High Court

1. Heard Ms. Shakshi Verma, learned counsel appearing for the applicant and Shri Shani Pratap Singh, learned A.G.A. for the State.

2. It has been contended by learned counsel for the applicant that the present applicant is languishing in jail since 14.11.2019 in Case Crime No.444 of 2019 under Sections 147, 323, 386, 302, 504 and 506 of IPC and Section 7 of Criminal Law Amendment Act, Police Station Gauriganj, District Amethi.

3. This is the third bail application as the first bail application bearing Criminal Misc. Bail Application No.6581 of 2020 has been rejected on 18.04.2022 and second bail application bearing Criminal Misc. Bail Application No.3159 of 2023 has been rejected on 11.03.2024 by this Court. For the convenience and gravity, both the aforesaid bail orders are being reproduced here-in-below:- a. Order dated 18.04.2022 is quoted here-in-below:- "1. Heard and gone through the entire record.

2. By means of this application under Section 439 CrPC, the accused- applicant seeks bail in FIR No.0444 of 2019, under Sections 147, 323, 386, 302, 504 and 506 IPC read with Section 7 Criminal Law Amendment Act lodged at Police Station Gauriganj, District Amethi.

3. It is alleged that on 12.11.2019, at around 6.40 p.m., wen the brother of the complainant deceased, Vijay Kumar Singh alias Sonu Singh along with his cousin, Amrendra Singh alias Chandan had gone to attend a party, as soon as they reached near Canara Bank on Musafirkhana Road then the accused-applicant and co-accused fired at the deceased and killed him. Main role of firing on the deceased has been assigned to the accused-applicant and co-accused, Chandrashekhar Keserwani.

4. Medical evidence fully corroborates the prosecution story. The accused- applicant has criminal antecedent of nine cases, including two cases under Section 307 IPC. There is an injured eye-witness, who had accompanied the deceased and witnessed the incident. Considering these facts, the manner in which the incident has been caused, heinousness of the offence and involvement of the accused-applicant and evidence against him, this Court does not find any ground for enlarging the accused-applicant on bail. Thus, the prayer for bail is hereby refused and the application is rejected.

5. However, the trial Court should make every endeavour to expedite the trial and conclude the same within one year from the date certified copy of this order is submitted/produced." b. Order dated 11.03.2024 is quoted here-in-below:- "1. Heard learned counsel for the applicant, Shri R.B.S.Rathaur, learned counsel for the respondent/ informant as well as learned A.G.A.

2. This is second bail application filed on behalf of the applicant. The first bail application was rejected vide order dated 18.4.2022 passed by a Co- ordinate Bench of this Court.

3. In terms of the F.I.R., it was alleged that on 12.11.2019 at around 6.40 p.m., the informant as well as his brother and cousins were attacked by the applicant. The main role of firing was assigned to the applicant and one Chandra Shekhar Kesarwani. Subsequently, it was stated that five persons have come and caused the injuries. The role of exhortation was assigned to the other three co-accused.

4. While rejecting the first bail application, the Co-ordinate Bench of this Court issued directions to the trial court for expediting the trial and conclude the same within a period of one year.

5. Learned counsel for the applicant has argued that despite directions, the trial is not proceeding and only one witness has been examined so far and the applicant continues to languish in custody since 14.11.2019. The criminal history of the applicant has been duly explained in paragraph 11 of the affidavit filed alongwith the second bail application and the bail orders have filed as Annexure No.6 to the bail application.

6. It is further argued that three of the co accused were enlarged on bail vide different orders, however learned counsel for the applicant does not claim parity with them except to the extent that one of the eye witnesses to the incident has stated that all the five persons had committed the offence in question. It is further argued that for the reasons recorded above, the applicant should be enlarged on bail.

7. Learned counsel for the informant as well as learned A.G.A. have strongly opposed the prayer for bail by arguing that specific role was assigned to the applicant of causing gun shot injuries which are duly corroborated by the injuries as noticed in the post mortem report as such the bail application should be rejected.

8. It is further argued that the delay in trial was on account of the fact that one of the co accused has claimed juvenility for which the matter was relegated for ascertaining the juvenility of the said co accused.

