High Court

Applicant :- Atul Kumar Yadav Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. Counsel for Applicant :- Abhishek Srivastava Counsel for Opposite Party :- G.A.,Arvind Kumar Verma Hon'ble Mohd. Faiz Alam Khan,J.

1. Counter affidavit, filed on behalf of the complainant, is taken on record.

2. Heard Shri Abhishek Srivastava,learned counsel for the accused-applicant, Shri Arvind Kumar Verma, learned counsel appearing for the complainant/informant as well as learned A.G.A. for the State and perused the record.

3. This second bail application has been moved by the accused/applicant- Atul Kumar Yadav for grant of bail, in Case Crime No. 0328 of 2020, under Sections 302, 323, 504, 506 and 34 I.P.C., Police Station Phoolbehar, District Lakhimpur Kheri, during trial.

4. Learned counsel for the accused-applicant while pressing the bail application submits that this is the second bail application moved on behalf of the applicant, as his first bail application was rejected by this Court, vide order dated 19.09.2023 passed in Criminal Misc. Bail Application No. 10279 of 2022.

5. It is further submitted that while rejecting the prayer of bail of the applicant, this Court had directed the trial court to list this case at least once in a week and to make all out efforts to record the evidence of the prosecution witnesses without granting unnecessary adjournments and in this regard the S.S.P./S.P., Lakhimpur Kheri was made responsible for production of such prosecution witnesses and it was further stipulated that if the trial is not concluded within eight months from production of a certified copy of the order before it, the applicant may renew his prayer of bail before this Court afresh.

6. It is further submitted that throughout this period the applicant is languishing in jail and he has cooperated in the trial. However, it is due to laxity adopted by the prosecution in not producing the prosecution witnesses, the trial could not be completed and even when a time-bound mechanism was provided by this Court vide its order dated 19.09.2023 the same was also not complied and, thus, the intention of the prosecution was to keep the applicant in jail for indefinite period.

7. It is further submitted that a co-ordinate bench of this Court has granted the facility of bail to co-accused Lalluram Yadav vide its order dated 03.12.2024 passed in Criminal Misc. Bail Application No. 11331 of 2024 on the basis of long incarceration in view of the law laid down by the Hon'ble Supreme Court in the case of Union of India vs. K.A. Najeeb, Criminal Appeal No. 98 of 2021 and in Supreme Court Legal Aid Committee Representing Under trial Prisoners vs. Union of India, (1994) 6 SCC 731 and the role of the instant applicant is identical to the role of co-accused Lalluram Yadav.

8. It is also submitted that before the involvement of the applicant in the instant case he was not having any criminal antecedents and provisions of Gangster Act has been slapped against him on the basis of the instant case and on a false recovery of a country-made pistol the provision of Section 3/25 of the Arms Act were invoked and apart from this case, the applicant is not having any criminal history. He is detained in prison since 09.09.2020 and there is no apprehension that after being released on bail he may flee from the course of law or may otherwise misuse the liberty.

9. Learned A.G.A. as well as Shri Arvind Kumar Verma, learned counsel representing the complainant/informant, opposes the prayer of bail of the applicant on the ground that the first bail application of the applicant was rejected by this Court vide order dated 19.09.2023 and all the grounds which have been taken were considered therein and now the prosecution evidence has been closed and the statement of the accused person under Section 313 of the Cr.P.C. has been recorded and the case is fixed for the evidence of the defence and if the applicant would co-operate in the trial before the trial court, the same may be disposed of within few days. Thus, only on the ground of pendency the applicant is not entitled to be released on bail.

