# Ram Prakash v. State of U.P

- **Citation:** (2022) 5 ILRA 1280
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-29
- **Case number:** Criminal Misc. Bail Application No. 12419 of 2021
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-prakash-v-state-of-u-p-48484
- **Pages:** 6

## Headnote

Criminal Law- Indian Evidence Act, 1872-
Section 45A- Polygraph Test- admissibility
of- Section 141- Leading Questions- The
perusal of polygraph test reveals that the
investigating officer has asked a pin-point
question-
Instead
of
asking
leading
question
from
the
eye-witness
the
prosecution should have asked as to who
were those persons who have attacked on
him and victim. However, even such
question could not have been asked while
conducting the polygraph test inasmuch
as such test has been disapproved by the
Hon'ble Apex Court in re: Selvi and others
(supra)- When such eye witness and the
informant who is wife of deceased had not
alleged anything against the present
applicant while recording their statement
5 All. Ram Prakash Vs. State of U.P.
1281
u/s 161 Cr.P.C. respectively whereas the
present applicant was close relative of the
informant then the statement of eye
witness taken while conducting polygraph
test would have no evidentiary value in
view of the dictum of Hon'ble Court in re:
Selvi
(supra).
Therefore,
when
such
statement of the eye witness in question
has got no evidentiary value in the eyes of
law,
the
implication
of
the
present
applicant in such case would not be proper
subject to other circumstantial evidence
and corroborative material which would
be seen during trial.

Where leading questions are asked in a
Polygraph test, which has been disapproved by
the Supreme Court, then the same would have
no
evidentiary
value
specially
when
no
allegations were made against the accused in
the statement recorded u/s 161 of the Cr.P.C.
(Para 15, 16)

Bail Application allowed. (E-3)

Judgements/ Case law relied upon:-

Selvi & ors. Vs St. of Kar. (2010) 7 SCC 263

## Text

1280 INDIAN LAW REPORTS ALLAHABAD SERIES
life of the select list would continue till the
decision of the writ petition.

14. Further, the undisputed facts
which
emerge
from
the
documents
available on record are that in pursuance of
the selection process, the candidate at Sr.
No. 1 in the merit list namely, Dr. Dinesh
Vashishth was issued appointment letter on
July 16, 2008. In pursuance thereto, he
submitted his joining report and was
permitted to join as Principal of the College
on July 19, 2008. He continued to work as
such till the year 2011, as submitted by
learned counsel for the State. There is no
quarrel with the proposition of law that
with the joining of a candidate in the select
list, the process of selection is complete
and the waiting list cannot be acted upon.
Even if, for the time being, we do not opine
on the issue regarding life of a select list
herein, no rules were cited to show about
the validity of a select list. Only reference
was made to the observation made by the
Division Bench of this Court in Special
Appeal No. 1282 of 2008, wherein it was
recorded that the select list would remain
valid till the decision of the writ petition
filed by the Sudhir Kumar Gupta, who was
at Sr. No.2 in the merit list questioning the
appointment of Dr. Dinesh Vashishth who
was at Sr. No. 1 in the merit list. The
present appellant was nowhere in the
picture. The aforesaid order could have
relevance to the claim of Sudhir Kumar
Gupta, for appointment as Principal and not
for any other candidate.

15. Even otherwise, in the case in
hand, the select list was notified on
September 29, 2003 and appointment on
the post was sought and offered to the
appellant in the year 2020-21. The claim
made by the appellant to the post, in the
aforesaid factual matrix by filing a
representation and then a writ petition in
the year 2020, was otherwise also highly
belated. The post in question was vacated
by Dr. Dinesh Vashishth in the year 2011.

16. For the reasons mentioned above,
we do not find any reason to interfere in the
present appeal. The same is, accordingly,
dismissed.
----------
(2022)05ILR A1280
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 29.04.2022

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Criminal Misc. Bail Application No. 12419 of
2021

Ram Prakash ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Ashish Kumar Rastogi, Anita Singh

Counsel for the Opposite Party:
G.A.

Criminal Law- Indian Evidence Act, 1872-
Section 45A- Polygraph Test- admissibility
of- Section 141- Leading Questions- The
perusal of polygraph test reveals that the
investigating officer has asked a pin-point
question-
Instead
of
asking
leading
question
from
the
eye-witness
the
prosecution should have asked as to who
were those persons who have attacked on
him and victim. However, even such
question could not have been asked while
conducting the polygraph test inasmuch
as such test has been disapproved by the
Hon'ble Apex Court in re: Selvi and others
(supra)- When such eye witness and the
informant who is wife of deceased had not
alleged anything against the present
applicant while recording their statement
5 All. Ram Prakash Vs. State of U.P.
1281
u/s 161 Cr.P.C. respectively whereas the
present applicant was close relative of the
informant then the statement of eye
witness taken while conducting polygraph
test would have no evidentiary value in
view of the dictum of Hon'ble Court in re:
Selvi
(supra).
Therefore,
when
such
statement of the eye witness in question
has got no evidentiary value in the eyes of
law,
the
implication
of
the
present
applicant in such case would not be proper
subject to other circumstantial evidence
and corroborative material which would
be seen during trial.

