# Pushpa Devi v. State of U.P

- **Citation:** (2022) 9 ILRA 390
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-18
- **Case number:** Criminal Misc. Bail Application No. 4988 of 2022
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pushpa-devi-v-state-of-u-p-49034
- **Pages:** 7

## Headnote

(A) Criminal Law - Bail - Indian Penal
Code, 1860 - Sections 302, 120-B - The
Code of criminal procedure, 1973 - Section
319 - Power to proceed against other
persons appearing to be guilty of offence -
Constitution of India - Article 21 - Power
under Section 319 CrPC is a discretionary
and an extraordinary power - to be
exercised sparingly and only in those
9 All. Pushpa Devi Vs. State of U.P.
391
cases where the circumstances of the case
so warrant - not to be exercised because
the Magistrate or the Sessions Judge is of
the opinion that some other person may
also be guilty of committing that offence -
Only where strong and cogent evidence
occurs against a person from the evidence
led before the court that such power
should be exercised - not in a casual and
cavalier manner. (Para - 5,7 )

Applicant not named in F.I.R. - name was
taken by P.W.7, P.W.9 and P.W.10 -
summoned under Section 319 Cr.P.C. -
court below not applied its judicial mind -
summoned applicant in a cursory manner -
main accused and co-accused also not
named - summoned under Section 319
Cr.P.C - granted bail.

HELD:- No convincing material to indicate
the
possibility
of
tampering
with
the
evidence
and

considering
the
larger
mandate
of
the
Article
21
of
the
Constitution of India, applicant may be
enlarged on bail. (Para -12 )

Bail application allowed. (E-7)

List of Cases cited:-

## Text

390 INDIAN LAW REPORTS ALLAHABAD SERIES
above, the possibility of retaliation on the
part of the petitioners by the acts alleged,
after closure of the earlier criminal case
cannot be ruled out. The allegations in the
complaint constitute offence under the
Attrocities Act. Whether the allegations are
true or untrue, would have to be decided in
the trial. In exercise of power under
Section 482 of the Cr.P.C., the Court does
not examine the correctness of the
allegations in a complaint except in
exceptionally rare cases where it is
patently clear that the allegations are
frivolous
or
do
not
disclose
any
offence............."

17. In fact while exercising the
inherent jurisdiction under Section 482
Cr.P.C. or while wielding the powers under
Section 226 of the Constitution of India the
quashing of the complaint can be done only
if it does not disclose any offence or if
there is any legal bar which prohibits the
proceedings on its basis. The Apex Court
decisions in R.P. Kapur Vs. State of
Punjab reported in AIR 1960 SC 866 and
State of Haryana Vs. Bhajan Lal reported
in 1992 SCC(Cr.) 426 make the position of
law in this regard clear recognizing certain
categories by way of illustration which may
justify the quashing of a complaint or
charge sheet.

18. In view of the above, this Court
finds that the applicant was dismissed from
services on 07.03.2011, thus he is under an
obligation to return back the company's
quarter, but the applicant was illegally
withholding the same, hence he is liable to
be punished under the relevant section. The
payment for which he was entitled has
already been paid, therefore, the case laws
referred by learned counsel for the
applicant is not applicable in the present
case and the court concerned has rightly
summoned the applicant under Section 452
of the Companies Act, 2013.

19. Considering the facts and
circumstances of the case, this Court finds
that the present matter does not fall in any
of the categories recognized by the Apex
Court, which might justify interference by
this
Court
in
order
to
quash
the
proceedings. Therefore, the prayer for
quashing
the
entire
proceedings
of
aforesaid complaint case is refused as I do
not see any abuse of the court's process
either.

20. The present application lacks
merit and is, accordingly, rejected.
----------
(2022) 9 ILRA 390
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.08.2022

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Misc. Bail Application No. 4988 of 2022

Pushpa Devi ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Suresh Kumar Yadav

Counsel for the Opposite Party:
G.A.

(A) Criminal Law - Bail - Indian Penal
Code, 1860 - Sections 302, 120-B - The
Code of criminal procedure, 1973 - Section
319 - Power to proceed against other
persons appearing to be guilty of offence -
Constitution of India - Article 21 - Power
under Section 319 CrPC is a discretionary
and an extraordinary power - to be
exercised sparingly and only in those
9 All. Pushpa Devi Vs. State of U.P.
391
cases where the circumstances of the case
so warrant - not to be exercised because
the Magistrate or the Sessions Judge is of
the opinion that some other person may
also be guilty of committing that offence -
Only where strong and cogent evidence
occurs against a person from the evidence
led before the court that such power
should be exercised - not in a casual and
cavalier manner. (Para - 5,7 )

Applicant not named in F.I.R. - name was
taken by P.W.7, P.W.9 and P.W.10 -
summoned under Section 319 Cr.P.C. -
court below not applied its judicial mind -
summoned applicant in a cursory manner -
main accused and co-accused also not
named - summoned under Section 319
Cr.P.C - granted bail.

