# Laxman Prasad v. State of U.P

- **Citation:** (2014) 1 ILRA 177
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-01-07
- **Case number:** Bail (Second) No. 4707 of 2013
- **Bench:** Vishnu Chandra Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/laxman-prasad-v-state-of-u-p-42754
- **Pages:** 6

## Headnote

Cr.P.C.-Section
437(i)(ii)-Second
Bailoffence
under
section
302-weapon
recovered as pointed out by applicanthaving criminal history-parity with coaccused-can not be claimed-as the coaccused has no criminal history-apart from
that-the witness are afraid due to twice
conviction of applicant-incident occurred to
create
pressure-for
withdrawl
of
case
relating
to
property-can
not
be
said
apprehension
in
mind
of
prosecution
178 INDIAN LAW REPORTS ALLAHABAD SERIES
witness-as
unreasonable-application
rejected.

Held: Para-14&17

## Text

1 All] Laxman Prasad Vs. State of U.P.
177
then, which is more than the maximum
period for which a juvenile may be
confined to a special home. Under these
circumstances, the petitioner is directed to
be released from custody forthwith."

19. The case of the revisionist, in my
opinion, is on a better footing qua the above
cited case. In this case, the offence was
committed
on
4.1.2009
much
after
incorporation of the Act No. 33 of 2006 in the
Act 2000. This brooks no dispute that the
revisionist was a juvenile on the date when
offence was committed. Thus, certainly his
case was to be dealt with under the provisions
of the Act 2000. But unfortunately for him, he
was subjected to trial under the general
criminal law applicable to the adults and was
declared juvenile only on Sept. 7, 2013 after a
period of more then three years from the date
of moving application by his father, under
Section 7-A of the Act 2000. By all
reckoning, this constitutes a serious lapse on
the part of the authorities of criminal
administration of justice. What shocks the
conscience of this Court is that the juvenile
was in detention since 06.1.2009 and thus he
had already undergone a period of more than
three years in detention by the time, his bail
prayer and the appeal against his bail rejection
orders were made. This leaves no manner of
doubt that the Sessions Judge had passed the
lop-sided order in confirming the bail refusal
order rendered by the Juvenile Board,
blissfully oblivious of the fact that the
principles of bail of an adult as per the Code
are not attracted in a case of juvenile, and in
complete antagonism of the settled principles
governing the bail matter of a juvenile as set
forth in Section 12 of the Act 2000.

20. The revision accordingly,
succeeds. The order of the Board dated
21.10.2013 passed in Case Crime No. 5 of
2009, under Section 376 I.P.C., P.S.-
Adarsh Mandi, Shamli, District-Shamli
and the impugned order of the Sessions
Judge, Muzaffarnagar, dated 6.12.2013
passed in Criminal Appeal No. 101 of
2013 are hereby set aside.

21. Since, the revisionist (a juvenile
in
conflict
with
law)
has
already
undergone a period of more than 5 years
in detention/Special Home, which is more
than maximum period for which a
juvenile may be confined to a Special
Home, where a Board is satisfied on
inquiry that he has committed the offence,
it is ordered that the revisionist-Parvez
would be released from the custody
forthwith, if not wanted in any other case.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.01.2014

BEFORE
THE HON'BLE VISHNU CHANDRA GUPTA, J.

Bail (Second) No. 4707 of 2013

Laxman Prasad... Petitioner
Versus
State of U.P..... Respondent

Counsel for the Petitioner:
Sri Jyotindra Misra, Sri Sunil Dixit

Counsel for the Respondent:
Sri Sharad Dixit-AGA, Sri K.N. Mishra

Cr.P.C.-Section
437(i)(ii)-Second
Bailoffence
under
section
302-weapon
recovered as pointed out by applicanthaving criminal history-parity with coaccused-can not be claimed-as the coaccused has no criminal history-apart from
that-the witness are afraid due to twice
conviction of applicant-incident occurred to
create
pressure-for
withdrawl
of
case
relating
to
property-can
not
be
said
apprehension
in
mind
of
prosecution
178 INDIAN LAW REPORTS ALLAHABAD SERIES
witness-as
unreasonable-application
rejected.

Held: Para-14&17
14. So far as, question of parity with coaccused Ashok Kumar is concerned, this
Court is of the opinion that parity cannot be
extended to the present applicant because
the weapon used in this incident for assault
had been recovered on the pointing out of
the present applicant. This fact is also worth
notice that co-accused Ashok Kumar is not
a previous convict hence on this count, the
applicant is not entitled for bail on the
ground of parity.

