High Court

1. Heard Sri Sheo Prakash Singh, learned counsel for the applicant and Sri Ran Vijay Singh, learned AGA for the State.

2. Learned counsel for the applicant has filed rejoinder affidavit, the same is taken on record.

3. As per learned counsel for the applicant, the present applicant is in jail since 05.12.2017 in Case Crime No.291 of 2017, under Sections 147, 148, 149, 302, 34, 120-B of I.P.C. & Section 7 of Criminal Law Amendment Act, Police Station- Akhand Nagar, District - Sultanpur.

4. This is the third bail application as first bail application bearing Bail No.3724 of 2019 has been rejected by Hon'ble Mrs. Saroj Yadav, J. vide order dated 19.02.2021 and second bail application bearing Criminal Misc. Bail Application No.9053 of 2023 has been rejected by Hon'ble Mohd. Faiz Alam Khan, J. vide order dated 07.08.2023. The order passed in second bail application dated 07.08.2023 (supra) reads as under:- "1. Heard Shri Ravindra Shukla learned counsel for the accused-applicant as well as learned A.G.A. for the State and perused the record.

2. This second bail application has been moved by the accused/applicant - Rajesh Yadav for grant of bail, in Case Crime No.291 of 2017, under Sections 147, 148, 149, 302, 34, 120-B I.P.C. & 7 of the Criminal Law Amendment Act, Police Station Akhand Nagar, District Sultanpur, during trial as his first bail application has been rejected by a Coordinate Bench of this Court vide order dated 19.02.2021 passed in Criminal Misc. Bail Application No.3724 of 2019, however, Hon'ble Judge, who has rejected the first bail application of the applicant, has retired on superannuation.

3. Learned counsel for the accused-applicant while pressing the bail application submits that the applicant has been falsely implicated in this case only on account of established enmity and he has not committed any offence as claimed by the prosecution.

4. It is further submitted that there is material contradiction in the version of the incident as narrated in the F.I.R. and in the statement of the prosecution witnesses and it appears that none of the prosecution witnesses including the informant has seen the incident and only on account of enmity, the F.I.R. has been lodged against the applicant and other accused persons.

5. It is also submitted that co-accused persons namely Prakash Yadav, Om Prakash Yadav @ Nanga Yadav, Suneel Singh, Veeru @ Vir Bahadur Kewat, Bajrangi Yadav and Upkaran Singh have been granted bail by Coordinate Benches of this Court vide orders dated 21.02.2029, 05.10.2018, 27.08.2018, 29.10.2018, 02.02.2023 and 18.10.2021 passed in Criminal Misc. Bail Application Nos.1973 of 2019, 7830 of 2018, 6896 of 2018, 9270 of 2018, 11939 of 2022 and 6720 of 2018, respectively and identically placed co-accused person namely Pappu Singh has also been granted bail by Coordinate Bench of this Court vide order dated 02.05.2023 passed in Criminal Misc. Bail Application No.54 of 2023.

6. It is next submitted that the applicant is in jail in this case since 05.12.2017 without any criminal history and the charge sheet in this case has already been filed 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.

7. Learned A.G.A. for the State vehemently opposes the prayer of bail of the applicant on the ground that the applicant could not claim parity with those, who have been granted bail as in the F.I.R. as well as in the statement of the prosecution witnesses, there may be some variations with regard to other accused persons in firing gunshots towards the deceased, but so far as the applicant is concerned, the case of the prosecution is consistent in the F.I.R. as well as in the statement of all the prosecution witnesses that he is the person, who at first had fired gunshots towards the deceased and therefore, the applicant cannot claim parity with those, who have been granted bail.

8. It is also submitted that allegations of the F.I.R. are in corroboration with the medical evidence as various firearms injuries have been found on the body of the deceased and his death has also occurred due to shock and hemorrhage on account of firearms injuries, thus the applicant is not entitled to be released on bail.

