# Maya Tiwari v. State of U.P

- **Citation:** (2024) 10 ILRA 859
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-10-23
- **Case number:** Criminal Misc. Writ Petition No. 11036 of 2024
- **Bench:** Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/maya-tiwari-v-state-of-u-p-54650
- **Pages:** 7

## Headnote

Criminal Law - Bail - Criminal Procedure
Code, 1973 - Sections 406, 420, 419, 467,
468, 471 & 120-B - Indian Penal Code,
1860 - Section 66-D of Information
Technology Act, 2000-Bail not to be
withheld
as
punishment
-
Long
incarceration without framing of charge -
Presumption of innocence - Applicant a
lady - No likelihood of absconding or
tampering with witnesses - no allegation
of the applicant attempting to tamper
with evidence, flee, or threaten witnesses-
Co-accused already granted bail - Refusal
of
bail
would
violate
Article 21
of
Constitution - Entitlement to bail upheld.
(Paras 8, 9, 10, 14 and 15)
860 INDIAN LAW REPORTS ALLAHABAD SERIES
HELD:
The Apex Court in the case of GudiKanti
Narasimhulu Vs Public Prosecutor, High Court of
Andhra Pradesh reported in 1971 (1) SCC 240
had observed that bail is not to be withheld as a
punishment as the requirement of bail is merely
to secure the attendance of prisoners at trial.
The Apex Court again in the case of Nikesh Tara
Chand Shah Vs U.O.I.reported in (2018) 11 SCC
1 observed in paragraph no.19 that purpose of
object to bail is to secure the attendance of the
accused at the trial and the proper test to apply
in the solution of the question whether a bail
should be granted or refused is whether it is
probable that the party will appear to take his
trial and that it is undisputed that the bail is not
to be withheld as a punishment. (Para 8)

The innocence of a person, accused of an
offence, is presumed through a legal fiction,
pressing the onus on the prosecution to prove
the guilt before the court and presumption of
innocence has been acknowledged throughout
the world. The Apex court also observed in the
number of cases that bail is rule and jail is
exception. (Para 9)

From perusal of above legal position, it is clear,
while considering the bail application then apart
from seriousness of the charges and severity of
punishment, paramount consideration should be
given to whether there are chances of
absconding or tampering with the witnesses or
intimidation to victim or witnesses on the part of
the accused. The bail application of an
unconvicted person should not be rejected for
the
purpose
of
giving
him
a
taste
of
imprisonment as a lesson or as a mark of
disapproval of his conduct. (Para 14)

Reverting to the present case, there is no
averment from prosecution's side that there are
chances of absconding or tampering with the
witnesses or intimidation of victim or witnesses
on the part of the applicant who is a lady and
she is also in jail since 12.10.2023 and till date
charge has not been framed and there is no
likelihood for early conclusion of trial and
coaccused persons have already been granted
bail by this court. In such circumstances,
refusing the bail will amount to travesty of
justice and will also be in violation of Article 21
of the Constitution of India. (Para 45)
Application allowed. (E-14)

List of Cases cited:

## Text

10 All. Maya Tiwari Vs. State of U.P.
859

75. No other issue is to be dealt with.
The findings recorded by the learned court
below to the effect that earlier the appellant
had instituted proceedings under Section 13
of the Hindu Marriage Act, that failed or
that the present proceedings were originally
instituted under Section 12(2) of the Hindu
Marriage Act or that the amendment was
made later to set-up ground of Section 3
PCMA and the other fact finding with
respect to conduct of the parties up to the
time the appellant sought a declaration
under Section 3 of PCMA fade into
insignificance, in view of the foregoing
discussion. In any case, it was not proven
by the respondent that the appellant had
ever
elected
to
confirm
his
"child
marriage" after "attaining majority" or that
he ever waived his right to void that
transaction. The learned court below ought
to have granted the relief prayed.