9. From perusal of the record, it appears that after rejection of the first bail application of the applicant on 18.4.2022, only one of the witnesses has deposed. A perusal of the chargesheet filed alongwith the counter affidavit reveals that apart from the informant, two other witnesses namely Abhishek Singh and Amrendra Singh are relevant and fact witnesses.

10. Considering the nature of the allegations levelled against the applicant and the fact that the applicant was specifically named for causing the offence, no case of bail is made out at this stage.

11. Accordingly, the second bail application is rejected.

12. However, the trial court is directed to record the statement of the two witnesses namely Amrendra Singh and Abhishek Singh within three months. The applicant would be at liberty to file a fresh bail application after the statements of the two witnesses are recorded.

13. Registry is directed to send the copy of this order to the trial court for recording the statements of the two witnesses as recorded above, within the time limit specified above."

4. Learned counsel for the applicant has stated that in terms of the bail rejection order dated 11.03.2024, the statement of prosecution witnesses - Amrendra Singh and Abhishek Singh have been recorded and those statements have been enclosed as Annexure No.9 with this bail application.

5. Learned counsel as well as learned A.G.A. has informed that all fact and formal witnesses except Investigating Officer have been examined.

6. Learned A.G.A. has shown the copy of letter dated 16.11.2024 provided by Inspector incharge of Police Station Gauriganj, District Amethi, verifying the aforesaid facts.

7. Learned counsel for the applicant has stated that since this is a third bail application, therefore, she will not address the Court on the merits of the issue inasmuch as the merits of the case has already been addressed to the Court at the time of arguing first bail application and second bail application and she will address the Court only on limited point/ ground that despite the specific order of this Court dated 18.04.2022 (supra) while rejecting the first bail application, the trial has not been concluded within a period of one year; the statement of two relevant witnesses, namely, Amrendra Singh and Abhishek Singh have been recorded in terms of the order dated 11.03.2024 (supra); all the fact and formal witnesses except the Investigating Officer have been examined; considering the pace of the trial, there is no possibility to conclude the trial in the near future and also considering the total period of incarceration of the present applicant in jail i.e. about 5 years and 8 months. The present applicant may be enlarged on bail and she undertakes on behalf of the present applicant that he shall not misuse the liberty of bail and shall cooperate with the trial proceedings properly and shall abide by all terms and conditions of bail, if so granted.

8. Learned A.G.A. has, however, opposed the prayer for bail and submits that the present applicant is not entitled for grant of bail but he could not dispute the aforesaid submissions of learned counsel for the applicant. However, learned A.G.A. has stated that he has got no bearing on the pace of the trial but direction may be issued to expedite the trial.

9. Without entering into the merits of the case and considering the arguments of learned counsel for the parties, contents and allegations of the F.I.R., the fact that the specific order of this Court dated 18.04.2022 (supra) while rejecting the first bail application, the trial has not been concluded within a period of one year; the statement of two relevant witnesses, namely, Amrendra Singh and Abhishek Singh have been recorded in terms of the order dated 11.03.2024 (supra); all the fact and formal witnesses except the Investigating Officer have been examined; there is no possibility to conclude the trial in the near future and also the total period of incarceration of the present applicant in jail i.e. about 5 years and 8 months and the undertaking given on behalf of the applicant that he shall not misuse the liberty of bail and shall cooperate in the trial proceedings properly, I am of the view that the applicant may be released on bail in this case.

10. Accordingly, the instant bail application is allowed.

11. Let the applicant- Subham Tiwari, 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, which are being imposed in the interest of justice:- (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 IPC/269 of the B.N.S., 2023. (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./84 of B.N.S.S., 2023 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 IPC/208 of the B.N.S., 2023. (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./351 of B.N.S.S., 2023. 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. The present applicant shall not leave the country without prior permission of the Court.

12. Before parting with, the learned trial court is directed to expedite the trial invoking the provision of Section 309 CrPC/ 346 BNSS fixing short date, if possible on day to day basis without giving any admissible adjournment to any of the parties. Order Date :- 14.7.2025 Mohd. Sharif

1. Heard Ms. Shakshi Verma, learned counsel appearing for the applicant and Shri Shani Pratap Singh, learned A.G.A. for the State.

