# Bhaiya Ram v. State of U.P. Opp. Party

- **Citation:** (2022) 4 ILRA 1089
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-25
- **Case number:** Crl. Misc. Bail Application No. 2610 of 2022
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhaiya-ram-v-state-of-u-p-opp-party-48378
- **Pages:** 5

## Headnote

G.A.

A. Delay in Trial.-- Period of long incarceration
of the applicant, poor progress of trial despite
the
specific
direction
by
the
Court,
all
fact/material witnesses have been examined
and there is no likelihood to conclude the trial in
near future.

Application allowed. (E-11)

List of Cases cited:-

## Text

4 All. Bhaiya Ram Vs. State of U.P.
1089

13. Let applicant- Nirmala be released
on bail in the aforesaid case crime number
on her 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 she 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 her counsel. In
case of her absence, without sufficient
cause, the trial court may proceed against
her 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 her 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 her, 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 her in
accordance with law.

(v)The applicant shall not leave India
without previous permission of the court.
----------
(2022)04ILR A1089
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.04.2022

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Crl. Misc. Bail Application No. 2610 of 2022

Bhaiya Ram ...Applicant
Versus
State of U.P. ...Opp. Party

Counsel for the Applicant:
Ravi Shankar Mishra, Pranav Trivedi

Counsel for the Opp. Party:
G.A.

A. Delay in Trial.-- Period of long incarceration
of the applicant, poor progress of trial despite
the
specific
direction
by
the
Court,
all
fact/material witnesses have been examined
and there is no likelihood to conclude the trial in
near future.

Application allowed. (E-11)

List of Cases cited:-
1. U.O.I.Vs K.A. Najeeb AIR 2021 SC 712

2. Paras Ram Bishnoi Vs Director, C.B.I. Criminal
Appeal
No.
693/2021(arising
out
of
SLP(Criminal) No. 3610/2020

3. Saudan Singh Vs St. of U.P. Criminal Appeal
No. 308/2022(arising out of SLP(Criminal) No.
4633/2021)

4. Gokarakonda Naga Saibaba Vs St. of Mah.
(2018)12 SCC 505

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Ravi Shankar Mishra,
learned counsel for the applicant and Sri
Hans Raj Verma, learned A.G.A. for the
State.
1090 INDIAN LAW REPORTS ALLAHABAD SERIES

2. It has been contended by the
learned counsel for the applicant that the
applicant is in jail since 3.1.2015 in Case
Crime No. 294 of 2014 u/s 147, 148, 149,
323,324, 504,506,452, 307, 308, 304 IPC,
P.S. Raniganj, District Pratapgarh. It has
been submitted that the applicant has been
falsely implicated in this case as he has not
committed any offence as alleged.

3. Sri Mishra has filed questionnaire
being issued from the learned trial court
dated 22.4.2022, the same is taken on
record.

4. At the very outset the learned
counsel for the applicant has submitted that
since the present bail application being
fourth bail application, therefore, he shall
not advance any arguments or raise any
ground which could have been taken at the
time of rejection of first, second or third
bail application. He has submitted that he
shall argue the present bail application on a
limited ground to the effect that the present
applicant is in jail since 3.1.2015, about
seven years and four months and despite
the specific directions have been issued by
this Court twice to conclude the trial within
time frame, there was no good progress in
the trial inasmuch as out of total 15
prosecution witnesses nine prosecution
witnesses have been examined, out of them
all fact witness (P.W.-1 to P.W. -7) have
been examined and in given circumstances
there is no likelihood to conclude the trial
in near future, therefore, the period of
incarceration of the present applicant and
the progress of trial may be considered in
view of dictum of Apex Court in re: Union
of India vs. K.A. Najeeb reported in AIR
2021 Supreme Court 712 and in the case
of Paras Ram Vishnoi vs. The Director,
Central Bureau of Investigation passed in
Criminal Appeal No. 693 of 2021 (Arising
out of SLP (Crl) 3610 of 2020) enlarge the
present applicant on bail.

5. Sri Mishra has drawn attention of
this Court towards the certified copy of the
questionnaire which indicates that nine
prosecution witnesses have been examined
and the next date has been fixed for
25.4.2022
for
examination
of
other
prosecution witnesses.

6. The first bail application was
rejected by Hon. Mahendra Dayal, J. (
since retired) on 29.3.2016 (Annexure no.
3). The second bail application was rejected
by Hon. Prashant Kumar, J. on 25.7.2018
(Annexure no. 4) and the third bail
application has been rejected by Hon.
Mohd. Faiz Alam Khan, J. on 2.7.2021. In
terms of orders of Hon. the Chief Justice
dated 13.11.2018 if any Hon'ble Court is
not sitting at the place where any bail
application is listed which has already been
rejected by him or her, the regular Court
may hear such bail application, therefore,
the present bail application has been put up
before this Court.

7. While rejecting the second bail
application on 25.7.2018 this Court has
observed as under :

"However,
it
appears
that
the
applicant is in custody since 03.11.2015,
thus, the court below is directed to expedite
the trial and if possible, conclude the same,
within six months."

8.

While
rejecting
third
bail
application on 2.7.2021 this court has
observed as under :

"However, having regard to the fact
that the applicant is detained in prison in
this case for the last seven years and only
4 All. Bhaiya Ram Vs. State of U.P.
1091
five prosecution witnesses have been
testified before the trial court, the trial
court is directed to conduct the trial of the
case pending before it by fixing at least two
dates in a week and ensure that on all dates
fixed, the remaining prosecution witnesses
are examined. The trial court is further
directed to conclude the trial within six
months from today."

