Patna High Court
Kausar Imam Hashmi vs The State Of Bihar on 1 August, 2025
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.43259 of 2025
Arising Out of PS. Case No.-58 Year-1994 Thana- BISHANPUR District- Darbhanga
======================================================
Amber Imam Hashmi S/O Late Md. Nematullah Resident of Village-
Basantpur, P.S.- Bishanpur, Dist.- Darbhanga, Presently R/O Mohalla- G.N.
Ganj, P.s.- Laheriasarai, Dist.- Darbhanga.
... ... Petitioner/s
Versus
1. The State of Bihar
2. Ram Pukar Chaudhary S/O Late Ram Sakha Chaudhry R/O Vill.- Patori,
P.O.- Patori- Basant, P.s.- Moro, Dist.- Darbhanga.
... ... Opposite Party/s
======================================================
with
CRIMINAL MISCELLANEOUS No. 43260 of 2025
Arising Out of PS. Case No.-58 Year-1994 Thana- BISHANPUR District- Darbhanga
======================================================
Kausar Imam Hashmi son of Late Md. Nematullah Resident of Village
-Basantpur PS- Bishanpur Dist- Darbhanga Presently village- Ward no. 41,
G.N. Balbhadarpur, Ps- Laheriya Sarai, Dist- Darbhanga
... ... Petitioner/s
Versus
1. The State of Bihar
2. Ram Pukar chaudhary Son of Late Ram Sakha Chaudhary village- Patori,
Po- Patori Basant, Ps- Moro, Dist- Darbhanga
... ... Opposite Party/s
======================================================
Appearance :
(In CRIMINAL MISCELLANEOUS No. 43259 of 2025)
For the Petitioner/s : Mrs. Shama Sinha, Adv.
Mr. Nikhil Kr. Agarwal, Adv.
Ms. Aditi Hansaria, Adv.
Ms. Suman Kumari, Adv.
For the Opposite Party/s : Mr. Manoj Kumar, APP
(In CRIMINAL MISCELLANEOUS No. 43260 of 2025)
For the Petitioner/s : Mrs. Shama Sinha, Adv.
Mr. Nikhil Kr. Agarwal, Adv.
Ms. Aditi Hansaria, Adv.
Ms. Suman Kumari, Adv.
For the Opposite Party/s : Mrs. Renu Kumari, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
CAV JUDGMENT
Date : 01-08-2025
Patna High Court CR. MISC. No.43259 of 2025 dt.01-08-2025
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1. Heard learned counsel appearing on behalf of
the parties.
2. The present quashing petition preferred
under Section 528 and 529 of the Bhartiya Nagarik
Suraksha Sanhita, 2023 (in short BNSS) praying for
quashing of the order dated 20.06.2025 passed by
learned Additional District and Sessions Judge III,
Darbhanga, in Sessions Trial No. 326 of 1999/
registration no. 3038 of 2014, arising out of Bishanpur
P.S. Case No 58 of 1994 for petitioner namely, Amber
Imam Hashmi and quashing of the order dated
20.06.2025
passed by learned Additional District and
Sessions Judge III, Darbhanga, in Sessions Trial No. 320
of 2010/ registration no. 3037 of 2014, arising out of
Bishanpur P.S. Case No 58 of 1994 for petitioner namely,
Kausar Imam Hashmi.
3. Both petitioners /accused preferred
application before learned trial court for their
representation under Section 317 of the Criminal
Patna High Court CR. MISC. No.43259 of 2025 dt.01-08-2025
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Procedure Code (in short, Cr.P.C.), which was rejected
through impugned order and thereafter the bail bond of
both petitioners was canceled, subsequent to that the
accused petitioner, namely, Amber Imam Hashmi ( of Cr.
Misc. No. 43259 of 2025) who was present in court, was
taken into custody and remanded to jail, whereas the
NBW was issued against another accused /petitioner,
namely Kausar Imam Hashmi (of Cr. Misc No. 43260 of
2025). Both accused petitioners are active practitioners
of the District Civil Court, Darbhanga.
4. As a matter of subsequent development the
accused petitioner, namely, Amber Imam Hashmi was
granted provisional bail vide order dated 24.06.2025 by
learned trial court, whereas the execution of NBW qua
accused petitioner, namely, Kausar Imam Hashmi, was
stayed provisionally till 27.06.2025. These orders were
also challenged saying learned trial court out of its biased
approach inserted some onerous condition.
5. The main prayer of Mrs. Shama Sinha,
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learned counsel appearing for the petitioners, is to quash
certain remarks while granting provisional bail to the
petitioner namely, Amber Imam Hashmi, and also certain
observations made by the learned trial court because it
appears contemptuous and were imposed with a biased
approach. It is also prayed that these prayers were raised
through I.A. No. 01 of 2025 as preferred in both the
petitions separately. To understand the factual
background, it is important to mention that for the crime
in question, two separate FIRs were lodged. The first FIR
was Bishanpur P.S. Case No. 57 of 1994 lodged by the
petitioners side, in counter to which Bishanpur P.S. Case
No. 58 of 1994 was lodged, where the petitioners are
accused. Bishanpur P.S. Case No. 58 of 1994 was lodged
for the offences punishable under Section 307 of the
Cr.P.C. alongwith other allied sections of IPC along with
Arms Act, which later on converted to 302 of IPC. For
Bishanpur P.S. Case No. 57 of 1994, Sessions Trial no.
