# Sher Ali (In Jail) v. State of U.P

- **Citation:** (2021) 9 ILRA 300
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-25
- **Case number:** Crl. Misc. Bail Application No. 28763 of 2021
- **Bench:** Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sher-ali-in-jail-v-state-of-u-p-47573
- **Pages:** 16

## Headnote

police force, a pious duty of maintaining law
and order and protecting citizens, on
account of facing trial of committing
custodial torture and death. (Para 19)

Bail Application Rejected. (E-10)

List of Cases cited:

## Text

_Characters 0–39,901 of 54,837. This is a partial read: ask again with offset=39901 for what follows._

300 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2021)09ILR A300
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.08.2021

BEFORE

THE HON'BLE SAMIT GOPAL, J.

Crl. Misc. Bail Application No. 28763 of 2021

Sher Ali ...Applicant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Zia Uddin Ahmad, Ms. Tanisha Jahangir
Monir

Counsel for the Opposite Party:
A.G.A.

A. Bail - The Court rejected the bail
application of the applicant who was in a
police force, a pious duty of maintaining law
and order and protecting citizens, on
account of facing trial of committing
custodial torture and death. (Para 19)

Bail Application Rejected. (E-10)

List of Cases cited:

1. D.K. Basu Vs St of W.B. (1997) 1 SCC 416
(followed)

2. Shakila Abdul Gafar Khan Vs Vasant Raghunath
Dhoble & anr. (2003) 7 SCC 749 (followed)

(Delivered by Hon'ble Samit Gopal, J.)

1. Heard Sri Zia Uddin Ahmad, learned
counsel for the applicant and Sri Sanjay
Kumar Singh, learned AGA for the State and
perused the material on record.

2. This bail application under Section
439 of Code of Criminal Procedure has been
filed by the applicant Sher Ali, seeking
enlargement on bail during trial in connection
with Case Crime No. C-37 of 1997, under
Sections 364, 304, 506 IPC, registered at
Police Station Phoolpur, District Varanasi.

3. The prosecution case as per the First
Information Report registered by Sanjay
Kumar Gupta the son of the deceased
Gokrakhnath @ Om Prakash Gupta against
Shankhdhar Dwivedi Sub-Inspector, Sher
Ali, Digvijay Pandey, Jagat Singh, R. Rajan,
Suresh Prasad Agarwal, Mahesh Chandra
Agarwal and one unknown person of Kumar
Guest House, Lanka, Varanasi and some
other persons on 28.02.1997 at about 04:00
AM is as follows:-

(i) On 27.02.1997 at about 07:00
PM, one person whose name is not known
but can be identified by the first informant
and lives in Kumar Guest House, Lanka,
Varanasi who if appears can be identified
along with Mahesh Chandra Agarwal the
brother of a transporter Suresh Prasad
Agarwal of Shahdol, Madhya Pradesh
came to the house of the first informant and
inquired about his father to which he stated
that his father will come in the night. On
asking about the work the said person
replied that he has to place an order for
bricks.

(ii) On 28.02.1997 at about 04:00
AM, the same person of Kumar Guest
House came along with Shankhdhar
Dwivedi Sub-Inspector, Police Station
Kotwali, District Shahdol, Madhya Pradesh
and the police personnels of the said Police
Station namely Sher Ali (the present
applicant), Digvijay Pandey, Jagat Singh
along with the transporter of Shahdol
Suresh Prasad Agarwal
and Mahesh
Chandra Agarwal and some unknown
persons in three vehicles being a Maruti
Van No. M.P. 20A 9700, a Commander
9 All. Sher Ali Vs. State of U.P.
301
Jeep No. M.P.18 2399 and one Trax Jeep
having a closed body of white colour to the
house of the first informant and shouted
Om Prakash Gupta the name of the father
of the first informant, called him, on which,
father of the first informant came out and
then the said persons forcibly caught hold
of his father, and while assaulting took him
inside the Commander Jeep. The first
informant, his brothers Ajay, Vijay, Arvind
and his mother Smt. Nirmala Devi inquired
about the reason for the same, to which, the
persons did not tell them anything and
kidnapped his father and also the cleaner of
Truck No. URH 8449 Kariya Yadav and
also took away the truck.

(iii) The first informant then went
to Police Station Phoolpur and to different
Police Stations in District Varanasi to know
the whereabouts of his father and even at
the district court and other places but could
not know anything and then in the
afternoon informed the S.S.P., Varanasi
through a telegram. On an inquiry from
Kumar Guest House, Lanka he came to
know that the police of District Shahdol
have taken away his father. The said
unknown persons who had come to his
house were also not available at the Guest
House. On 01.03.1997 he sent a telegram to
the S.S.P., Varanasi and S.P. Shahdol.