76. What last survives for our
consideration is, provision for maintenance
and residence of the respondent. In that,
counsel for the respondent has (in the
alternative), pressed for INR 50,00,000/-
towards
permanent
alimony
and
a
residential house for the residence of the
respondent. On his part, the appellant has
offered to pay permanent alimony @ INR
15,00,000/-, at most. Insofar as the
respondent has continued to reside with her
parents
the
prayer
for
residential
accommodation made by the respondent is
declined. As to permanent alimony, we peg
the amount at INR 25,00,000/-.

77. Accordingly, the order of the
learned court below cannot be sustained. It
is set-aside. The transaction of "child
marriage" performed between the parties is
declared void. Let INR 25,00,000/- be paid
to the respondent within a period of one
month. Failing that, the awarded amount
shall carry interest @ 8% after one month
till the date of its actual payment. No other
relief has been pressed under Section 3(4)
of the PCMA or otherwise.

78. Appeal is allowed as above. No
order as to costs.
----------
(2024) 10 ILRA 859
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.10.2024

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Criminal Misc. Writ Petition No. 11036 of 2024

Maya Tiwari ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
Kirti
Chaurasia,
Man
Bahadur
Singh,
Sarvjeet Kumar, Suresh Chandra Pandey,
Vikrant Pandey

Counsel for the Respondents:
Akhilesh Kumar Tiwari, G.A., Jitendra
Kumar Maurya

Criminal Law - Bail - Criminal Procedure
Code, 1973 - Sections 406, 420, 419, 467,
468, 471 & 120-B - Indian Penal Code,
1860 - Section 66-D of Information
Technology Act, 2000-Bail not to be
withheld
as
punishment
-
Long
incarceration without framing of charge -
Presumption of innocence - Applicant a
lady - No likelihood of absconding or
tampering with witnesses - no allegation
of the applicant attempting to tamper
with evidence, flee, or threaten witnesses-
Co-accused already granted bail - Refusal
of
bail
would
violate
Article 21
of
Constitution - Entitlement to bail upheld.
(Paras 8, 9, 10, 14 and 15)
860 INDIAN LAW REPORTS ALLAHABAD SERIES
HELD:
The Apex Court in the case of GudiKanti
Narasimhulu Vs Public Prosecutor, High Court of
Andhra Pradesh reported in 1971 (1) SCC 240
had observed that bail is not to be withheld as a
punishment as the requirement of bail is merely
to secure the attendance of prisoners at trial.
The Apex Court again in the case of Nikesh Tara
Chand Shah Vs U.O.I.reported in (2018) 11 SCC
1 observed in paragraph no.19 that purpose of
object to bail is to secure the attendance of the
accused at the trial and the proper test to apply
in the solution of the question whether a bail
should be granted or refused is whether it is
probable that the party will appear to take his
trial and that it is undisputed that the bail is not
to be withheld as a punishment. (Para 8)

The innocence of a person, accused of an
offence, is presumed through a legal fiction,
pressing the onus on the prosecution to prove
the guilt before the court and presumption of
innocence has been acknowledged throughout
the world. The Apex court also observed in the
number of cases that bail is rule and jail is
exception. (Para 9)

From perusal of above legal position, it is clear,
while considering the bail application then apart
from seriousness of the charges and severity of
punishment, paramount consideration should be
given to whether there are chances of
absconding or tampering with the witnesses or
intimidation to victim or witnesses on the part of
the accused. The bail application of an
unconvicted person should not be rejected for
the
purpose
of
giving
him
a
taste
of
imprisonment as a lesson or as a mark of
disapproval of his conduct. (Para 14)

Reverting to the present case, there is no
averment from prosecution's side that there are
chances of absconding or tampering with the
witnesses or intimidation of victim or witnesses
on the part of the applicant who is a lady and
she is also in jail since 12.10.2023 and till date
charge has not been framed and there is no
likelihood for early conclusion of trial and
coaccused persons have already been granted
bail by this court. In such circumstances,
refusing the bail will amount to travesty of
justice and will also be in violation of Article 21
of the Constitution of India. (Para 45)
Application allowed. (E-14)