HELD:- No convincing material to indicate
the
possibility
of
tampering
with
the
evidence
and

considering
the
larger
mandate
of
the
Article
21
of
the
Constitution of India, applicant may be
enlarged on bail. (Para -12 )

Bail application allowed. (E-7)

List of Cases cited:-

1. Hardeep Singh Vs St. of Punj. & ors., (2014)
3 SCC 92

2. Labhuji Amratji Thakor & ors. Vs The St. of
Guj. & anr. , 2018 (0) Supreme (SC) 1147

3. Brijendra Singh & ors. Vs St. of Rajasthan,
(2017) 7 SCC 706

4. Periyasami & ors. Vs S. Nallasamy, (2019) 4
SCC 342

5. Dataram Singh Vs St. of U.P. & anr., (2018) 3
SCC 22

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Pleadings have already been
exchanged between the parties are on the
record.

2. Heard Shri Suresh Kumar Yadav,
the learned counsel for the applicant,
learned A.G.A. for the State and perused
the record.

3. The applicant, Puspha Devi, has
moved the present bail application seeking
bail in Case Crime No. 327 of 2018, under
Sections 302, 120-B I.P.C., Police Station
Mohammadpur Khala, District Barabanki.

4. Learned counsel for the applicant
submits that accused applicant has falsely
been implicated in the present case. It is
further submitted that the applicant was not
named in the F.I.R. and she was summoned
under Section 319 Cr.P.C. on the premise
of statements of witnesses, P.W.7, P.W.9
and P.W.10 in the trial court who have
maliciously taken the name of applicant
with intention to implicate the applicant
falsely. The complainant in her statement
before the trial court has not taken the
name of applicant. As per prosecution case,
the main role has been assigned to coaccused Gajraj Singh, who has already
been granted bail by a co-ordinate Bench of
this Court vide order dated 24.04.2019
passed in Bail No.8940 of 2018. One
another co-accused, Jaikaran Singh @
Chhoti, who was not named in the F.I.R.
and was summoned under Section 319
Cr.P.C. has also been granted bail by a
coordinate Bench of this Court vide order
dated 26.02.2020 passed in bail No. 10612
of 2020, and the case of applicant is not on
the worse footing than that of the coaccused, Jaikaran Singh @ Chhoti, who has
been enlarged on bail.

5. Learned counsel for the applicant
further submits that summoning order dated
31.07.2019 is also against the spirit of
various judgments of Hon'ble Supreme
Court. He placed reliance upon a judgment
392 INDIAN LAW REPORTS ALLAHABAD SERIES
of Constitution Bench of Hon'ble Apex
Court in the case of Hardeep Singh Vs.
State of Punjab & others, (2014) 3 SCC
92, wherein paragraphs-105 and 106 it has
been observed as under:-

"105. Power under Section 319
CrPC
is
a
discretionary
and
an
extraordinary power. It is to be exercised
sparingly and only in those cases where the
circumstances of the case so warrant. It is
not to be exercised because the Magistrate
or the Sessions Judge is of the opinion that
some other person may also be guilty of
committing that offence. Only where strong
and cogent evidence occurs against a
person from the evidence led before the
court that such power should be exercised
and not in a casual and cavalier manner.

106. Thus, we hold that though
only a prima facie case is to be
established from the evidence led before
the court, not necessarily tested on the
anvil of cross-examination, it requires
much
stronger
evidence
than
mere
probability of his complicity. The test that
has to be applied is one which is more
than prima facie case as exercised at the
time of framing of charge, but short of
satisfaction to an extent that the evidence,
if
goes
unrebutted,
would
lead
to
conviction. In the absence of such
satisfaction, the court should refrain from
exercising power under Section 319 CrPC.
In Section 319 CrPC the purpose of
providing if "it appears from the evidence
that any person not being the accused has
committed any offence" is clear from the
words "for which such person could be
tried together with the accused". The
words used are not "for which such person
could be convicted". There is, therefore,
no scope for the court acting under
Section 319 CrPC to form any opinion as
to the guilt of the accused."