(iv) He kept on inquiring about
his father and subsequently on 02.03.1997
at about 08:00 AM, a police constable from
Police Station Phoolpur came and told him
that a wireless message was received from
Shahdol that his father has died due to heart
attack. On getting the said information, the
first informant along with his relatives
Umashankar Jaiswal, Rajendra Prasad
Jaiswal, Pratap Narayan Kanaujia, Om
Prakash Gupta and Arvind Kumar Singh
went to Shahdol on a Jeep and reached
their in the morning of 03.03.1997. From
the newspaper in Shahdol, he came to
know that the dead body of his father is
lying in the District Hospital and the
postmortem
examination
has
been
conducted. He came to know in Shahdol
that his father have brought from Varanasi
to Police Station Kotwali, District Shahdol
by the District Inspector, Kotwali Incharge
R.
Rajan,
Sub-Inspector
Shankhdhar
Dwivedi, police personnels, Sher Ali,
Digvijay Pandey, Jagat Singh and others
and they mercilessly
and inhumanly
assaulted his father due to which his father
died in the Police Station itself on
01.03.1997 at about 08:00 PM and the
police in order to conceal the factum of
murder in conspiracy with the doctors of
District Hospital, Shahdol have shown the
admission of his father in the hospital one
hour prior to his death and have shown the
death in the hospital whereas his father had
died at Police Station Kotwali itself. The
cleaner Kariya was illegally detained by the
police on the said day. The police did not
let them see the dead body till 04:00 PM.

(v) On the said day at about 02:00
PM, the first informant gave a tehreer to the
Inspector In-charge Police Station Kotwali,
District Shahdol about the kidnapping and
murder
of his
father
but no
First
Information Report was registered.

(vi) On 03.03.1997 at about 04:00
PM after great persuasion and hectic
efforts,
the
first
informant
and
his
companions were allowed to see the dead
body of his father. The dead body was in a
swollen condition and foul smell was
coming from it and there were injury marks
at various places. The first informant and
his companions wanted to bring the dead
body to Varanasi but the Inspector Incharge Kotwali R. Rajan and other police
personnels threatened them that they will
also meet the same fate as there father are
else, they should cremate the body in
Shahdol only. R. Rajan and other police
302 INDIAN LAW REPORTS ALLAHABAD SERIES
personnels under their supervision got the
dead body shifted to near a river near
Akasvani Shahdol and they themselves
arranged for the wood and got the body
cremated and threatened the first informant
and other persons that they should not be
seen now otherwise they will also be killed.

(vii) On 04.03.1997 the first
informant reached Varanasi and they went
to Police Station Phoolpur and told them
the entire incident and give the information
who assured that they will look into the
matter and he may go and do the remaining
last rites ceremonies of his father. The first
informant then did the 13th day ceremony
of his father and then on 16.03.1997 went
to Police Station Phoolpur to inquire about
the developments to which he was told that
no further information has been received
from Shahdol and he may inquire about it
after a week. On 25.03.1997 he again went
to the Police Station Phoolpur where the
constable police told him to give an
application to the S.S.P. otherwise no
action would be taken in the matter.

(viii) In the various newspapers
in Shahdol, the news about the custodial
death of his father was printed and various
political leaders of different parties had
moved applications against the In-charge
Sub-Inspector Kotwali and other police
personnels for getting a case registered for
murder against them and a high level
inquiry be set up and an immediate action
was demanded for which even agitations
were being done. The information was
given by the said persons to the first
informant and even the copies of the said
newspapers were made available to him.
Later on, the newspapers of Shahdol
published a news item that inquiry is being
demanded in the matter. The first informant
then sent an application about the incident
to the S.S.P. Varanasi by registered post
but no action was taken on it.

(ix)
The
said
persons
had
kidnapped his father and have murdered
him and as such a case be registered and
investigation be done in the interest of
justice.

4. The First Information Report was
registered on the basis of an application
dated 21.04.1997 moved by Sanjay Kumar
Gupta, the first informant under Section
156(3) Cr.P.C. before the Chief Judicial
Magistrate, Varanasi with the prayer that
appropriate
orders
be
passed
for
registration of the case and investigation
therein.

5. The postmortem examination of the
deceased Gorakhnath @ Om Prakash
Gupta was conducted on 02.03.1997 at
12:45 PM by a team of three doctors of
District Shahdol. The doctors found two
injuries on the body of the deceased which
are as follows:-

(i) Contusion, margins reddish
blue.
Centre
pale
of
6cm
x
2cm
transversely placed over the lateral aspect
of lower part of left thigh.

