# Kailash Gupta v. State Of U.P

- **Citation:** (2016) 7 ILRA 1051
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-26
- **Bench:** Karuna Nand Bajpayee
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kailash-gupta-v-state-of-u-p-44042
- **Pages:** 5

## Text

7 All. Kailash Gupta Vs State Of U.P.
1051
trial so without considering the prayer made by the applicant in her application 70B the trial court
appears to have passed the impugned order in haste, so that the accused / applicant by engaging
another new counsel may not obstruct the trial. It is settled principle of law that prosecution is at
liberty to produce as many as witnesses mentioned in the charge sheet and if the prosecution does
not want to produce any witness mentioned in the charge sheet, it may not be compelled to produce
as has been laid down by Apex Court in the case of Hukum Singh Vs. State of Rajasthan 2001(1)
JIC 213 S.C. It is also pertinent to mention that the ground for summoning a witness on
engagement of new defence counsel or any mistake of earlier counsel, may not be a valid ground
and such a witness may be summoned only if the evidence of such witness is essential of just
decision. In such circumstances, I find that impugned order is wrong and incorrect and has been
passed without assigning any reason and is liable to be quashed.

6. In view of the discussions made above, the impugned order dated 6.8.2015 is quashed.
The trial court is directed to decide application 70B of applicant afresh after affording reasonable
opportunity of hearing to the parties and further opportunity to A.D.G.C. (Criminal) to discharge
any of the witnesses he wants to discharge, within one month. It is further made clear that the
accused persons shall fully cooperate with the progress of trial and will remain present on each and
every date fixed for recording their statements under Section 313 Cr.P.C. and in case any of them
fails to appear or delays the disposal of trial in any other manner, the trial court shall be at liberty to
pass necessary orders for cancellation of his or her bail and keep him or her under custody till
conclusion of trial.

7. Application is disposed of accordingly.
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ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.07.2016

BEFORE

THE HON'BLE KARUNA NAND BAJPAYEE, J.

Criminal Misc. Bail Application No.- 18122 Of 2015

Kailash Gupta ...Applicant
Versus
State Of U.P. ...Opposite Party

Counsel for Applicant:
Neerad Srivastava, Ankit Agarwal, Sharad Kumar Srivastava

Counsel for Opposite Party:
Govt. Advocate

Indian Penal Code, 1860 - Sections 302 (Murder), 120-B (Criminal Conspiracy); Code of Criminal
Procedure, 1973 - Section 164 (Statement before Magistrate), Section 437/439 (Bail).
1052 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Criminal Procedure - Bail - Sections 302/120-B I.P.C. - Murder Committed within Jail
Premises - Government Servant Acting as Conduit for Supply of Firearms and Money to Prisoners
- Gravity of Offence - Bail Rejected.
Where a government servant posted as Bandi Rakshak in a District Jail is alleged, on the basis of substantive
material collected during investigation, to have supplied firearms (revolver, pistol and cartridges) and a large
sum of money to a group of prisoners within the jail premises, which supply directly facilitated the commission
of murder of a prisoner and serious injuries to others within the jail on 17.01.2015 as part of a pre-meditated
criminal conspiracy, the nature, gravity and seriousness of the offence disentitles the applicant from the relief
of bail. The circumstances that (i) the applicant was in continuous telephonic contact with co-accused persons
both before and after the incident as disclosed by Call Detail Records; (ii) an eyewitness (Advocate Lavesh
Sharma) gave a statement under Section 164 Cr.P.C. narrating the personal delivery of contraband and
currency notes by a co-accused to the applicant; (iii) recovery of Rs. 20,000/-, a bottle of oil and a polythene
bag was effected from the applicant's own room on his pointing out; and (iv) the applicant used a mobile SIM
obtained in a false name - collectively constitute substantive material demonstrating deep involvement of the
applicant in the criminal conspiracy. The plea that the applicant is a government employee with a clean
service record and has been falsely implicated to protect higher authorities does not, in the face of such
material, make out a case for bail. Held: The prayer for bail is rejected.

2. Criminal Procedure - Bail - Relevant Considerations - Nature and Gravity of Offence -
Evidence in Support - Overall Circumstances - Primacy of Gravity of Offence in Cases Involving
Organised Criminal Conspiracy.
In determining whether bail ought to be granted in cases under Sections 302 and 120-B I.P.C., the Court is
required to consider the nature of the offence, its gravity, the evidence in support thereof, and the overall
circumstances of the case. Where the offence is of a particularly grave and shocking character - perpetrated
in a daredevil manner within the premises of a District Jail as part of a highly orchestrated criminal conspiracy
involving inter-gang rivalry, use of illegal firearms, and resulting in the murder of a prisoner and grievous
injuries to others - and where the evidence collected during investigation discloses substantive material
against the applicant in the form of eyewitness testimony recorded under Section 164 Cr.P.C., recovery of
incriminating articles, admissions of the applicant during investigation, and Call Detail Records establishing
continuous contact with co-accused persons - the gravity of the offence and the weight of evidence must
prevail over the personal antecedents and service record of the applicant. Held: The applicant has not made
out a case for bail.