395 of 1998 is pending before the court of learned
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District and Additional Sessions Judge VII, Darbhanga.
6. To understand the factual aspects for
preferring the present criminal quashing petition, it would
be apposite to reproduce the order dated 20.06.2025 as
passed in Sessions Trial No. 326 of 1999 by learned
Additional Sessions Judge III, Darbhanga :-
Annexure. P/1
Sessions Trial No. 326/1999
CIS No. 3038/2014
(Arising out of Bishanpur P.S. Case No. 58/1994)
Order-20-06-2025
(1) The Present matter is listed today. There are total
six accused persons facing trial in the present case.
Originally, there were total 12 accused persons. One
more sessions trial being Sessions Trial No. 320/2010
(CIS 3037/2014) stands separated from this trial.
There is representation under section 317 of Criminal
Procedure Code, 1973 on behalf of the accused Amber
Imam Hashmi, Raja Hashmi, Anjar Hussian and Mobin
Hashmi. So far as the accused Ishmat Belal Hashmi
and Jasim Nadaf are concerned, learned counsel for co-
accused submits that they have died and in due course,
death certificate would be filed on or before the next
date. So, now this case is for trial of four accused
persons namely (1) Amber Imam Hashni (2) Raja
Hashmi (3) Anjar Hashmi and (4) Mobin Hashmi
subject to confirmation of death of co-accused persons.
(ii) The accused Amber Imam Hashmi is an advocate of
Darbhanga Bar Association. He appeared just after
about 01 hour from the time of filing representation for
arguing in another case. I will deal with this issue in the
later part of this order.
(iii) The record of this case speaks volume about the
fact that all possible effort has been taken by the
accused to delay the trial of this & case. In this regard,
it would be sufficient to place on record that the
Hon’ble Court vide its order Judgement dated 21-04-
2015 passed in Criminal Miscellaneous No.
27216/2004 had been pleased to direct the trial court
to conclude the trial expeditiously. Para 5 of the said
judgement read as” since in this case discharge petition
was rejected long back on 03-07-2004, while
dismissing the present petition, it is desirable to direct
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the court below to proceed with the case expeditiously,
so that the case may come to its logical end without
unnecessary delay. While proceeding with the case,
learned trial judge is required to take up this matter at
least thrice in a week. Office is directed to
communicate this order to the court below forthwith for
its strict compliance.” Further, the Hon’ble Court vide
its order dated 16-04-2015 passed in Criminal
Miscellaneous No. 44013 of 2012 had been pleased to
observe “Since the criminal case was lodged way back
in the year 1994 and since then more than 20 years
have already elapsed, therefore, the learned trial court
is further directed to take up the trial of the accused
persons on priority basis and make all endeavours to
conclude the same at an early date preferably within a
period of six months from the date of
receipt/production of a copy of the present order. The
learned trial court shall not grant unnecessary & case.
In this regard, it would be sufficient to place on record
that the Hon’ble Court vide its order Judgement dated
21-04-2015 passed in Criminal Miscellaneous No.
27216/2004 had been pleased to direct the trial court
to conclude the trial expeditiously. Para 5 of the said
judgement read as” since in this case discharge petition
was rejected long back on 03-07-2004, while
dismissing the present petition, it is desirable to direct
the court below to proceed with the case expeditiously,
so that the case may come to its logical end without
unnecessary delay. While proceeding with the case,
learned trial judge is required to take up this matter at
least thrice in a week. Office is directed to
communicate this order to the court below forthwith for
its strict compliance.” Further, the Hon’ble Court vide
its order dated 16-04-2015 passed in Criminal
Miscellaneous No. 44013 of 2012 had been pleased to
observe “Since the criminal case was lodged way back
in the year 1994 and since then more than 20 years
have already elapsed, therefore, the learned trial court
is further directed to take up the trial of the accused
persons on priority basis and make all endeavours to
conclude the same at an early date preferably within a
period of six months from the date of
receipt/production of a copy of the present order. The
learned trial court shall not grant unnecessary a
adjournment merely on asking either on behalf of the
prosecution or on behalf of the defence.”
(iv) It is also appropriate to mention here that no stone
has been left unturned to malign the Judicial Officer
whoever took up this case and just to delay it either by
the accused Amber Imam Hashmi or co-accused
Kaushar Imam Hashmi. In this regard, Order dated 02-
06-2014, 06-06-20214 and 16-06-2014 passed by
then District Judge, Darbhanga is quite relevant to
refer to which has been confirmed by the Hon’ble Court
on being challenged. The then learned District Judge,
Darbhanga vide its order dated 06-06-2014 had been
pleased to observe vide para 5 that ” Considering the
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aforesaid facts and also considering the submissions of
the learned Incharge PP and also the accused Kaushar
Imam Hashmi, one application which was filed on 03-
06-2014 by the co-accused Amber Imam Hashmi is not
maintainable and hereby rejected. The another
application dated 03-06-2014 was filed by the accused
Kaushar Imam Hashmi is only with a view to cast
aspersion on judiciary. The accused persons are really
acting against the interest of administration of justice.
