Pawan Singh S/O Shri Ajay Pal Singh … vs State Of U.P. Thru. Addl. Chief Secy. … on 7 July, 2025

Allahabad High Court

Pawan Singh S/O Shri Ajay Pal Singh … vs State Of U.P. Thru. Addl. Chief Secy. … on 7 July, 2025

Author: Rajesh Singh Chauhan

Bench: Rajesh Singh Chauhan

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2025:AHC-LKO:38405
 
Court No. - 11
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 8462 of 2022
 

 
Applicant :- Pawan Singh S/O Shri Ajay Pal Singh @Pahari (Second Bail)
 
Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Home Lucknow And Another
 
Counsel for Applicant :- Meenakshi Singh Parihar,Abhiuday Pratap Singh
 
Counsel for Opposite Party :- G.A.,Amit Jaiswal Ojus Law,Vikas Vikram Singh
 

 
Hon'ble Rajesh Singh Chauhan,J.
 

1. Heard Sri Abhiuday Pratap Singh, learned counsel for the applicant, Sri Gyanendra Singh, learned A.G.A for the State and learned counsel for the informant.

2. As per learned counsel for the applicant, the present applicant is in jail since 10.01.2017 in Case Crime No. 511 of 2016. under Sections 302, 34, 120B, 419, 420, 467, 468, 469, 471 IPC, Police Station Sursa, District Hardoi.

3. This is the second bail application. First bail application bearing Bail Application No. 5784 of 2017 has been rejected on 15.3.2022 by Hon’ble Ram Krishna Gautam, J. The order reads as under :

“Heard over bail application moved by the applicant, Pawan Singh, in Case Crime No. 511 of 2016, under Sections- 302/34 read with 120B, 419, 420, 467, 468, 469, 471 I.P.C., Police Station- Sursa, District- Hardoi.

Heard learned counsel for the applicant, learned AGA representing the State and learned counsel for the informant. Perused the record.

Learned counsel for the applicant argued that accused-applicant is innocent; he has been falsely implicated in this very case crime number and is languishing in jail since 10.01.2017; he is of no criminal antecedents; first information report was anti-dated, because it was sent to the Court of Magistrate with delay, not as per section 157 Cr.P.C., rather it was received in the Magistrate Court on 04.01.2017, whereas it was said to be lodged on 28.12.2016; no explanation of such delay is there; entry wound, written in autopsy examination report, is not corresponding to exit wound no.4 for which there is no entry wound; there was false implication against Rajendra Singh @ Raju for murder of father of the informant and he was acquitted in it; this subsequent implication is because of that murder; five persons were apprehended and there was recovery of fire arms from them; they have confessed commission of murder of deceased, the conspiracy to be hatched by Rajendra Singh @ Raju, while they were in jail; they were said to be resident of Western U.P. and it was in the consonance with the independent witness, a chai wala, of nearby the place of occurrence, who have said that five persons, taking name of each other, visited the place of occurrence in close proximity of time and they were taking name, as above, and were talking in Western U.P. language, whereas in the first information report, three persons were said to be on a motor-cycle and applicant along with one other co-accused Pankaj did indiscriminate firing over the deceased and the third one, who was riding motor-cycle, threw chilly powder on the informant; hence, presence of these three persons was said to be there in the first information report and five other persons confessed, who were apprehended, said present on spot, makes the accusation very doubtful; the surrender by applicant was there in the Court and he was taken in police custody remand, which followed recovery of tamancha, stated to be used fire arm, but the report of Forensic Science Laboratory was not there to establish that there is use of the fire arm in above occurrence; nor any empty cartridge were recovered from the place of occurrence, rather it was from the barrel of alleged fire arm but, no corresponding link is there; there is no likelihood of applicant’s fleeing from course of justice or tampering with evidence, in case of release on bail; applicant is under incarceration for more than five years and even yet trial could not be concluded; charges have not been framed; as per citation of Hon’ble Apex Court, in the case of incarceration for more than five years, applicant deserves for bail; other co-accused, who were said to have confessed, have been granted bail by co-ordinate Bench of this Court; hence bail has been prayed for.

