High Court · 2025

Heard Sri D.P. Dutt Tiwari, learned counsel for the applicant and Sri Ranvijay Singh, learned AGA for the State. Sri D.P. Dutt Tiwari has filed rejoinder affidavit and the same is taken on record. This is a third bail application as the first and second bail applications have been rejected on merits. While rejecting the second bail application on 07.02.2024, in Criminal Misc. Bail Application No. 9233 of 2022, this Court has passed the following order:- "1. This is second bail application, the first bail application of the applicant was rejected by this court vide order dated 04.03.2022. While rejecting the first bail application, this court had directed the trial court that endevour should be made to conclude the trial with all expedition in terms of the mandate of section 309 Cr.P.C.

2. Heard Sri Jyotindra Mishra, learned Senior Advocate assisted by Sri Ashish Kumar Shukla the counsel counsel for the applicant, Ms. Priyanka Pandey the counsel for the State and perused the record.

3. The accused-applicant seeks bail in Case Crime No.0014 of 2018, under Sections 302, 307, 323, 504, 34 IPC and Section 7 of Criminal Law Amendment Act and section 27(1) of the Arms Act, Police Station Kotwali Dehat, District Sultanpur.

4. In the light of the said directions, the submission of the counsel for the applicant is that after the rejection of the first bail application, all the three facts witnesses have been examined. He draws my attention to the first information report wherein it was stated that four accused persons including the applicant had caused the offence in question and the maternal uncle of the informant was killed and the informant was badly injured. In terms of the FIR, it was stated that on 20.01.2018 at about 5:30 pm, the applicant along with other three accused were standing and the uncle of the informant was coming from a shop, the applicant started hurling abuses and on the uncle refusing to do so, the applicant exhorted and on his exhortation, two accused Pradeep Tiwari and Gunner Mishra caught hold of the uncle of the informant and the applicant took the riffle of the gunner and caused firearm injury. It was also stated that when the informant tried to help, he was also beaten by the butt of the riffle, which resulted injuries to him. It was also stated that after killing the uncle, firing was also resorted to on the informant and the same got missed and thereafter all the co-accused left on Scorpio.

5. The counsel for the applicant draws my attention to the postmortem report which indicates two lacerated wounds on the body of the deceased being entry wound on back of left side of near spine 11 cm below nape and neck and showing blackening as well as other wound being an exist wound on base of neck from mild line to slightly left above clavicle and everted margin. It is further stated that on the ribs and chest wall on the left side, five fracture injuries were also noticed on the body of the deceased.

6. In the light of the said, it is submitted by the counsel for the applicant that none of the fact witnesses would explain the alleged injuries on the left side of ribs and chest wall. He specifically argues that the doctor who had conducted the postmortem deposed in his cross examination, which has been filed along with the rejoinder affidavit, that the injury number one being an entry wound was from below nape neck and the external wound was above clavicle and everted margin. Thus, it cannot be said that the wound was caused from standing him in front and was from bottom to top. He also stated that he could not give any definite opinion as to when blackening would come and from what distance. As regards the fracture in the ribs, he expressed his view that the same could come when the ribs are attacked by heavy object and the said fracture cannot be caused by firearm.

7. The counsel for the applicant argues that when specific injuries in the ribs and chest could not be explained, primarily there are inconsistencies and thus, the applicant should be enlarged on bail. He next argues that the applicant is in custody since 28.01.2018 and only three of the total twenty six witnesses have been examined so far and there is no likelihood of the trial being concluded in the near future and primarily the right of speedy trial enshrined under Article 21 of the Constitution of India stands violated in the case of the applicant. As regard the criminal antecedents of the applicant, the counsel for the applicant argues that two cases have been shown against the applicant and in one of the case, he has been acquitted on the basis of the compromise and in the other case, the applicant is on bail. He further argues that as regards the injury report of the informant, the same shows only contusion injuries and that also in a report which was taken after seven months of the alleged incident.

8. Learned AGA on the other hand opposes the bail application by arguing that heinous offence was committed by the applicant and the eye witness recorded so far and the fact witnesses have also supported the prosecution story and considering the gravity of the offence, the bail application should be rejected.

9. Considering the submissions made at the bar, in the FIR specific role of causing firearm injury was assigned to the applicant which resulted in the death of the deceased. The fact witnesses have corroborated the prosecution story. As regards the witness being the doctor, who had conducted the postmortem, has expressed his specific view with regard to firearm injuries and as regards the injury on the ribs, he had given a specific opinion that this could not be caused by firearm and were probably caused on account of a heavy object.

