# Shri Krishna Balmiki v. State of U.P

- **Citation:** (2009) 1 ILRA 305
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-04-10
- **Case number:** Criminal Misc. Bail Application No.8873 of 2009
- **Bench:** A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shri-krishna-balmiki-v-state-of-u-p-41368
- **Pages:** 4

## Headnote

Code of Criminal Procedure-Section 439Bail Application offence under Section
303/366/504/506/376 I.P.C.-Objection
by
complainant
regarding
finding
recorded in Habeas Corpus petition in
which the girl found minor-custody given
to her father-held-no procedure adopted
regarding determination of age-simple
an observation-can be decided only in
trail-no allegation of threatening the
witness or affecting trail any mannerheld-entitled for bail.

Held: Para 12

The contention of the learned counsel for
the complainant therefore cannot be
accepted that the proof of the age of the
victim
stands
finally
accepted
and
recorded without anything more to be
done during trial. The acceptance of the
said argument would be defiance of law
as
expressed
by
the
Apex
Court
extracted above. The learned Single
Judge also cannot be presumed to have
adopted such a course that would
actually affect the trial. A writ petition of
the nature of Habeas Corpus cannot
partake the character of an alternative
remedy of a regular criminal trial or as a
substitute
parallel
proceeding
for
remedies under the statutory provisions
of the Criminal Procedure Code.

## Text

1 All] Shri Krishna Balmiki V. State of U.P.
305
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.04.2009

BEFORE
THE HON'BLE A.P. SAHI, J.

Criminal Misc. Bail Application No.8873 of
2009

Shri Krishna Balmiki

...Applicant

Versus
State of U.P.

...Opposite Party

Counsel for the Applicant:
Sri P.K.Singh

Counsel for the Opposite Party:
Sri V.Singh
Sri L.K.SINGH
A.G.A.

Code of Criminal Procedure-Section 439Bail Application offence under Section
303/366/504/506/376 I.P.C.-Objection
by
complainant
regarding
finding
recorded in Habeas Corpus petition in
which the girl found minor-custody given
to her father-held-no procedure adopted
regarding determination of age-simple
an observation-can be decided only in
trail-no allegation of threatening the
witness or affecting trail any mannerheld-entitled for bail.

Held: Para 12

The contention of the learned counsel for
the complainant therefore cannot be
accepted that the proof of the age of the
victim
stands
finally
accepted
and
recorded without anything more to be
done during trial. The acceptance of the
said argument would be defiance of law
as
expressed
by
the
Apex
Court
extracted above. The learned Single
Judge also cannot be presumed to have
adopted such a course that would
actually affect the trial. A writ petition of
the nature of Habeas Corpus cannot
partake the character of an alternative
remedy of a regular criminal trial or as a
substitute
parallel
proceeding
for
remedies under the statutory provisions
of the Criminal Procedure Code.

(Delivered by Hon'ble A.P. Sahi, J.)

1. Heard learned counsel for the
applicant Sri P.K.Singh and Sri V. Singh
for the complainant and the learned
A.G.A.

2. Learned counsel for the applicant
contends that the applicant has been
implicated and as a matter of fact Habeas
Corpus Writ Petition No. 61371 of 2008
was filed by the father of the victim in
which an interim order was passed on
16.12.2008, copy whereof is Annexure 9
to the application.

3. The matter proceeded and the
applicant who was the respondent no. 3 in
the said writ petition was present in the
court along with the victim Laxmi Devi.
Whatever transpired in Court has been
recorded in the aforesaid order and
learned counsel for the applicant contends
that the victim had disclosed her age as 22
years and that she had married the
applicant Krishna Balmiki.

4.

Learned
counsel
for
the
complainant Sri V.Singh alleges that the
applicant is a married person and that he
has enticed away a minor daughter of the
complainant which is a serious offence
and, therefore, he does not deserve bail. It
is contended that when the aforesaid writ
petition was finally heard on 22.01.2009
this Court allowed the petition and handed
over the custody of Laxmi Devi is held to
be a minor being under 17 years of age.
On the strength of the said finding Sri
V.Singh has vehemently urged that the
bail should be rejected as the offence is
306 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
clearly made out. A copy of the order
dated 22.01.2009 is Annexure 10 to the
application.