Where leading questions are asked in a
Polygraph test, which has been disapproved by
the Supreme Court, then the same would have
no
evidentiary
value
specially
when
no
allegations were made against the accused in
the statement recorded u/s 161 of the Cr.P.C.
(Para 15, 16)

Bail Application allowed. (E-3)

Judgements/ Case law relied upon:-

Selvi & ors. Vs St. of Kar. (2010) 7 SCC 263

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Ashish Kumar Rastogi,
learned counsel for the applicant and Sri
Rao Narendra Singh, learned AGA for the
State.

2. The present applicant is in jail
Since 18.6.2021 in Case Crime No. 314 of
2018 u/s 302, 307, 323 IPC, P.S. Gosaiganj,
District Lucknow. He has further submitted
that the present applicant has been falsely
implicated in this case as he has not
committed any offence as alleged in the
prosecution story.

3. Attention has been drawn towards
the impugned F.I.R. which is against the
four unknown persons who were beating up
the husband of the informant mercilessly
through sharp edged weapon and batons on
29.5.2018. As per the informant she has
seen those persons through the light of
torch as the incident is a night occurrence
of 9.30 P.M.

4. The police recorded the statement
of informant / wife of the deceased on
31.5.2018. Further, the police recorded the
statement of eye witness Guddu s/o Guru
Prasad u/s 161 Cr.P.C. on 12.1.2019. When
the local police could not investigate the
matter as no reliable evidences could be
collected, matter was transferred to crime
branch for further investigation. The crime
branch again recorded the statement of eye
witness Guddu on 22.5.2020 where he
repeated his earlier version recorded under
section 161 Cr.P.C. The crime branch
conducted the Polygraph test of Guddu s/o
Guru
Prasad
on
15.3.2021.
During
polygraph test the leading question has
been asked from Guddu as to whether the
present applicant has committed crime in
question, he replied in affirmative. As per
learned counsel for the applicant the
leading question could have not been asked
during investigation. However, on the basis
of aforesaid statement of eye witness
Guddu the police arrested the applicant and
send him jail on 18.6.2021 without
intimating any reason to the applicant or his
family members regarding the offence he
has committed for that he is being arrested.
Thereafter, the police filed charge-sheet on
18.7.2021 implicating the present applicant
on the basis of polygraph test.

5. Learned counsel for the applicant
has drawn attention of this Court towards
para 15 of the bail application wherein it
has been categorically indicated that the
present applicant is brother-in-law of the
informant. Therefore, it is beyond any
1282 INDIAN LAW REPORTS ALLAHABAD SERIES
comprehension that if the informant was
able to recognize the assailants on the date
of incident she could not recognize her
close relative. To be more precise, as per
learned counsel for the applicant had the
offence in question been committed by the
present applicant the informant would have
recognized him being a close relative but
since nothing has been alleged against the
present applicant by the informant or other
witnesses from 29.5.2018, the date of
incident till 5.3.2021 when the polygraph
test of Guddu s/o Guru Prasad was
conducted, therefore, on the basis of
polygraph test the present applicant may
not be implicated.

6. Learned counsel for the applicant
has drawn attention of this Court towards
the dictum of Apex Court in re: Selvi and
others vs. State of Karnataka (2010) 7
Supreme Court Cases 263 referring para
240, 242 and 264 which reads as under :

"240. We must also contemplate
situations where a threat given by the
investigators to conduct any of the
impugned tests could prompt a person to
make incriminatory statements or to
undergo some mental trauma. Especially
in cases of individuals from weaker
sections of society who are unaware of
their fundamental rights and unable to
afford
legal
advice,
the
moth
apprehension of undergoing scientific
tests that supposedly reveal the truth the
act is threatening to administer the
impugned tests could also elicit testimony.
It is also quite conceivable that an
individual may give his/her consent to
undergo the said tests on account of
threats, false promises or deception by her
investigators. For example, a person may
be convinced to give his/her consent after
being promised that this would lead to an
early release from custody or dropping of
charges.
However,
after
the
administration
of
the
tests
the
investigators
may
renege
on
such
promises. In such a case the relevant
inquiry is not confined to the apparent
voluntariness of the act of undergoing the
tests, but also includes an examination of
the totality of circumstances.