10. In view of the submissions, what transpires is that the murder in question was committed in a market area by four persons led by the applicant which primarily demonstrates the lack of fear of law in the applicant, the fact witnesses so far have deposed in favour of the prosecution, thus, considering the gravity of the offence, I do not see any reason to enlarge the applicant on bail. The second bail application is accordingly rejected.

11. However, it is directed that the trial shall be concluded with all expedition preferably within a period of one year without giving any adjournments to any of the parties." The learned counsel for the applicant has stated that more than one year period has passed but the trial has not been concluded. The present applicant is in jail since 28.01.2018 in Case Crime No.0014 of 2018, under Sections 302, 307, 323, 504, 34 IPC and Section 7 of Criminal Law Amendment Act and section 27(1) of the Arms Act, Police Station Kotwali Dehat, District Sultanpur. Learned counsel for the applicant has further submitted that the present applicant was granted short term bail of 30 days to dispose of some of his property to fulfill the need of the family, thereafter he surrendered before the learned trial Court within time. Learned counsel has stated that since the two bail applications have been rejected on merits, therefore, he would not address the Court on prosecution story but he is pressing this bail application only on the ground that he is in jail for last more than seven years and all prosecution witnesses have been examined. The trial is listed for the required exercise under Section 313 of CrPC. After the order having been passed in such stage, i.e., 313 CrPC, the defense witnesses would be examined and the case would be heard finally and in completing such exercise, it will take some more time, therefore, considering the aforesaid fact, the present applicant may be enlarged on bail. His bonafide may also be considered as he surrendered before the Court concerned in terms of the order of this Court. Out of two criminal history, in one case, the present applicant has been acquitted and in other case he is on bail. The learned counsel has further submitted that if the applicant is released on bail, he shall shall cooperate in the trial proceedings and shall not misuse the liberty of bail. Further, the applicant shall abide by all terms and conditions of the bail order, the applicant may be enlarged on bail. Learned AGA has opposed the aforesaid bail application by submitting that the material/evidence clearly suggests that the present applicant has committed the offence in question but on the period of long incarceration, he has nothing to say but any appropriate direction may be passed directing the prosecution. Learned counsel for the applicant has submitted that since there is no possibility to conclude the trial in near future, therefore, in view of the dictum of Hon'ble 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 reported in 2021 SCC OnLine SC 3606 granting bail to those accused persons on the ground that there is no possibility to conclude the trial in near future and there is a long incarceration of that accused, therefore, they were entitled for bail. Para 15 of the case K.A.Najeeb (supra) is being reproduced here-in-below: "This Court has clarified in numerous judgments that the libertyguaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India, it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail."

13. The Apex Court in the case of Paras Ram Vishnoi (supra) in para 4 has observed as under: "4. On consideration of the matter, we are of the view that pending the trial we cannot keep a person in custody for an indefinite period of time and taking into consideration the period of custody and that the other accused are yet to lead defence evidence while the appellant has already stated he does not propose to lead any evidence, we are inclined to grant bail to the appellant on terms and conditions to the satisfaction of the trial court." Learned counsel for the applicant has further drawn attention of this Court towards the dictum of Apex Court rendered in re: Gokarakonda Naga Saibaba vs. State of Maharashtra reported in (2018) 12 SCC 505 wherein the Apex Court has observed that if the material and fact witnesses have been examined, the bail of the accused persons may be considered. Therefore, without entering into merits of the issue, considering the fact that the present applicant is in jail for more than seven years; almost the fact and material witnesses have been examined; besides, there is no likelihood to conclude the trial shortly, so considering the aforesaid dictums of Apex Court, I am of the opinion that the present applicant may be released on bail and thus, this second bail application is allowed. Let the applicant-Rajesh Tiwari 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. (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 applicants fail 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. (vi) Before parting with, it is expected that the trial shall be concluded with expedition, strictly in accordance with law, without adjourning the case for any unnecessary reason. Further, the learned trial court may take all coercive measures, as per law, if either of the parties do not co-operate in the trial properly. Order Date :- 21.2.2025 Anurag ANURAG SINGH ANURAG SINGH ANURAG SINGH High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench Lucknow Bench