10. Having heard learned counsel for the parties and having perused the record, it is reflected that the first bail application of the applicant was rejected by this Court on 19.09.2023. The accusation against the applicant and co-accused Lalluram Yadav was of opening gun shot fire on the deceased and the incident is claimed to have been seen by the witnesses. The postmortem report of the deceased has reflected that he has sustained two firearm wounds of entry and exit each and the cause of death was ascertained as 'shock and hemorrhage' as a result of 'antemortem injuries'. This Court noticing the role of the applicant did not grant him bail on 19.09.2023, however, a mechanism was provided by this Court holding S.S.P./S.P., Lakhimpur Kheri responsible for production of prosecution witnesses before the trial court with a direction to the trial court to conclude the trial within eight months from 19.09.2023 with a further stipulation that if the trial is not concluded within such period the applicant may renew his prayer of bail before this Court afresh. In the meantime, co-accused Lalluram Yadav whose role, admittedly is identical to the role of instant applicant- Atul Kumar Yadav, has been granted bail by a co-ordinate bench of this Court on 03.12.2024 only on the ground of occurrence of delay in disposal of the case by the trial court. The co-ordinate bench while releasing the identically placed co-accused Lalluram Yadav on bail, appears to have been considered the law laid down by the Hon'ble Supreme Court in Union of India vs. K.A. Najeeb (supra). Thus, the facility of bail was extended in favour of co-accused Lalluram Yadav on account of the delay which has occurred in disposal of this case. I do not find any reason as to why the same facility may not be extended in favour of the instant applicant, moreso when a time-bound mechanism was provided by this Court not only to the trial court but also to the S.S.P./S.P., Lakhimpur Kheri for production of prosecution witnesses before the trial court with a consequential direction to conclude the trial within eight months from production of a certified copy of the order dated 19.09.2023 and trial has not concluded yet. Thus, having regard to all the facts and circumstances of the case including the fact that the order of bail which has been passed in favour of co-accused Lalluram Yadav appears to have not been challenged at any higher forum, I am of the considered opinion that a case of bail is emerging in favour of the applicant. The presence of the applicant may be secured before the trial court by placing adequate conditions.

11. Keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment, submissions of the learned counsel for the parties and without expressing any opinion on the merits of the case, I am of the considered view that applicant has made out a case for bail. This second bail application is, hereby, allowed.

12. Let the accused/applicant- Atul Kumar Yadav involved in above-mentioned case, be released on bail on his furnishing a personal bond with two sureties (one of the surety will be the blood relative of the applicant) in the like amount to the satisfaction of the court concerned subject to following conditions:- (i) The applicant shall not tamper with the prosecution evidence by intimidating/pressurizing the witnesses, during the investigation or trial. (ii) The applicant shall cooperate in the trial sincerely without seeking any adjournment. (iii) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

13. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

14. Identity, status and residence proof of the applicant and sureties be verified by the Court concerned before the bonds are accepted.

15. Observations made herein-above by this court are only for the purpose of disposal of this bail application and shall not be construed as an expression on the merits of the case. Order Date :- 6.1.2025 Praveen

Applicant :- Atul Kumar Yadav Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. Counsel for Applicant :- Abhishek Srivastava Counsel for Opposite Party :- G.A.,Arvind Kumar Verma Hon'ble Mohd. Faiz Alam Khan,J.

1. Counter affidavit, filed on behalf of the complainant, is taken on record.

2. Heard Shri Abhishek Srivastava,learned counsel for the accused-applicant, Shri Arvind Kumar Verma, learned counsel appearing for the complainant/informant as well as learned A.G.A. for the State and perused the record.

3. This second bail application has been moved by the accused/applicant- Atul Kumar Yadav for grant of bail, in Case Crime No. 0328 of 2020, under Sections 302, 323, 504, 506 and 34 I.P.C., Police Station Phoolbehar, District Lakhimpur Kheri, during trial.

4. Learned counsel for the accused-applicant while pressing the bail application submits that this is the second bail application moved on behalf of the applicant, as his first bail application was rejected by this Court, vide order dated 19.09.2023 passed in Criminal Misc. Bail Application No. 10279 of 2022.

5. It is further submitted that while rejecting the prayer of bail of the applicant, this Court had directed the trial court to list this case at least once in a week and to make all out efforts to record the evidence of the prosecution witnesses without granting unnecessary adjournments and in this regard the S.S.P./S.P., Lakhimpur Kheri was made responsible for production of such prosecution witnesses and it was further stipulated that if the trial is not concluded within eight months from production of a certified copy of the order before it, the applicant may renew his prayer of bail before this Court afresh.

6. It is further submitted that throughout this period the applicant is languishing in jail and he has cooperated in the trial. However, it is due to laxity adopted by the prosecution in not producing the prosecution witnesses, the trial could not be completed and even when a time-bound mechanism was provided by this Court vide its order dated 19.09.2023 the same was also not complied and, thus, the intention of the prosecution was to keep the applicant in jail for indefinite period.

