# Raghvendra v. State of U.P. & Ors

- **Citation:** (2023) 6 ILRA 810
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-25
- **Case number:** Criminal Appeal No. 9226 of 2022
- **Bench:** Siddharth
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raghvendra-v-state-of-u-p-ors-50454
- **Pages:** 6

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 147, 148, 149, 323, 504, 506, 307
&302 - Punishment for murder - SC/ST Act,
1989 - Section 3(2) (V) - Constitution of
India, 1950 - Article 21 - Against second bail
rejection
-
Maintainability
-
Appellant
submitted that in first criminal appeal of
appellant, rejection order was different and
present appeal has been filed against
different bail rejection order which has been
passed after rejection of first criminal appeal
by another coordinate Bench - Further
submitted that appeal requires to be heard
by this Court which was currently having
jurisdiction - St. opposed the prayer - Held, in
appeal the court was required to consider
whether
Special
Court
has
erred
in
granting/denying relief to appellant on the
basis of order under challenge - Also required
to see whether order of court below can be
sustained and its findings are in accordance
with legal and factual issues - Object and
subject of application u/s 438/439 Cr.P.C., is
different from object and subject of appeal
u/s 14-A (2) of SC/ST, Act - Therefore,
contention of appellant was accepted -
Impugned order set aside. (Para 6, 15, 17)

Criminal Appeal allowed. (E-13)

List of Cases cited:

Shakar Kerba Jadhav & ors. Vs St. of Mah. 1969
(2) SCC 793

## Text

810 INDIAN LAW REPORTS ALLAHABAD SERIES
criminal record. They are also on bail by
this Court. Under such circumstances, we
hold that the appellants be fined with a fine
of Rs.20,000/- each. This fine may be
treated as compensation money for the
parents of the deceased Ramesh. After the
amount is deposited by the appellants in the
State Treasury within a period of three
months from today, the entire amount be
passed on to the parents of the deceased as
compensation.

19. Thus for what has been stated
above, we partly allow the appeal. The
conviction under sections 148, 302 and 323
of Indian Penal Code be now treated to be a
conviction under section 304 (II) IPC.
Further since there was no common
intention, the conviction under sections 147
and 149 IPC is set-aside. So far as the
punishment is concerned, we have already
stated that the appellants be now fined with
Rs.20,000/- each and this fine be paid as
compensation to the parents of the
deceased.
----------
(2023) 6 ILRA 810
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED:ALLAHABAD 25.05.2023

BEFORE

THE HON'BLE SIDDHARTH , J.

Criminal Appeal No. 9226 of 2022

Raghvendra ...Appellant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Appellant:
Sri Brij Raj, Sri Abhishek Srivastava, Sri
Krishna Kumar, Sri Kuldeep Singh Yadav,
Sri Satendra Singh, Sr. Advocate

Counsel for the Opposite Parties:
G.A., Sri Hare Krishna Mishra, Sri Jitendra
Kumar, Sri Purushottam Dixit, Sri Saima
Saher

Criminal Law - Indian Penal Code, 1860 -
Sections 147, 148, 149, 323, 504, 506, 307
&302 - Punishment for murder - SC/ST Act,
1989 - Section 3(2) (V) - Constitution of
India, 1950 - Article 21 - Against second bail
rejection
-
Maintainability
-
Appellant
submitted that in first criminal appeal of
appellant, rejection order was different and
present appeal has been filed against
different bail rejection order which has been
passed after rejection of first criminal appeal
by another coordinate Bench - Further
submitted that appeal requires to be heard
by this Court which was currently having
jurisdiction - St. opposed the prayer - Held, in
appeal the court was required to consider
whether
Special
Court
has
erred
in
granting/denying relief to appellant on the
basis of order under challenge - Also required
to see whether order of court below can be
sustained and its findings are in accordance
with legal and factual issues - Object and
subject of application u/s 438/439 Cr.P.C., is
different from object and subject of appeal
u/s 14-A (2) of SC/ST, Act - Therefore,
contention of appellant was accepted -
Impugned order set aside. (Para 6, 15, 17)

Criminal Appeal allowed. (E-13)

List of Cases cited:

Shakar Kerba Jadhav & ors. Vs St. of Mah. 1969
(2) SCC 793

(Delivered by Hon'ble Hon'ble Siddharth, J.)

1. Heard learned counsel for the
appellant; learned AGA for opposite party
no.1; Ms. Saima Saher, learned counsel for
informant and perused the material placed
on record.