The application dated 03-06-2014 filed by the accused
in which false and malicious statement made by them
amount to scandalising the court and undermining the
majesty of justice and therefore, the application dated
03-06-2014 filed by the accused Kaushar Imam
Hashmi is hereby rejected. The proceedings of the trial
of the present case shall be continued from day to day
until all the prosecution witnesses in attendance have
ben examined, irrespective of any hurdles that may be
created by the accused persons.” The conduct as
mentioned in the order is just a tip of iceberg. It is an
important to note that even the matters get delayed till
date. (v) One more surprising thing which has been
noticed by this court that records of this court stands
manipulated. It appears that manipulation by putting
blade cut on postmortem report is quite evident. Who
did it and when it was done is a matter of inquiry
because this records got transferred between several
court and passes through hands of different office clerk
in the last several years but the possibility of
involvement of the accused cannot be ruled out for the
reason that he is an ultimate beneficiary of such
manipulation to delay the trial. This court would make
endeavour to have second copy from the DMCH,
Darbhanga as early as possible.
(vi) The profile of the accused is also needs to be taken
into consideration. He is an advocate for the last 40
years. His two brothers are also practising lawyer in
this court. One of them died during pendency of the
case as submitted across the bench. They are highly
influential. At least, the accused Amber Imam Hashmi
is concerned, he does not hesitate to make unbecoming
behaviour contrary to the normal practice in the court
room.
(vii) Now, once after filing representation, the accused
Amber Imam Hashmi appeared in the court. This court
ask him as to why he is ready to argue in another case
and has filed representation in his own case. This court
further asked to at least go the dock and show respect
to this court. He did not move from his chair. Even
after repeated request, he did not go. He even tried to
go from the court without following the order made by
this court.
(viii) The present matter is old one. This needs to be
disposed of quickly as per direction of the Hon’ble
Court. This court is of the view that without taking the
accused Amber Imam Hashmi into custody, the trial of
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this court is not possible to proceed further. Every
possible effort is being taken by him to delay the trial.
This court is of the confirmed opinion as reflected from
the record that his bail bonds needs to be cancelled for
misleading the court today and non-cooperation in trial.
(ix) Accordingly, the bail bonds of Amber Imam
Hashmi is cancelled. He is directed to be taken into
custody. So far as representation on behalf of Raja
Hashmi, Anjar Hussian and Mobin Hashmi are
concerned, it is allowed for today. They are directed to
remain present on the next date of hearing. There is
neither representation nor appearance on behalf of
accused Isharat Belal Hashmi and Jasim Nadaf. They
are directed to remain present on the next date of
hearing, failing thereof, coercive measure would be
taken to secure his presence. Since this court has been
given to understand that Balal Hashmi and Jasim
Nadaf have died, therefore, the office clerk is directed
to seek status about his death report from the
concerned police station.
(x) It is important to mention here that all the accused
persons are known to each other as reflects from the
record. This court skips to write several thing about the
accused Amber Imam Hashmi because engagement for
all those issued would cause deviation from the main
purpose to run the course of justice anyhow in the
larger interest of administration of Justice.
(xi) Put up on 23-06-2024 for completing the
appearance.
(Suman Kumar Divakar)
Addl. Sessions Judge-III
Darbhanga.
7. In this connection it would be apposite to
reproduce order dated 24.06.2025 as passed in Sessions
Trial No. 326 of 1999 by learned Additional Sessions
Judge III, Darbhanga, through which, petitioner Amber
Imam Hashmi was granted provisional bail and same is as
under:-
ST No. 326/1999
IN THE COURT OF ADDITIONAL
SESSIONS JUDGE-III,
Patna High Court CR. MISC. No.43259 of 2025 dt.01-08-2025
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Sessions Trial No. 326/1999
R. No. 3038/2014
24.06.2025: The matter is listed today for hearing
on the bail petition dated 21.06.2025 filed on
behalf of the accused Amber Imam Hashmi.
Learned counsel for the accused Dr. Ashok Kumar
Singh assisted by Sri Anand Alok is present before
the court. Sri A. N. Jha, Public Prosecutor,
Darbhanga assisted by Smt. Renu Jha, Addl. Public
Prosecutor present before the court.
Dr. Ashok Kumar Singh submits that he seeks
mercy for the reason that the accused is senior
lawyer of Darbhanga Bar Association. However, he
does not dispute the fact that the matter relates to
commission of offence of murder and other serious
offences and there is clear cut direction of the
Hon’ble Court to conclude the trial as soon as
possible. He also does not dispute the fact that the
accused should have more sincere to extend the co-
operation for conclusion of the trial. He further
accedes to the fact that the accused should have
followed the order of the court in the court room on
20.06.2025. He does not endorse the action made
by the accused in the court room on 20.06.2025
when his bail bonds was cancelled and taken into
custody. Finally, he seeks indulgence of this court to
the extend that if the accused is released on bail,
the sentiments of the members of the Darbhanga
Bar Association would also be respected but he is
clear to the fact that any person of whatsoever
stature should be treated equally in the eyes of law.