7. It is further submitted that a co-ordinate bench of this Court has granted the facility of bail to co-accused Lalluram Yadav vide its order dated 03.12.2024 passed in Criminal Misc. Bail Application No. 11331 of 2024 on the basis of long incarceration in view of the law laid down by the Hon'ble Supreme Court in the case of Union of India vs. K.A. Najeeb, Criminal Appeal No. 98 of 2021 and in Supreme Court Legal Aid Committee Representing Under trial Prisoners vs. Union of India, (1994) 6 SCC 731 and the role of the instant applicant is identical to the role of co-accused Lalluram Yadav.

8. It is also submitted that before the involvement of the applicant in the instant case he was not having any criminal antecedents and provisions of Gangster Act has been slapped against him on the basis of the instant case and on a false recovery of a country-made pistol the provision of Section 3/25 of the Arms Act were invoked and apart from this case, the applicant is not having any criminal history. He is detained in prison since 09.09.2020 and there is no apprehension that after being released on bail he may flee from the course of law or may otherwise misuse the liberty.

9. Learned A.G.A. as well as Shri Arvind Kumar Verma, learned counsel representing the complainant/informant, opposes the prayer of bail of the applicant on the ground that the first bail application of the applicant was rejected by this Court vide order dated 19.09.2023 and all the grounds which have been taken were considered therein and now the prosecution evidence has been closed and the statement of the accused person under Section 313 of the Cr.P.C. has been recorded and the case is fixed for the evidence of the defence and if the applicant would co-operate in the trial before the trial court, the same may be disposed of within few days. Thus, only on the ground of pendency the applicant is not entitled to be released on bail.

10. Having heard learned counsel for the parties and having perused the record, it is reflected that the first bail application of the applicant was rejected by this Court on 19.09.2023. The accusation against the applicant and co-accused Lalluram Yadav was of opening gun shot fire on the deceased and the incident is claimed to have been seen by the witnesses. The postmortem report of the deceased has reflected that he has sustained two firearm wounds of entry and exit each and the cause of death was ascertained as 'shock and hemorrhage' as a result of 'antemortem injuries'. This Court noticing the role of the applicant did not grant him bail on 19.09.2023, however, a mechanism was provided by this Court holding S.S.P./S.P., Lakhimpur Kheri responsible for production of prosecution witnesses before the trial court with a direction to the trial court to conclude the trial within eight months from 19.09.2023 with a further stipulation that if the trial is not concluded within such period the applicant may renew his prayer of bail before this Court afresh. In the meantime, co-accused Lalluram Yadav whose role, admittedly is identical to the role of instant applicant- Atul Kumar Yadav, has been granted bail by a co-ordinate bench of this Court on 03.12.2024 only on the ground of occurrence of delay in disposal of the case by the trial court. The co-ordinate bench while releasing the identically placed co-accused Lalluram Yadav on bail, appears to have been considered the law laid down by the Hon'ble Supreme Court in Union of India vs. K.A. Najeeb (supra). Thus, the facility of bail was extended in favour of co-accused Lalluram Yadav on account of the delay which has occurred in disposal of this case. I do not find any reason as to why the same facility may not be extended in favour of the instant applicant, moreso when a time-bound mechanism was provided by this Court not only to the trial court but also to the S.S.P./S.P., Lakhimpur Kheri for production of prosecution witnesses before the trial court with a consequential direction to conclude the trial within eight months from production of a certified copy of the order dated 19.09.2023 and trial has not concluded yet. Thus, having regard to all the facts and circumstances of the case including the fact that the order of bail which has been passed in favour of co-accused Lalluram Yadav appears to have not been challenged at any higher forum, I am of the considered opinion that a case of bail is emerging in favour of the applicant. The presence of the applicant may be secured before the trial court by placing adequate conditions.

11. Keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment, submissions of the learned counsel for the parties and without expressing any opinion on the merits of the case, I am of the considered view that applicant has made out a case for bail. This second bail application is, hereby, allowed.

12. Let the accused/applicant- Atul Kumar Yadav involved in above-mentioned case, be released on bail on his furnishing a personal bond with two sureties (one of the surety will be the blood relative of the applicant) in the like amount to the satisfaction of the court concerned subject to following conditions:- (i) The applicant shall not tamper with the prosecution evidence by intimidating/pressurizing the witnesses, during the investigation or trial. (ii) The applicant shall cooperate in the trial sincerely without seeking any adjournment. (iii) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

13. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

14. Identity, status and residence proof of the applicant and sureties be verified by the Court concerned before the bonds are accepted.

15. Observations made herein-above by this court are only for the purpose of disposal of this bail application and shall not be construed as an expression on the merits of the case. Order Date :- 6.1.2025 Praveen