List of Cases cited:

1. Manish Sisodia Vs Directorate of Enforcement
reported in 2024 SCC OnLine SC 1920

2. GudiKanti Narasimhulu Vs Public Prosecutor,
High Court of Andhra Pradesh reported in 1971
(1) SCC 240

3. Nikesh Tara Chand Shah Vs U.O.I. reported in
(2018) 11 SCC 1

4. Sanjay Chandra Vs Central Bureau of
Investigation reported in 2012 (1) SCC 40

5. Satender Kumar Antil Vs Central Bureau of
Investigation & anr., reported in (2022) 10 SCC
51

6. Jalaluddin Khan Vs U.O.I. in Criminal Appeal
No.3173 of 2024

(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. Counter affidavit filed today by the
first informant is taken on record.

2. Second supplementary affidavit
filed today by the applicant is also taken on
record.

3. Heard Sri Saurabh Pandey,
learned counsel holding brief of Sri Suresh
Chandra Pandey, learned counsel for the
applicant; Sri Akhilesh Kumar Tiwari,
learned counsel for the first informant as
well as Sri Pankaj Saxena, learned AGA
for the State and perused the material
placed on record.

4. The instant bail application has
been filed on behalf of the applicant - Maya
Tiwari with a prayer to release her on bail
in Case Crime No. -0234 of 2023, under
Sections -406, 420, 419, 467, 468, 471, &
10 All. Maya Tiwari Vs. State of U.P.
861
120-B I.P.C., Section-66-D of I.T. Act,
Police Station - Sarai Khwaja, District -
Jaunpur, during pendency of trial.

5. Contention of learned counsel
for the applicant is that as per the allegation
in the FIR as well as statement of first
informant, amount about Rs.10,00,000/-
was transferred in the account of the
applicant as well as her husband and
daughter, but major part of that amount,
amounting to Rs.8,70,000/- had already
been transferred in the account of the first
informant. It is further submitted that
though in the agreement between the
applicant and the first informant, total
amount
of
four
cheques
is
about
Rs.5,20,500/-
but
the
applicant
has
transferred more amount than the amount
of cheque. It is further submitted that
applicant was herself cheated by coaccused Santosh Kumar Semwal, who
during investigation was found to be main
accused and who had prepared the forged work
order alleged to be issued from PMO and sent
to the Whatsapp number of the applicant which
applicant bonafidely forwarded to the first
informant. Further, it has been submitted that
applicant is a lady and she has been in jail since
12.10.2023 and in support of his contention,
applicant has submitted that the Apex Court in
the case of Manish Sisodia Vs Directorate of
Enforcement reported in 2024 SCC OnLine
SC 1920 observed that object of bail is to
secure the attendance of prisoner at trial and the
bail is not to be withheld as a punishment.
Lastly, it has been submitted that the coaccused Santosh Kumar Semwal, Abhishek
Tiwari and Brijesh Srivastava, have already
been released on bail by this Hon'ble Court,
therefore, she is also entitled to be released on
bail.

6. However, learned counsel for the
opposite party no.2 as well as learned AGA
have vehemently opposed the prayer and
submitted that it is undisputed that the forged
work order was sent from the Whatsapp
number of the applicant and amount of
Rs.10,00,000/- was transferred in her account
as well as in the account of her husband and
her daughter and she misrepresented the
applicant as Higher Officer in PMO. It is
further submitted that if the applicant was
duped by co-accused Santosh Kumar Semwal
then the applicant should have filed police
complaint against him.

7.

Considering
the
rival
submission of parties and on perusal of
record, it appears that an amount of about
Rs.8,70,000/- has already been transferred
in the account of first informant prior to
lodging the FIR and in the agreement
entered into between the applicant and the
first informant, the amount of cheque is
only Rs.5,20,500/- against which the
applicant
transferred
more
than
Rs.8,70,000/- in the account of first
informant.

