High Court

1. Heard Sri Rajat Pratap Singh, learned counsel for the applicant, learned A.G.A. for the State and Sri Ashish Kumar Maurya, Advocate holding brief of Sri Vikas Vikram Singh, learned counsel for the complainant.

2. It has been contended by the learned counsel for the applicant that the applicant is in jail since 10.1.2017 in Case Crime No.511 of 2016 u/s 147, 148, 149, 302/34, 419, 420, 120-B, 467, 468 and 471 IPC, P.S. Sursa, District Hardoi. It has been submitted that the applicant has been falsely implicated in this case as he has not committed any offence as alleged. This is second bail application. First bail application has been rejected by this Court vide order dated 8.1.2021.

3. Learned counsel for the applicant has submitted that when the first bail application of the applicant was rejected, no prosecution witness was examined but after the aforesaid order, only three witnesses have been examined out of total 43 witnesses, wherein the number of proposed witnesses are 24. He submitted that the trial court has not shown any indulgence to conclude the trial with expedition and the law is trite on the point that detenue is also having fundamental right under Article 21 of the Constitution of India of speedy trial and the Apex Court in catena of cases has held that if any detenue is in jail for considerably long period and there is no possibility of conclusion of trial in near future, he may be enlarged on bail. The total period of incarceration of the applicant is eight years and six months. Further attention has been drawn towards the bail order of the co-accused Rajendra Singh @ Raju bearing Bail Application No. 2500 of 2021 (Rajendra Singh @ Raju vs. State of U.P.), whereby this Court granted bail to the co-accused mainly on the ground that the pace of trial is very slow and there is no possibility of conclusion of trial in near future. In the aforesaid order granted to the co-accused the relevant judgments of the Apex Court have been quoted. The bail order of the co-accused dated 25.5.2022 reads as under : "Heard Shri Jyotindra Misra, learned Senior Advocate assisted by Shri Kapil Misra, learned counsel for the applicant, Shri Vikas Vikram Singh, learned counsel for the complainant and Shri Alok Tiwari, learned A.G.A. for the State and perused the record. Rejoinder Affidavit filed by learned counsel for the applicant is taken on record. This is the second bail application. The first bail application was rejected by this Court vide order dated 10.4.2019 passed by this Court in Criminal Misc Case No.8824 (B) of 2017. Learned Senior Advocate appearing on behalf of the applicant while pressing the bail application submits that the applicant/accused is in jail since 15.8.2014 and in this case his bail order was rejected by learned Sessions Judge on 26.7.2017. It is submitted that in the entire case diary except the confessional statements of the co-accused persons namely Akhilesh Yadav, Kanhaiya Sharma and Naveen Mishrar dated 9.1.2017 and of the applicant dated 27.1.2017 there is no material against the present applicant. He submits that confessional statement of the accused or the co-accused are not admissible in the eyes of law. He submits that so far as criminal history of 32 cases is concerned most of the cases have been lodged against him due to political rivalry and in five cases the applicant has been acquitted and in remaining most of the cases the applicant is on bail. The details of the cases has been given in paragraph 28 of the bail application. It is next submitted on behalf of learned counsel for the applicant that the alleged motive to conspire the murder of the deceased is also false as the accused/applicant has been acquitted in the murder trail of informant's father in Criminal Appeal No. 86 of 2014 which is pending adjudication before the Court. In support of his contention learned counsel for the applicant has placed reliance on the judgement of Hon'ble Supreme Court in the case of Union of Indian vs. K. A. Najeeb passed in Criminal Appeal No.98 of 2021. He emphasised on paragraph 18 of the judgment. He submits that by long incarceration which is about 7-8 years his right guaranteed by Part III of the Constitution are violated. He submits that only one witness i.e. PW-1 has been examined before the trial court out of 24 proposed witnesses by the prosecution and considering the number of proposed witnesses there is no hope of conclusion of trail in near future. He has also relied on the judgement of Hon'ble Supreme Court in the case of Indrani Pratim Mukerjea vs. Central Bureau of Investigation and another passed in Special Leave to Appeal (Crl.) No.1672 of 2022 and submits that Indrani Pratim Mukerjea was released on bail on the ground that she was in custody for six and half years. He has also relied