Learned Public Prosecutor assisted by Additional
Public Prosecutor has brought on record reply on
behalf of the State duly served copy to the learned
counsel for the accused in advance.
The State has serious objection with regard to grant
bail to the accused. The State is of clear opinion
that if accused is allowed to come out of jail, the
conclusion of the trial is not possible. The States
submits so on the basis of journey of this case for
the last thirty years and the conduct of the accused
as reflects from the record. It is further submitted
by the State that the accused is in very dominant
position and is well equipped with muscle and
money and totally in a position to tamper with the
witnesses. He has also relied on the judgement
passed by the Hon’ble Madrass High Court titled as
Saronraj @ Nagaraj versus State represented by
the Inspector of Police [Criminal OP (MD) No.
14215 of 2024] wherein the Hon’ble High Court
vide para-8 of the said judgement observed that the
accused had filed petition under Section 317 of the
Criminal Procedure Code, several times and it was
considered mechanical manner. Further, vide para-
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11, it is observed that if there is delay even in the
committal proceeding then no witness have moral
courage to come before the court to depose against
the accused. This issue needs to be addressed. In
sum and substance, the state is apprehensive of the
fact that the witnesses may be threatened or
tampered with by the accused.
Heard the parties. Considered the submission. This
court is mindful of the fact that the accused has
domination in the Darbhanga Bar Association but it
is difficult to say such domination is either on
positive side or negative side. It is also fact that the
Hon’ble Court vide its final judgement dated
21.04.2015 passed in Criminal Miscellaneous No.
27216/2004 and further vide order dated
16.04.2015 passed in Criminal Miscellaneous No.
44013/2012 had been pleased to direct the trial
court to conclude the trial expeditiously and further,
preferably with six months. But it did not happen.
Obviously, non-cooperation of the accused cannot
be ruled out. Besides all these facts, this court is
inclined to consider the submission of the learned
counsel for the accused that he would cooperate in
the trial and wait to see his conduct in the coming
days. It is for the reason that the accused is a
senior lawyer of prestigious Darbhanga Bar
Association and almost all the important and
respected members of the Bar are present before
the court.
Therefore, this court is inclined to grant interim bail
to the accused Amber Imam Hashmi for a period of
one month from today pending final adjudication of
this petition with following condition(s):-
(i) the accused shall remain present on the date of
hearing physically in the court.
(ii) He will co-operate in the trial.
(iii) He will not attempt to influence the witnesses or
any other lawyer representing the side of the victim
in any manner whatsoever.
(iv) He will neither participate nor provoke any
action in the premises of Civil Court, Darbhanga
which may have potential to cause hindrance of
administration of justice.
(v) He will not use any objectionable words
detrimental to administration of justice inside the
Court room.
(vi) He will not make any such behavior inside the
court room to demean the authority of law save and
except permissible within the law.
It is clarified that either the State or the victims
would have liberty to move cancellation of interim
bail so granted if there is any threat to the
witnesses or otherwise which may cause hindrance
in the completion of the trial.
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Accordingly, it is directed that the accused Amber
Imam Hashm. shall be released on interim bail for
the period 24.06.2025 to 25.07.2025 on furnishing
bail bond of Rs. 50,000/- of two sureties of the like
amount each. He will file undertaking to follow the
condition as mentioned in the order. One of the
bailor will be close relative.
The further hearing on the bail application will be
done on 25.07.2025. The main matter is listed on
27.05.2025 for evidence and other purposes.
Additional Sessions Judge – III Darbhanga
8. To understand the further factual aspects for
preferring the present criminal quashing petition, it would
be apposite to reproduce the order dated 20.06.2025 as
passed in Sessions Trial No. 320 of 2010 by learned
Additional Sessions Judge III, Darbhanga qua petitioner
Kaushar Imam Hashmi, through which his bail bond was
canceled and NBW was issued against him which is as
under:-
“Sessions Trial No. 320/2010
CIS No. 3037/2014
(Arising out of
Bishanpur P.S. Case No. 58/1994)
Order 20-06-2025
The Present matter is listed today. There is sole
accused Kaushar Imam Hashmi facing trial in this
case. He is a senior criminal lawyer of Darbhanga Bar
Association. The present case has been split up from
Sessions Trial No. 326/1999 (CIS 3038/2014).
Originally, there were two accused namely Amber
Imam Hashmi and Qamar Imam Hashmi but this
court is given to understand that Qamar Imam
Hashmi has died during pendency of the trial.
Patna High Court CR. MISC. No.43259 of 2025 dt.01-08-2025
12/28Literally, the case relates to the year 1994.
(ii) The trial is running against murder of one person
and injury to several others by fire arm. In other
words, this is case of murder attempt to murder and
other serious offences.
(iii) It would be an apposite to place on record that
the Hon’ble Court vide its Final Judgement dated 21-
04-2015 passed in Criminal Miscellaneous No.