(ii) Contusion, margins reddish
blue. Centre pale of 5cm x 2cm was present
just above the injury no.1.

For the noted injuries, the doctors
opined as follows:-

"Injury No. 1 and 2 mentioned on
page No. 3 are antemortem in nature and
caused by hard and blunt object."

In so far as the cause of death is
concerned, the team of doctors was of the
following opinion:-

"No definite opinion can be
given. Facts and findings have been
described in detail. The viscera was
preserved
for
chemical
and
histopathological examination. The time
since death was within 24 hours."
9 All. Sher Ali Vs. State of U.P.
303

6. After registration of the First
Information Report, the matter was under
investigation by the local police, but vide
order dated 09.10.1997 of the S.P. (Rural),
Varanasi, the same was transferred to S.I.S.
Branch, Varanasi for investigation. The
S.I.S. concluded the investigation and
submitted a Final Report No. 18 of 1998
dated 23.10.1998.

7. Against the final report as
submitted by the S.I.S., Varanasi on
23.10.1998, the first informant filed a
protest petition dated 31.01.2001 along
with his affidavit. The Court of the Chief
Judicial Magistrate, Varanasi vide order
dated 05.06.2007 accepted the said protest
petition and rejected the final report as
submitted by the police and summoned the
accused
persons
for
offences
under
Sections 364, 304, 506 IPC. Non bailable
warrants were also issued simultaneously
and the case was ordered to be registered as
a State case. The said order is annexed as
annexure 26 to the affidavit.

8. Against the order dated 05.06.2007,
an application under Section 482 Cr.P.C. was
filed by R.Rajan before this Court which was
numbered as Criminal Misc. Application (U/s
482 Cr.P.C.) No. 22539 of 2007 (R. Rajan
Vs. State of U.P. and another) in which vide
order dated 13th September, 2007 the further
proceedings of the said case were stayed. The
said matter was heard finally on 27.08.2012
and the judgment was reserved. The
judgment could not be delivered and the
matter was directed to be listed for rehearing
before the appropriate Bench vide order dated
14.02.2013. The interim order passed therein
was directed to continue till the next date
fixed.

9. The first informant Sanjay Kumar
Gupta then filed a Writ Petition (Criminal)
No. 8 of 2018 before the Apex Court titled
as "Sanjay Kumar Gupta Vs. State of U.P.
and another" in which vide order dated
23.09.2020, the Apex Court vacated the
order dated 13.09.2007 passed in the said
482 Cr.P.C. petition and directed the Chief
Judicial Magistrate, Varanasi to proceed
with the matter in accordance with law.
The writ petition was allowed. The order
passed by the Apex Court is extracted
herein-below:-

"The
office
report
is
that
respondent No.2 has refused to accept
notice and thus, is deemed to have been
served.

The facts of the case make a
shocking reading as the allegation is of
custodial death of the father of the
petitioner - Late O.P. Gupta which, as per
the medical report, occurred on 01.03.1997
after
his
arrest
from
Varanasi
on
28.02.1997. The case was sought to be
made out as one of heart attack, but the
petitioner relies upon the medical report of
his father dated 21.02.1997 which shows
that he had a normal cardiac condition.
This also did not substantiate the fact that
there were ante mortem injuries on the
body. On the petitioner moving an
application under Section 156(3) of the
Cr.P.C., the SHO, Phoolpur, Varanasi
(U.P.) was directed to register an FIR and
investigate the matter.

Case Crime No.C-37/97 was
lodged under Sections 364, 304 and 506 of
the IPC against respondent No.2 and other
police personnel. The investigation was
transferred to the SIS Branch, Varanasi and
the final report dated 23.10.1998 was filed
by the I.O., against which the petitioner
filed a protest petition, pursuant whereto
the Chief Judicial Magistrate, Varanasi
rejected the closure report, accepted the
protest petition and consequently issued
304 INDIAN LAW REPORTS ALLAHABAD SERIES
summoning orders under Sections 364, 304
and 506 IPC and non-bailable warrants
against the accused persons in terms of an
order dated 05.06.2007. The order records
that the investigation revealed that Late
O.P.Gupta
has
picked up
from his
residence by the M.P.Police without
authority of law on 28.02.1997.

The aforesaid summoning order
was challenged by respondent No.2 before
the Allahabad High Court in Criminal
Miscellaneous Application No.22539 of
2007 for stay of proceedings of the case
being Case No.6497 of 2007 in which
notice was issued and an interim stay order
was granted on 13.09.2007. The matter has
continued in that position since then for the
last 13 years with the criminal proceedings
stayed. In fact, at one stage, orders were
reserved on the proceedings on 14.02.2013,
but were again listed for rehearing on
06.03.2013, which till date has not
produced results.