on paragraph 10 of the Hon'ble Supreme Court judgement in the case of Maulana Mohammed Amir Rashadi vs. State of U.P. and another reported in (2012) SCC 382 and submits that merely on the basis of criminal antecedents the appeal filed against the bail order Hon'ble Supreme Court had declined to interfere. Likewise, in the case of Prabhakar Tiwari vs.State of U.P. passed in Criminal Appeal No. 152 of 2020 Hon'ble Supreme Court has held that mere pendency of criminal cases against the accused itself cannot be a basis of refusal for bail. Per contra, learned A.G.A as well as leaned counsel for the complainant have opposed the bail prayer. It has been contended on behalf of learned counsel for the complainant that initially an First Information Report No. 0300 of 2017 under Section 307, 427, Police Station Sursa, District Hardoi was lodged by the informant against two accused persons. Thereafter, again, another F.I.R. no. 2805 of 2018 has been filed in Police Station Kotwali Dehat District Hardoi in the year 2018 by the Station House Officer against the two accused persons. Learned counsel for the complainant has invited attention of the Court towards various orders which has been filed along with the Counter Affidavit passed by the learned trial court and submits that since the accused persons are not appearing therefore the trial could not proceed. Rebutting the arguments of the learned counsel for the complainant, it has been argued on behalf of the applicant that so far as two F.I.Rs are concerned namely F.I.R. No.0300 and F.I.R, No.0285 no charge-sheet has been filed against the present applicant. It is submitted that so far as allegation that the accused persons are not appearing before the trial court is concerned the accused are in custody and the perusal of the order-sheet depicts that it is the failure on behalf of the prosecution agency, for one reason or other reason, who have failed to produce the accused persons before the trial court and thus delay on behalf of the prosecuting agency cannot be attributed to the accused. On account of failure on the part of the district administration, the accused cannot be put to suffer. On due consideration to the arguments advanced by learned counsel for the patties, perusal of the aforesaid judgments (supra) and the law laid down by Hon'ble supreme Court so far as the criminal history of the accused is concerned as held by the Hon'ble Supreme Court in the cases of Maulana Mohammed Amir Rashadi and Prabhakar Tiwari (supra) merely on the basis of the criminal history this Court is not inclined to refuse the bail of the accused. So far that the arguments of learned counsel for the complainant and learned A.GA. regarding non appearance of the accused persons is concerned the accused is in custody and onus to produce the accused is on the prosecuting agency and therefore he cannot be said to be responsible for non-appearance before the trial court. In the trial, till today only one prosecution witness has been examined. In view of the above, I find force in the arguments advanced by learned counsel for the applicant. The bail application is allowed. Learned counsel for the applicant undertakes that the applicant shall remain present on each date before the trial court when the evidence is to be led and will not seek any adjournment. He further undertakes that no threat shall be extended by the applicant or on his behalf to the complainant or any of the prosecution witnesses. Let the applicant, Rajendra Singh @ Raju involved in Case Crime No. 511/2016 under Section 302/34,120B, 419, 420, 467, 468, 469, 471 Indian Penal Code, Police Station Sursa, District Hardoi 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 will not tamper with the evidence during the trial. (ii) The applicant will not pressurize/ intimidate the prosecution witness. (iii) The applicant 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 from disclosing such facts to the Court or to any police officer or tamper with the evidence. (iv) 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. (v) 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. (vi) The applicant shall deposit his passport before the trial court. The applicant shall not leave the district without prior permission of the trial court. The applicant shall report to the concerned Police Station on 1st and 15th of every month. (vii) 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. The trial court is directed to conclude the trial expeditiously, preferably within a period of one year from the date of receipt of a certified copy of this order. The Director Prosecution is further directed to ensure that the accused persons are produced on the date fixed before the Trial court. The office is directed to send copy of this order to Director Prosecution."

