# Vishwanath v. State of U.P

- **Citation:** (2023) 3 ILRA 798
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-20
- **Case number:** Crl. Misc. Bail Application No. 3794 of 2023
- **Bench:** Brij Raj Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vishwanath-v-state-of-u-p-49844
- **Pages:** 3

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 323,504,506 & 304 -
Four accused - allegation of assault - deceased
received one injury on his head - other two
injuries received on non-vital parts of the body -
one of the accused granted bail - case of
applicant at par with case of co-accused - no
previous criminal history -- no possibility of
3 All. Vishwanath Vs. State of U.P.
799
fleeing away from judicial process or tempering
with the witnesses. (Para - 3)

HELD:-General role of assault assigned to all
the accused persons. Injuries mentioned in the
report are illegible. A fit case for bail. Directions
to Chief medical Officer. Future postmortem
report or injury report prepared by the doctor
should be in typed format and legible, so that
the same can be read easily.(Para - 6,10)

Bail application allowed. (E-7)

## Text

798 INDIAN LAW REPORTS ALLAHABAD SERIES
mandate which envisages that the victim
has right to represent her cause before the
Court. Section 40 of the POCSO Act is
quoted below:-

"40. Right of child to take assistance
of experts, etc.- Subject to the proviso to
section 301 of the Code of Criminal
Procedure, 1973 (2 of 1974), the family or
the guardian of the child shall be entitled to
the assistance of a legal counsel of their
choice for any offence under this Act:

Provided that if the family or the
guardian of the child are unable to afford a
legal counsel, the Legal Services Authority
shall provide a lawyer to them."

6. On specific query I have been
informed by the Sri Rajesh Kumar Singh,
learned AGA-I that as soon as notice is
received by the Office of the GA, the
information is sent to the concerned
police station and the concerned police
station
informs
the
victim
or
the
complainant
as
the
case
may
be.
However, he has submitted that while
giving information, the police informs the
complainant/victim that the case is filed
in
High
Court,
and
this
is
only
information given to the victim or the
family member. It is the practice that
after ten days of notice, the applications
are filed but the victim or the family
member does not know the date fixed by
the Court only the notice number
registered in the G.A. Office is informed
without further details of the number of
the application registered in the Office of
High Court.

7. Section 40 of the Protection of
Children
from
Sexual
Offence
Act
mandates that right of a child to take
assistance of a legal practitioner is
necessary and I am of the opinion that
specific date fixed in the registered
application filed in High Court should be
informed to the complainant or the victim
as the case may be. In my opinion applying
the principles of audi alteram partem
coupled with Section 40 of the POCSO Act
I am of the view that notice is liable to be
issued to the complainant/victim.

8. Therefore, I issue notice to O.P.
No.2 returnable on or before the date fixed.

9. List this case on 10.4.2023 within
top 20 cases.

10. Before parting with the case, I
appreciate the legal assistance provided by
Sri Rajesh Kumar Singh, learned AGA-I.
----------
(2023) 3 ILRA 798
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 20.03.2023

BEFORE

THE HON'BLE BRIJ RAJ SINGH, J.

Crl. Misc. Bail Application No. 3794 of 2023

Vishwanath ...Applicant
Versus
State of U.P. ...Respondent

Counsel for the Applicant:
Tripuresh Mishra

Counsel for the Respondent:
G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Sections 323,504,506 & 304 -
Four accused - allegation of assault - deceased
received one injury on his head - other two
injuries received on non-vital parts of the body -
one of the accused granted bail - case of
applicant at par with case of co-accused - no
previous criminal history -- no possibility of
3 All. Vishwanath Vs. State of U.P.
799
fleeing away from judicial process or tempering
with the witnesses. (Para - 3)

HELD:-General role of assault assigned to all
the accused persons. Injuries mentioned in the
report are illegible. A fit case for bail. Directions
to Chief medical Officer. Future postmortem
report or injury report prepared by the doctor
should be in typed format and legible, so that
the same can be read easily.(Para - 6,10)

Bail application allowed. (E-7)

(Delivered by Hon'ble Brij Raj Singh, J.)

1. Heard Sri Tripuresh Mishra and
Ms. Chandrika Rani Upadhyaya, learned
counsel for the applicant and Sri Rajesh
Kumar Singh, learned A.G.A. for the State.

2. The present bail application has
been filed by the applicant with a prayer to
enlarge him on bail in Case Crime No. 252
of 2022, under Sections 323,504,506,304
IPC, Police Station- Panchdeora, District-
Hardoi.

3. It has been submitted by learned
counsel for the applicant that there are
four accused against whom allegation of
assault has been levelled and the deceased
received one injury on his head and other
two injuries received on non-vital parts of
the body. Learned
counsel
for
the
applicant has submitted that general
allegation has been levelled against all the
accused persons, and one of the accused
Harish Chandra has been granted bail by
this Court vide order dated 28.02.2023
passed in Criminal Misc. Bail Application
No.3114 of 2023. It has also been
submitted that the case of the applicant is
at par with case of co-accused Harish
Chandra. The applicant has no previous
criminal history and there is no possibility
of fleeing away from the judicial process
or tempering with the witnesses and in
case, the applicant is enlarged on bail, he
shall not misuse the liberty of bail. The
applicant is in jail since 28.10.2022.

4. Learned A.G.A. though opposed
the prayer for bail but could not dispute
the aforesaid facts that the co-accused-
Harish Chandra has been granted bail by
this Court.

5. Sri Rajhesh Kumar Singh, learned
A.G.A. has stated that injury report filed
by the doctor concerned is illegible.

6. Without expressing any opinion on
the merits of the case and after hearing
learned counsel for the parties and looking
into overall facts and circumstances of the
case as well as the fact that co-accused-
Harish Chandra has been granted bail by
this Court and general role of assault
assigned to all the accused persons , I find
it a fit case for bail

7.

Let
the
applicant,
namely,
Vishwanath, be released on bail in the
above case crime number on his furnishing
a personal bond and two sureties each in
the like amount to the satisfaction of Court
concerned with the following conditions :-

(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
800 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

(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.

8. 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 in this order.

9. At this stage, it is to be noted that
from perusal of the injury report, it is
appears that the injuries mentioned in the
report are illegible and the prosecution side
as well as the applicant side faces difficulty
while going through the injury report.

10. The Court is of the opinion that in
future postmortem report or injury report
prepared by the doctor should be in typed
format and legible, so that the same can be
read easily. Therefore, I direct the Principal
Secretary, Medical Health and Family
Welfare Government of U.P. Lucknow to
issue a proper direction to all the Chief
Medical Officers of the District that
postmortem report as well as injury report
will be transcribed in typed format.

11. The Senior Registrar of this Court
is directed to forward a copy of this order
to the Principal Secretary, Medical Health
and Family Welfare Government of U.P.
Lucknow
forthwith
for
necessary
compliance.

12. This case shall be listed for
monitoring after two months as to what
action has been taken in pursuance of
directions issued by this Court.

13. List this case on 25.05.2023.
----------
(2023) 3 ILRA 800
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.10.2022

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Crl. Misc. Anticipatory Bail Application No. 7977
of 2021
(U/s 438 Cr.P.C.)

Chaudhary Pratap Singh ...Applicant
Versus
State of U.P. & Ors. ...Opp.Parties

Counsel for the Applicant:
Sri Amit Daga

Counsel for the Opp.Parties:
G.A., Sri Akhilesh Mishra, Sri Anshuman Vidhu
Chandra, Sri Mehul Khare, Sri Jagdev Singh

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 438-Indian Penal
Code, 1860-Sections 323 & 376-D-the
applicant is said to have promised the