5. Learned counsel for the applicant
on the other hand contends that when the
medical report indicates that the age of
the girl is 19 years then in such view of
the matter, prima facie, there was
sufficient evidence to contradict the age
of the victim as projected by the
prosecution on the contradict of the High
School certificate. It is submitted by Sri
P.K. Singh learned counsel for the
applicant that such a finding which has
been recorded in the Habeas Corpus
petition violates the fundamental and
statutory rights of the applicant inasmuch
as the trial of the applicant would be
jeopardized. He contends that the entire
evidence pertaining to the age of the
victim is yet to be assessed and, therefore,
the aforesaid finding recorded in the order
dated 22.01.2009 would be treated to be
prima facie and not final, subject to
evidence in the trial. He contends that in
case that is not understood, then the entire
trial
of
the
applicant
would
be
infructuous. It is further submitted that a
variation with regard to the age is present,
keeping in view the discloser of the age
by the victim herself before this court as
22 years, and by the opinion of the
Medical Officer to be 19 years.

6. The question before this Court is
as to whether the applicant should be
granted or should not be granted bail at
this stage. There is nothing on record to
indicate that the applicant has attempted
to tamper with the witnesses or influence
them
in
any
way.
The
criminal
antecedents of the applicant have been
explained in Paras 18 and 19 of the
application. It has also been pointed out
that the trial is yet to proceed and
evidence assessed on the question of the
age of the victim. An observation made
by the Court while disposing of the
Habeas Corpus petition in respect of the
age of the victim would obviously be
prima facie and cannot be taken to be a
final opinion in view of the fact that the
evidence with regard to the age of the
victim is yet to be assessed. It is further
relevant to point out that the victim had
made a statement before this Court that
she was 22 years of age as recorded in the
order dated 16.12.2008 and that reflects
her age of maturity. Even otherwise she
will be presumed to have substantially
understood the pros and cons of this
litigation when she has travelled up to this
court and thereafter she has been sent into
the custody of her parents.

7. The procedure to be followed in a
Habeas Corpus petition is prescribed
under Rule 10 of Chapter 21 of the
Allahabad High Court Rules, 1952, which
is as follows:-

"Procedure- All question arising for
determination under this Chapter shall be
decided ordinary upon affidavits, but the
Court may direct that such question as it
may consider necessary be decided on
such other evidence and in such manner
as it may deem fir and in that case may if
follow such procedure and pass such
orders as may appear to it to be just. "

8. The court has therefore been
given wide powers to adopt a procedure
as it may consider necessary but all
question arising are to be decided
ordinarily on the strength of affidavits. In
the
instant
case
the
order
dated
22.01.2009 primarily rests on the conduct
of the applicant who was not found fit to
1 All] Shri Krishna Balmiki V. State of U.P.
307
retain the custody of the detenue and she
was handed over to her father. However
while arising at this conclusion the court
made observations on the basis of the
High School certificate depicting the date
of birth of the detenue.

9. The question with regard to her
age vis-a-vis medical reports are yet to be
assessed by the trial court. Therefore, in
my opinion, learned counsel for the
applicant appears to be right in saying that
the opinion expressed in the order dated
22.1.2009 would only be a prima facie
observation for the purpose of disposal of
the Habeas Corpus petition as this Courts
does not enjoy the jurisdiction of a trial
court to record an evidence in a matter
where the criminal trial is still pending
before the appropriate court.

10. In a recent decision of the apex
court in the case of State of Punjab Vs.
Paramjeet Kaur decided on 25.03.2009,
the court had been approached by the
State questioning the correctness of the
directions of the High Court in a Habeas
Corpus petition awarding compensation
for a person missing from custody inspite
of a criminal case pending trial and also
indicated the police officials for the same.
It was argued before the Supreme Court
that the trial would be affected once the
findings have been recorded by the High
Court. The Judgment of the High Court
was reversed by observing as follows:-

"We agree with learned counsel for
the appellant and the respondent police
officials that when the matter is pending
adjudication in a trial before a criminal
court, the High Court should not have
made any observation which would have
effect on the trial by the trial court. We
therefore, dispose of this appeal with the
direction that even if payment has been
made pursuant to the High Court's order
by the State Government, that shall not be
construed to be a concession to the
allegation made. The trial before the
criminal court shall be conducted in
accordance with law, without being
influenced by any observation made by
the High Court about the remissness and
neglect in duty is by the police officials.
The appeal is accordingly disposed of."