2. The present criminal appeal under
Section 14-A(2) Scheduled Castes &
Scheduled Tribes (Prevention of Atrocities)
6 All. Raghvendra Vs. State of U.P. & Ors.
811
Act has been filed by the appellant to set
aside the impugned order dated 30.06.2022,
whereby the Special Judge, SC/ST Act,
Etawah, has rejected the bail application of
the appellant moved by him in Case Crime
No. 0088 of 2021, under Sections 147,
148, 149, 323, 504, 506, 307 and 302 IPC
and Section 3(2) (V) of SC/ST Act, Police
Station Saifai, District Etawah.

3. This is the second criminal appeal
of the appellant filed against bail rejection
order dated 30.06.2022 passed by Special
Judge (SC/ST Act), Court No. 2, Etawah,
rejecting the bail application of the
appellant in S.T. No. 766/2021, Case Crime
No. 0088 of 2021.

4. Prayer has been made for setting
aside the aforesaid order passed by the
court below and allowing this appeal
alongwith
the
bail
application
filed
therewith for enlarging the appellant on
bail during the pendency of trial.

5. Learned Additional Advocate
General, Shri Gyan Narayan Kanaujiya, has
vehemently opposed the prayer for bail of
the appellant and has submitted that the
first Criminal Appeal No. 4861 of 2021 of
the appellant was rejected by the coordinate
Bench of this Court on 05.04.2022, which
is available and therefore this appeal may
be directed to be placed before the same
Bench for hearing being second criminal
appeal of the appellant since the subject
matter of this criminal appeal is the same as
in the earlier appeal and therefore as per
Chapter V, Rule 13 of the Allahabad High
Court Rules, it is required to be heard by
the same Bench.

6. Learned counsel for the appellant
has submitted that the present criminal
appeal has been filed after rejection of the
second bail application of the appellant by
the court below. In the first criminal appeal
of the appellant, the rejection order was
different and this appeal has been filed
against a different bail rejection order dated
30.06.2022 which has been passed after
rejection of the first criminal appeal of the
appellant by the order dated 05.04.2022 by
another coordinate Bench of this Court. He
has submitted that the provisions of
Chapter V, Rule 13 of the Rules of Court
do not contemplate or provide for posting
of subsequent criminal appeal of an
accused implicated under the provisions of
SC/ST Act for hearing before the same
Bench. He has submitted that this appeal
requires to be heard by this Court which is
currently having jurisdiction for hearing the
same.

7. After hearing the rival contentions,
this Court finds that before proceeding
further, it is required to be decided whether
once an appeal under Section 14-A (2) of
Scheduled Caste and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 has
been dismissed by one Bench of this Court,
then
after
rejection
of
second
bail
application by the court below, the
Criminal Appeal preferred again before this
Court, but against a different rejection
order, would be heard by the same Bench
which dismissed the earlier appeal and is
sitting in different jurisdiction or shall be
heard by the Bench which is currently
having jurisdiction to hear the same. The
relevant provisions necessary for deciding
this controversy are Section 14-A(2),
SC/ST Act and Chapter V, Rule, 13 of
Rules of Court which are quoted herein
below;-

14A.
Appeals.
(2)
Notwithstanding anything contained in
sub-section (3) of Section 378 of the Code
812 INDIAN LAW REPORTS ALLAHABAD SERIES
of Criminal Procedure, 1973 (2 of 1974)
an appeal shall lie to the High Court
against an order of the Special Court or
the Exclusive Special Court granting
refusing bail.

13. Subsequent application on
the same subject to be heard by the same
Bench:- No application to the same effect
or with the same object as a previous
application upon which a Bench has
passed any order other than an order of
reference to another Judge or Judges,
shall, except by way of appeal,ordinarily
be heard by any other Bench.

8. A perusal of the Section 14A (2) of
SC/ST Act shows that an appeal lies to this
Court against an order of the Special Court
or the Exclusive Special Court granting or
refusing bail to an accused.

9. It is clear that every grant or refusal
of bail by the Special Court can be
subjected to separate appeal before this
Court. Like second bail application under
Section 438/439 Cr.P.C., second appeal is
not
provided
in
the
SC/ST
Act.
Anticipatory
Bail
Application
under
Section 438 Cr.P.C., and Bail Application
under Section 439 Cr.P.C., can be filed
before this Court directly without any
approach to the court below. It can also
be filed after rejection of the bail
application
of
an
accused
by
the
court/courts
below.
The
applications
under Sections 438/439 Cr.P.C., are not
filed against the findings recorded by the
court/courts below rejecting the bail
application of an accused. The merits of
the order passed by the court/courts
below are not required to be seen and the
findings recorded therein are not required
to be referred or set aside by the High
Court
before
granting
anticipatory
bail/bail to an accused by exercising
powers under Sections 438/439 Cr.P.C.

10.