8. The Apex Court in the case of
GudiKanti
Narasimhulu
Vs.
Public
Prosecutor, High Court of Andhra
Pradesh reported in 1971 (1) SCC 240 had
observed that bail is not to be withheld as a
punishment as the requirement of bail is
merely to secure the attendance of
prisoners at trial. The Apex Court again in
the case of Nikesh Tara Chand Shah Vs.
Union of India reported in (2018) 11 SCC
1 observed in paragraph no.19 that purpose
of object to bail is to secure the attendance
of the accused at the trial and the proper
test to apply in the solution of the question
whether a bail should be granted or refused
is whether it is probable that the party will
appear to take his trial and that it is
undisputed that the bail is not to be
withheld as a punishment.
862 INDIAN LAW REPORTS ALLAHABAD SERIES
9. The innocence of a person,
accused of an offence, is presumed through
a legal fiction, pressing the onus on the
prosecution to prove the guilt before the
court and presumption of innocence has
been acknowledged throughout the world.
The Apex court also observed in the
number of cases that bail is rule and jail is
exception. The Apex Court again in the
case of Sanjay Chandra Vs. Central Bureau
of Investigation reported in 2012 (1) SCC
40 observed that courts owe more than
verbal
respect
to
the principle
that
punishment begins after conviction, and
that every man is deemed to be innocent
until duly tried and duly found guilty. It is
further observed by the Apex Court, apart
from the question of prevention being the
object of refusal of bail, one must not lose
sight of the fact that any imprisonment
before the conviction has a substantial
punitive content and it would be improper
for any court to refuse bail as a mark of
disapproval
of
the
former
conduct
whether the accused has been convicted for
it or not or to refuse bail to an unconvicted
person for the purpose of giving him a taste
of imprisonment as a lesson. Article 14(2)
of the International Covenant on Civil &
Political Rights, 1966 and Article 11 of the
Universal Declaration of Human Rights,
1948 also acknowledges the presumption of
innocence, as a cardinal principle of law
until the person is proven guilty. Paragraph
nos.21, 22 and 23 of the Sanjay Chandra's
case (supra) is being quoted as under:

 "21.In
bail
applications,
generally, it has been laid down from the
earliest times that the object of bail is to
secure the appearance of the accused
person at his trial by reasonable amount of
bail. The object of bail is neither punitive
nor preventative. Deprivation of liberty
must be considered a punishment, unless it
is required to ensure that an accused
person will stand his trial when called
upon. The courts owe more than verbal
respect to the principle that punishment
begins after conviction, and that every man
is deemed to be innocent until duly tried
and duly found guilty.

 22.From the earliest times, it was
appreciated that detention in custody
pending completion of trial could be a
cause of great hardship. From time to time,
necessity demands that some unconvicted
persons should be held in custody pending
trial to secure their attendance at the trial
but in such cases, ?necessity? is the
operative test. In this country, it would be
quite contrary to the concept of personal
liberty enshrined in the Constitution that
any person should be punished in respect of
any matter, upon which, he has not been
convicted or that in any circumstances, he
should be deprived of his liberty upon only
the belief that he will tamper with the
witnesses if left at liberty, save in the most
extraordinary circumstances.

 23.Apart from the question of
prevention being the object of refusal of
bail, one must not lose sight of the fact that
any imprisonment before conviction has a
substantial punitive content and it would be
improper for any court to refuse bail as a
mark of disapproval of former conduct
whether the accused has been convicted for
it or not or to refuse bail to an unconvicted
person for the purpose of giving him a taste
of imprisonment as a lesson."

10. In India, it has been consistent
stand of the court regarding presumption of
innocence being the facet of Article 21 of
the Constitution of India. Both in the
Australia and Canada, prima facie right to a
reasonable bail is recognized based on the
10 All. Maya Tiwari Vs. State of U.P.
863
gravity of offence. In United States, it is a
common practice for bail to be a cash
deposit. In the United Kingdom, the bail is
more likely to consist of a set of restriction
though in India there is no specific Act
providing the bail but in UK there is
specific Act known as Bail Act, 1976. It
also provides bail as a matter of right
except under certain cases. Relevant extract
of Section 4 of Bail Act, 1976 of United
Kingdom is being quoted as under:

 "4. General right to bail of
accused persons and others.