9. Having heard learned counsel for the parties and having perused the record, it is evident that in the F.I.R. the role of firing at first has been assigned to the accused persons Upkaran Singh, Bajrangi Yadav and Suraj and thereafter when the deceased is shown to have fallen on the ground, the applicant Rajesh Yadav and accused Pappu Singh are stated to have fired at his head and other parts of the body on the exhortation given by Suneel Singh in furtherance of a conspiracy hatched by Ashok Yadav. In the statement of the informant recorded under Section 161 Cr.P.C. he has maintained version of the incident as shown in the F.I.R., however, in his additional statement he along with accused Upkaran Singh, Bajrani Yadav, Loha, Pappu and Rajesh Yadav (applicant) has also assigned the role of firing to accused persons Veeru and Suneel. Another eye witness namely Braham Dev Tiwari also assigned the role of firing to Upkaran Singh, Bajrani Yadav, Suraj, Rajesh Yadav (applicant) and Pappu. Eye witness Om Prakash Agrahari has stated that he had seen Rajesh Yadav (applicant), Satya Prakash Yadav @ Prakash Yadav and Bajrangi Yadav carrying country-made pistols and also firing gunshots towards the deceased and first bullet was fired by the instant applicant (Rajesh Yadav). Another eye witness namely Akil Nai, at whose shop the incident is shown to have occurred, has assigned the role of firing towards the deceased to the applicant (Rajesh Yadav) as the person, who had fired first bullet and also to Prakash Yadav, Bajrangi Yadav and Nanga Yadav and assigned the role of helping accused persons to Suneel Singh, Upkaran Singh, Veeru Kewat, Pappu Singh and others. Thus there is slight variations so far as the role of the other accused persons are concerned in the F.I.R. and in the statement of eye witnesses, however, all the eye witnesses, whose statement have been recorded by the investigating officer, are consistent on this point that it was Rajesh Yadav (applicant) who had fired gunshots towards the deceased and two of the eye witnesses have in categorical terms have stated that he was the person, who fired at first towards the deceased, thus in the considered opinion of this Court, the applicant is not having any parity with co-accused persons and no new ground is emerging on the basis of which facility of bail may be extended to the applicant after rejection of his first bail application by Coordinate Bench. Thus this second bail application moved on behalf of applicant - Rajesh Yadav is also rejected.

10. However, the trial court is directed to proceed with the trial and make all out efforts to conclude the same as soon as possible without granting unnecessary adjournment.

11. If the trial is not concluded within one year from today, the applicant may renew his prayer for bail before this Court.

12. 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 of this Court on the merits of the case.

13. Office is directed to immediately send a copy of the instant order to the trial court concerned though the Sessions Judge concerned for compliance."

5. Learned counsel for the applicant has submitted that while rejecting the second bail application this Court has directed the learned Trial Court to conclude the trial within a period of one year taking all coercive steps, failing which the applicant may renew his prayer for bail before this Court. Therefore, learned counsel for the applicant has stated that since the trial has not been concluded till date inasmuch as out of 30 prosecution witnesses, only four prosecution witnesses have been examined. Therefore, the aforesaid ground may be taken as a new ground. He has also stated that besides, the period of incarceration of the present applicant in jail, which is about seven years and seven months, may be considered. The present applicant is having no prior criminal history of any kind whatsoever. He has further submitted that all co-accused persons have been granted bail.

6. Sri Singh has, therefore, submitted that considering the fact that the present applicant is in jail for about seven years and seven months, despite the order having been passed by this Court to conclude the trial within one year, the same has not been concluded and there is no likelihood of the trial to be concluded in near further, so the present applicant may be enlarged on bail.

7. Learned counsel for the applicant has relied upon the judgments of the Apex Court in re; Union of India vs. K.A. Najeeb, AIR 2021 Supreme Court 712 and Paras Ram Vishnoi vs. The Director, Central Bureau of Investigation passed in Criminal Appeal No. 693 of 2021 (Arising out of SLP (Crl) No.3610 of 2020), wherein the Apex Court has held that if there is no possibility to conclude the trial in near future and the accused applicant is in jail for a substantial period then the period of incarceration may be considered as a fresh ground. Further, the applicant undertakes that if he is released on bail, he shall not misuse the liberty of bail and shall abide by all terms and conditions of the bail order and shall cooperate in the trial proceedings.

8. Per contra, learned AGA has opposed the bail application by submitting that considering the culpability of the present applicant, two bail applications have been rejected but he has nothing to say about the pace of the trial as that fact is beyond his control.

9. Without entering into merits of the issue; considering the arguments of learned counsel for the parties; the fact that despite the specific direction being issued by this Court while rejecting the second bail application to conclude the trial within a period of one year, about two years' period has passed but the trial has not been concluded till date; only four prosecution witnesses have been examined out of 30 prosecution witnesses, therefore, there is no possibility of the trial to be concluded in near future; considering the dictum of the Apex Court in re; K.A. Najeeb (supra) and Paras Ram Vishnoi (supra); provisions of Article 21 of the Constitution of India; the period of incarceration of the present applicant i.e. about seven years and seven months and undertaking of the applicant that he shall co-operate in the trial proceedings and shall not misuse the liberty of bail and shall abide by all terms and conditions of the bail order, I find it appropriate to release the applicant on bail.

10. Accordingly, the bail application is allowed.

11. Let applicant- Rajesh Yadav be released on bail in the aforesaid case crime number 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/ 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 the 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 of the Indian Penal Code/ 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 the 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. (v) The applicant shall not leave India without previous permission of the court. Order Date :- 4.7.2025 RBS/- [Rajesh Singh Chauhan,J.]