9. In all the three rejection orders this
Court has briefly considered the facts and
circumstances of the issue in question.

10. While rejecting third bail
application on 2.7.2021 this Court has
taken cognizance of the fact that by that
time five prosecution witnesses had been
examined, therefore, this Court was of the
view that the trial should be concluded
within a period of six months and
rejected said bail application. About ten
months period have passed since 2.7.2021
but there was no good progress in the
trial proceedings inasmuch as only four
more prosecution witnesses have been
examined including all fact witnesses,
two Doctors, two Sub-Inspectors. Six
prosecution witnesses are yet to be
examined.
Thereafter,
the
defence
witnesses would be examined and the
trial would be concluded after adopting
due procedure of law. In carrying out
aforesaid exercise there is no possibility
of conclusion of trial in near future,
therefore, the present applicant may be
enlarged on bail.

11. The learned counsel for the
applicant has given an undertaking on
behalf of applicant that the applicant shall
not misuse the liberty of bail and shall
cooperate with the trial proceedings and
shall abide by all terms and conditions of
bail, if granted.

12. Learned A.G.A. has opposed this
bail application by submitting that this is
fourth bail application and since no new
grounds have been raised by the present
applicant, therefore, this bail application
may be rejected.

13. On being confronted the learned
AGA on the point that despite the two
orders being passed by this Court on
25.7.2018 and 2.7.2021 to expedite the trial
within six months there was no progress in
the trial and the present applicant is in jail
for about seven years and four months,
learned AGA has submitted that since the
aforesaid fact is matter of record, therefore,
he has nothing to say on this point.

14. Heard learned counsel for the
parties and perused the record as well as
the questionnaire dated 22.4.2022 produced
today itself.

15. At the very outset, I must express
my anguish towards the approach of the
learned trial court by not following the
direction of this Court in its letter and
spirit. When this Court vide order dated
25.7.2018 has directed to conclude the trial
within six months, the trial should have
been concluded within six by adopting
coercive methods and also by taking
recourse of section 309 Cr.P.C. It is noted
here that at that point of time the Pandemic
Covid -19 was not there. Further, when this
Court has taken notice of the fact on
2.7.2021
while
rejecting
their
bail
application that five prosecution witnesses
have already been examined, at least in a
period of about ten months the trial should
have
been
concluded
but
still
six
prosecution witnesses are to be examined,
defence witnesses are to be examined and
other legal formalities are required to be
followed, therefore, this approach of the
1092 INDIAN LAW REPORTS ALLAHABAD SERIES
learned trial court may not be appreciated.
When the learned trial court is having the
powers enshrined u/s 309 Cr.P.C. to
conclude the trial on day to day basis and
they are armed with coercive powers, I fail
to understand as to why such provisions of
law has not been adopted to conclude the
trial within time frame as directed by this
Court twice.

16. The Apex Court in re: Union of
India vs. K.A. Najeeb (supra) has held as
under :

"This
Court
has
clarified
in
numerous judgments that the liberty
guaranteed 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."

17. In the case of Paras Ram Vishnoi
vs. The Director, Central Bureau of
Investigation (supra) the Apex Court has
held as under :

"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."

18. The Hon'ble Supreme Court in
Criminal Appeal No.308 of 2022, @ SLP
(Crl.) No.4633 of 2021; Saudan Singh Vs.
The State of Uttar Pradesh vide order
dated 25.02.2022 has held that if the
accused person is in custody for around
eight years pending his criminal appeal
before the appellate court, he may be
granted bail on the terms and conditions to
the satisfaction of the learned trial Court.

19. Besides, as per dictum of the
Hon'ble Apex Court in re; Gokarakonda
Naga Saibaba v. State of Maharashtra,
(2018) 12 SCC 505, wherein it has been
held that if all fact/ material witnesses have
been examined, the bail application of the
accused may be considered.

20. Therefore, without entering into
the merits of the case, I am considering the
period of incarceration of the present
applicant in jail i.e. 7 years and 4 months
and poor progress of trial despite the
specific direction being issued by this court
twice. Notably, all fact/material witnesses
have
been
examined.
There
is
no
likelihood, in view of the progress of the
trial, to conclude the trial in near future.
Therefore, the aforesaid grounds entitles
the present applicant to be released on bail
and aforesaid grounds may be considered
as appropriate ground to grant bail while
4 All. Prem & Ors. Vs. State
1093
disposing of the fourth bail application of
the present applicant.

21. Accordingly, the present bail
application is allowed.

22. Let the applicant Bhaiya Ram,
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
which are being imposed in the interest of
justice:-

(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 the
country without permission of the Court
concerned.

23. Before parting with, it is expected
that the trial shall be concluded with
expedition in terms of Section 309 Cr.P.C.
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. The learned trial court shall fix
short dates to ensure that trial is concluded
at the earliest.
----------
(2022)04ILR A1093
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.04.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAMEER JAIN, J.

Crl Appeal No. 1826 of 1983

Prem & Ors. ...Appellants
Versus
State ...Respondent

Counsel for the Appellants:
Sri Ajay Kumar Pandey, Sri Bharat Singh, Sri
Preet Pal Singh Rathore, Sri Satish Trivedi
(Senior Adv.)

Counsel for the Respondents:
A.G.A., Sri S.S. Tomar

A. Section 482 Cr.P.C.- Mere consistency or
congruity in the testimony of the prosecution
witnesses is not the sole test of truth as even
falsehood can be given an adroit appearance of
truth so that truth disappears and falsehood
comes on the surface. Therefore, what the court