 (1) A person to whom this section
applies shall be granted bail except as
provided in Schedule 1 to this Act.

 (2) This section applies to a person
who is accused of an offence when-

 (a) he appears or is brought before
a magistrates' court or the Crown Court in
the course of or in connection with
proceedings for the offence, or

 (b) he applies to a court for bail
[or for a variation of the conditions of bail]
in connection with the proceedings.

 This subsection does not apply as
respects proceedings on or after a person's
conviction of the offence ... "

11. The Apex Court in Satender
Kumar
Antil
vs
Central
Bureau
of
Investigation and another, reported in (2022)
10 SCC 51 has also observed that bail is rule
and jail is exception. Paragraph nos. 18, 19
and 20 of Satender Kumar Antil's case
(supra) is being quoted as under:

 "18.We may only state that
notwithstanding the special provisions in
many
of
the
countries
world-over
governing
the
consideration
for
enlargement on bail, courts have always
interpreted them on the accepted principle
of presumption of innocence and held in
favour of the accused.

 19.The position in India is no
different. It has been the consistent stand of
the courts, including this Court, that
presumption of innocence, being a facet of
Article 21, shall inure to the benefit of the
accused. Resultantly burden is placed on
the prosecution to prove the charges to the
court of law. The weightage of the evidence
has to be assessed on the principle of
beyond reasonable doubt.

 "An uncontrolled power is the
natural enemy of freedom."

 ----Harold Laski in ?Liberty in
the Modern State"

 20.
The
Code
of
Criminal
Procedure, despite being a procedural law,
is enacted on the inviolable right enshrined
under
Articles
21
and
22
of
the
Constitution of India. The provisions
governing clearly exhibited the aforesaid
intendment of Parliament."

12. The Apex Court again
reiterated in Jalaluddin Khan Vs. Union
of India in Criminal Appeal No.3173 of
2024 that bail is a rule and jail is exception
is also applicable in the cases where act
itself provides stringent conditions for grant
of bail. Paragraph no.21 of the aforesaid
judgment is being quoted as under:

 "21. Before we part with the
Judgment, we must mention here that the
Special Court and the High Court did not
consider the material in the charge sheet
864 INDIAN LAW REPORTS ALLAHABAD SERIES
objectively. Perhaps the focus was more on
the activities of PFI, and therefore, the
appellant's case could not be properly
appreciated. When a case is made out for a
grant of bail, the Courts should not have
any hesitation in granting bail. The
allegations of the prosecution may be very
serious. But, the duty of the Courts is to
consider the case for grant of bail in
accordance with the law. ?Bail is the rule
and jail is an exception? is a settled law.
Even in a case like the present case where
there are stringent conditions for the grant
of bail in the relevant statutes, the same
rule holds good with only modification that
the bail can be granted if the conditions in
the statute are satisfied. The rule also
means that once a case is made out for the
grant of bail, the Court cannot decline to
grant bail. If the Courts start denying bail
in deserving cases, it will be a violation of
the rights guaranteed under Article 21 of
our Constitution."

13. In another judgement of Apex
Court in Manish Sisodia Vs Directorate
of Enforcement (supra) again observed
that keeping a person in jail during a trial
over a period of time is not proper and
while keeping a person in a trial for long
time, the court has forgotten very well
settled principles of law that bail is not to
be withheld as a punishment. Paragraph
no.53 of the aforesaid judgement is being
quoted as under:

 "53. The Court further observed
that, over a period of time, the trial courts
and the High Courts have forgotten a very
well-settled principle of law that bail is not
to be withheld as a punishment. From our
experience, we can say that it appears that
the trial courts and the High Courts
attempt to play safe in matters of grant of
bail. The principle that bail is a rule and
refusal is an exception is, at times, followed
in breach. On account of non-grant of bail
even in straight forward open and shut
cases, this Court is flooded with huge
number of bail petitions thereby adding to
the huge pendency. It is high time that the
trial courts and the High Courts should
recognize the principle that ?bail is rule
and jail is exception."