2. It has been contended by learned counsel for the applicant that the present applicant is languishing in jail since 14.11.2019 in Case Crime No.444 of 2019 under Sections 147, 323, 386, 302, 504 and 506 of IPC and Section 7 of Criminal Law Amendment Act, Police Station Gauriganj, District Amethi.

3. This is the third bail application as the first bail application bearing Criminal Misc. Bail Application No.6581 of 2020 has been rejected on 18.04.2022 and second bail application bearing Criminal Misc. Bail Application No.3159 of 2023 has been rejected on 11.03.2024 by this Court. For the convenience and gravity, both the aforesaid bail orders are being reproduced here-in-below:- a. Order dated 18.04.2022 is quoted here-in-below:- "1. Heard and gone through the entire record.

2. By means of this application under Section 439 CrPC, the accused- applicant seeks bail in FIR No.0444 of 2019, under Sections 147, 323, 386, 302, 504 and 506 IPC read with Section 7 Criminal Law Amendment Act lodged at Police Station Gauriganj, District Amethi.

3. It is alleged that on 12.11.2019, at around 6.40 p.m., wen the brother of the complainant deceased, Vijay Kumar Singh alias Sonu Singh along with his cousin, Amrendra Singh alias Chandan had gone to attend a party, as soon as they reached near Canara Bank on Musafirkhana Road then the accused-applicant and co-accused fired at the deceased and killed him. Main role of firing on the deceased has been assigned to the accused-applicant and co-accused, Chandrashekhar Keserwani.

4. Medical evidence fully corroborates the prosecution story. The accused- applicant has criminal antecedent of nine cases, including two cases under Section 307 IPC. There is an injured eye-witness, who had accompanied the deceased and witnessed the incident. Considering these facts, the manner in which the incident has been caused, heinousness of the offence and involvement of the accused-applicant and evidence against him, this Court does not find any ground for enlarging the accused-applicant on bail. Thus, the prayer for bail is hereby refused and the application is rejected.

5. However, the trial Court should make every endeavour to expedite the trial and conclude the same within one year from the date certified copy of this order is submitted/produced." b. Order dated 11.03.2024 is quoted here-in-below:- "1. Heard learned counsel for the applicant, Shri R.B.S.Rathaur, learned counsel for the respondent/ informant as well as learned A.G.A.

2. This is second bail application filed on behalf of the applicant. The first bail application was rejected vide order dated 18.4.2022 passed by a Co- ordinate Bench of this Court.

3. In terms of the F.I.R., it was alleged that on 12.11.2019 at around 6.40 p.m., the informant as well as his brother and cousins were attacked by the applicant. The main role of firing was assigned to the applicant and one Chandra Shekhar Kesarwani. Subsequently, it was stated that five persons have come and caused the injuries. The role of exhortation was assigned to the other three co-accused.

4. While rejecting the first bail application, the Co-ordinate Bench of this Court issued directions to the trial court for expediting the trial and conclude the same within a period of one year.

5. Learned counsel for the applicant has argued that despite directions, the trial is not proceeding and only one witness has been examined so far and the applicant continues to languish in custody since 14.11.2019. The criminal history of the applicant has been duly explained in paragraph 11 of the affidavit filed alongwith the second bail application and the bail orders have filed as Annexure No.6 to the bail application.

6. It is further argued that three of the co accused were enlarged on bail vide different orders, however learned counsel for the applicant does not claim parity with them except to the extent that one of the eye witnesses to the incident has stated that all the five persons had committed the offence in question. It is further argued that for the reasons recorded above, the applicant should be enlarged on bail.

7. Learned counsel for the informant as well as learned A.G.A. have strongly opposed the prayer for bail by arguing that specific role was assigned to the applicant of causing gun shot injuries which are duly corroborated by the injuries as noticed in the post mortem report as such the bail application should be rejected.

8. It is further argued that the delay in trial was on account of the fact that one of the co accused has claimed juvenility for which the matter was relegated for ascertaining the juvenility of the said co accused.