Heard Sri D.P. Dutt Tiwari, learned counsel for the applicant and Sri Ranvijay Singh, learned AGA for the State. Sri D.P. Dutt Tiwari has filed rejoinder affidavit and the same is taken on record. This is a third bail application as the first and second bail applications have been rejected on merits. While rejecting the second bail application on 07.02.2024, in Criminal Misc. Bail Application No. 9233 of 2022, this Court has passed the following order:- "1. This is second bail application, the first bail application of the applicant was rejected by this court vide order dated 04.03.2022. While rejecting the first bail application, this court had directed the trial court that endevour should be made to conclude the trial with all expedition in terms of the mandate of section 309 Cr.P.C.

2. Heard Sri Jyotindra Mishra, learned Senior Advocate assisted by Sri Ashish Kumar Shukla the counsel counsel for the applicant, Ms. Priyanka Pandey the counsel for the State and perused the record.

3. The accused-applicant seeks bail in Case Crime No.0014 of 2018, under Sections 302, 307, 323, 504, 34 IPC and Section 7 of Criminal Law Amendment Act and section 27(1) of the Arms Act, Police Station Kotwali Dehat, District Sultanpur.

4. In the light of the said directions, the submission of the counsel for the applicant is that after the rejection of the first bail application, all the three facts witnesses have been examined. He draws my attention to the first information report wherein it was stated that four accused persons including the applicant had caused the offence in question and the maternal uncle of the informant was killed and the informant was badly injured. In terms of the FIR, it was stated that on 20.01.2018 at about 5:30 pm, the applicant along with other three accused were standing and the uncle of the informant was coming from a shop, the applicant started hurling abuses and on the uncle refusing to do so, the applicant exhorted and on his exhortation, two accused Pradeep Tiwari and Gunner Mishra caught hold of the uncle of the informant and the applicant took the riffle of the gunner and caused firearm injury. It was also stated that when the informant tried to help, he was also beaten by the butt of the riffle, which resulted injuries to him. It was also stated that after killing the uncle, firing was also resorted to on the informant and the same got missed and thereafter all the co-accused left on Scorpio.

5. The counsel for the applicant draws my attention to the postmortem report which indicates two lacerated wounds on the body of the deceased being entry wound on back of left side of near spine 11 cm below nape and neck and showing blackening as well as other wound being an exist wound on base of neck from mild line to slightly left above clavicle and everted margin. It is further stated that on the ribs and chest wall on the left side, five fracture injuries were also noticed on the body of the deceased.

6. In the light of the said, it is submitted by the counsel for the applicant that none of the fact witnesses would explain the alleged injuries on the left side of ribs and chest wall. He specifically argues that the doctor who had conducted the postmortem deposed in his cross examination, which has been filed along with the rejoinder affidavit, that the injury number one being an entry wound was from below nape neck and the external wound was above clavicle and everted margin. Thus, it cannot be said that the wound was caused from standing him in front and was from bottom to top. He also stated that he could not give any definite opinion as to when blackening would come and from what distance. As regards the fracture in the ribs, he expressed his view that the same could come when the ribs are attacked by heavy object and the said fracture cannot be caused by firearm.

7. The counsel for the applicant argues that when specific injuries in the ribs and chest could not be explained, primarily there are inconsistencies and thus, the applicant should be enlarged on bail. He next argues that the applicant is in custody since 28.01.2018 and only three of the total twenty six witnesses have been examined so far and there is no likelihood of the trial being concluded in the near future and primarily the right of speedy trial enshrined under Article 21 of the Constitution of India stands violated in the case of the applicant. As regard the criminal antecedents of the applicant, the counsel for the applicant argues that two cases have been shown against the applicant and in one of the case, he has been acquitted on the basis of the compromise and in the other case, the applicant is on bail. He further argues that as regards the injury report of the informant, the same shows only contusion injuries and that also in a report which was taken after seven months of the alleged incident.

8. Learned AGA on the other hand opposes the bail application by arguing that heinous offence was committed by the applicant and the eye witness recorded so far and the fact witnesses have also supported the prosecution story and considering the gravity of the offence, the bail application should be rejected.

9. Considering the submissions made at the bar, in the FIR specific role of causing firearm injury was assigned to the applicant which resulted in the death of the deceased. The fact witnesses have corroborated the prosecution story. As regards the witness being the doctor, who had conducted the postmortem, has expressed his specific view with regard to firearm injuries and as regards the injury on the ribs, he had given a specific opinion that this could not be caused by firearm and were probably caused on account of a heavy object.