3. Criminal Procedure - Bail - Observations in Bail Order - Strictly Confined to Disposal of Bail
Application - Not to be Construed as Reflection on Ultimate Merits of the Case.
It is well settled that any observations made by the Court in the course of deciding a bail application are
strictly confined to the disposal of the bail application and do not constitute an adjudication on the merits of
the case. Such observations shall not be construed to have any reflection upon the ultimate merits of the case
at the time of trial. The Court, while deciding the bail application, undertakes only a prima facie examination
of the material on record and does not pronounce upon the guilt or innocence of the accused. Held: The
observations made in the order are strictly confined to the disposal of the bail application and must not be
construed to have any reflection on the ultimate merits of the case.

Result: Bail application rejected. The applicant is not entitled to be released on bail in Case
Crime No. 10 of 2015 under Sections 302/120-B I.P.C., P.S. Sadar Bazar, District Mathura,
having regard to the nature and gravity of the offence and the substantive material against him
collected during investigation.

(Delivered by Hon'ble Karuna Nand Bajpayee, J.)
7 All. Kailash Gupta Vs State Of U.P.
1053
1. This application has been filed seeking the release of the applicant on bail in Case Crime
No.10 of 2015, u/s 302/120B I.P.C., Police Station-Sadar Bazar, District-Mathura.

2. Heard Shri Dharmendra Singhal, learned counsel for the applicant assisted by Shri Ankit
Agarwal, and Shri Vimlendu Tripathi, learned A.G.A. for the State.

3. Submission of counsel for the applicant is that the applicant is a government employee
and was posted as Bandi Rakshak in District Jail, Mathura at relevant point of time. Further
submission is that the applicant is in government service since 2006 and has never been subjected
to any departmental or criminal proceedings and has performed his duties regularly with utmost
sincerity. It has been further submitted that the implication of applicant is the result of collusion of
higher authorities of Jail Department with the informant in order to save the higher authorities and
other employees of the Jail. It has been contended by counsel that one wrangle took place on
17.01.2015 within the premise of District Jail, Mathura between the two set of prisoners, in which
firearm was used and few prisoners had received serious injuries resulting into death of one
prisoner. It has been also submitted that the said incident, which occurred within the premise of
District Jail Mathura, was an outcome of administrative lapses of jail authorities and the applicant
had no concern at all with the said incident. The next submission is that a false recovery was
planted on the applicant to strengthen the case of informant by showing recovery of Rs.20,000/-
and a bottle of oil on the pointing out of accused-applicant. Further submission is that in fact the
said amount of Rs.20,000/- belonged to the applicant and said amount was given by the applicant to
his bhanja namely Ved Prakash Gupta for his personal work on 21.10.2014 by withdrawing the
same from A.T.M. and said money was returned back by his bhanja by withdrawing it from his
account through cheque. Submission is also that the mobile number assigned to the applicant
during the course of investigation is not allotted in the name of applicant and in fact there is no
evidence against the applicant in the entire case diary and the applicant is languishing in jail since
19.01.2015 and hence, the applicant is entitled to be released on bail.

4. Learned A.G.A. has opposed the prayer for bail and has submitted that the offence in
question is shockingly serious and has been committed in a daredevil manner within the premise of
District Jail, Mathura by the accused persons with the conspiring aid of applicant and the act of
accused-applicant contributed a willful substantive aid to the commission of the ghastly crime
perpetrated by co-accused persons causing murder of one prisoner and also causing serious injuries
to others within the premise of District Jail, Mathura. Further submission is that a serious animosity
was going on between two groups of criminals, one headed by Rajesh Sharma @ Tonta and another
group headed by Deepak Verma, due to which a wrangle took place on 17.01.2015 within the
premise of District Jail, Mathura at about 3.30 O'clock in Hata No.2 of Barrack No.3456 in
between Deepak Verma, Deepak Meena and Akshay Solanki on one side and Rajesh Sharma @
Tonta, Raj Kumar Sharma on other side and in the said fierce wrangle firing was also resorted to.
But in this incident unexpectedly in the initial fight the group of Deepak Verma got worse hit and
above named Akshay Solanki @ Pintu died on spot and the pistol used in the commission of crime
was left over the body of deceased Akshay Solanki @ Pintu. Another revolver used in the
commission of crime was thrown outside the barrack by co-accused Laurence. In the said incident,
1054 INDIAN LAW REPORTS ALLAHABAD SERIES