9. From perusal of the record, it appears that after rejection of the first bail application of the applicant on 18.4.2022, only one of the witnesses has deposed. A perusal of the chargesheet filed alongwith the counter affidavit reveals that apart from the informant, two other witnesses namely Abhishek Singh and Amrendra Singh are relevant and fact witnesses.

10. Considering the nature of the allegations levelled against the applicant and the fact that the applicant was specifically named for causing the offence, no case of bail is made out at this stage.

11. Accordingly, the second bail application is rejected.

12. However, the trial court is directed to record the statement of the two witnesses namely Amrendra Singh and Abhishek Singh within three months. The applicant would be at liberty to file a fresh bail application after the statements of the two witnesses are recorded.

13. Registry is directed to send the copy of this order to the trial court for recording the statements of the two witnesses as recorded above, within the time limit specified above."

4. Learned counsel for the applicant has stated that in terms of the bail rejection order dated 11.03.2024, the statement of prosecution witnesses - Amrendra Singh and Abhishek Singh have been recorded and those statements have been enclosed as Annexure No.9 with this bail application.

5. Learned counsel as well as learned A.G.A. has informed that all fact and formal witnesses except Investigating Officer have been examined.

6. Learned A.G.A. has shown the copy of letter dated 16.11.2024 provided by Inspector incharge of Police Station Gauriganj, District Amethi, verifying the aforesaid facts.

7. Learned counsel for the applicant has stated that since this is a third bail application, therefore, she will not address the Court on the merits of the issue inasmuch as the merits of the case has already been addressed to the Court at the time of arguing first bail application and second bail application and she will address the Court only on limited point/ ground that despite the specific order of this Court dated 18.04.2022 (supra) while rejecting the first bail application, the trial has not been concluded within a period of one year; the statement of two relevant witnesses, namely, Amrendra Singh and Abhishek Singh have been recorded in terms of the order dated 11.03.2024 (supra); all the fact and formal witnesses except the Investigating Officer have been examined; considering the pace of the trial, there is no possibility to conclude the trial in the near future and also considering the total period of incarceration of the present applicant in jail i.e. about 5 years and 8 months. The present applicant may be enlarged on bail and she undertakes on behalf of the present applicant that he shall not misuse the liberty of bail and shall cooperate with the trial proceedings properly and shall abide by all terms and conditions of bail, if so granted.

8. Learned A.G.A. has, however, opposed the prayer for bail and submits that the present applicant is not entitled for grant of bail but he could not dispute the aforesaid submissions of learned counsel for the applicant. However, learned A.G.A. has stated that he has got no bearing on the pace of the trial but direction may be issued to expedite the trial.

9. Without entering into the merits of the case and considering the arguments of learned counsel for the parties, contents and allegations of the F.I.R., the fact that the specific order of this Court dated 18.04.2022 (supra) while rejecting the first bail application, the trial has not been concluded within a period of one year; the statement of two relevant witnesses, namely, Amrendra Singh and Abhishek Singh have been recorded in terms of the order dated 11.03.2024 (supra); all the fact and formal witnesses except the Investigating Officer have been examined; there is no possibility to conclude the trial in the near future and also the total period of incarceration of the present applicant in jail i.e. about 5 years and 8 months and the undertaking given on behalf of the applicant that he shall not misuse the liberty of bail and shall cooperate in the trial proceedings properly, I am of the view that the applicant may be released on bail in this case.

10. Accordingly, the instant bail application is allowed.

11. Let the applicant- Subham Tiwari, 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, which are being imposed in the interest of justice:- (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 IPC/269 of the B.N.S., 2023. (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./84 of B.N.S.S., 2023 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 IPC/208 of the B.N.S., 2023. (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./351 of B.N.S.S., 2023. 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. The present applicant shall not leave the country without prior permission of the Court.

12. Before parting with, the learned trial court is directed to expedite the trial invoking the provision of Section 309 CrPC/ 346 BNSS fixing short date, if possible on day to day basis without giving any admissible adjournment to any of the parties. Order Date :- 14.7.2025 Mohd. Sharif