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

- **Citation:** (2008) 1 ILRA 31
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-01-15
- **Case number:** Criminal Misc. Bail Application No. 29098 of 2007
- **Bench:** Ravindra Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/in-jail-v-state-of-u-p-41075
- **Pages:** 3

## Headnote

Code of Criminal Procedure Section 439Bail Application-offence under Section
302,
364A,
201-allegations
of
kidnapping-demand of ransom-on non
fulfillment-deceased killed-case based
on
complete
chain
of
circumstance
evidence-recovery
of
dead
body
as
painted out by accused-scarf used for
commission of offence also no covered
from
the
possession
of
accusedconsidering
gravity
of
offence-not
entitled for Bail.

Held: Para 6

Considering the facts, circumstance of
the case, submission made of learned
counsel for the applicant, learned A.G.A.
and from the perusal of the record it
appears that the present case is based
on circumstantial evidence but chain of
the
circumstance
is
complete,
the
deceased
was
kidnapped
the
the
applicant and other co-accused for the
purpose of ransom, demand of ransom
was made, on non fulfillment of demand
of ransom the deceased was killed, the
dead
body
of
the
deceased
was
recovered at the pointing out of the
applicant and other co-accused and one
scarf used in the commission of alleged
offence was also recovered from the
possession of the applicant, gravity of
offence
is
too
much
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

1 All] Awadhesh Kumar and others V. State of U.P. and another
31
Section 200 Cr.P.C., which reads as
follows:-

"Provided that, when the complaint
is made in writing, the Magistrate need
not examine the complainant and the
witnesses-

(a) if a public servant acting or
purporting to act in discharge of his
official duties or a Court has made the
complaint."

5. That is if the complainant who
gives the information in writing is a
public servant, who is acting in discharge
of its official duties, it may not be
necessary to examine the complainant and
the witnesses.

6. With these observations, this
application is allowed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.01.2008

BEFORE
THE HON'BLE RAVINDRA SINGH, J.

Criminal Misc. Bail Application No. 29098
of 2007

Kalua

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

...Opposite Party

Counsel for the Applicant:
Sri Rajesh Kumar Srivastava

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

Code of Criminal Procedure Section 439Bail Application-offence under Section
302,
364A,
201-allegations
of
kidnapping-demand of ransom-on non
fulfillment-deceased killed-case based
on
complete
chain
of
circumstance
evidence-recovery
of
dead
body
as
painted out by accused-scarf used for
commission of offence also no covered
from
the
possession
of
accusedconsidering
gravity
of
offence-not
entitled for Bail.

Held: Para 6

Considering the facts, circumstance of
the case, submission made of learned
counsel for the applicant, learned A.G.A.
and from the perusal of the record it
appears that the present case is based
on circumstantial evidence but chain of
the
circumstance
is
complete,
the
deceased
was
kidnapped
the
the
applicant and other co-accused for the
purpose of ransom, demand of ransom
was made, on non fulfillment of demand
of ransom the deceased was killed, the
dead
body
of
the
deceased
was
recovered at the pointing out of the
applicant and other co-accused and one
scarf used in the commission of alleged
offence was also recovered from the
possession of the applicant, gravity of
offence
is
too
much
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.)

This bail application has been filed
by the applicant Kalua with a prayer that
he may be released on bail in case crime
No. 31 of 2007 under sections 302, 364A, 201 IPC, P.S. Jagner, District Agra.

2. The facts in brief of this case are
that the FIR has been lodged by Vinod
Kumar Sharma on 8.2.2007 at 0.15 A.M.
in respect of the incident which had
occurred on 30.1.2007 at about 6.00 P.M.
The applicant is named in the FIR. It is
alleged that the son of the first informant
namely Rahul aged about 18 years was
32 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
kidnapped for the purpose of ransom
ultimately he was killed. The dead body
of the deceased has been recovered at the
pointing of the applicant and other coaccused. The cause of death was due to
suffocation because of ante mortem
injuries. The applicant applied for bail
before learned Special Judge, D.A.A.
Agra,
who
rejected
the
same
on
10.10.2007. Being aggrieved from the
order dated 10.10.2007 the present bail
application has been moved by the
applicant.

