# Suresh and another v. State of U.P

- **Citation:** (2010) 2 ILRA 720
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-07-28
- **Case number:** Criminal Appeal No. 5365 of 2009
- **Bench:** Amar Saran, S.C. Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suresh-and-another-v-state-of-u-p-41683
- **Pages:** 4

## Headnote

Code of Criminal Procedure-Section 439Bail pending Appeal-conviction under
120-B-merely on basis of motive and
evidence of fleeing away from the place
of accurance no other evidence-main
accused got fair acquittal-even in FIR
neither the name of appellant disclosed
not specific role assigned-held-entitle for
bail subject to payment of half of the
amount of fine.

Held: Para 7

As regards the appellants Suresh and
Babloo S/o Mon Raj, their names did not
find place in the FIR nor the number of
vehicle, which was used by them to flee
away, was mentioned therein. Even the
written report given by the son of the
deceased later on, which is Ext. Ka-18
did not make any mention of these two
appellants nor there is any mention of
any money having been given to them by
the deceased. They were charged only
under Section 120B IPC but except
motive and evidence of fleeing away
2 All] Suresh and another V State of U.P.
721
from the scene of occurrence in a Car,
there is no evidence against them. The
police witnesses have named them in
their statement but surprisingly their
names does not find place in the FIR or
the recovery memo. In view of these
facts, we are inclined to grant bail to the
appellants Suresh and Babloo S/o Mom
Raj.

## Text

720 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
claims that said act of his was bona fide
act. Facts and circumstance clearly
disclose that it was deliberate act on the
part of the petitioner in getting his name
changed in the electoral roll, inasmuch as
he was conscious of this fact that two
cases which are pending against him with
same name involved moral turpitude and
in such a situation nomination would not
be
entertained.
Petitioner
in
well
calculated manner, got his name changed
and contested the election. Once said fact
came to the knowledge and notice of the
authority concerned, then after recording
finding that petitioner is involved in cases
involving moral turpitude, then in such a
situation
District
Magistrate
formed
opinion. Petitioner has got no explanation
to furnish qua two criminal cases pending
against under Section 409 I.P.C. him and
even before this court no attempt or
endeavour has been made to demonstrate
that said two criminal case wherein he has
been charged are cases not involving
moral turpitude.

12. Once this is factual scenario that
petitioner has been charged for the
offence involving moral turpitude and qua
the same no reasonable explanation has
been furnished, consequently, in the fact
of the present case, this court refuses to
interfere with the order impugned. Writ
petition is accordingly dismissed.

13. No order as to cost.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.07.2010

BEFORE
THE HON'BLE AMAR SARAN, J.
THE HON'BLE S.C. AGARWAL, J.

Criminal Appeal No. 5365 of 2009

Suresh and another

...Appellants
Versus
State of U.P.

 ...Opposite Party

Counsel for the Appellant:
Sri P.N. Mishra
Sri Apul Mishra
Sri B.K. Solanki
Sri Swetashwa Agarwal

Counsel for the Opposite Parties:
Sri Surendra Tiwari
Sri Ajat Shatru Pandey
A.G.A.

Code of Criminal Procedure-Section 439Bail pending Appeal-conviction under
120-B-merely on basis of motive and
evidence of fleeing away from the place
of accurance no other evidence-main
accused got fair acquittal-even in FIR
neither the name of appellant disclosed
not specific role assigned-held-entitle for
bail subject to payment of half of the
amount of fine.

Held: Para 7

As regards the appellants Suresh and
Babloo S/o Mon Raj, their names did not
find place in the FIR nor the number of
vehicle, which was used by them to flee
away, was mentioned therein. Even the
written report given by the son of the
deceased later on, which is Ext. Ka-18
did not make any mention of these two
appellants nor there is any mention of
any money having been given to them by
the deceased. They were charged only
under Section 120B IPC but except
motive and evidence of fleeing away
2 All] Suresh and another V State of U.P.
721
from the scene of occurrence in a Car,
there is no evidence against them. The
police witnesses have named them in
their statement but surprisingly their
names does not find place in the FIR or
the recovery memo. In view of these
facts, we are inclined to grant bail to the
appellants Suresh and Babloo S/o Mom
Raj.