11. At best, a high school certificate
has a presumptory value but the same is
yet to be proved in trial and is subject to
rebuttal. A presumption cannot take the
shape of proof unless it is proved in a
court of law during trial . This would be
subject
to
examination
and
crossexamination as per the procedure of
Chapter 18, 23 and 24 of the Cr. P.C. No
such procedure appears to have been
under taken in the Habeas Corpus
petition. Witnesses are yet to be examined
and cross-examined on the said document.
Therefore this court cannot be resumed to
have finally concluded something which
is yet to be put during trial.

12. The contention of the learned
counsel for the complainant therefore
cannot be accepted that the proof of the
age of the victim stands finally accepted
and recorded without anything more to be
done during trial. The acceptance of the
said argument would be defiance of law
as expressed by the Apex Court extracted
above. The learned Singly Judge also
cannot be presumed to have adopted such
a course that would actually affect the
trial. A writ petition of the nature of
Habeas
Corpus
cannot
partake
the
character of an alternative remedy of a
regular criminal trial of as a substitute
parallel proceeding for remedies under the
308 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
statutory provisions of the Criminal
Procedure Code.

13. In the absence of any element or
material to indicate that the applicant
would misuse the bail and in view of the
aforesaid position as discussed, let the
applicant Sri Krishna Balmiki involved in
case crime no. 498 of 2008 under section
363,366,323,504,506 &376 IPC Police
Station Mangalpur district Kanpur Dehat
be enlarged on bail on his executing a
personal bond and furnishing who sureties
each in the like amount to the satisfaction
of the concerned Court.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.04.2009

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No.10318 of 1998

Assistant
Project
Engineer,
Ganga
Pollution Control Unit

...Petitioner

Versus
Presiding Officer, Labour Court and
another

...Respondents

Counsel for the Petitioner:
Sri K.B.Mathur
Sri V.B.Mishra
Sri Avanish Mishra
Sri Rajeev Mishra

Counsel for the Respondents:
Sri K.P.Agrawal
Sri K.M.Suman Sirohi
Ms. Gajala Bano Kadri
S.C.

Industrial
Dispute
Act
1947-6-NRetrenchment or worker-found illegal by
Tribunal-ignoring the aspect regarding
non service of notice, as well as without
giving retrenchment compensation-heldretrenchment notice-challenged through
union of -not be said notice not servedretrenchment allowed without giving
compensation- it was offered in July
1997-no dispute raised regarding less
compensation held -award by Tribunal
can not sustained.

Held: Para 9:

The workman's services had not been
terminated
on
1st
of
July1994. He
services had already come to an end
pursuant to the retrenchment notice
dated 22nd June, 1991. But the workman,
on accounts of an interim order of the
High Court dated 8th of July 1991,
continued to work. Upon the dismissal of
the writ petition, the retrenchment
notice revived automatically, on account
of which the services of the workman
came to an end automatically.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard Shri V.B. Mishra, the
learned counsel for the petitioner and Shri
K.P.Agrawal, the learned Senior Counsel,
duly assisted my Ms. Gajala Bano Kadri,
the learned counsel for the respondentworkmen.

2. It transpires that the petitioner had
engaged a large number of workers on
muster roll in the Ganga Pollution
Scheme. On account of shortage of funds,
a decision was taken to retrench the
services of muster roll employees in
various Divisions of the Nigam, who were
engaged on or after 31st of August 1989.
In this regard, an order dated 20th May
1991 was issued directing the concerned
officers to retrench the services of the
muster roll employees in accordance with
law. Based on the said directions, the
services of a large number of muster roll
employees were retrenched in June 1991.
The respondent no. 2 was also a workman