Learned AGA as well as learned counsel for the informant have vehemently opposed the prayer for bail with this contention that this report may not be an anti-dated, because as per Chik F.I.R., occurrence was of 10:30 a.m. on 28.12.2016 and it was instantly got lodged on the same day of occurrence at 14:20 hours, wherein it was mentioned that injured was instantly taken to hospital and declared dead; after this situation, the informant came to police station and got this case lodged; it is a quite instant report and the applicant is named for giving fire arm shot along with his brother Pankaj; two wound of entry and one exit is there, over the person of deceased, in autopsy examination report, which was conducted in the same night; and one metallic body of 0.315 bore was recovered from inside the body of the deceased; hence, the corresponding exit wound no.4 was in consonance with wound of entry; two persons were said to have given fire arm shot and two wound of entry is there; the motive for this occurrence though not required in this case because there is an instant eye-witness account, which is said to be present in the F.I.R. itself and it was because of the murder of father of informant, wherein Rajendra Singh @ Raju got acquitted but, he managed for this subsequent incident; the recovery of fire arm is there and it is in consonance with the confessional statement made by way of disclosure in police custody remand, which was taken with the order of Magistrate, wherein there is recovery of fire arm under section 27 of Indian Evidence Act; bail to one of the co-accused has been rejected on merit by this Court; though rejection order may not be claimed as parity for disposal of bail application of other co-accused but, this fact is being brought on record; there is every likelihood of applicant’s fleeing from course of justice or tampering with evidence or repetition of offence, in case of release on bail because once murder of father then the murder of son is also there; charges have been framed and trial is proceeding but owing to Covid-19 pandemic, same could not be concluded.

Having heard learned counsel for the parties and gone through the material placed on record, it is apparent that applicant was said to be witnessed by informant for giving fire arm shot along with one Pankaj; the autopsy examination report was got instantly conducted wherein, there are two wound of entry corresponding to one wound of exit and one metallic body inside the body of deceased; the previous enmity is being the motive of subsequent occurrence; confessional statement followed by recovery is there; meticulous analysis of the fact is not expected at the time of disposal of bail application, because it may prejudice the fair trial.

Considering all those facts and circumstances of the case, the nature of accusations, heinousness of offence, severity of the punishment in the case of conviction but without commenting on the merits of the case, no ground for bail is there.

Accordingly, present bail application is rejected.

However, trial and is to be decided by the Sessions Court, with strict adherence of Section 309 Cr.P.C. hence, the Sessions Judge, Hardoi is directed to ensure that there should be conclusion of the Sessions Trial with strict adherence of Section 309 Cr.P.C., at an earliest.”

4. Learned counsel for the applicant has submitted that when the first bail application of the applicant was rejected no prosecution witness was examined but after the aforesaid order having been passed only two prosecution witnesses have been examined out of total 43 prosecution witnesses wherein the number of proposed witnesses are 24. Learned counsel for the applicant has stated that despite the specific direction having been passed by this Court to the learned trial court to expedite the trial invoking the provision so section 309 Cr.P.C. without giving any unnecessary adjournment to the parties but the pace of trial is too slow to conclude the trial finally. Therefore, the learned counsel for the applicant would not address the second bail application on the point of merits but he will only address the point that despite the order being passed by this Court the trial court has not shown any indulgence to conclude the trial with expedition and the law is trite on the point that detenue is also having fundamental right under Article 21 of the Constitution of India of speedy trial and the Apex Court in catena of cases has held that if any detenue is in jail for considerably long period and there is no possibility of conclusion of trial in near future, he may be enlarged on bail. The total period of incarceration of the applicant is eight years and six months. Further attention has been drawn towards Annexure no. 12 which is a bail order of the co-accused Rajendra Singh @ Raju bearing Bail Application No. 2500 of 2021 (Rajendra Singh @ Raju vs. State of U.P.) whereby this Court granted bail to the co-accused mainly on the ground that the pace of trial is very slow and there is no possibility of conclusion of trial in near future. In the aforesaid order granted to the co-accused the relevant judgments of the Apex Court have been quoted. The bail order of the co-accused dated 25.5.2022 reads as under :

“Heard Shri Jyotindra Misra, learned Senior Advocate assisted by Shri Kapil Misra, learned counsel for the applicant, Shri Vikas Vikram Singh, learned counsel for the complainant and Shri Alok Tiwari, learned A.G.A. for the State and perused the record.