The issue has also arisen as
respondent No.2was then in services of the
State of Madhya Pradesh. The counter
affidavit of respondent No.1,State of Uttar
Pradesh practically supports the stand of
the petitioner.

We thus, vacate the order dated
13.09.2007
passed
in
Criminal
Miscellaneous Application No.22539 of
2007 by the Allahabad High Court and
direct
the
Chief
Judicial
Magistrate,
Varanasi to proceed with the matter in
accordance with law.

We consider appropriate also to
direct that this order be placed before the
Chief Justice of the Allahabad High Court
for administrative action as to why such a
situation came to pass and why the trial
Court order remained stayed for 13 years
by an ad interim order in case of a custodial
death. The Chief Justice may call upon the
Registrar of the High Court to look into the
matter and thereafter a report be submitted
on the Administrative Side before this
Court.

The writ petition is allowed in the
above terms leaving parties to bear their
own costs.

Needless to say, in view of this
long passage of time of 13 years, the trial
court will proceed with the trial almost on a
day to day basis as far as possible in the
given circumstances and endeavour to
conclude the trial within a period of one
year from its commencement.

Pending application(s) stand(s)
disposed of."

10. The said 482 petition being
Criminal Misc. Application (U/s 482
Cr.P.C.) No. 22539 of 2007 (R. Rajan Vs.
State of U.P. and another) was connected
with two other petitions being Criminal
Misc. Application (U/s 482 Cr.P.C.) Nos.
24013 of 2007 (Shankhdhar Dwivedi and
others Vs. State of U.P. and others) and
24145 of 2007 (Suresh Chandra Agrawal
Vs. State of U.P. and another) which were
disposed of vide order dated 08.10.2020 of
this Court in view of the order dated
23.09.2020 of the Apex Court in Writ
Petition (Crl.) No. 8 of 2018.

11. The order dated 08.10.2020 of this
Court was then challenged before the Apex
Court in Special Leave to Appeal (Crl.) No.
5499 of 2020 (R.Rajan Vs. State of U.P.
and another) which was dismissed vide
order dated 19.11.2020. The said order is
extracted herein-below:-

"Despite the best persuasion of
learned counsel for the petitioner, who
argued at some length, we are unable to
persuade ourselves to interfere with the
impugned order under Article 136 of the
9 All. Sher Ali Vs. State of U.P.
305
Constitution of India in the given facts of
the case.

The special leave petition is
accordingly dismissed.

Pending applications shall also
stand disposed of."

12. Subsequently, co-accused Jagat
Singh and the present applicant Sher Ali
preferred a Crl. Misc. Anticipatory Bail
Application No. 7440 of 2021 (Jagat
Singh and another Vs. State of U.P.)
which vide order dated 06.04.2021 was
allowed and it was ordered that in the
event of arrest of the applicants therein
they shall be released on anticipatory till
the conclusion of trial subject to the
conditions in the said order. The said order
is extracted herein-below:-

"1. Heard learned counsel for the
applicants and learned A.G.A. for the State.

2.
This
anticipatory
bail
application has been filed on behalf of the
applicants - Jagat Singh and Sher Ali,
seeking anticipatory bail in Case Crime No.
C-37 of 1997, under Sections - 364, 304
and 506 I.P.C., Police Station - Phoolpur,
District - Varanasi, during pendency of
trial.

3. At the outset, it is stated that in
exact similar circumstance Shankhdhar
Dwivedi, the co-accused who was SubInspector at the relevant time has already
been granted anticipatory bail in Criminal
Misc. Anticipatory Bail Application U/S
438 Cr.P.C. No. 1195 of 2021, vide order
dated 03.02.2021. The other co-accused R.
Rajan is also stated to have similarly
enlarged on anticipatory bail in Criminal
Misc. Anticipatory Bail Application U/S
438 Cr.P.C. No. 9211 of 2020, vide order
dated
03.02.2021.
For
the
reasons
contained in those orders, the present
applicants against whom similar allegations
have been made are also entitled to similar
protection.

4. In view of the above, no useful
purpose would be served in keeping the
present application pending or calling for
counter affidavit at this stage. Without
expressing any opinion on the merits of the
case, the applicant is entitled to anticipatory
bail in this case, at this stage.