(Delivered by Hon'ble Amar Saran, J.)

1. We have heard learned counsel
for the appellants, learned AGA for the
State, learned counsel for the complainant
and perused the impugned judgment and
trial court's record.

2. Since both the aforementioned
criminal appeals arise out of a common
judgment and order, the prayer for bail in
both the appeals is being heard and
disposed of by a common order.

3. Sri P.N. Mishra, Senior Advocate,
learned counsel for the appellants Suresh
and Babloo S/o Mom Raj submitted that
these two appellants were not arrested on
spot but are alleged to have fled away
from the scene of crime in a car alongwith
co-accused Lokesh, Arif and Kamal but
co-accused Lokesh, Arif and Kamal were
acquitted by the trial court and these two
appellants were convicted under Section
120B IPC. It was contended that there
was no evidence to show the involvement
of Suresh and Babloo S/o Mom Raj in the
murder of Jai Prakash Goel, father of
P.W.-7. It was argued that the motive
alleged by the prosecution is that these
two appellants have taken a sum of Rs.
2.5 lacs from the deceased on the pretext
of providing him land but neither land
was transferred to the deceased nor the
money was returned and that the deceased
had gone to Sikandrabad to meet Suresh
and Babloo S/o Mom Raj. It was
contended that initially, the written report
Ext. Ka-18 submitted by the son of the
deceased to the police after receiving the
information of murder of his father, did
not mention that the deceased had gone to
Sikandrabad to meet these two appellants
nor there was any mention therein that the
deceased had given any money to these
two appellants. It was further argued that
the independent witnesses cited in the FIR
lodged at the instance of a Senior Police
Officer, there was no mention of five
persons including these two appellants
running away from the scene of crime in a
Santro car. It has not been shown by the
prosecution as to how the police witnesses
came to know the names of these two
appellants.

4. Sri Dilip Kumar, learned counsel
for the appellant Arun @ Vinne submitted
that Arun @ Vinne is alleged to have
been arrested on the spot and a countrymade pistol 315 bore and four live
cartridges were recovered from his
possession. It was contended that the
bullets found inside the dead-body were
not
sent
to
the
Forensic
Science
Laboratory for verification that these
bullets were fired from the pistol
recovered from appellant Arun @ Vinne.
It was submitted that Arun @ Vinne had
no enmity with the deceased and had no
reason to commit his murder. It was
further submitted that no independent eye
witness of the incident has been examined
by the prosecution and all the police
witnesses examined during the trial were
not eye witnesses of the crime and had
reached at the place of occurrence after
the incident.

5. Learned AGA and learned
counsel for the complainant submitted
722 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
that the deceased Jai Prakash Goel had
given Rs. 2.5 lacs to Suresh and Babloo
S/o Mom Raj for purchasing land but land
was not provided nor the money was
returned. The deceased was pressurising
these two appellants to return money and
this provided the motive to Suresh and
Babloo S/o Mom Raj to plan the murder
of Jai Prakash Goel with the help of other
co-accused. It was further submitted that
the police witnesses examined during the
trial were passing nearby and after
hearing the firing of two shots, they
reached the place of occurrence and found
that five persons Suresh, Babloo S/o Mom
Raj, Kamal Yadav, Lokesh and Arif
running
away
from
the
place
of
occurrence in Car No. D.L.4C-AP 5246
whereas two persons armed with countrymade pistol were running away on foot,
who were chased by the police and were
apprehended. They disclosed their names
as Arun @ Vinne and Babloo S/o
Chandra Pal. Country-made pistol 315
bore and live cartridges were recovered
from their possession. There was a spent
cartridge case in the barrel of pistol
recovered from Babloo S/o Chandra Pal
whose case was later sent to Juvenile
Justice Court for trial. It was contended
that both the pistols and empty cartridges
recovered from Arun @ Vinne and
Babloo S/o Chandra Pal were sent to
Forensic
Science
Laboratory,
which
found that the barrel of both the pistols
contained firing residue including Nitrite,
Lead, Copper and Nickel. Spent cartridge
case found in the barrel was fired from the
pistol recovered from Babloo S/o Chandra
Pal.