1. Heard Sri Sheo Prakash Singh, learned counsel for the applicant and Sri Ran Vijay Singh, learned AGA for the State.

2. Learned counsel for the applicant has filed rejoinder affidavit, the same is taken on record.

3. As per learned counsel for the applicant, the present applicant is in jail since 05.12.2017 in Case Crime No.291 of 2017, under Sections 147, 148, 149, 302, 34, 120-B of I.P.C. & Section 7 of Criminal Law Amendment Act, Police Station- Akhand Nagar, District - Sultanpur.

4. This is the third bail application as first bail application bearing Bail No.3724 of 2019 has been rejected by Hon'ble Mrs. Saroj Yadav, J. vide order dated 19.02.2021 and second bail application bearing Criminal Misc. Bail Application No.9053 of 2023 has been rejected by Hon'ble Mohd. Faiz Alam Khan, J. vide order dated 07.08.2023. The order passed in second bail application dated 07.08.2023 (supra) reads as under:- "1. Heard Shri Ravindra Shukla learned counsel for the accused-applicant as well as learned A.G.A. for the State and perused the record.

2. This second bail application has been moved by the accused/applicant - Rajesh Yadav for grant of bail, in Case Crime No.291 of 2017, under Sections 147, 148, 149, 302, 34, 120-B I.P.C. & 7 of the Criminal Law Amendment Act, Police Station Akhand Nagar, District Sultanpur, during trial as his first bail application has been rejected by a Coordinate Bench of this Court vide order dated 19.02.2021 passed in Criminal Misc. Bail Application No.3724 of 2019, however, Hon'ble Judge, who has rejected the first bail application of the applicant, has retired on superannuation.

3. Learned counsel for the accused-applicant while pressing the bail application submits that the applicant has been falsely implicated in this case only on account of established enmity and he has not committed any offence as claimed by the prosecution.

4. It is further submitted that there is material contradiction in the version of the incident as narrated in the F.I.R. and in the statement of the prosecution witnesses and it appears that none of the prosecution witnesses including the informant has seen the incident and only on account of enmity, the F.I.R. has been lodged against the applicant and other accused persons.

5. It is also submitted that co-accused persons namely Prakash Yadav, Om Prakash Yadav @ Nanga Yadav, Suneel Singh, Veeru @ Vir Bahadur Kewat, Bajrangi Yadav and Upkaran Singh have been granted bail by Coordinate Benches of this Court vide orders dated 21.02.2029, 05.10.2018, 27.08.2018, 29.10.2018, 02.02.2023 and 18.10.2021 passed in Criminal Misc. Bail Application Nos.1973 of 2019, 7830 of 2018, 6896 of 2018, 9270 of 2018, 11939 of 2022 and 6720 of 2018, respectively and identically placed co-accused person namely Pappu Singh has also been granted bail by Coordinate Bench of this Court vide order dated 02.05.2023 passed in Criminal Misc. Bail Application No.54 of 2023.

6. It is next submitted that the applicant is in jail in this case since 05.12.2017 without any criminal history and the charge sheet in this case has already been filed 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.

7. Learned A.G.A. for the State vehemently opposes the prayer of bail of the applicant on the ground that the applicant could not claim parity with those, who have been granted bail as in the F.I.R. as well as in the statement of the prosecution witnesses, there may be some variations with regard to other accused persons in firing gunshots towards the deceased, but so far as the applicant is concerned, the case of the prosecution is consistent in the F.I.R. as well as in the statement of all the prosecution witnesses that he is the person, who at first had fired gunshots towards the deceased and therefore, the applicant cannot claim parity with those, who have been granted bail.

8. It is also submitted that allegations of the F.I.R. are in corroboration with the medical evidence as various firearms injuries have been found on the body of the deceased and his death has also occurred due to shock and hemorrhage on account of firearms injuries, thus the applicant is not entitled to be released on bail.