27216/2004 had been pleased to direct the trial
court to conclude the trial expeditiously. Para 5 of the
said judgment reads as “since in this case
discharge petition was rejected long back on
03-07-2004, while dismissing the present
petition, it is desirable to direct the court
below to proceed with the case expeditiously,
so that the case may come to its logical end
without unnecessary delay. While proceeding
with the case, learned trial judge is required to
take up this matter at least thrice in a week.
Office is directed to communicate this order to
the court below forthwith for its strict
compliance.” Further, the Hon’ble Court vide its
order dated 16-04-2015 passed in Criminal
Miscellaneous No. 44013 of 2012 had been pleased
to observe “Since the criminal case was lodged
way back in the year 1994 and since then
more than 20 years have already elapsed,
therefore, the learned trial court is further
directed to take up the trial of the accused
persons on priority basis and make all
endeavours to conclude the same at an early
date preferably within a period of six months
from the date of receipt/production of a copy
of the present order. The learned trial court
shall not grant unnecessary adjournment
merely on asking either on behalf of the
prosecution or on behalf of the defence.”
(v) It is also reflecting from the record that this
accused has left no stone unturned to delay the trial.
In this regard, the Order dated 06-06-2014 and 14-
06-2024 passed by then learned District Judge,
Darbhanga is an appropriate to refer to which has
been confirmed by the Hon’ble Court on being
challenged. The then learned District Judge
Darbhanga vide its order dated 06-06-2014 had
been pleased to observe vide para 5 that
“Considering the aforesaid facts and also
considering the submissions of the learned
Incharge PP and also the accused Kaushar
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Imam Hashmi, one application which I was
filed on 03-06-2014 by the co-accused Amber
Imam Hashmi is not maintainable and hereby
rejected. The another application dated 03-06-
2014 was filed by the accused Kaushar Imam
Hashmi is only with a view to cast aspersion on
judiciary. The accused persons are really
acting against the interest of administration of
justice. The application dated 03-06-2014 filed
by the accused in which false and malicious
statement made by them amount to
scandalising the court and undermining the
majesty of justice and therefore, the
application dated 03-06-2014 filed by the
accused Kaushar Imam Hashmi is hereby
rejected. The proceedings of the trial of the
present case shall be continued from day to
day until all the prosecution witnesses in
attendance have ben examined, irrespective of
any hurdles that may be created by the
accused persons.” The conduct as mentioned in
the order is just a tip of iceberg. It is an important to
note that even the matters get delayed till date.
(vi)The profile of the accused is also needs to be
taken into consideration. He is a practising advocate
for the last 40 years in Darbhanga Judgeship. His
two brothers and Co-accused are also practising
lawyer is this court. One of them died during
pendency of the case as submitted across the bench.
They are highly influential not only in this court but
beyond the court as well as sensed by this court while
being posted in this Judgeship.
(vi) Now, once after filing representation, his Junior
submits that the Boss is not interested to come to
this court though he has come to the court for other
work. Obviously, this shows the audacity of the
accused to fail the very administration of justice and
further, to extend non- cooperation in the trial and
such accused should not be entitled to enjoy liberty
on the cost of administration of Justice. The court is
obligated to maintain balance between the liberty of
the accused and the victim’s right.
(vii) The present matter is old one. This needs to be
disposed of quickly as per direction of the Hon’bie
Court. It is needless to place on record that the law is
supreme. None can be allowed to play with law of the
land and demean the administration of justice. This is
a glaring example of non-cooperation that the
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accused is in the court premises doing his job but he
is not ready to come to the court where he is required
to come to cooperate in the trial.
(viii) This court is of the confirmed opinion to obey
the command of the Hon’ble Court and further, that
the accused is so influential that without taking him
into custody, the trial of this case is not possible. He
will employ all means to cause hindrance in the
course of justice. The command of the Hon’ble Court
for this court is above all and this court is committed
to ensure its execution at any cost.
(ix) Accordingly, an application under Section 317 of
the Criminal Procedure Code is hereby dismissed.
His bail bonds stands cancelled. Office clerk is
directed to issue NBW against the accused Kaushar
Imam Hashmi.
(x) Put up this case on 23-06-2025 awaiting the
presence of the accused Kaushar Imam Hashmi.
(Suman Kumar Divakar)
Addl. Sessions Judge-III Darbhanga.
9. In this connection it would be further apposite
to reproduce the provision of Section 317 of the Cr.P.C. :-
“317. (1)At any stage of an inquiry or trial under this
Code, if the Judge or Magistrate is satisfied, for
reasons to be recorded, that the personal attendance
of the accused before the Court is not necessary in the
interests of justice, or that the accused persistently
disturbs the proceedings in Court, the Judge or
Magistrate may, if the accused is represented by a
pleader, dispense with his attendance and proceed
with such inquiry or trial in his absence, and may, at
any subsequent stage of the proceedings, direct the
personal attendance of such accused.”
