia and the other directors had