242. We can also contemplate a
possibility that even when an individual
freely consents to undergo the tests in
question, the resulting testimony cannot
be readily characterised as voluntary in
nature.
This
is
attributable
to
the
differences between the manner in which
the impugned tests are conducted and an
ordinary interrogation. In an ordinary
interrogation,
the
investigator
asks
questions one by one and the subject has
the
choice
of
remaining
silent
or
answering each of these questions. This
choice is repeatedly exercised after each
question is asked and the subject decides
the nature and content of each testimonial
response. On account of the continuous
exercise of such a choice, the subject's
verbal responses can be described as
voluntary in nature. However, in the
context of the impugned techniques the
test subject does not exercise such a
choice in a continuous control over the
subsequent responses given during the test
in case of the narcoanalysis technique, the
subject speaks in a drug-induced state and
is clearly not aware of his/her own
responses at the time. In the context of
polygraph examination and the BEAP
tests, the subject cannot anticipate the
contents of the "relevant questions" that
will be asked or the "probes" that will be
shown. Furthermore, the results are
derived
from
the
measurement
of
physiological responses and hence the
subject cannot exercise an effective choice
5 All. Ram Prakash Vs. State of U.P.
1283
between remaining silent and imparting
personal knowledge. In light of these
facts, it was contended that a presumption
cannot be made about the voluntariness of
the test results even if the subject had
given prior consent.

264.
In
light
of
these
conclusions, we hold that no individual
should be forcibly subjected to any of the
techniques in question, whether in the
context of investigation in criminal cases
or otherwise. Doing so would amount to
an unwarranted intrusion into personal
liberty. However, we do leave room for the
voluntary administration of the impugned
techniques in the context of criminal
justice provided that certain safeguards
are in place. Even when the subject has
given consent to undergo any of these
tests, the test results by themselves cannot
be admitted as evidence because the
subject does not exercise conscious
control over the responses during the
administration of the test. However, any
information
or
material
that
is
subsequently discovered with the help of
voluntary administered test results can be
admitted in accordance with Section 27 of
the Evidence Act, 1872."

Emphasis Supplied

7. In the aforesaid judgment the
Hon'ble Apex Court has held that no
individual should be forcibly subjected to
any of the technique in question whether in
the context of investigation in criminal case
or otherwise and if such technique is
adopted, the outcome thereof would have
no evidentiary value.

8. Learned counsel for the applicant
has submitted that during the aforesaid
polygraph test the investigating officer has
asked pin pointed question that 'as to
whether
the
present
applicant
has
committed this offence', this witness has
given reply in affirmative. As per Sri
Rastogi such type of questions are known
as 'leading questions' and those questions
may not be asked during investigation.
Even such leading question may not be
asked during examination-in-chief or reexamination during trial except with the
permission of the Court, however, during
cross-examination such type of questions
may be asked.

9. He has further submitted that except
the aforesaid statement of eye-witness Guddu
during polygraph test no other evidence or
material is available with the prosecution to
suggest that the present applicant has
committed offence in question. Since the
charge-sheet has been filed, therefore, there is
no apprehension of absconding or tampering
of evidence / witness by the applicant.

10. The learned counsel for the
applicant has given an undertaking on behalf
of applicant that the applicant shall not
misuse the liberty of bail and shall cooperate
with the trial proceedings and shall abide by
all terms and conditions of bail, if granted.

11. Sri Rao Narendra Singh, learned
AGA has, however, opposed the prayer of
bail but could not dispute the aforesaid
submissions so raised by the learned counsel
for the applicant. He could also not dispute
the proposition of law in re: Selvi (supra).

12. Heard learned counsel for the
parties and perused the material available
on record and also perused the dictum of
Hon'ble Apex Court in re: Selvi (supra).

13. Without entering into the merits of
the issue and considering the contents of
F.I.R., statement of informant, of eye
witness and polygraph test dated 5.3.2021
1284 INDIAN LAW REPORTS ALLAHABAD SERIES
(Annexure no. 8), I find that this is a fit
case of bail.

14. The perusal of polygraph test
dated 5.3.2021 ( Annexure no. 8) reveals
that the investigating officer has asked a
pin-point question vide question no. 1 from
eye witness Guddu s/o late Guru Prasad
that " as to whether Sarhu Ram Prakash
and Damad Ashok had assaulted on the
victim". The said eye-witness replied "Yes".

15. To me instead of asking leading
question from the eye-witness Guddu s/o
late Guru Prasad the prosecution should
have asked as to who were those persons
who have attacked on him and victim.
However, even such question could not
have been asked while conducting the
polygraph test inasmuch as such test has
been disapproved by the Hon'ble Apex
Court in re: Selvi and others (supra).