10. Mrs. Sinha, at first instance submitted that
two trial for the same occurrence is pending, one arising
out of Bishanpur P.S. Case No. 58 of 1994, and another
arising out Bishanpur P.S. Case No. 57 of 1994 being a
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case and counter case trial of both cases must proceed in
accordance with guidance as framed by the Hon’ble
Supreme Court in Nathi Lal and Ors. vs. State of
U.P. and Anr. reported in 1990 Supp SCC 145 which
was further reiterated in State of M.P. vs. Mishrilal
and Ors. reported in AIR 2003 SC 4089.
11. It is also submitted that the main reason for
rejection of representation of accused/ petitioners under
Section 317 of Cr.P.C. appears to be out of personal
knowledge of learned Presiding officer suggesting the
biased approach of the Court for the only reason that the
petitioners are active practitioners of the civil district
court, Darbhanga, though she fairly conceded that
accused petitioner namely, Amber Imam Hashmi was
granted provisional bail by the learned trial court itself
after four days of his judicial custody but the conditions
which were imposed while granting provisional bail
appears onerous and, therefore, the same should be
deleted/ quashed from the provisional bail order dated
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24.06.2025 and petitioner be allowed to remain on his
earlier bail. It is further stated by Mrs. Sama Sinha that
on the very same day the representation under Section
317(2) of Cr.P.C., of two accused persons were allowed
by learned trial court, and thus there was no occasion to
reject the representation of petitioners under Section 317
of the Cr.P.C. on the same very day.
12. In support of her submissions that learned
trial court was biased, Mrs. Sinha relied upon the legal
report of the Hon’ble Supreme Court as available through
Avtar Singh and Anr. vs. State of M.P. reported in
AIR 1982 SC 1260.
13. It is submitted by Mrs. Sinha, that Section
317 of Cr.P.C. laid down a provisions that when inquiries
and trial may be held in the absence of accused in certain
cases, however, if the learned trial court find necessary
qua appearance of the accused it may direct that the
accused would no longer be represented on the next date
by a pleader and would appear in person and if accused
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failed to appear it would be open for the learned trial
court for issuing warrant and proceed in accordance with
the procedure prescribed in Chapter VI(A) of the Cr.P.C.
and may also cancel bail and bail bond and to proceed in
accordance with chapter XXXIII of the Cr.P.C.
14. In support of her submission Mrs. Sinha
relied upon the legal report of this Hon’ble Court as
available through Sandeep Kumar Tekriwal v. State
of Bihar reported as 2008 SCC OnLine Pat 254
15. Mrs. Sinha, in support of her submission
that learned trial court canceled the bail bond contrary to
the aforesaid discussed provisions of law with a biased
approach further relied upon the legal report of the
Hon’ble Supreme Court as available through S.
Parthasarathi v. State of A.P. reported in (1974) 3
SCC 459.
16. Learned APP appearing for the State
contradicting the submission as advanced by Mrs. Sinha,
submitted that the fact of this case is different qua
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aforesaid legal references and considering the fact that
the matter has been pending before the court for trial
since last 28 years for the occurrence which took place in
the year 1994, there was no option before the learned
trial court to impose such conditions having, no other
option to secure speedy trial. It is submitted by learned
APP that the learned trial court was under regular and
repeated directions of this Court, as appears from the
impugned order itself that the trial be concluded
expeditiously. The petitioners are active practitioner of
the civil court, Darbhanga and being well-versed with the
procedural intricacies of law, deliberately exploiting legal
loopholes with oblique motive to delay the trial. It is
pointed out by learned APP that the date, on which
impugned order was passed, i.e., 20.06.2025 the
petitioner made an application under Section 317 before
the learned trial court, however, after one hour he
appeared in the same court in professional capacity and
when his said conduct was questioned in view of reason
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disclosed in his representation petition under Section 317
of Cr.P.C. he showed his rudeness and only thereafter his
bail bond was canceled by learned trial court and he was
taken into custody.
17. The presence of petitioner in professional
capacity in another case on the same day before the same
learned trial court, where representation under Section
317 of Cr.P.C was allowed before one hour is sufficient to
gather that the petitioner, being an advocate is playing
with the court proceedings. It is submitted that this is not
a case when the court can proceed in the absence of
accused as the trial is related to offences punishable
under Section 302 of IPC, where every incriminating
circumstances are essentially to be put before the
petitioner being accused while recording their statement
under Section 313 of the Cr.P.C.. Proceeding in absentia
as available under Section 317 of the Cr.P.C. may further
create a complex situation while recording the statement
of the accused under Section 313 of Cr.P.C. Petitioners
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being practicing advocates, are well acquainted with the
intricacies and procedural safeguards of criminal law, and
were found to be deliberately evading the process of law.
In such circumstances, custodial intervention by way of
arrest became the only efficacious recourse available to
ensure their appearance to conclude trial expeditiously.
Learned APP further submitted that now that one of the
petitioner is on provisional bail and execution of NBW
against another was also stayed, therefore, present
quashing petition becomes infructuous. The conditions,
which are said “onerous” are nothing but strict regulatory
conditions to avoid further delay in trial. It is further
pointed out by learned APP that both impugned orders are
interim in nature, and therefore the accused petitioners
must approach the learned trial court at first instance to
modify the conditions as imposed while passing the final
order, and at this stage it would not be appropriate to
interfere with the conditions as none of the conditions
prima-facie appears onerous; rather it is regulatory in
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nature to secure the presence of the accused petitioners
before the court for expeditious disposal of the case,
which is pending since last 28 years.