4. Learned counsel for the applicant has stated that this Court may take another ground to consider this bail application that after rejection of the bail application of the present applicant the co-accused has been enlarged on bail in his second bail application by this Court. Therefore, subsequent bail order granted in favour of the co-accused may be considered as a new ground.

5. Learned counsel for the applicant has stated that if the present applicant is released on bail, he shall abide by all terms and conditions of the bail order and shall cooperate in the trial proceedings and shall not misuse the liberty of bail.

6. Learned A.G.A as well as learned counsel for the informant have vehemently opposed the bail application by submitting that the present applicant was actively involved in committing the offence in question, so if he is released on bail he may influence the witnesses or may tamper the evidence. They have also submitted that the present applicant is has criminal history of nine cases.

7. Therefore, without entering into merits of the issue but considering the arguments of the learned counsel for the applicant and the learned AGA, the fact that when the first bail application of the applicant was rejected no prosecution witness was examined but after the direction of this Court only three prosecution witnesses have been examined out of total 43 prosecution witnesses wherein the number of proposed witnesses are 24, the pace of trial is too slow to conclude the trial finally, if any detenue is in jail for considerably long period and there is no possibility of conclusion of trial in near future, the detenue may be enlarged on bail, total period of incarceration of the applicant is eight years and six months, the co-accused Rajendra Singh @ Raju has been granted bail after the rejection of first bail of the present applicant bearing Bail Application No. 2500 of 2021 (Rajendra Singh @ Raju vs. State of U.P.) mainly on the ground that the pace of trial is very slow and there is no possibility of conclusion of trial in near future and the undertaking of the applicant the applicant is entitled to be released on bail.

8. The bail application is allowed.

9. Let applicant- Naveen Mishra 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:- (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. (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 India without previous permission of the court. Order Date :- 1.8.2025 Gautam

1. Heard Sri Rajat Pratap Singh, learned counsel for the applicant, learned A.G.A. for the State and Sri Ashish Kumar Maurya, Advocate holding brief of Sri Vikas Vikram Singh, learned counsel for the complainant.

2. It has been contended by the learned counsel for the applicant that the applicant is in jail since 10.1.2017 in Case Crime No.511 of 2016 u/s 147, 148, 149, 302/34, 419, 420, 120-B, 467, 468 and 471 IPC, P.S. Sursa, District Hardoi. It has been submitted that the applicant has been falsely implicated in this case as he has not committed any offence as alleged. This is second bail application. First bail application has been rejected by this Court vide order dated 8.1.2021.