5. In the event of arrest of the
applicants - Jagat Singh and Sher Ali,
involved in the aforesaid case crime, they
shall be released on anticipatory bail till
conclusion of the trial, on their furnishing a
personal bond of Rs. 50,000/- each with
two sureties of the like amount to the
satisfaction of the Station House Officer of
the police station concerned on the
following conditions:

(i) The applicants shall make
themselves available for interrogation by a
police officer as and when required.

(ii) The applicants 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/her from disclosing
such facts to the court or to any police
officer or tamper with the evidence.

(iii) The applicants shall not leave
India without the previous permission of
the court.

(iv) In default of any of the
conditions
mentioned
above,
the
investigating officer shall be at liberty to
file appropriate application for cancellation
of
anticipatory
bail
granted
to
the
applicants.

6. Present application stands
disposed of."

13. Co-accused R.Rajan had also filed
Crl. Misc. Anticipatory Bail Application
No. 9211 of 2020 (R. Rajan Vs. State of
U.P.) and vide order dated 03.02.2021 he
306 INDIAN LAW REPORTS ALLAHABAD SERIES
was also granted anticipatory bail. The said
order was challenged before the Apex
Court in SLP (Crl.) Nos. 1928-1929 of
2021 (Sanjay Kumar Gupta Vs. State of
U.P. and another) and also the order dated
06.04.2021
passed
in
Crl.
Misc
Anticipatory Bail Application No. 7440 of
2021 was also under challenge before the
Apex Court in SLP (Crl.) No. 3496 of
2021. Both the SLPs were connected
together and were disposed of vide order
dated 25th May, 2021. The said order is
extracted herein-below:-

"SLP(Crl.)Nos.
1928-1929
of
2021

Leave granted.

In these appeals, the informant of
Case Crime No. C-37 of 1997, under
Sections 364, 304 and 506 IPC, Police
Station - Phoolpur, District - Varanasi, has
challenged the order dated 03.02.2021
passed by the High Court of Judicature at
Allahabad
in
Criminal
Miscellaneous
Anticipatory Bail Application No. 1195 of
2021, granting anticipatory bail to the
respondent No. 2-Shankhdhar Dwivedi in
SLP(Crl.) No. 1928 of 2021; and another
order of even date by the High Court in
Criminal
Signature
Not
Verified
Miscellaneous
Anticipatory
Bail
Application No. 9211 of 2020, granting
anticipatory bail to the respondent No. 2-R.
Rajan in SLP(Crl.) No. 1929 of 2021.

The allegations in this matter are
of custodial death of the father of the
appellant on 01.03.1997, after his arrest
from Varanasi on 28.02.1997. After having
gone through the routes of the application
under Section 156(3) of the Criminal
Procedure Code, 1973; filing of negative
final report dated 23.10.1998; filing of
protest petition by the appellant; acceptance
of
the
protest
petition;
and
certain
miscellaneous applications in the High
Court for stay of proceedings, ultimately,
the matter was taken up by this Court in
Writ Petition (Crl.) No. 8 of 2018.

The
said
writ
petition
was
decided by the order dated 23.09.2020 by a
3-Judge Bench of this Court to which, one
of us (Aniruddha Bose, J.) was a party.
Therein, after taking note of the relevant
background aspects and while expressing
dissatisfaction
that
the
criminal
proceedings relating to the allegations of
custodial death had remained stayed for 13
years, this Court effaced the order/s which
were hindering the progress of the matter;
and directed expeditious proceedings in the
trial. This Court also directed that the Trial
Court shall proceed with the trial almost on
day-to-day basis and make an endeavour to
conclude the same within a period of one
year from the date of its commencement.

We are not recounting several
other proceedings in the matter at different
stages, for being not relevant for the
present purpose. The relevant part of the
matter is that pertaining to the applications
seeking
anticipatory
bail
by
the
respondents.

Though in the impugned order
dated
03.02.2021
in
Criminal
Miscellaneous
Anticipatory
Bail
Application No. 1195 of 2021, the High
Court noticed the aforesaid order of this
Court dated 23.09.2020 but, proceeded to
grant anticipatory bail to the respondent
No. 2-Shankhdhar Dwivedi with the
observations and consideration which read
as under:-

"7. After considering the rival
submissions this court finds that there is a
case registered against the applicant. It
cannot be definitely said when the police
may apprehend him. After the lodging of
FIR the arrest can be made by the police at
will. There is no definite period fixed for
the police to arrest an accused against
9 All. Sher Ali Vs. State of U.P.
307
whom an FIR has been lodged. The courts
have repeatedly held that arrest should be
the last option for the police and it should
be restricted to those exception cases where
arresting the accused is imperative or his
custodial
interrogation
is
required.
Irrational and indiscriminate arrests are
gross violation of human rights. In the case
of Joginder Kumar v. State of Uttar
Pradesh AIR 1994 SC 1349 the Apex Court
has referred to the third report of National
Police Commission wherein it is mentioned
that arrests by the police in India is one of
the chief source of corruption in the police.
The report suggested that, by and large,
nearly 60 percent of the arrests were either
unnecessary or unjustified and that such
unjustified police action accounted for 43.2
percent of expenditure of the jails. Personal
liberty is a very precious fundamental
rights and it should be curtailed only when
it becomes imperative. According to the
peculiar facts and circumstances of the
peculiar case the arrest of an accused
should be made.