9. Having heard learned counsel for the parties and having perused the record, it is evident that in the F.I.R. the role of firing at first has been assigned to the accused persons Upkaran Singh, Bajrangi Yadav and Suraj and thereafter when the deceased is shown to have fallen on the ground, the applicant Rajesh Yadav and accused Pappu Singh are stated to have fired at his head and other parts of the body on the exhortation given by Suneel Singh in furtherance of a conspiracy hatched by Ashok Yadav. In the statement of the informant recorded under Section 161 Cr.P.C. he has maintained version of the incident as shown in the F.I.R., however, in his additional statement he along with accused Upkaran Singh, Bajrani Yadav, Loha, Pappu and Rajesh Yadav (applicant) has also assigned the role of firing to accused persons Veeru and Suneel. Another eye witness namely Braham Dev Tiwari also assigned the role of firing to Upkaran Singh, Bajrani Yadav, Suraj, Rajesh Yadav (applicant) and Pappu. Eye witness Om Prakash Agrahari has stated that he had seen Rajesh Yadav (applicant), Satya Prakash Yadav @ Prakash Yadav and Bajrangi Yadav carrying country-made pistols and also firing gunshots towards the deceased and first bullet was fired by the instant applicant (Rajesh Yadav). Another eye witness namely Akil Nai, at whose shop the incident is shown to have occurred, has assigned the role of firing towards the deceased to the applicant (Rajesh Yadav) as the person, who had fired first bullet and also to Prakash Yadav, Bajrangi Yadav and Nanga Yadav and assigned the role of helping accused persons to Suneel Singh, Upkaran Singh, Veeru Kewat, Pappu Singh and others. Thus there is slight variations so far as the role of the other accused persons are concerned in the F.I.R. and in the statement of eye witnesses, however, all the eye witnesses, whose statement have been recorded by the investigating officer, are consistent on this point that it was Rajesh Yadav (applicant) who had fired gunshots towards the deceased and two of the eye witnesses have in categorical terms have stated that he was the person, who fired at first towards the deceased, thus in the considered opinion of this Court, the applicant is not having any parity with co-accused persons and no new ground is emerging on the basis of which facility of bail may be extended to the applicant after rejection of his first bail application by Coordinate Bench. Thus this second bail application moved on behalf of applicant - Rajesh Yadav is also rejected.

10. However, the trial court is directed to proceed with the trial and make all out efforts to conclude the same as soon as possible without granting unnecessary adjournment.

11. If the trial is not concluded within one year from today, the applicant may renew his prayer for bail before this Court.

12. 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 of this Court on the merits of the case.

13. Office is directed to immediately send a copy of the instant order to the trial court concerned though the Sessions Judge concerned for compliance."

5. Learned counsel for the applicant has submitted that while rejecting the second bail application this Court has directed the learned Trial Court to conclude the trial within a period of one year taking all coercive steps, failing which the applicant may renew his prayer for bail before this Court. Therefore, learned counsel for the applicant has stated that since the trial has not been concluded till date inasmuch as out of 30 prosecution witnesses, only four prosecution witnesses have been examined. Therefore, the aforesaid ground may be taken as a new ground. He has also stated that besides, the period of incarceration of the present applicant in jail, which is about seven years and seven months, may be considered. The present applicant is having no prior criminal history of any kind whatsoever. He has further submitted that all co-accused persons have been granted bail.

6. Sri Singh has, therefore, submitted that considering the fact that the present applicant is in jail for about seven years and seven months, despite the order having been passed by this Court to conclude the trial within one year, the same has not been concluded and there is no likelihood of the trial to be concluded in near further, so the present applicant may be enlarged on bail.

7. Learned counsel for the applicant has relied upon the judgments of the Apex Court in re; Union of India vs. K.A. Najeeb, AIR 2021 Supreme Court 712 and Paras Ram Vishnoi vs. The Director, Central Bureau of Investigation passed in Criminal Appeal No. 693 of 2021 (Arising out of SLP (Crl) No.3610 of 2020), wherein the Apex Court has held that if there is no possibility to conclude the trial in near future and the accused applicant is in jail for a substantial period then the period of incarceration may be considered as a fresh ground. Further, the applicant undertakes that if he is released on bail, he shall not misuse the liberty of bail and shall abide by all terms and conditions of the bail order and shall cooperate in the trial proceedings.

8. Per contra, learned AGA has opposed the bail application by submitting that considering the culpability of the present applicant, two bail applications have been rejected but he has nothing to say about the pace of the trial as that fact is beyond his control.

9. Without entering into merits of the issue; considering the arguments of learned counsel for the parties; the fact that despite the specific direction being issued by this Court while rejecting the second bail application to conclude the trial within a period of one year, about two years' period has passed but the trial has not been concluded till date; only four prosecution witnesses have been examined out of 30 prosecution witnesses, therefore, there is no possibility of the trial to be concluded in near future; considering the dictum of the Apex Court in re; K.A. Najeeb (supra) and Paras Ram Vishnoi (supra); provisions of Article 21 of the Constitution of India; the period of incarceration of the present applicant i.e. about seven years and seven months and undertaking of the applicant that he shall co-operate in the trial proceedings and shall not misuse the liberty of bail and shall abide by all terms and conditions of the bail order, I find it appropriate to release the applicant on bail.

10. Accordingly, the bail application is allowed.

11. Let applicant- Rajesh Yadav be released on bail in the aforesaid case crime number 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/ 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 the 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 of the Indian Penal Code/ 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 the 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. (v) The applicant shall not leave India without previous permission of the court. Order Date :- 4.7.2025 RBS/- [Rajesh Singh Chauhan,J.]