3. Learned counsel for the applicant has submitted that when the first bail application of the applicant was rejected, no prosecution witness was examined but after the aforesaid order, only three witnesses have been examined out of total 43 witnesses, wherein the number of proposed witnesses are 24. He submitted that the trial court has not shown any indulgence to conclude the trial with expedition and the law is trite on the point that detenue is also having fundamental right under Article 21 of the Constitution of India of speedy trial and the Apex Court in catena of cases has held that if any detenue is in jail for considerably long period and there is no possibility of conclusion of trial in near future, he may be enlarged on bail. The total period of incarceration of the applicant is eight years and six months. Further attention has been drawn towards the bail order of the co-accused Rajendra Singh @ Raju bearing Bail Application No. 2500 of 2021 (Rajendra Singh @ Raju vs. State of U.P.), whereby this Court granted bail to the co-accused mainly on the ground that the pace of trial is very slow and there is no possibility of conclusion of trial in near future. In the aforesaid order granted to the co-accused the relevant judgments of the Apex Court have been quoted. The bail order of the co-accused dated 25.5.2022 reads as under : "Heard Shri Jyotindra Misra, learned Senior Advocate assisted by Shri Kapil Misra, learned counsel for the applicant, Shri Vikas Vikram Singh, learned counsel for the complainant and Shri Alok Tiwari, learned A.G.A. for the State and perused the record. Rejoinder Affidavit filed by learned counsel for the applicant is taken on record. This is the second bail application. The first bail application was rejected by this Court vide order dated 10.4.2019 passed by this Court in Criminal Misc Case No.8824 (B) of 2017. Learned Senior Advocate appearing on behalf of the applicant while pressing the bail application submits that the applicant/accused is in jail since 15.8.2014 and in this case his bail order was rejected by learned Sessions Judge on 26.7.2017. It is submitted that in the entire case diary except the confessional statements of the co-accused persons namely Akhilesh Yadav, Kanhaiya Sharma and Naveen Mishrar dated 9.1.2017 and of the applicant dated 27.1.2017 there is no material against the present applicant. He submits that confessional statement of the accused or the co-accused are not admissible in the eyes of law. He submits that so far as criminal history of 32 cases is concerned most of the cases have been lodged against him due to political rivalry and in five cases the applicant has been acquitted and in remaining most of the cases the applicant is on bail. The details of the cases has been given in paragraph 28 of the bail application. It is next submitted on behalf of learned counsel for the applicant that the alleged motive to conspire the murder of the deceased is also false as the accused/applicant has been acquitted in the murder trail of informant's father in Criminal Appeal No. 86 of 2014 which is pending adjudication before the Court. In support of his contention learned counsel for the applicant has placed reliance on the judgement of Hon'ble Supreme Court in the case of Union of Indian vs. K. A. Najeeb passed in Criminal Appeal No.98 of 2021. He emphasised on paragraph 18 of the judgment. He submits that by long incarceration which is about 7-8 years his right guaranteed by Part III of the Constitution are violated. He submits that only one witness i.e. PW-1 has been examined before the trial court out of 24 proposed witnesses by the prosecution and considering the number of proposed witnesses there is no hope of conclusion of trail in near future. He has also relied on the judgement of Hon'ble Supreme Court in the case of Indrani Pratim Mukerjea vs. Central Bureau of Investigation and another passed in Special Leave to Appeal (Crl.) No.1672 of 2022 and submits that Indrani Pratim Mukerjea was released on bail on the ground that she was in custody for six and half years. He has also relied on paragraph 10 of the Hon'ble Supreme Court judgement in the case of Maulana Mohammed Amir Rashadi vs. State of U.P. and another reported in (2012) SCC 382 and submits that merely on the basis of criminal antecedents the appeal filed against the bail order Hon'ble Supreme Court had declined to interfere. Likewise, in the case of Prabhakar Tiwari vs.State of U.P. passed in Criminal Appeal No. 152 of 2020 Hon'ble Supreme Court has held that mere pendency of criminal cases against the accused itself cannot be a basis of refusal for bail. Per contra, learned A.G.A as well as leaned counsel for the complainant have opposed the bail prayer. It has been contended on behalf of learned counsel for the complainant that initially an First Information Report No. 0300 of 2017 under Section 307, 427, Police Station Sursa, District Hardoi was lodged by the informant against two accused persons. Thereafter, again, another F.I.R. no. 2805 of 2018 has been filed in Police Station Kotwali Dehat District Hardoi in the year 2018 by the Station House Officer against the two accused persons. Learned counsel for the complainant has invited attention of the Court towards various orders which has been filed along with the Counter Affidavit passed by the learned trial court and submits that since the accused persons are not appearing therefore the trial could not proceed. Rebutting the arguments of the learned counsel for the complainant, it has been argued on behalf of the applicant that so far as two F.I.Rs are concerned namely F.I.R. No.0300 and F.I.R, No.0285 no charge-sheet has been filed against the present applicant. It is submitted that so far as allegation that the accused persons are not appearing before the trial court is concerned the accused are in custody and the perusal of the order-sheet depicts that it is the failure on behalf of the prosecution agency, for one reason or other reason, who have failed to produce the accused persons before the trial court and thus delay on behalf of the prosecuting agency cannot be attributed to the accused. On account of failure on the part of the district administration, the accused cannot be put to suffer. On due consideration to the arguments advanced by learned counsel for the patties, perusal of the aforesaid judgments (supra) and the law laid down by Hon'ble supreme Court so far as the criminal history of the accused is concerned as held by the Hon'ble Supreme Court in the cases of Maulana Mohammed Amir Rashadi and Prabhakar Tiwari (supra) merely on the basis of the criminal history this Court is not inclined to refuse the bail of the accused. So far that the arguments of learned counsel for the complainant and learned A.GA. regarding non appearance of the accused persons is concerned the accused is in custody and onus to produce the accused is on the prosecuting agency and therefore he cannot be said to be responsible for non-appearance before the trial court. In the trial, till today only one prosecution witness has been examined. In view of the above, I find force in the arguments advanced by learned counsel for the applicant. The bail application is allowed. Learned counsel for the applicant undertakes that the applicant shall remain present on each date before the trial court when the evidence is to be led and will not seek any adjournment. He further undertakes that no threat shall be extended by the applicant or on his behalf to the complainant or any of the prosecution witnesses. Let the applicant, Rajendra Singh @ Raju involved in Case Crime No. 511/2016 under Section 302/34,120B, 419, 420, 467, 468, 469, 471 Indian Penal Code, Police Station Sursa, District Hardoi 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 will not tamper with the evidence during the trial. (ii) The applicant will not pressurize/ intimidate the prosecution witness. (iii) The applicant 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 from disclosing such facts to the Court or to any police officer or tamper with the evidence. (iv) 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. (v) 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. (vi) The applicant shall deposit his passport before the trial court. The applicant shall not leave the district without prior permission of the trial court. The applicant shall report to the concerned Police Station on 1st and 15th of every month. (vii) 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. The trial court is directed to conclude the trial expeditiously, preferably within a period of one year from the date of receipt of a certified copy of this order. The Director Prosecution is further directed to ensure that the accused persons are produced on the date fixed before the Trial court. The office is directed to send copy of this order to Director Prosecution."