8. Hence without expressing any
opinion on the merits of the case and
considering the nature of accusations and
antecedents of applicant, he is directed to be
enlarged on anticipatory bail as per the
Constitution Bench judgment of the Apex
Court in the case of Sushila Aggarwal vs.
State (NCT of Delhi)-2020 SCC Online SC
98. The future contingencies regarding
anticipatory bail being granted to applicant
shall also be taken care of as per the aforesaid
judgment of the Apex Court."

After granting anticipatory bail to
the respondent- Shankhdhar Dwivedi, the
High Court, by a separate order of even date
in Criminal Miscellaneous Anticipatory Bail
Application No. 9211 of 2020, extended the
same benefit of anticipatory bail to the other
respondent-R. Rajan, while observing that his
case was on identical footing.

The petitions seeking leave to
appeal by the informant against the aforesaid
orders of the High Court were taken up for
consideration on 25.02.2021 by another 3Judge Bench of this Court wherein too, one
of us (Dinesh Maheshwari, J.) was a party.
After granting permission to file the petition,
and while issuing notices, this Court
specifically stayed the operation of impugned
order granting anticipatory bail.

It was later on brought to the notice
of this Court that the learned Chief Judicial
Magistrate, Varanasi declined to take the
requisite steps against the accused persons,
even though the order of the High Court
granting anticipatory bail stood in abeyance
because of the stay order of this Court. In the
order dated 07.04.2021, this Court found that
the order passed by the Chief Judicial
Magistrate was not in sync with the stay
order dated 25.02.2021. This Court expressed
clear views that the respondents ought to be
taken into custody; and also observed that the
Court would be inclined to hear them only
thereafter on the issue as to whether the
anticipatory bail granted by the High Court
was sustainable or not. Having said so, this
Court accepted the submissions at that stage
by the learned senior counsel for the
respondents that they will surrender within
one week.

Thereafter, it was reported before
the
Court
on
06.05.2021
that
the
respondents had since surrendered and the
matter was ordered to be listed before the
vacation Bench while giving liberty to the
respondents to file counter affidavit. The
respondents, as per the submissions made,
had
surrendered
on
14.04.2021
and
15.04.2021 respectively.

The respondents have filed a
detailed
counter
affidavit
seeking
to
support the orders granting anticipatory bail
with reference to the factual aspects of the
case as also with reference to the decision
308 INDIAN LAW REPORTS ALLAHABAD SERIES
of this Court in Sushila Aggarwal vs. State
(NCT of Delhi): 2020 SCC Online SC 98.
Further, the plea for setting aside the order
granting anticipatory bail is opposed with
reference to the decision of this Court in
Dolat Ram v. State of Haryana: (1995) 1
SCC 349.

The
submissions
have
been
opposed on behalf of the appellant with
reference to the gravity of offences as also
the observations and directions of this
Court
in
the
aforesaid
order
dated
23.09.2020, as passed in Writ Petition
(Crl.) No. 8 of 2018. The submissions of
the appellant have been duly supported on
behalf of the State.

Having examined the matter in its
totality, we do not find it necessary to dilate
on the submissions pertaining to merits of
the case, lest any prejudice is caused to any
of the parties in relation to the pending
trial. Suffice it to observe for the present
purpose that, prima facie, we have not been
able to persuade ourselves to endorse the
approach of the High Court in granting
anticipatory bail with the observations in
the above-quoted paragraphs 7 and 8 of the
order impugned. It needs hardly any
elaboration that the bail plea in a particular
case cannot be considered and decided
merely with generalised observations about
the processes of law, or the fundamental
rights, or any particular study report.

Be that as it may, even while
expressing disagreement with the approach
of the High Court, we would prefer not to
make any further comment in the matter
because of the other relevant factors that:
(a) the Trial Court is bound to proceed
expeditiously as already directed by this
Court in the order dated 23.09.2020; and
(b)
the
respondents
have
indeed
surrendered and are in custody.