18. However, learned APP conceded that the
case and counter case must be heard together as per
guidelines settled by the Hon’ble Supreme Court in view
of the Nathi Lal case (supra).
19. The extreme pain as felt by learned trial
court can be understood easily while authoring impugned
order dated 20.06.2025, through which the bail bond of
the petitioners was canceled, whereafter the petitioner,
Amber Imam Hashmi, was taken into custody and NBW
was issued against petitioner Kausar Imam Hashmi. It
appears from the perusal of the impugned order that time
and again several direction were given by this court for
expeditious disposal of this case which has been pending
for so many years for trial for the occurrence of the year
1994. The conduct of petitioner is just a tip of ice berg
that can be easily understood from the fact that in the
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case where he is accused a petition under Section 317 of
Cr.P.C., was filed, whereas in another case, after a one
hour, he appeared before the court in his professional
capacity. This conduct of the petitioner is prima-facie
evident of the fact that he was under the impressions that
he is above the law and also that the learned trial court is
without teeth, can’t bite, only hiss for the simple reason
that he is an active practitioner of the court. It is pertinent
to note that even the junior counsel appearing on behalf
fo the accused petitioner addressed the court by stating
that “Boss is not appearing today” which further
reflects the deliberate non-cooperative attitude of the
petitioners and the impression sought to be conveyed by
them, thereby undermining the authority and sanctity of
the judicial process. Moreover, the petitioners no. 1 is on
provisional bail, whereas the execution of NBW against
petitioner no. 2, has already stayed by learned trial court
itself, prima-facie making these petitions infructuous on
this score.
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20. As far proceeding qua case and counter
case is concerned, in this context, it would be apposite to
reproduce para 8 of the Mishrilal case (supra) which
reads as follows:-
8. In the instant case, it is undisputed, that the
investigating officer submitted the challan on the basis of the
complaint lodged by the accused Mishrilal in respect of the
same incident. It would have been just, fair and proper to
decide both the cases together by the same court in view of the
guidelines devised by this Court in Nathi Lal case [1990 Supp
SCC 145 : 1990 SCC (Cri) 638] . The cross-cases should be
tried together by the same court irrespective of the nature of
the offence involved. The rational behind this is to avoid the
conflicting judgments over the same incident because if cross-
cases are allowed to be tried by two courts separately there is
likelihood of conflicting judgments. In the instant case, the
investigating officer submitted the challan against both the
parties. Both the complaints cannot be said to be right. Either
one of them must be false. In such a situation, legal obligation
is cast upon the investigating officer to make an endeavour to
find out the truth and to cull out the truth from falsehood.
Unfortunately, the investigating officer has failed to discharge
the obligation, resulting in grave miscarriage of justice.
21. In this context, it would be further apposite
to reproduce paras 15 and 16 of the Sandeep Kumar
Tekriwal case (supra) which reads as follows:-
15. Section 317, Cr. P.C. provides for inquiries and trial
being held in the absence of accused in certain cases.
However, if the Magistrate finds that personal appearance of
the accused is necessary, he would direct that accused would
no longer be represented on the next date by a pleader
under Section 317, Cr. P.C. but would appear in person. If
the accused in spite of such order does not appear in person,
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it would be open for the learned Magistrate to issue warrant
of arrest and proceed in accordance with the procedure
prescribed in Chapter-VI of the Cr. P.C. and may also cancel
bail and bail bond and proceed in accordance with Chapter
XXXIII of the Cr. P.C. It does not appear from the order of
the preceding dates i.e. 31-1-2008, 26-3-2008 that
personal attendance of petitioner would no longer be
dispensed with, and he is required to attend in person. The
Magistrate in view of Section 317(1) Cr. P.C. ought to have
given an opportunity to an accused to appear in person who
was being allowed to be represented through a pleader. The
order of preceding dates in the case on the contrary shows
that Magistrate in fact accepted the representation under
Section 317, Cr. P.C. The magistrate has to follow the
procedure prescribed therein, if it does not dispenses with
his personal attendance. A Magistrate while rejecting a
representation under Section 317 Cr. P.C. cannot at the
same time cancel bail bond and issue non-bailable warrant of
arrest, if on preceding dates has not clearly directed that
personal attendance under Section 317, Cr. P.C. will no
longer be dispensed with. The Court ought to provide a
reasonable opportunity to the accused to appear in person
whose representation was earlier being allowed under
Section 317, Cr. P.C. In this case, it appears that trial
lingered as a co-accused Prem Prakash was absconding.
Learned counsel for the petitioner has also submitted that
there have been no latches on his part.