Compared
to
the
above
provisions of anticipatory bail/bail under
Cr.P.C., Section 14-A (2) of SC/ST Act,
clearly provides that an appeal shall lie to
the High Court against an order of
Special Court or the Exclusive Special
Court granting or refusing bail.

11.

The
section
does
not
contemplates that a second criminal
appeal will lie to the High Court against
the same rejection order of the Special
Court, if the High Court earlier dismissed
the appeal preferred against the order of
rejection passed by the court below.
Rightly so, because an order once
affirmed or set aside in appeal by the
High Court cannot be revisited by means
of another Criminal Appeal subsequently
filed therefore, every time an accused
approaches the court below for grant of
bail unsuccessfully, he has to prefer a
fresh criminal appeal against the order
passed therein before this Court.

12. A perusal of Chapter V, Rule 13
of the High Court Rules shows that it
provides that subsequent application on
the same subject will be heard by the
same
Bench.
It
provides
that
no
application to the same effect or with the
same object, as previous application upon
which a Bench has passed any order other
than order of reference to any Judge or
Judges, shall, except by way of appeal,
ordinarily be heard by any other Bench.

13. A perusal of Chapter V, Rule 13
of the High Court Rules, clearly shows that
it provides for a subsequent application to
be heard by the same Bench regarding the
same subject or with the same object as the
6 All. Raghvendra Vs. State of U.P. & Ors.
813
previous application. However, it exempts
an order of reference to another Judge or
Judges and order by way of appeal.

14. It is true that the Courts have held
that an application also includes an appeal.
For the purpose of deciding the present
controversy,
the
difference
between
application and appeal are required to be
considered. As considered hereinabove,
Chapter V, Rule 13 of the Rules of Court
distinguishes an application from an
appeal. The reason is that the appeal under
Section 14-A(2) of SC/ST is not the same
as application filed before the High Court
after refusal/grant bail by the court below
under Section 438/439 Cr.P.C. An appeal
affirming or setting aside the judgement of
the court below attaches finality to the
proceedings so far as the order of the court
below is concerned. However, application
for grant of relief after exercise of
discretion of this Court after once refusing
or
granting
bail
to
an
accused
is
maintainable subsequently, irrespective of
the order of the court below. Anticipatory
bail application/bail application filed after
rejection or grant of bail by court below are
not directed against any order of the court
below,
but
are
filed
praying
for
grant/cancellation of bail on the ground that
the
court
below
has
not
properly
appreciated the case of an accused and the
discretion of the High Court is therefore,
required to be exercised.

15. The Special Court under the
SC/ST Act undoubtedly exercises the same
powers of bail and are governed by the
same principles of grant/refusal of bail, but
in
appeal
before
this
court,
the
considerations do not remain the same as
the considerations in anticipatory bail
application/bail applications under Sections
438/439
Cr.P.C.
The
powers
and
jurisdiction of appellate court are different
than the powers of this Court while
entertaining an application. In appeal, this
court is required to consider whether the
Special Court has erred in granting denying
relief to the appellant on the basis of the
order under challenge. This court is
required to see whether the order of the
court below can be sustained and its
findings are in accordance with the legal
and
factual
issues
involved
in
the
consideration of bail application of the
accused by the Special Court or not. The
Apex Court in the case of Shakar Kerba
Jadhav
and
others
Vs
State
of
Maharashtra 1969 (2) SCC 793 has held
that a court of appeal is a "court of error" and
its normal function is to correct the order of
court below in appeal. Its jurisdiction should
be coextensive with that of the trial court.
Therefore, this Court while hearing the
appeal under Section 14-A(2) of SC/ST Act,
considers the errors committed by the Special
Court and grants/denies relief after such
consideration.
It
exercises
co-extensive
powers with the trial court. Regarding
consideration of applications under Sections
438/439 Cr.P.C., this Court never corrects the
error committed by the court below in
granting/denying relief to the applicant nor its
exercises any co-extensive power with that of
the trial court on the Sessions Court.
Therefore, the effect and the object of
application under Section 438/439 Cr.P.C.,
are different from that of an Appeal under
Section 14-A(2) of SC/ST Act.

16. The Blacks Law Dictionary,
VIIIth Edition, South Asian Edition defines
appeal " to seek review from a lower court
decision" by High Court.

17. It is abundantly clear that the
object and subject of application under
Section 438/439 Cr.P.C., is different from
814 INDIAN LAW REPORTS ALLAHABAD SERIES
the object and subject of appeal under
Section 14-A (2) of SC/ST, Act. Therefore,
it is hereby held that the criminal appeal
preferred before this Court under Section
14A-(2) of SC/ST Act after rejection of
subsequent bail application by the Special
Court can be heard by the Bench having
jurisdiction to hear such appeal and it is not
required to be placed before the earlier
Bench which rejected the earlier appeal
which was preferred against different order
of rejection/grant of bail by the Special
Court.