16. I am constrained to observe here
that when such eye witness Guddu s/o late
Guru Prasad and the informant who is wife
of deceased had not alleged anything
against
the
present
applicant
while
recording their statement u/s 161 Cr.P.C. on
12.1.2019
and
31.5.2018
respectively
whereas the present applicant was close
relative of the informant then the statement
of eye witness Guddu s/o late Guru Prasad
taken while conducting polygraph test
would have no evidentiary value in view of
the dictum of Hon'ble Court in re: Selvi
(supra). Therefore, when such statement of
the eye witness in question has got no
evidentiary value in the eyes of law, the
implication of the present applicant in such
case would not be proper subject to other
circumstantial evidence and corroborative
material which would be seen during trial.
In other words, any observation of this
Court in this order would not effect the trial
proceedings in any manner whatsoever and
the trial would be conducted and concluded
strictly in accordance with law. Whether
the present applicant is guilty or not in the
charges framed against him, will be
decided by the trial court on its own merit
after analyzing the evidences that surfaces
on record during the trial.

17. Therefore, In view of the above
the present bail application is allowed.

18. Let the applicant Ram Prakash,
involved in aforesaid case crime be
released on bail on his furnishing a
personal bond and two sureties each in the
like amount to the satisfaction of the court
concerned with the following conditions
which are being imposed in the interest of
justice:-

(i) The applicant shall file an
undertaking to the effect that he shall not
seek any adjournment on the dates fixed for
evidence when the witnesses are present in
court. In case of default of this condition, it
shall be open for the trial court to treat it as
abuse of liberty of bail and pass orders in
accordance with law.

(ii) The applicant shall remain
present before the trial court on each date
fixed, either personally or through his
counsel. In case of his absence, without
sufficient cause, the trial court may proceed
against him under Section 229-A of the
Indian Penal Code.

(iii) In case, the applicant misuses
the liberty of bail during trial and in order
to secure his 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 him, in accordance with law, under
Section 174-A of the Indian Penal Code.
5 All. Satya Narayan Bhagat Vs. Pitambar Dutt Pandey & Ors.
1285

(iv) 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 absence of the
applicant 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 against him in
accordance with law.

(v) The applicant shall not leave
the country without permission of the Court
concerned.

19. Before parting with it is expected
that the trial shall be concluded with
expedition. Further, the learned trial court
may take all coercive measures as per law
if either of the parties do not co-operate in
the trial properly. The learned trial court
shall fix short dates to ensure that trial is
concluded at the earliest.
----------

(2022)05ILR A1285
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.03.2022

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

S.C.C. Revision No. 13 of 2022

Satya Narayan Bhagat ...Revisionist
Versus
Pitambar Dutt Pandey & Ors.
 ...Opposite Parties

Counsel for the Revisionist:
Sri Narendra Kumar Chaturvedi

Counsel for the Opposite Parties:
Sri Hausihla Prasad Mishra

Civil Law - Code of Civil Procedure,1908 -
Order XV Rule-5 - Rent not paid before the
court where the suit is pending, but before
another Court under the proceeding of Section
30(1) of U.P. Act No. 13 of 1972. Amount
deposited under Section 30(1) of U.P. Act No.
13 of 1972 cannot be adjusted against the
amount to be deposited before the Court in
compliance of Order XV Rule 5 CPC -impugned
order upheld.

Revision dismissed. (E-9)

List of Cases cited:
1. Kedar Nath Vs Waqf Shekikh Abdullah
Charitable Madursa & ors.; 2016 6 ADJ 24.
2. Haider Abbas Vs A.D.J. (Court No. 3),
Allahabad & ors. ; 2006 (62) ALR 552,
3. More Singh Vs Chandrika Prasad; 2016 130
RD 90
4. Krishna Kumar Gupta Vs Manoj Kumar Sahu;
2017 LawSuit (All) 658
5. Om Prakash Gupta Vs District Judge & anr.;
2019 (2) JCLR 529 (All).

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard Sri N.K. Chaturvedi, learned
counsel for revisionist and Sri Hausihla
Prasad
Mishra,
learned
counsel
for
respondents.

2. Learned counsel for revisionist
submitted at the bar that he does want to
press the revision against order dated
04.12.2021 passed by Additional District
and
Sessions
Judge/
Special
Judge
(Prevention of Corruption Act), Court No.
3, Gorakhpur and he may be given liberty
to file fresh revision against order dated
04.12.2021, for which Sri Hausihla Prasad
Mishra, learned counsel for respondents
has no objection.

3. Accordingly, present revision
stands dismissed against order dated
04.12.2021 with the aforesaid liberty.