the prisoners Deepak Meena, Rajesh Sharma @ Tonta and Raj Kumar Sharma had also received
injuries. The F.I.R. for the said incident was lodged by the Superintendent, Jail, Mathura on
17.1.2015 at about 17.25 P.M. at Police Station-Sadar Bazar, District-Mathura and the district
administration as well as higher authorities of Prison Department were immediately informed about
the incident. During the course of investigation it was revealed that the accused-applicant who was
posted as Bandi Rakshak in District Jail, Mathura, had supplied revolver, pistol, cartridges and an
amount of Rs.1,10,000/- in the jail premise to the prisoners Deepak Verma, Deepak Meena and
Akshay Solanki @ Pintu. Further submission is that the daredevil act of accused persons and their
audacious criminality did not stop with the death of Akshay Solanki and there is evidence that
when the injured prisoner Rajesh Sharma @ Tonta was being carried from District Hospital,
Mathura to District Agra for specialized treatment under the reference of concerned Medical
officer, he was murdered by one Gopal Yadav, Rakesh Chaudhary, Naeem, Raj Kumar and others
by taking over the ambulance near Farah Toll Tax. During investigation, it was further revealed
that co-accused Gopal Yadav and Rakesh Chaudary were in continuous touch with the accusedapplicant Kailash Gupta, and as the accused-applicant was posted as Bandi Rakshak, he was
assigned the job to supply firearms and the money in jail premise to Deepak Verma group, which
job was successfully done by the accused-applicant. The next submission is that one Lavesh
Sharma, who is an Advocate and was having acquaintance with co-accused Gopal Yadav and was
pursuing his cases as his counsel, has stated in his statement recorded u/s 164 of Cr.P.C. that he
was accompanying Gopal Yadav on 14.01.2015 at about 7.00 P.M., when co-accused Gopal Yadav
handed over yellow polythene containing some material and bunches of currency notes to
applicant. Witness Lavesh Sharma had further stated that as he was not having any concern with
this dealing, he did not ask anything from co-accused Gopal Yadav. He further stated that Gopal
Yadav being his client had several times borrowed his mobile phone to talk with the present
accused-applicant Kailash Gupta as well as co-accused Rakesh Chaudhary, however, he did not
know about the details of conversations having been busy in his court works. Further submission of
learned A.G.A. is that during the course of investigation the applicant made crucially relevant
admissions as to how the co-accused Gopal Yadav had given him the pistol, revolver, cartridges
and huge amount of money (Rs.90,000) to be handed over to co-accused Deepak Verma, Deepak
Meena and Akshay Solanki which he did while he kept Rs.20,000/- in his room. The aforesaid
amount of Rs.20,000/-, a bottle of oil and a polythene bag were recovered on the pointing out of
present accused-applicant Kailash Gupta from the tin box of his own room. It has been further
submitted that during the course of investigation, the Call Detail Records (CDRs) of various mobile
numbers, which were being used by co-accused Gopal Yadav, Rakesh Chaudhary, the present
accused-applicant Kailash Gupta and witness Lavesh Sharma, were obtained by the Investigating
Officer and those CDRs clearly disclosed continuous phone calls made in between them on the date
of incident i.e. 17.01.2015 as well as prior to the incident and after the incident. The mobile number
which was being used by the accused-applicant Kailash Gupta, was obtained by him in the name of
another person namely Narendra Singh son of Shri Badam Singh and likewise the co-accused
Gopal Yadav and Rakesh Chaudhary also obtained the sim cards of mobile numbers used by them
in the name of another person namely Vinod Kumar son of Shri Pradeep whereas the sim card
being used by witness Lavesh Sharma was on his own name. Contention is that there is no reason
for the false implication of accused-applicant and the exhaustive investigation conducted by the
7 All. Atul Singh & Ors. Vs State Of U.P. & Ors.
1055
local police reveals substantive material against the accused-applicant, who despite being a
government servant posted as Bandi Rakshak in District Jail Mathura, joined hands with hard core
criminals and covertly facilitated the perpetration of this highly orchestrated crime committed on
17.01.2015 within the premise of District Jail, Mathura and outside. Contention therefore is that the
involvement of accused-applicant in such a serious and heinous offence dis-entitles him from the
relief of granting bail and hence, his bail application is liable to be rejected.

5. Perused the record along with the case diary produced by learned A.G.A. in the light of
submissions placed by the rival sides.

6. Looking to the nature of offence, its gravity and the evidence in support of it and the
overall circumstances of this case, this Court is of the view that the applicant has not made out a
case for bail. Therefore, the prayer for bail of the applicant is rejected.

7. It is clarified that the observations, if any, made in this order are strictly confined to the
disposal of the bail application and must not be construed to have any reflection on the ultimate
merits of the case.
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ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.07.2016

BEFORE

THE HON'BLE KARUNA NAND BAJPAYEE, J.

Application U/s 482 No.- 20401 Of 2016

Atul Singh & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite parties

Counsel for the Applicants:
Sunil Kumar Srivastava

Counsel for Opposite Parties:
G.A.

This application u/s 482 Cr.P.C. has been filed seeking the quashing of orders dated 1.6.2016 and
14.6.2016.The perusal of the both these orders show that some order passed previously has been reiterated
and the court has observed that the accused may be summoned according to the orders as were passed
before. But what are the previous orders and what orders was passed on previous occasion is not known. The
previous order which has been reiterated has not been annexed along with this application. So far as the
present orders which have been impugned are concerned they seem to be just routine orders passed in order
to summon the accused who has not yet obtained bail. If the charge sheet has been submitted and accused
does not appear before the court then such kind of orders are routine orders which are to be passed in order
to summon the accused so that further procedure in accordance with law may take place and the process of