As indicated hereinabove, it is
difficult to endorse the order impugned,
whereby anticipatory bail came to be
granted,
essentially
with
generalised
observations and without adverting to the
relevant
considerations
and
material
circumstances of the case. In any case, now
when the respondents have surrendered and
taken into custody, all the aspects related
with the prayer of grant of anticipatory bail
are practically rendered redundant.

However, after the respondents
have surrendered and have been taken into
custody, their right to seek regular bail
during the pendency of the trial is not taken
away. Of course, such a plea ought to be
initially considered by the Court concerned
upon making of a proper application in that
regard and subject to the submissions of the
relevant parties.

In view of the above, even while
we are inclined to allow these appeals and
to set aside the impugned orders while
rejecting the applications made by the
respondents for anticipatory bail, we would
leave it open for them to apply for regular
bail. If any such prayer is made by them,
the same may be considered by the Court
concerned
in
accordance
with
law,
uninfluenced by any observations occurring
in this matter in any of the orders
pertaining to the plea for anticipatory bail
and irrespective of any observation made in
these appeals.

In the interest of justice, we also
deem it appropriate to observe that if the
respondents apply for regular bail, their
prayer
be
given
due
consideration
expeditiously by the Court concerned.

The appeals are disposed of in the
above terms.

All pending applications also
stand disposed of.

SLP(Crl.) No. 3496 of 2021.

Leave granted.

This appeal is directed against
another order dated 06.04.2021 relating to
9 All. Sher Ali Vs. State of U.P.
309
the same Case Crime No. C-37 of 1997, by
the High Court of Judicature at Allahabad
in Criminal Miscellaneous Anticipatory
Bail Application No. 7440 of 2021,
whereby
the
High
Court
granted
anticipatory bail to other two co-accused
persons, respondent Nos. 2- Jagat Singh
and 3-Sher Ali on the basis of the aforesaid
orders dated 03.02.2021.

So far as the impugned order
dated 06.04.2021 is concerned, the same is
in the teeth of the stay order dated
25.02.2021 passed by this Court in
SLP(Crl.) Nos. 1928-29 of 2021, whereby
operation of the relied upon order was
stayed by this Court. It appears that the said
stay order of this Court was not brought to
the notice of the High Court because, the
High Court could not have passed the order
dated 06.04.2021 with reference to an order
which was not in operation in view of the
stay order of this Court.

Thus, the order so passed by the
High Court on 06.04.2021 cannot be
approved for the reasons and observations
in the preceding part of this order; and
additionally for the reason that the
impugned order dated 06.04.2021 stands in
conflict with the stay order passed by this
Court on 25.02.2021.

In this matter, by an order passed
by this Court on 28.04.2021, operation of
the impugned order dated 06.04.2021 was
stayed with directions to the respondent
Nos. 2 and 3 to surrender. It has been
submitted by the learned counsel for these
respondents that they have surrendered on
19.05.2021.

Taking note of the submissions so
made and for the reasons foregoing, this
appeal is also allowed and while setting
aside the impugned order and rejecting the
application made by the respondents for
anticipatory bail, we would extend the
same liberty and observations for these
respondents that it would be open for them
to apply for regular bail and if any such
prayer is made by them, the same may be
considered expeditiously by the Court
concerned
in
accordance
with
law,
uninfluenced by any observations occurring
in this matter in any of the orders
pertaining to the plea for anticipatory bail
and irrespective of any observation made in
this appeal.

The appeal stands disposed of in
the above terms.

All pending applications also
stand disposed of."

14. The Apex Court had set aside the
orders of anticipatory bail granted in the
petition of the applicant and co-accused
persons
and
had
rejected
the
said
applications and directed them to apply for
regular bail and directed that if any such
prayer is made by them, the same be
considered expeditiously in accordance
with law.

15. The applicant surrendered on
19.05.2021 before the court below at
Varanasi and filed application for bail
which was rejected vide order dated
30.06.2021 passed by the Additional
Sessions Judge, Court No. 1 Varanasi and
as such the present bail application has
been filed before this Court.

16. The series of prolonged litigation
ends here with the applicant surrendering
and before the court concerned and then
resorting to filing bail application under
Section 439 Cr.P.C.

17. Learned counsel for the applicant
argued that:-

(i) The applicant has been falsely
implicated in the present case.
310 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) The deceased Gorakhnath @
Om Prakash Gupta was involved in Case
Crime No. 103 of 1997 under Section 420,
406 IPC, Police Station Kotwali, District
Shahdol in which he was arrested and
subsequently a charge sheet was also
submitted against him and Kariya @
Chandrabali on 25.07.1997. Shiv Shankar
Gupta to whom the paper loaded in the said
truck was sold is also an accused in the said
charge sheet but as an absconder.