6. The above Constitution Bench
judgment was duly considered by the
Hon'ble Apex Court in the case of Labhuji
Amratji Thakor & others Vs. The State
of Gujarat and another, 2018 (0)
Supreme (SC) 1147. Paragraph-9 of the
aforesaid judgment reads as under:-

"9. The Constitution Bench has
given a caution that power under Section
319 Cr.P.C. is a discretionary and
extraordinary power, which should be
exercised sparingly and only in those cases
where the circumstances of the case so
warrant. The crucial test, which has been
laid down as noted above is "the test that
has to be applied is one which is more than
prima facie case as exercised at the time of
framing of charge, but short of satisfaction
to an extent that the evidence, if goes
unrebutted, would lead to conviction." The
present is a case, where the trial court had
rejected the application filed by the
prosecution under Section 319 Cr.P.C.
Further,
in
the
present
case,
the
complainant in the F.I.R. has not taken the
names
of
the
appellants
and
after
investigation in which the statement of
victim was also recorded, the names of the
appellants did not figure. After carrying
investigation,
the
Charge
Sheet
was
submitted in which the appellants names
were also not mentioned as accused. In the
statement recorded before the Police, the
victim has named only Natuji with whom
she admitted having physical relations and
who took her and with whom she went out
of the house in the night and lived with him
on several places. The mother of victim in
her statement before the Court herself has
stated that victim girl returned to the house
after one and a half months. In the
statement, before the Court, victim has
narrated the entire sequence of events. She
has stated in her statement that accused
9 All. Pushpa Devi Vs. State of U.P.
393
Natuji used to visit her Uncle's house
Vishnuji, where she met Natuji. She,
however, stated that it was Natuji, who had
given her mobile phone. Her parents came
to know about she having been given
mobile phone by Natuji, then they went to
the house of Natuji and threatened Natuji."

7. Learned counsel for the applicant
has further made reliance upon the
judgment of Hon'ble Apex Court in the
case of Brijendra Singh and others vs.
State of Rajasthan, (2017) 7 SCC 706,
wherein in paragraphs-13 and 15 it has
been observed as under:-

"13. In order to answer the
question, some of the principles enunciated
in
Hardeep
Singh?s
case
may
be
recapitulated:

Power under Section 319 Cr.P.C.
can be exercised by the trial court at any
stage during the trial, i.e., before the
conclusion of trial, to summon any person
as an accused and face the trial in the
ongoing case, once the trial court finds that
there is some ?evidence? against such a
person on the basis of which evidence it
can be gathered that he appears to be
guilty of offence. The ?evidence? herein
means the material that is brought before
the Court during trial. Insofar as the
material/evidence collected by the IO at the
stage of inquiry is concerned, it can be
utilised for corroboration and to support
the evidence recorded by the Court to
invoke the power under Section 319
Cr.P.C. No doubt, such evidence that has
surfaced in examination-in-chief, without
cross- examination of witnesses, can also
be taken into consideration. However, since
it is a discretionary power given to the
Court under Section 319 Cr.P.C. and is
also an extraordinary one, same has to be
exercised sparingly and only in those cases
where the circumstances of the case so
warrants. The degree of satisfaction is
more than the degree which is warranted at
the time of framing of the charges against
others in respect of whom chargesheet was
filed. Only where strong and cogent
evidence occurs against a person from the
evidence led before the Court that such
power should be exercised. It is not to be
exercised in a casual or a cavalier manner.
The prima facie opinion which is to be
formed requires stronger evidence than
mere probability of his complicity.

xx xx xx

15. This record was before the
trial court. Notwithstanding the same, the
trial court went by the deposition of
complainant and some other persons in
their examination-in-chief, with no other
material to support their so- called
verbal/ocular version. Thus, the ?evidence?
recorded during trial was nothing more
than the statements which was already
there under Section 161 Cr.P.C. recorded
at the time of investigation of the case. No
doubt, the trial court would be competent
to exercise its power even on the basis of
such statements recorded before it in
examination-in-chief. However, in a case
like the present where plethora of evidence
was
collected
by
the
IO
during
investigation which suggested otherwise,
the trial court was at least duty bound to
look into the same while forming prima
facie opinion and to see as to whether
?much
stronger
evidence
than
mere
possibility
of
their
(i.e.
appellants)
complicity has come on record. There is no
satisfaction of this nature. Even if we
presume that the trial court was not
apprised of the same at the time when it
passed the order (as the appellants were
not on the scene at that time), what is more
troubling is that even when this material on
record was specifically brought to the
394 INDIAN LAW REPORTS ALLAHABAD SERIES
notice of the High Court in the Revision
Petition filed by the appellants, the High
Court too blissfully ignored the said
material.
Except
reproducing
the
discussion contained in the order of the
trial court and expressing agreement
therewith, nothing more has been done.
Such
orders
cannot
stand
judicial
scrutiny."