6. Two fire-arm wounds of entry
were found on the body of the deceased.
The appellant Arun @ Vinne was found
running from the place of occurrence with
a fire-arm in his hand, which was recently
fired as is apparent from the report of
Forensic Science Laboratory and after
considering the submissions of both the
parties, we are of the considered opinion
that Arun @ Vinne is not entitled to bail.

7. As regards the appellants Suresh
and Babloo S/o Mon Raj, their names did
not find place in the FIR nor the number
of vehicle, which was used by them to
flee away, was mentioned therein. Even
the written report given by the son of the
deceased later on, which is Ext. Ka-18 did
not make any mention of these two
appellants nor there is any mention of any
money having been given to them by the
deceased. They were charged only under
Section 120B IPC but except motive and
evidence of fleeing away from the scene
of occurrence in a Car, there is no
evidence
against
them.
The
police
witnesses have named them in their
statement but surprisingly their names
does not find place in the FIR or the
recovery memo. In view of these facts, we
are inclined to grant bail to the appellants
Suresh and Babloo S/o Mom Raj.

8. The bail application of appellant
Arun @ Vinne is rejected.

9. Let the appellants Suresh and
Babloo S/o Mom Raj, convicted and
sentenced by the Addl. District and
Sessions
Judge,
Court
No.
5,
Bulandshahar in S.T. No. 1053 of 2007
arising out of Case Crime No. 499 of
2007, under Section 120B IPC, P.S.
Sikandrabad, District- Bulandshahar be
released on bail on their furnishing a
personal bond with two sureties each in
the like amount to the satisfaction of the
Court concerned on depositing 50 %
amount of fine imposed by the trial court.
2 All] Committee of Management V State of U.P. and others
723

10. The realisation of remaining 50
% amount of fine shall remain stayed
during the pendency of appeal.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.07.2010

BEFORE
THE HON'BLE PRADEEP KANT, J.
THE HON'BLE RITU RAJ AWASTHI, J.

Writ Petition No. 6792 of 2010

Committee of Management ...Petitioner
Versus
State of U.P. and others ...Respondent

Constitution of India Art.226-Grant of
permanent
affiliation-while
granting
Temporary affiliation- No such condition
set-up-institution started classes of 3
years graduation-course-before expiry of
Temporary
affiliation
applied
for
permanent
affiliation-objections
duly
meetout
by
management-held-Once
affiliation granted an institution started
functioning-hardly any justification for
the authority to withheld or refuse
permanent
affiliation-except
on
exceptional
circumstances-direction
issued to take necessary decision within
two week.

Held: Para 8

Institutions are allowed to be opened by
the
private
persons
for
facilitating
education to all those who are interested
in getting higher studies. Once the State
Government grants no objection for
establishing an institution, particularly
where courses like B.A., B.Sc. and B.Com,
are taught and due affiliation is granted
by the University, may be temporary or
permanent, there would hardly be any
ground for closure of such an institution
by not granting permanent affiliation or
keeping the matter pending, unless, of
course, there is some very exceptional
and pertinent reason for refusal of
affiliation.

(Delivered by Hon'ble Pradeep Kant, J.)

1. Notice on behalf of respondent
no.1 has been accepted by the learned
Chief Standing Counsel, on behalf of
respondent no.2 by Dr. Ravi Kumar Misra
and on behalf of respondent no.3 by Sri
D.K. Upadhyaya.

2. With the consent of the parties'
counsel, the petition is being disposed of
finally at the admission stage.

3. The petitioner institution was
granted due affiliation by the University
on 10.8.05 for three academic sessions.
Before the said period could expire, the
petitioner
applied
for
permanent
affiliation. The course in question is B.A.
(Art Faculty).

Despite
the
petitioner
having
approached for grant of permanent
affiliation, before the expiry of the period
of
temporary
affiliation,
the
State
Government, despite recommendations
made by the University, did not grant
approval for affiliation and rather raised
two objections on 14.7.08, namely, (i)
though the land of the institution was
recorded in its name, but it was not clear
as to how much land of the total area of
2.06 hectare was in the name of the
institution and how much land was in the
name of law college. The same objection
was raised with respect to certain other
plots; and (ii) it was not clear whether the
boundary wall was constructed or not.

The petitioner institution submitted
its reply on 18.7.08. Alongwith the said
reply, the petitioner also furnished the