16. In the instant case, the learned magistrate not only
rejected application under Section 317, Cr. P.C. but also
cancelled the bail bond and issued non-bailable warrant of
arrest by a composite order dated 28-6-2008, which is
impermissible under Section 317, Cr. P.C. If the Magistrate
did not think it appropriate to allow the representation of
petitioner under Section 317 Cr. P.C. any more, it could
have directed the petitioner to appear in person on dates
next. Even then if petitioner or accused does not appear for
reasons which do not seem valid to the Magistrate he may
proceed to issue warrants as provided in Chapter VI of Cr.
P.C. and cancel bail and bail bonds as engrafted in Chapter
XXXIII, Cr. P.C. as noticed in para 16. The learned
magistrate as such exceeded jurisdiction vested in him and
exercised the same erroneously.
22. In this context, it would be further apposite
to reproduce paras 15 and 16 of S. Parthasarathi case
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(supra) which reads as follows:-
15. The question then is: whether a real
likelihood of bias existed is to be determined on the
probabilities to be inferred from the circumstances by
court objectively, or, upon the basis of the impressions
that might reasonably be left on the minds of the party
aggrieved or the public at large.
16. The tests of “real likelihood” and
“reasonable suspicion” are really inconsistent with each
other. We think that the reviewing authority must
make a determination on the basis of the whole
evidence before it, whether a reasonable man would in
the circumstances infer that there is real likelihood of
bias. The Court must look at the impression which
other people have. This follows from the principle that
justice must not only be done but seen to be done. If
right minded persons would think that there is real
likelihood of bias on the part of an inquiring officer, he
must not conduct the enquiry; nevertheless, there
must be a real likelihood of bias. Surmise or conjecture
would not be enough. There must exist circumstances
from which reasonable men would think it probable or
likely that the inquiring officer will be prejudiced
against the delinquent. The Court will not inquire
whether he was really prejudiced. If a reasonable man
would think on the basis of the existing circumstances
that he is likely to be prejudiced, that is sufficient to
quash the decision [see per Lord Denning, H.R. in
Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon
[(1968) 3 WLR 694 at 707] ] We should not, however,
be understood to deny that the Court might with
greater propriety apply the “‘reasonable suspicion” test
in criminal or in proceedings analogous to criminal
proceedings.
23. In this context, it would be also apposite to
reproduce paras 1 and 2 of Avtar Singh case (supra)
which reads as follows:-
1. We see no substance in the grievance of the accused that
they will not get a fair and impartial trial in the Court of the
Patna High Court CR. MISC. No.43259 of 2025 dt.01-08-2025
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Court of Shri S.P. Khare. We, therefore, reject their prayer
for transfer of the case to the Court of some other learned
Judge.
2. One of the grounds on which the learned Sessions Judge
is said to be biased against the accused is that he did not
allow them to sit down during the trial. It is not right or
proper that the accused were not provided with a sitting
place during the trial which has gone on for the past seven
months. We direct that the learned Sessions Judge will
permit the accused to sit down during the trial. In fact, we
are unable to understand how any Court in our country can
at all insist that the accused shall keep on standing during
the trial, particularly when the trial is long and arduous as in
this case. We hope that all the High Courts in India will take
appropriate steps, if they have not already done so, to
provide in their respective Criminal Manuals prepared under
Section 477(1) of the Criminal Procedure Code that the
accused shall be permitted to sit down during the trial unless
it becomes necessary for the accused to stand up for any
specific purpose, as for example, for the purpose of
identification. We need not add that the facility to be
accorded to the accused for sitting down during the trial
should not be construed as in derogation of the established
convention of our courts that everyone concerned should
stand when the Presiding Officer enters the court. With these
observations we dismiss the special leave petition.
24. As far as the allegation of biasness and
onerous conditions are concerned this court is of the view
that the action which alleged to be taken under biased
approach of learned trial court, was annexed and taken to
uphold the majesty of law. The steps were taken correctly
to give a message that none is above the law and to achieve
the objective of “speedy trial” as matter is pending since
last 28 years. Terms and conditions as imposed appears
regulatory in nature to maintain the decorum of the Court.
25. This Court with available material failed to
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gather any biased approach of the learned trial court
towards petitioners.
26. A report was also called for from the SSP,
Darbhanga which reveals that remaining prosecution
witnesses would be examined within next six months.
27. Accordingly, there is no occasion to
interfere with the impugned orders as passed by learned
trial court, accordingly the present quashing petitions
stand dismissed being devoid of any merit.
28. The speedy trial is not the right of the
accused only, it is also the right of the victim also.
However, by taking guiding note of the Nathilal case
(supra), the cross case which was lodged for the same
occurrence as Bishanpur P.S. case No. 57 of 1994, by
petitioners side for which the Sessions Trial No. 395 of
1998 is pending before the Court of Additional Session
Judge VII, Darbhanga/ or in any other court shall be
transferred to the Court of Additional Session Judge III,
Darbhanga, where the present case is pending and to
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proceed accordingly.
29. Let a copy of this judgment be sent to the
learned trial court forthwith.
30. Accordingly, pending I.A.’s disposed of in
view of judgment.
(Chandra Shekhar Jha, J)
Sudha/-
AFR/NAFR AFR CAV DATE 18.07.2025 Uploading Date 01.08.2025 Transmission Date 01.08.2025