10. In view of the submissions, what transpires is that the murder in question was committed in a market area by four persons led by the applicant which primarily demonstrates the lack of fear of law in the applicant, the fact witnesses so far have deposed in favour of the prosecution, thus, considering the gravity of the offence, I do not see any reason to enlarge the applicant on bail. The second bail application is accordingly rejected.

11. However, it is directed that the trial shall be concluded with all expedition preferably within a period of one year without giving any adjournments to any of the parties." The learned counsel for the applicant has stated that more than one year period has passed but the trial has not been concluded. The present applicant is in jail since 28.01.2018 in Case Crime No.0014 of 2018, under Sections 302, 307, 323, 504, 34 IPC and Section 7 of Criminal Law Amendment Act and section 27(1) of the Arms Act, Police Station Kotwali Dehat, District Sultanpur. Learned counsel for the applicant has further submitted that the present applicant was granted short term bail of 30 days to dispose of some of his property to fulfill the need of the family, thereafter he surrendered before the learned trial Court within time. Learned counsel has stated that since the two bail applications have been rejected on merits, therefore, he would not address the Court on prosecution story but he is pressing this bail application only on the ground that he is in jail for last more than seven years and all prosecution witnesses have been examined. The trial is listed for the required exercise under Section 313 of CrPC. After the order having been passed in such stage, i.e., 313 CrPC, the defense witnesses would be examined and the case would be heard finally and in completing such exercise, it will take some more time, therefore, considering the aforesaid fact, the present applicant may be enlarged on bail. His bonafide may also be considered as he surrendered before the Court concerned in terms of the order of this Court. Out of two criminal history, in one case, the present applicant has been acquitted and in other case he is on bail. The learned counsel has further submitted that if the applicant is released on bail, he shall shall cooperate in the trial proceedings and shall not misuse the liberty of bail. Further, the applicant shall abide by all terms and conditions of the bail order, the applicant may be enlarged on bail. Learned AGA has opposed the aforesaid bail application by submitting that the material/evidence clearly suggests that the present applicant has committed the offence in question but on the period of long incarceration, he has nothing to say but any appropriate direction may be passed directing the prosecution. Learned counsel for the applicant has submitted that since there is no possibility to conclude the trial in near future, therefore, in view of the dictum of Hon'ble 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 reported in 2021 SCC OnLine SC 3606 granting bail to those accused persons on the ground that there is no possibility to conclude the trial in near future and there is a long incarceration of that accused, therefore, they were entitled for bail. Para 15 of the case K.A.Najeeb (supra) is being reproduced here-in-below: "This Court has clarified in numerous judgments that the libertyguaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India, it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail."

13. The Apex Court in the case of Paras Ram Vishnoi (supra) in para 4 has observed as under: "4. On consideration of the matter, we are of the view that pending the trial we cannot keep a person in custody for an indefinite period of time and taking into consideration the period of custody and that the other accused are yet to lead defence evidence while the appellant has already stated he does not propose to lead any evidence, we are inclined to grant bail to the appellant on terms and conditions to the satisfaction of the trial court." Learned counsel for the applicant has further drawn attention of this Court towards the dictum of Apex Court rendered in re: Gokarakonda Naga Saibaba vs. State of Maharashtra reported in (2018) 12 SCC 505 wherein the Apex Court has observed that if the material and fact witnesses have been examined, the bail of the accused persons may be considered. Therefore, without entering into merits of the issue, considering the fact that the present applicant is in jail for more than seven years; almost the fact and material witnesses have been examined; besides, there is no likelihood to conclude the trial shortly, so considering the aforesaid dictums of Apex Court, I am of the opinion that the present applicant may be released on bail and thus, this second bail application is allowed. Let the applicant-Rajesh Tiwari 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. (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 applicants fail 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. (vi) Before parting with, it is expected that the trial shall be concluded with expedition, strictly in accordance with law, without adjourning the case for any unnecessary reason. Further, the learned trial court may take all coercive measures, as per law, if either of the parties do not co-operate in the trial properly. Order Date :- 21.2.2025 Anurag ANURAG SINGH ANURAG SINGH ANURAG SINGH High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench Lucknow Bench