8. Learned counsel for the applicant has
further relied upon the judgment of Hon'ble
Apex Court in the case of Periyasami and
others vs. S. Nallasamy, (2019) 4 SCC 342
wherein in paragraphs-14 and 15 it has been
observed as under:-

"14. In the First Information
Report or in the statements recorded under
Section 161 of the Code, the names of the
appellants or any other description have not
been given so as to identify them. The
allegations in the FIR are vague and can be
used any time to include any person in the
absence
of
description
in
the
First
Information Report to identify such person.
There is no assertion in respect of the villages
to which the additional accused belong.
Therefore, there is no strong or cogent
evidence to make the appellants stand the
trial for the offences under Sections 147, 448,
294(b) and 506 of IPC in view of the
judgment in Hardeep Singh case (supra). The
additional accused cannot be summoned
under Section 319 of the Code in casual and
cavalier manner in the absence of strong and
cogent evidence. Under Section 319 of the
Code additional accused can be summoned
only if there is more than prima facie case as
is required at the time of framing of charge
but which is less than the satisfaction
required at the time of conclusion of the trial
convicting the accused.

15. The High Court has set aside
the order passed by the learned Magistrate
only on the basis of the statements of some
of
the
witnesses
examined
by
the
Complainant. Mere disclosing the names of
the appellants cannot be said to be strong
and cogent evidence to make them to stand
trial for the offence under Section 319 of
the Code, especially when the Complainant
is a husband and has initiated criminal
proceedings against family of his in-laws
and when their names or other identity
were not disclosed at the first opportunity."

9. Learned counsel for the applicant
further submits that prosecution story as set
up is totally false and fabricated, no role
has been assigned to the applicant, no
incriminating article has been recovered
from her possession or on her pointing out,
the recover of alleged E-Shram Card of
applicant from the place of occurrence is
false and implanted by the police, there is
no strong motive against the applicant and
the alleged motive of dispute of money
shown by the complainant is baseless and
has no force because the alleged amount
was taken by the deceased about ten years
ago and since then there was no dispute and
the applicant has falsely been implicated in
the case, therefore, she should be released
on bail by this Court sympathetically.

10.

Several
other
submissions
regarding legality and illegality of the
allegations made in the F.I.R. have also
been placed forth before the Court. The
circumstances which, according to the
counsel, led to the false implication of the
accused, have also been touched upon at
length. It has been assured on behalf of the
applicant that she is ready to cooperate with
the process of law and shall faithfully make
herself available before the court whenever
required and is also ready to accept all the
conditions which the Court may deem fit to
impose upon her. The applicant undertakes
9 All. Pushpa Devi Vs. State of U.P.
395
that in case she is released on bail she will
not misuse the liberty of bail and will
cooperate in trial. It has also been pointed
out that the applicant is not having any
criminal history, which fact has been stated
in para-33 of the affidavit filed in support
of bail application. The applicant is in jail
since 21.04.2022 and that in the wake of
heavy pendency of cases in the courts,
there is no likelihood of any early
conclusion of trial.

11. Learned A.G.A. opposed the
prayer for bail, but has not disputed that
applicant was not named in the F.I.R. and
her name was surfaced for the first time
in the statements of P.W.7, P.W.9 and
P.W.10.

12. After perusing the record in the
light of the submissions made at the Bar
and after taking an overall view of all the
facts and circumstances of this case, the
nature
of
evidence,
the
period
of
detention
already
undergone,
the
unlikelihood of early conclusion of trial
and also the absence of any convincing
material to indicate the possibility of
tampering
with
the
evidence,
and
considering the fact that the applicant
was not named in the F.I.R.; her name
was taken by P.W.7, P.W.9 and P.W.10
and she was summoned under Section
319 Cr.P.C., whereupon learned court
below has not applied its judicial mind
and in a cursory manner summoned the
applicant to face the trial; and the main
accused, Gajraj Singh has already been
granted bail; another co-accused, Jaikaran
Singh @ Chhoti, who was also not named
and was summoned under Section 319
Cr.P.C., has also been granted bail, as
well as considering the larger mandate of
the Article 21 of the Constitution of India
and the law laid down by the Hon'ble
Apex Court in the cases of Hardeep
Singh (supra), Labhuji Amratji Thakor
(supra),
Brijendra
Singh
(supra),
Periyasami and others (supra) and
Dataram Singh vs. State of U.P. and
another, reported in (2018) 3 SCC 22,
this Court is of the view that the applicant
may be enlarged on bail.