3. Heard Rajesh Kumar Srivastava,
learned counsel for the applicant and
learned A.G.A. for the State of U.P.

4. It is contended by learned counsel
for the applicant that in the present F.I.R.
is delayed by two days. There is no
plausible explanation of delay in lodging
the F.I.R. It is further contended by
learned counsel for the applicant that
applicant is named only on the basis of
doubt and suspicion because he was
friend of the deceased and the deceased
was seen in the company of the applicant
when they were going towards the road.
The allegation that the deceased was
kidnapped, thereafter demand of Rs. Two
lacs was made by the miscreants on a
telephone, the sound was appeared as of
applicant. It can not be a credible
evidence against the applicant. There is
no eye witness account and no transaction
of ransom has taken place. But during
investigation
the
I.O.
arrested
the
applicant on the basis of information
given by the Mukhbir and recorded the
statement of the applicant, in which he
confessed that he along with co-accused
Vinod, Omkar and Bhola kidnapped the
deceased
for
realizing
the
ransom.
Thereafter the co-accused Vinod Thakur,
Omkar and Bhola were also arrested by
the police on 8.2.2007 at 1.45 P.M. the
alleged confessional statement in fact has
not been made by the applicant, it has
been recorded by the I.O according to his
desire. Subsequent recovery of the dead
body at the pointing out of the applicant
and three other co-accused persons is also
planted. It is having no evidential value
because the recovery has been made at the
joint pointing out of the applicant and
other co-accused persons. The alleged
recovery has not been supported by any
independent witness. It is alleged that the
dead body was recovered after digging at
about 3.40 P.M. from the field, it was an
open place. It is further contended that the
recovery of scarf (Angauchha) has also
been planted by the I.O., the alleged scarf
was used in the commission of the murder
of the deceased. The present case is based
on circumstantial evidence but the chain
of the circumstance is not complete. The
applicant is not having any criminal
antecedent. He may be released on bail.

5. In reply of the above contention,
it is contended by learned A.G.A. that
applicant is not named in the F.I.R., he
was seen in the company of the deceased,
he demanded Rs. Two lacs as a ransom on
a telephone, his voice was identified by
the first informant. The dead body of the
deceased has been taken out from a pit by
the applicant and other co-accused person
after digging mud and the scarf used in
the commission of the alleged offence has
been recovered from the possession of the
applicant. The chain of the circumstance
is complete, therefore the applicant may
not be released on bail.

6.

Considering
the
facts,
circumstance of the case, submission
made of learned counsel for the applicant,
1 All] Shambhoo Prasad V. Authorised Controller, S.H. Inter College
33
learned A.G.A. and from the perusal of
the record it appears that the present case
is based on circumstantial evidence but
chain of the circumstance is complete, the
deceased was kidnapped the applicant and
other co-accused for the purpose of
ransom, demand of ransom was made, on
non fulfillment of demand of ransom the
deceased was killed, the dead body of the
deceased was recovered at the pointing
out of the applicant and other co-accused
and one scarf used in the commission of
alleged offence was also recovered from
the possession of the applicant, gravity of
offence
is
too
much
and
without
expressing any opinion on the merit of the
case, the applicant is not entitled for bail.
The prayer for bail is refused.

7. According this application is
rejected.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.01.2008

BEFORE
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No.8600 of 2001
Connected with
Civil Misc. Writ Petition No.44383 of 2001

Shambhoo Prasad

...Petitioner
Versus
Authorised Controller, Sarva Hitaishi Inter
College, Ghaziabad & others ...Respondents

Counsel for the Petitioner:
Sri R.B. Singhal
Sri M.K. Rajvanshi
Sri Dinesh Chandra Srivastava

Counsel for the Respondents:
Sri B.P. Singh
S.C.

(A) U.P. Secondary Education Service
Commission Act 1982-as amended by
U.P.
Secondary
Education
Service
Commission
Amendment
Ordinance-
1998 promulgated in U.P. Gazette on
20.4.1998-Section
33-RegularisationAdhoc L.T. Grade teacher appointed on
19.10.92
regularised
on
18.08.99whether the petitioner regularization be
treated
with
retrospectively
or
prospectively-held- prospective basis.

Held: Para 14

In
view
of
aforesaid
settled
legal
position and statutory backdrop of the
case, in my considered opinion, the
services of petitioner cannot be treated
to be regularised earlier to 18.8.1999,
and his substantive appointment can
also not be treated to be made earlier to
the aforesaid date.

(B) U.P. Intermediate Education Act1921-regular appointment-not defined in
the Act-definition given in Baleshwar
Das Case-regular appointment' meansappointed on substantive capacity it may
be either temporary or permanent post.

Held: Para 38

From a close analysis of decision of
Hon'ble Apex Court in Baleshwar Das's
case (supra) it is clear that where the
appointments are made on temporary
posts after fulfilment of all the test for
regular appointment, such appointments
have been held to be in substantive
capacity, irrespective of facts that such
appointments made against temporary
post or permanent post. It follows that
merely
because
the
person
is
a
temporary appointee it cannot be said
that he is not substantively appointed, if
he fulfils the necessary conditions for
regular appointment, such as probation
and consultation with the Public Service
Commission and once these formalities
are complete, the incumbents can be
taken as holding post in substantive
capacity and entire officiating service