17. From a perusal of investigation of the
present case, it reveals from the statement
of Ganga Prasad that the witnesses are
afraid with the present applicant because
he has been convicted twice (out of which
in one case he was acquitted in appeal)
and this incident was also occurred to put
pressure to withdraw the case relating to
land in question and relinquish the claim
by the complainant over the property in
question. In view of this, it cannot be said
that apprehension in the mind of the
prosecution witnesses that in case, the
accused applicant is released on bail, he
will influence and tamper the prosecution
witnesses not to give evidence against
him, is not reasonable.

Case Law discussed:
(2012)2 SCC 382; (1978) 1 SCC 118; (2003) 1
SCC 15; (2004)7 SCC 528; (2005)8 SCC 21;
(2001)4 SCC 280; (2002) 3 SCC 598; (2010)
14 SCC 496.

(Delivered by Hon'ble Vishnu Chandra
Gupta, J.)

1. Heard learned Senior Counsel for the
applicant Sri Jyotindra Misra assisted by Sri
Sunil Dixit, Advocate, learned counsel for the
complainant Sri K.N. Mishra and learned
A.G.A. for the State Sri Sharad Dixit .

2. By means of the present second
bail application, the applicant has prayed
for bail in Case Crime No.28 of 2013,
under Sections 302, 303, 506 IPC, Police
Station Kotwali Dehat, District Gonda.

3. The first bail application of the
applicant had been rejected for want of
prosecution by this Court vide order dated
19.07.2013.

4. As per the case narrated in the
first information report, the present
applicant-Laxman Prasad, Ashok Kumar
and Onkar Nath exhorted to kill the
deceased-Prag Dutt and in consequence
thereof, the co-accused Ramesh shot fire
upon the deceased and, therefore, the
deceased died. This incident was occurred
on 12.02.2013 at about 05.30 p.m. in
Village Madhaupur. The motive of
incident was that a litigation was going on
in between the parties and the accused
persons were threatening to withdraw the
case and leave the land in question in
favour of the accused persons.

5. It has been contended by learned
counsel for the applicant that in this case
co-accused Ashok Kumar, who has been
assigned the similar role with the role of
the present applicant, has been granted
bail by this Court vide order dated
15.05.2013 in Bail No.2752 of 2013.

6. It was further contended by
learned counsel for the applicant that only
on account of criminal history, the bail to
the applicant cannot be denied and it is
the duty of the Court to look into the
merit of the case and the role assigned to
the accused and then decide whether the
bail should be granted or not. In this
regard learned counsel for the applicant
invited the attention of this Court to
paragraph 10 of a judgment of the Apex
Court rendered in Maulana Mohammed
1 All] Laxman Prasad Vs. State of U.P.
179
Amir Rashadi vs. State of Uttar Pradesh
and another, (2012) 2 SCC 382, which
reads as under:

"10. It is not in dispute and
highlighted that the second respondent is
a sitting Member of Parliament facing
several criminal cases. It is also not in
dispute that most of the cases ended in
acquittal for want of proper witnesses or
pending trial. As observed by the High
Court, merely on the basis of criminal
antecedents, the claim of the second
respondent cannot be rejected. In other
words, it is the duty of the court to find
out the role of the accused in the case in
which he has been charged and other
circumstances such as possibility of
fleeing away from the jurisdiction of the
court, etc."

7. It was further submitted by
learned counsel for the applicant that the
present applicant-Laxman Prasad is on
bail after conviction in Case Crime
No.273 of 1982 and, therefore, there is no
impediment in granting bail if the
applicant is eligible to bail otherwise. It
was further contended that the provisions
of Section 437(1) (ii) of the Code of
Criminal Procedure (in short 'CrPC) will
not apply while exercising jurisdiction to
consider the bail by court of sessions or
by High Court under Section 439 CrPC
and it is not an impediment in granting the
bail by court of sessions or by High
Court.

8.

Learned
counsel
for
the
complainant as well as learned A.G.A. for
the State heavily relied upon the previous
conviction of the applicant and stated that
in view of the mandate contained in
Section 437 (1)(ii), CrPC, the applicant is
not entitled for bail. It was further
contended that the provisions of Section
437, CrPC would apply while granting
bail under Section 439, CrPC, thus, the
contention of learned counsel for the
applicant that this provisions under
Section 437 (1) (ii) will not come into
play
especially
when
the
accused
applicant is on bail during the pendency
of appeal before this Court, is not
sustainable.

9. Prime consideration before this
Court is whether the provisions contained
in Section 437 (1)(ii), CrPC would apply
while deciding the bail under Section 439,
CrPC by court of sessions or by High
Court or not?