18. Now proceeding with hearing of
this Appeal on merits, the learned counsel
for the appellant has submitted that before
the trial court only one prosecution witness
has been examined, who has stated that he
did not saw anyone causing the alleged
incident. Witness has stated that he
implicated the appellant and the co-accused
as per direction given by the Inspector. The
appellant and co-accused, Murari Lal, are
not involved in this case. Learned counsel
for appellant has submitted that the
appellant has been falsely implicated in this
case. It is a case of malicious prosecution
of appellant under the provisions of SC/ST
Act. He has no criminal history to his credit
and is languishing in jail since 28.05.2021.
In case, the appellant is released on bail, he
will not misuse the liberty of bail.

19. It appears from the arguments
advanced by the counsel for the parties and
from perusal of material on record that the
court below has not properly considered the
facts of the case. Hence, in view of the
above consideration, the order of rejection
of bail passed by the court below dated
30.06.2022 is, hereby, set aside.

20.

Having
considered
the
submissions of the parties noted above,
finding force in the submissions made by
the learned counsel for the appellant;
keeping in view uncertainty regarding
conclusion of trial; one sided investigation
by police, ignoring the case of accused
side; appellant being under-trial having
fundamental
right
to
speedy;
larger
mandate of the Article 21 of the
Constitution of India, considering 5-6
times overcrowding in jails over and
above their capacity by under trials and
without expressing any opinion on the
merits of the case, court is of the opinion
that the appellant is entitled to be enlarged
on bail.

21. Let appellant, Raghvendra, be
released on bail in the aforesaid case crime
number on his furnishing a personal bond
and two reliable sureties each in the like
amount to the satisfaction of the court
concerned
subject
to
the
following
conditions:

(i) The
appellant
shall not
directly
or
indirectly
make
any
inducement, threat, or promise to any
person acquainted with the facts of the
case so as to dissuade him from disclosing
such facts to the court or to any police
officer or tamper with the evidence.

(ii) The appellant shall not
pressurize/intimidate
the
prosecution
witnesses.

(iii) The appellant 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 of Cr.P.C.

(iv) The appellant shall file an
undertaking to the effect that he shall not
seek any adjournment on the dates fixed for
6 All. Smt. Shailja Vs. State of U.P. & Anr.
815
evidence when the witnesses are present in
the trial court.

(v) The appellant shall remain
present before the trial court on each date
fixed, either personally or through his
counsel.

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

22. In case of breach of any of the
above conditions, it shall be a ground for
cancellation of bail. If in the opinion of the
trial court that absence of the appellant is
deliberate or without sufficient cause, then
it shall be open for the trial court to treat
such default as abuse of liberty of bail and
proceed in accordance with law.

23 . The trial court may make all
possible efforts/endeavour and try to
conclude
the
trial
expeditiously
in
accordance with law after the release of the
appellant, if there is no other legal
impediment.

24. It is made clear that the
observations made in this order are limited
to the purpose of determination of this bail
application and will in no way be construed
as an expression on the merits of the case.
The trial court shall be absolutely free to
arrive at its independent conclusions on the
basis of evidence led unaffected by
anything said in this order.

25. The criminal appeal is allowed.

26. Before parting with this case, this
Court deems it appropriate to record
appreciation for Sri Rajeev Lochan Shukla,
Advocate, who was not counsel in this
case, but has rendered valuable assistance
to this Court in deciding the above
controversy which was repeatedly being
raised in subsequent criminal appeals filed
by the same accused before this Court
because of subsequent denial of relief by
the Special Court.
----------
(2023) 6 ILRA 815
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.01.2023

BEFORE

THE HON'BLE SYED AFTAB HUSAIN IDRISI, J.

Criminal Revision No. 3630 of 2022

Smt. Shailja ...Revisionist
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Revisionist:
Sri Aishwarya Krishna, Sri Anurag Sharma,
Sri Sarvesh Chaubey

Counsel for the Respondents:
G.A., Sri G.A.,Hemant Kumar,Sri Pradeep
Kumar Keshri

A. Criminal Law - Code of Criminal
Procedure,
1973-Section
397/401
&
Protection of Women from Domestic
Violence Act, 2005-Sections 23, 2(5) & 3shared
house-Revisionist
married
to
opposite parties-Both of them were living
in the house in question from the
inception of their marriage-the residence
is lying vacant, no one is there to resides
in
the
house
in
question
with
the
revisionist-Thus, provision of Rs. 10,000/-
as rental money to the revisionist is also
not sustainable.(Para 1 to 18)

The revision is allowed. (E-6)
(Delivered by Hon'ble Syed Aftab Husain
Idrisi, J.)