(iii) The deceased while being in
custody at Police Station Kotwali, District
Shahdol complained about chest pain and
wanted to ease himself after which he was
taken to the toilet by the applicant who was
present there but he fell on the stairs due to
severe heart attack.

(iv) The deceased was taken to the
hospital and was admitted there who died
later on, for which the doctors after the
postmortem could not give any definite
opinion about the cause of death and
preserved the viscera which was examined by
the Forensic Science Lab and the report
thereof does not mention of any poison being
found in the body of the deceased. The death
of the deceased was a natural death.

(v) After lodging of the First
Information Report on the basis of an
application under Section 156(3) Cr.P.C.,
the matter was being investigated by the
local police but vide order dated 09.10.1997
passed by the S.P. (Rural) Varanasi, the
investigation was transferred to S.I.S.
Branch, Varanasi.

(vi) The investigation concluded by
way of submission of a final report in the
Court on 23.10.1998 after which a protest
petition was filed on 31.01.2001 which was
allowed and the final report was rejected and
the applicant and other accused persons being
a total of six accused named in the First
Information Report were summoned to face
trial.

(vii) The First Information Report
is based on totally false and frivolous
allegations. There is no corroboration of the
version of the prosecution that the deceased
died a custodial death. The death was a
natural death. The applicant is a retired
government servant and his implication
therein is false.

(viii) The applicant is having no
criminal history as stated in para 84 of the
affidavit and is in jail since 19.05.2021.

18. Per contra, learned AGA for the
State opposed the prayer for bail and
argued that:-

(i) The deceased was taken away
from his house by the applicant and coaccused persons which is not disputed.

(ii) The deceased was under
police custody at Police Station Kotwali,
District Shahdol on the date of his death.

(iii) The death has occurred while
the deceased was under police custody.

(iv) The order summoning the
accused while allowing the protest petition
and rejecting the final report is a well
considered.

(v) The beating of the deceased
while being in police custody is evident
from the fact that he has received two
contusions on his body and the site of the
injuries are fleshy part of the body which
can be received only after being assaulted.

(vi) On the own showing of the
applicant as per the argument and while
referring to the pleading of para 23, it was
the applicant who was present when the
deceased felt unwell.

(vii) The present case is a case of
custodial death in which the deceased has
received injuries on his body as is evident
from the postmortem report itself.

(viii) The postmortem report and
the opinion of the doctors therein is not
9 All. Sher Ali Vs. State of U.P.
311
suggestive of any heart attack or heart
problem.

(ix) The release of the applicant
at the stage when the trial has been
expedited by the Apex Court vide order
dated 23.09.2020 may have an adverse
affect therein as he is a resident of a
different State being Madhya Pradesh.

(x) The matter is serious in nature
as it concerns custodial death.

(xi) The prayer for bail of the
applicant be rejected.

19. After having heard learned
counsels for the parties and having gone
through the records, it is evident that the
applicant is named in the First Information
Report. The case of the prosecution that the
deceased was taken away to Police Station
Kotwali, District Shahdol is not under
dispute. The applicant is named specifically
and has been assigned the role of taking
away the deceased from Varanasi to
Shahdol along with other co-accused
persons. The presence of the applicant even
at the Police Station and he being there has
been argued and pleaded in para 23 of the
bail application and even it is pleaded that
when the deceased feel ill the applicant was
present there. The deceased as per the
postmortem report has received injuries on
his body which are suggestive of assault on
him by hard and blunt object. There is no
finding in the postmortem examination
report which would be suggestive of any
heart problem or cardiac arrest/heart attack.
There is nothing to show that the death was
natural. The present case is a case of
custodial torture and death. The Apex
Court vide order dated 23.09.2020 passed
in Writ Petition (Crl.) No. 8 of 2018 has
directed the trial court to proceed with the
trial on a day today basis and make an
endeavour to conclude it within a period of
one year. The applicant is a resident of a
different State. He has been in the police
force which is a disciplined force and
enshrined
with
the
pious
duty
of
maintaining law and order and protecting
citizens. His release may have an adverse
effect in the trial.

20. Custodial violence, custodial
torture and custodial deaths have always
been a concern for civilized society. Times
and again the judicial verdicts of the Apex
Court and other Courts have shown their
concern and anguish in such matters.

21. In the celebrated case of D.K.
Basu Vs. State of West Bengal : (1997) 1
SCC 416 the Apex Court while expressing
its anguish in cases of custodial deaths has
observed as follows:

"22. Custodial death is perhaps
one of the worst crimes in a civilised
society governed by the rule of law.