10. The aforesaid question is not res
integra. While considering the aforesaid
question, the Apex Court in paragraphs 13
and 14 in Gurcharan Singh Vs. State
(Delhi Admn.), (1978) 1 SCC 118 has
observed as under:

"13. Mr Mulla drew our particular
attention to some change in the language
of Section 437(1) CrPC (new Code)
compared with Section 497(1) of the old
Code. Mr Mulla points out that while
Section 497(1) CrPC of the old Code, in
terms, refers to an accused being "brought
before a Court", Section 437(1) CrPC
uses the expression "brought before a
Court other than the High Court or a
Court of Session". From this, Mr Mulla
submits that limitations with regard to the
granting of bail laid down under Section
497(1) to the effect that the accused "shall
not be so released if there appears
reasonable grounds for believing that he
has been guilty of an offence punishable
with death or imprisonment for life" are
not in the way of the High Court or the
Court of Session in dealing with bail
180 INDIAN LAW REPORTS ALLAHABAD SERIES
under Section 439 of the new Code. It is,
however, difficult to appreciate how the
change in the language under Section
437(1) affects the true legal position.
Under the new as well as the old Code an
accused after being arrested is produced
before the Court of a Magistrate. There is
no provision in the Code whereby the
accused is for the first time produced after
initial arrest before the Court of Session
or before the High Court. Section 437(1)
CrPC, therefore, takes care of the
situation arising out of an accused being
arrested by the police and produced
before a Magistrate. What has been the
rule of production of accused person after
arrest by the police under the old Code
has been made explicitly clear in Section
437(1) of the new Code by excluding the
High Court or the Court of Session.

14. From the above change of
language it is difficult to reach a
conclusion that the Sessions Judge or the
High Court need not even bear in mind
the guidelines which the Magistrate has
necessarily to follow in considering bail
of an accused. It is not possible to hold
that the Sessions Judge or the High Court,
certainly enjoying wide powers, will be
oblivious of the considerations of the
likelihood of the accused being guilty of
an offence punishable with death or
imprisonment for life. Since the Sessions
Judge or the High Court will be
approached by an accused only after
refusal of bail by the Magistrate, it is not
possible to hold that the mandate of the
law of bail under Section 437 CrPC for
the Magistrate will be ignored by the
High Court or by the Sessions Judge."

11. So far as the question of previous
conviction is concerned, while dealing
with the said issue, the Apex Court in
Ram Pratap Yadav Vs. Mitra Sen Yadav,
(2003) 1 SCC 15, ruled in paragraph 7 as
under:

"7. The learned counsel for the
appellant has submitted by inviting
attention of the Court to the provisions of
Section 437 CrPC that a person accused
of or suspected of the commission of any
non-bailable offence shall not be released
on bail if he had been previously
convicted of an offence punishable with
death,
imprisonment
for
life
or
imprisonment for 7 years or more, unless
special reasons for enlarging the accused
on bail are available and recorded in
writing.
The
learned
counsel
for
Respondent 1 submitted that the powers
of the Sessions Court and the High Court
to enlarge the accused on bail under
Section 439 CrPC are very wide and are
not fettered by the provisions of Section
437 CrPC. Be that at it may, it cannot be
denied that previous conviction of an
accused for a heinous offence punishable
with
imprisonment
for
life,
his
involvement in other crimes and the
quantum of punishment for the offences
in which the applicant is seeking bail are
all relevant factors to which the court
should consciously advert to while taking
a decision in the matter of enlargement on
bail. A prayer for bail having been
rejected by the Sessions Court although
the High Court while exercising its
jurisdiction under Section 439 CrPC is not
acting as a court of appeal or a court of
revision over the order of the Sessions
Court, nevertheless, the High Court
should keep in mind, while hearing the
application for bail, the factum of the
prayer having been rejected by the
Sessions Court and the reasons therefor
expressly set out in the order of the
Sessions Court. The order of the High
1 All] Laxman Prasad Vs. State of U.P.
181
Court, howsoever brief it may be, should
make it appear that the High Court while
forming opinion on prayer for bail was
conscious of the reasons for rejection of
prayer for bail as assigned by the Sessions
Court."

12. In Kalyan Chandra Sarkar Vs.
Rajesh Ranjan, (2004) 7 SCC 528, the
Apex Court again consider the aforesaid
aspect in paragraph 14, which reads as
under:

"14. This Court also in specific terms
held that the condition laid down under
Section 437(1)(i) is sine qua non for
granting bail even under Section 439 of
the Code. In the impugned order it is
noticed that the High Court has given the
period of incarceration already undergone
by the accused and the unlikelihood of
trial concluding in the near future as
grounds sufficient to enlarge the accused
on bail, in spite of the fact that the
accused stands charged of offences
punishable with life imprisonment or even
death penalty. In such cases, in our
opinion, the mere fact that the accused has
undergone certain period of incarceration
(three years in this case) by itself would
not entitle the accused to being enlarged
on bail, nor the fact that the trial is not
likely to be concluded in the near future
either by itself or coupled with the period
of incarceration would be sufficient for
enlarging the appellant on bail when the
gravity of the offence alleged is severe
and there are allegations of tampering
with the witnesses by the accused during
the period he was on bail."