13. The prayer for bail is granted.
The application is allowed.

14. Let the applicant, Puspha Devi,
involved in Case Crime No. 327 of 2018,
under Sections 302, 120-B I.P.C., Police
Station Mohammadpur Khala, District
Barabanki, be enlarged on bail on her
executing a personal bond and two
sureties each in the like amount to the
satisfaction of the court concerned on the
following conditions :-

(1) The applicant will not make
any attempt to tamper with the prosecution
evidence in any manner whatsoever.

(2) The applicant will personally
appear on each and every date fixed in the
court below and her personal presence shall
not be exempted unless the court itself
deems it fit to do so in the interest of
justice.

(3) The applicant shall cooperate
in the trial sincerely without seeking any
adjournment.

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

(5) In case, the applicant misuses
the liberty of bail and in order to secure her
presence proclamation under Section 82
Cr.P.C. is issued and the applicant fails to
appear before the court on the date fixed in
such proclamation, then, the trial court
shall initiate proceedings against her, in
396 INDIAN LAW REPORTS ALLAHABAD SERIES
accordance with law, under Section 174-A
of the Indian Penal Code.

(6) The applicant shall remain
present, in person, before the trial court on
the dates fixed for (i) opening of the case,
(ii) framing of charge and (iii) recording of
statement under Section 313 Cr.P.C. If in
the opinion of the trial court default of this
condition is deliberate or without sufficient
cause, then it shall be open for the trial
court to treat such default as abuse of
liberty of her bail and proceed against her
in accordance with law.

(7) The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad or certified copy issued from the
Registry of the High Court, Allahabad.

(8)
The
concerned
Court/
Authority/
Official
shall
verify
the
authenticity of such computerized copy of
the order from the official website of High
Court
Allahabad
and
shall
make
a
declaration of such verification in writing.

15. It may be observed that in the
event of any breach of the aforesaid
conditions, the court below shall be at
liberty to proceed for the cancellation of
applicant's bail.

16. 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 merit of
the case.
----------
(2022) 9 ILRA 396
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.09.2022

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.
Criminal Misc. 1st Bail Application No. 21223 of
2022

Peeyush Kumar Jain ...Applicant (In Jail)
Versus
Union of India ...Opposite Party

Counsel for the Applicant:
Sri Rahul Agarwal, Sri Malay Prasad, Ms.
Tanya Makker, Ms. Saloni Mathur, Sri
Piyush Kant Shukla, Sri Anurag Khanna (Sr.
Advocate)

Counsel for the Opposite Party:
Sri Dhananjay Awasthi, Sri Digvijay Nath
Dubey

(A) Criminal Law - Bail in economic
offences
-
The
Central
Goods
and
Services
Tax
Act,
2017
-
Section
74(7),132 (1) (a) r.w. Section 132 (1) (i)
& 132 (5), Section 138 - Compounding
of Offences - in determining whether to
grant bail, both the seriousness of the
charge
and
the
severity
of
the
punishment
should
be
taken
into
consideration - right to bail is not to be
denied merely because of the sentiments
of the community against the accused -
mere denial of bail by another High
Court on the facts of a particular case,
without laying down any proposition of
law, would not amount to a binding
precedent. (Para - 25,29,30)

Search on residential and official premises of
applicant by Officers
of DGGI
- Cash
amounting to Rs. 196.57 Crores seized -
recovery of 23 kilograms gold - handed over
to
Officers
of
Directorate
of
Revenue
Intelligence - applicant arrested - collectively
engaged in illicit supply of finished goods,
namely perfumery compounds - without
issuing any tax invoice and without payment
of GST - application for bail before trial court
- rejected - ground
- no reasonable
explanation - matter serious in nature - very
harmful to economic health of country -
granting bail in such a matter would be likely
to promote such type of modus-operandi in
evasion of tax. (Para - 3,4,7)