Rejoinder Affidavit filed by learned counsel for the applicant is taken on record.

This is the second bail application. The first bail application was rejected by this Court vide order dated 10.4.2019 passed by this Court in Criminal Misc Case No.8824 (B) of 2017.

Learned Senior Advocate appearing on behalf of the applicant while pressing the bail application submits that the applicant/accused is in jail since 15.8.2014 and in this case his bail order was rejected by learned Sessions Judge on 26.7.2017. It is submitted that in the entire case diary except the confessional statements of the co-accused persons namely Akhilesh Yadav, Kanhaiya Sharma and Naveen Mishrar dated 9.1.2017 and of the applicant dated 27.1.2017 there is no material against the present applicant.

He submits that confessional statement of the accused or the co-accused are not admissible in the eyes of law. He submits that so far as criminal history of 32 cases is concerned most of the cases have been lodged against him due to political rivalry and in five cases the applicant has been acquitted and in remaining most of the cases the applicant is on bail. The details of the cases has been given in paragraph 28 of the bail application.

It is next submitted on behalf of learned counsel for the applicant that the alleged motive to conspire the murder of the deceased is also false as the accused/applicant has been acquitted in the murder trail of informant’s father in Criminal Appeal No. 86 of 2014 which is pending adjudication before the Court. In support of his contention learned counsel for the applicant has placed reliance on the judgement of Hon’ble Supreme Court in the case of Union of Indian vs. K. A. Najeeb passed in Criminal Appeal No.98 of 2021. He emphasised on paragraph 18 of the judgment.

He submits that by long incarceration which is about 7-8 years his right guaranteed by Part III of the Constitution are violated.

He submits that only one witness i.e. PW-1 has been examined before the trial court out of 24 proposed witnesses by the prosecution and considering the number of proposed witnesses there is no hope of conclusion of trail in near future.

He has also relied on the judgement of Hon’ble Supreme Court in the case of Indrani Pratim Mukerjea vs. Central Bureau of Investigation and another passed in Special Leave to Appeal (Crl.) No.1672 of 2022 and submits that Indrani Pratim Mukerjea was released on bail on the ground that she was in custody for six and half years.

He has also relied on paragraph 10 of the Hon’ble Supreme Court judgement in the case of Maulana Mohammed Amir Rashadi vs. State of U.P. and another reported in (2012) SCC 382 and submits that merely on the basis of criminal antecedents the appeal filed against the bail order Hon’ble Supreme Court had declined to interfere.

Likewise, in the case of Prabhakar Tiwari vs.State of U.P. passed in Criminal Appeal No. 152 of 2020 Hon’ble Supreme Court has held that mere pendency of criminal cases against the accused itself cannot be a basis of refusal for bail.

Per contra, learned A.G.A as well as leaned counsel for the complainant have opposed the bail prayer.

It has been contended on behalf of learned counsel for the complainant that initially an First Information Report No. 0300 of 2017 under Section 307, 427, Police Station Sursa, District Hardoi was lodged by the informant against two accused persons. Thereafter, again, another F.I.R. no. 2805 of 2018 has been filed in Police Station Kotwali Dehat District Hardoi in the year 2018 by the Station House Officer against the two accused persons.

Learned counsel for the complainant has invited attention of the Court towards various orders which has been filed along with the Counter Affidavit passed by the learned trial court and submits that since the accused persons are not appearing therefore the trial could not proceed.

Rebutting the arguments of the learned counsel for the complainant, it has been argued on behalf of the applicant that so far as two F.I.Rs are concerned namely F.I.R. No.0300 and F.I.R, No.0285 no charge-sheet has been filed against the present applicant. It is submitted that so far as allegation that the accused persons are not appearing before the trial court is concerned the accused are in custody and the perusal of the order-sheet depicts that it is the failure on behalf of the prosecution agency, for one reason or other reason, who have failed to produce the accused persons before the trial court and thus delay on behalf of the prosecuting agency cannot be attributed to the accused. On account of failure on the part of the district administration, the accused cannot be put to suffer.