13. In view of the aforesaid
decisions of Highest Court of this Country
and discussions made thereinabove, it is
crystal clear that the provisions contained
in Section 437, CrPC will fully apply
while considering the bail application
either by court of sessions or by High
Court. The fact that the applicant is a
previous convict and has been released on
bail in appeal is not in dispute but nothing
has been brought on record on behalf of
the applicant that his conviction was also
suspended. Ordinarily, the punishment
awarded after conviction is suspended
while granting the bail to the accused
persons during appeal, therefore, it cannot
be said that the applicant is not a previous
convict.

14. So far as, question of parity with
co-accused Ashok Kumar is concerned, this
Court is of the opinion that parity cannot be
extended to the present applicant because
the weapon used in this incident for assault
had been recovered on the pointing out of
the present applicant. This fact is also worth
notice that co-accused Ashok Kumar is not
a previous convict hence on this count, the
applicant is not entitled for bail on the
ground of parity.

15. So far as criminal history of the
applicant is concerned, it is not a ground to
be considered within the scope of Section
437, CrPC but while dealing with the bail
applications, certain considerations should be
kept in mind by the Court as held in several
judgments by the Apex Court. These
considerations are in built in Section 437,
Cr.P.C. One of the considerations while
considering the bail is that there is any
likelihood of tampering the evidence or there
is a reasonable apprehension of the witnesses
being influenced by the accused. In this
regard, the character, behaviour, means,
position and standing of the accused is also
required to be seen as held in State of U.P.
Vs. Amarmani Tripathi,(2005) 8 SCC 21,
Prahlad Singh Bhati Vs. N.C.T., Delhi &
182 INDIAN LAW REPORTS ALLAHABAD SERIES
Another, (2001) 4 SCC 280, Ram Govind
Upadhyay Vs. Sudarshan Singh and Others,
(2002) 3 SCC 598 and in Prasanta Kumar
Sarkar Vs. Ashis Chatterjee, (2010) 14 SCC
496.

16. In this case, the applicant has a
criminal history of eight cases as per the
contents of paragraph 14 of the counter
affidavit. Out of eight cases, in three
cases, the applicant is acquitted in which
one is of Section 302 IPC and in two
cases, the applicant is on bail. In Case
Crime No.273 of 1982, under Section 302
IPC the applicant was convicted and
against which the applicant filed an
appeal and he is on bail. The said appeal
is pending before this Court.

17. From a perusal of investigation of
the present case, it reveals from the statement
of Ganga Prasad that the witnesses are afraid
with the present applicant because he has been
convicted twice (out of which in one case he
was acquitted in appeal) and this incident was
also occurred to put pressure to withdraw the
case relating to land in question and relinquish
the claim by the complainant over the
property in question. In view of this, it cannot
be said that apprehension in the mind of the
prosecution witnesses that in case, the accused
applicant is released on bail, he will influence
and tamper the prosecution witnesses not to
give evidence against him, is not reasonable.

18. In view of the aforesaid facts
and circumstances of the case, I do not
find that it is a fit case for grant of bail.
Hence, the bail application of the
applicant stands rejected.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 21.01.2014

BEFORE
THE HON'BLE ARVIND KUMAR TRIPATHI (ii), J.

U/S 482/378/407 No. 7018 of 2013

Monu@ Vaibha Singh & Ors.... Applicants
Versus
The State of U.P. & Anr..... Opp. Parties

Counsel for the Applicants:
Sri Shashank Shekhar Parihar
Meenakshi Singh

Counsel for the Respondents:
Govt. Advocate.

Cr.P.C.-Section 482-Application challenging
summoning order-after availing revisionsecond revision by same party or application
under 482-held-not maintainable.

Held: Para-31
In the instant case, there was a remedy
available to the petitioners in the form of
criminal
revision
and
they
have
exhausted it and the criminal revision
was
dismissed.
Code
of
Criminal
Procedure bars second revision by the
same party too, hence after exhausting
the right of revision, power under
Section 482 Code of Criminal Procedure,
cannot be exercised by this Court.

Cr.P.C.-Section 37(i)-Direction for same day
disposal of bail application-based upon
Amrawati
case-considering
subsequent
amendment-in
provision
437(i)-after
Amrawati case-no such direction-can be
given.

Held: Para-35-
So far as direction to Magistrate is
concerned, such direction cannot be given
to
Magistrate
considering
relevant
amendment and addition of fourth proviso
of Section 437(1)of Code of Criminal
Procedure, which was added by legislature
after the decision of Amarawati's Case.

Case Law discussed:
(2006) 7 SCC 296; (2006) 4 SCC 359; (2013) 3
SCC 330; (2013) 9 SCC 293; (2009) 4 SCC