14. From perusal of above legal
position, it is clear, while considering the
bail
application
then
apart
from
seriousness of the charges and severity of
punishment, paramount consideration
should be given to whether there are
chances of absconding or tampering with
the witnesses or intimidation to victim or
witnesses on the part of the accused. The
bail application of an unconvicted person
should not be rejected for the purpose of
giving him a taste of imprisonment as a
lesson or as a mark of disapproval of his
conduct.

15. Reverting to the present case,
there is no averment from prosecution's
side that there are chances of absconding or
tampering
with
the
witnesses
or
intimidation of victim or witnesses on the
part of the applicant who is a lady and she
is also in jail since 12.10.2023 and till date
charge has not been framed and there is no
likelihood for early conclusion of trial and
co-accused persons have already been
granted bail by this court. In such
circumstances, refusing the bail will
amount to travesty of justice and will also
be in violation of Article 21 of the
Constitution of India.

16. In view of the above, without
expressing any detail opinion on the merit
of the case, court is of the view that
applicant is entitled to be released on bail.
10 All. University College Ret. Teachers Welfare Assc. Lko. Thru Its President Dr. S.S. Chauhan
 & Anr. & State of U.P. & Ors.
865
17. Let the applicant- Maya
Tiwari involved in the aforementioned
crime be released on bail, on her furnishing
a personal bond and two sureties each in
the like amount, to the satisfaction of the
court
concerned,
with
the
following
conditions:-

 i. The applicant shall not tamper
with
the
prosecution
evidence
by
intimidating/pressurizing
the
witnesses,
during the investigation or trial.

 ii. The applicant shall cooperate
in the trial sincerely without seeking any
adjournment.

 iii.
The
applicant
shall
not
indulge
in
any
criminal
activity
or
commission of any crime after being
released on bail.

18. In case of breach of any of the
above conditions, it shall be a ground for
cancellation of bail.

19. Identity, status and residence
proof of the applicant and sureties be
verified by the court concerned before the
bonds are accepted.
----------
(2024) 10 ILRA 865
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.10.2024

BEFORE

THE HON'BLE MANISH MATHUR, J.

Writ-A No. 5724 of 2024
Connected with other cases

University College Ret. Teachers Welfare
Assc. Lko. Thru Its President Dr. S.S.
Chauhan & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Dwijendra Mishra

Counsel for the Respondents:
C.S.C.

A. Service Law - Gratuity - Present
petition answers two questions: Whether
the petitioners would be covered under
definition of the term 'employee' u/s 2(e)
of the Act, 1972 and would now be
entitled for gratuity?

A perusal of the amending Act (Section 2(e))
will make it evident that teachers as a class
have been brought under the definition of
'employee' by means of the Amending Act and
would form a single class irrespective of
whether they belong to Primary, Secondary or
Degree College etc. (Para 30)

Since the amendment incorporated in the Act of
1972 has been notified w.e.f. 03.04.1997, it has
been made retrospective in nature and would
cover all such teachers who are covered by the
Amending Act of 2009. (Para 31)

B. Whether, even if covered under the
aforesaid definition, they are liable to be
excluded in terms of option already
availed of u/GO dated 30.03.1983 upon
applicability
of
principles
of
acquiescence/estoppels?

Principles of acquiescence and estoppels
w.r.t. exercise of options by teachers
cannot prevail over statutory conditions.
(Para 43)

In view of the statutory provisions of the Act,
1972, particularly Ss. 5 and 14 thereof, the Act
would prevail over the GO dated 30.03.1983.
The aspect of option would also lose any
relevance since principles of acquiescence and
estoppels do not apply against statute. (Para 40,
41)

GOs dated 30.03.1983 and 04.02.2004 are
hereby quashed to the extent of denial of