4. Learned counsel for the applicant has stated that this Court may take another ground to consider this bail application that after rejection of the bail application of the present applicant the co-accused has been enlarged on bail in his second bail application by this Court. Therefore, subsequent bail order granted in favour of the co-accused may be considered as a new ground.

5. Learned counsel for the applicant has stated that if the present applicant is released on bail, he shall abide by all terms and conditions of the bail order and shall cooperate in the trial proceedings and shall not misuse the liberty of bail.

6. Learned A.G.A as well as learned counsel for the informant have vehemently opposed the bail application by submitting that the present applicant was actively involved in committing the offence in question, so if he is released on bail he may influence the witnesses or may tamper the evidence. They have also submitted that the present applicant is has criminal history of nine cases.

7. Therefore, without entering into merits of the issue but considering the arguments of the learned counsel for the applicant and the learned AGA, the fact that when the first bail application of the applicant was rejected no prosecution witness was examined but after the direction of this Court only three prosecution witnesses have been examined out of total 43 prosecution witnesses wherein the number of proposed witnesses are 24, the pace of trial is too slow to conclude the trial finally, if any detenue is in jail for considerably long period and there is no possibility of conclusion of trial in near future, the detenue may be enlarged on bail, total period of incarceration of the applicant is eight years and six months, the co-accused Rajendra Singh @ Raju has been granted bail after the rejection of first bail of the present applicant bearing Bail Application No. 2500 of 2021 (Rajendra Singh @ Raju vs. State of U.P.) mainly on the ground that the pace of trial is very slow and there is no possibility of conclusion of trial in near future and the undertaking of the applicant the applicant is entitled to be released on bail.

8. The bail application is allowed.

9. Let applicant- Naveen Mishra 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:- (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. (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 India without previous permission of the court. Order Date :- 1.8.2025 Gautam