On due consideration to the arguments advanced by learned counsel for the patties, perusal of the aforesaid judgments (supra) and the law laid down by Hon’ble supreme Court so far as the criminal history of the accused is concerned as held by the Hon’ble Supreme Court in the cases of Maulana Mohammed Amir Rashadi and Prabhakar Tiwari (supra) merely on the basis of the criminal history this Court is not inclined to refuse the bail of the accused.

So far that the arguments of learned counsel for the complainant and learned A.GA. regarding non appearance of the accused persons is concerned the accused is in custody and onus to produce the accused is on the prosecuting agency and therefore he cannot be said to be responsible for non-appearance before the trial court. In the trial, till today only one prosecution witness has been examined.

In view of the above, I find force in the arguments advanced by learned counsel for the applicant.

The bail application is allowed. Learned counsel for the applicant undertakes that the applicant shall remain present on each date before the trial court when the evidence is to be led and will not seek any adjournment. He further undertakes that no threat shall be extended by the applicant or on his behalf to the complainant or any of the prosecution witnesses.

Let the applicant, Rajendra Singh @ Raju involved in Case Crime No. 511/2016 under Section 302/34,120B, 419, 420, 467, 468, 469, 471 Indian Penal Code, Police Station Sursa, District Hardoi be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-

(i) The applicant will not tamper with the evidence during the trial.

(ii) The applicant will not pressurize/ intimidate the prosecution witness.

(iii) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.

(iv) 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.

(v) 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.

(vi) The applicant shall deposit his passport before the trial court. The applicant shall not leave the district without prior permission of the trial court. The applicant shall report to the concerned Police Station on 1st and 15th of every month.

(vii) 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 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.

The trial court is directed to conclude the trial expeditiously, preferably within a period of one year from the date of receipt of a certified copy of this order.

The Director Prosecution is further directed to ensure that the accused persons are produced on the date fixed before the Trial court.

The office is directed to send copy of this order to Director Prosecution.”

5. Learned counsel for the applicant has stated that this Court may take another ground to consider this bail application that after rejection of the bail application of the present applicant the co-accused has been enlarged on bail in his second bail application by this Court. Therefore, subsequent bail order granted in favour of the co-accused may be considered as a new ground.

6. Learned counsel for the applicant has stated that if the present applicant is released on bail, he shall abide by all terms and conditions of the bail order and shall cooperate in the trial proceedings and shall not misuse the liberty of bail.

7. Learned A.G.A as well as learned counsel for the informant have vehemently opposed the bail application by submitting that the present applicant was actively involved in committing the offence in question, so if he is released on bail he may influence the witnesses or may tamper the evidence. They have also submitted that the present applicant is has criminal history of seven cases.

8. Therefore, without entering into merits of the issue but considering the arguments of the learned counsel for the applicant and the learned AGA, the fact that when the first bail application of the applicant was rejected no prosecution witness was examined but after the direction of this Court only two prosecution witnesses have been examined out of total 43 prosecution witnesses wherein the number of proposed witnesses are 24, despite the specific direction having been passed by this Court to the learned trial court to expedite the trial invoking the provision of section 309 Cr.P.C. without giving any unnecessary adjournment to the parties the pace of trial is too slow to conclude the trial finally, if any detenue is in jail for considerably long period and there is no possibility of conclusion of trial in near future, the detenue may be enlarged on bail, total period of incarceration of the applicant is eight years and six months, the co-accused Rajendra Singh @ Raju has been granted bail after the rejection of first bail of the present applicant bearing Bail Application No. 2500 of 2021 (Rajendra Singh @ Raju vs. State of U.P.) mainly on the ground that the pace of trial is very slow and there is no possibility of conclusion of trial in near future and the undertaking of the applicant the applicant is entitled to be released on bail.

9. The bail application is allowed.

10. Let applicant- Pawan Singh S/O Shri Ajay Pal Singh @Pahari involved in aforesaid case crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-

(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 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.

(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.

.

(Rajesh Singh Chauhan, J.)

Order Date :- 7.7.2025

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