# Dr. Naimish Trivedi (Second Bail) v. State of U.P. Opp. Party

- **Citation:** (2020) 12 ILRA 249
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-03
- **Case number:** Bail No. 6873 of 2018
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-naimish-trivedi-second-bail-v-state-of-u-p-opp-party-45464
- **Pages:** 8

## Headnote

G.A., Arun Sinha

For filing second Bail Application-fresh
ground or event-all the grounds taken in
the second bail-already been considered
while
rejecting
first bail applicationground of long period in jail-not tenable.

Bail Rejected. (E-9)

List of Cases cited: -

## Text

12 All. Dr. Naimish Trivedi (Second Bail) Vs. State of U.P.
249
Legal Service Authority as well as the State
Legal Services Authority through their
Member Secretaries who may apprise the
Court as to how the applicants or like
victims of mass disaster were or are being
helped during Pandemic Covid-19. The
Member Secretary, U.P. State Legal
Services Authority shall appear before this
Court in person on the next date of listing
with all relevant details from the respective
districts. Before any further order is passed
on the dereliction of duty on the part of
respective magistrates/Session Judges, the
Senior Registrar of this Court, in the light
of report forwarded to this Court on
29.9.2020 by the District Judge, Lucknow,
is hereby directed to obtain the relevant
details of magistrates/Session Judges from
district Lucknow/Hardoi who have failed to
pass remand orders from 25.3.2020 to
16.6.2020. The Senior Registrar of this
Court shall also remain present in the Court
when the case is listed next.

35. List on 10.12.2020.
----------
(2020)12ILR A249
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 03.12.2020

BEFORE
THE HON'BLE RAJESH SINGH CHAUHAN, J.

Bail No. 6873 of 2018

Dr. Naimish Trivedi (Second Bail) ...Applicant
Versus
State of U.P. ...Opp. Party

Counsel for the Applicant:
Rajendra Kumar Dwivedi, Abhishek Pathak,
Amrendra Nath Tripathi, Devika Singh,
Gopal Narayan Mishra, Harish Pandey,
Samidha, Stuti Mittal

Counsel for the Opp. Party:
G.A., Arun Sinha

For filing second Bail Application-fresh
ground or event-all the grounds taken in
the second bail-already been considered
while
rejecting
first bail applicationground of long period in jail-not tenable.

Bail Rejected. (E-9)

List of Cases cited: -

1. Kalyan Chandra Sarkar Vs Rajesh Ranjan @
Pappu Yadav & anr. delivered in Appeal (Crl.)
1129 of 2004.03

2. Anees Miya Vs St. of U.P, Criminal Appeal
No.3495 of 2009

3. Pramod Kumar Saxena Vs U.O.I. & ors.
reported in 2008 (63) ACC 115

4. St. of M.P. Vs Kajad vide judgment dated
06.09.2001 in Appeal (Crl.) 907 of 2001

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

1. Heard Ms. Samidha, learned
counsel for the applicant, the learned
Additional Government Advocate for the
State and Sri Arun Sinha, learned counsel
for the complainant.

2. This is the second bail application
filed by the applicant (Dr. Naimish
Trivedi), who is languishing in jail since
02.03.2016 in Case Crime No.0001 of
2016. under Sections 302, 34, 120-B and
420 of I.P.C., Police Station-Mahanagar,
District-Lucknow.

3. The first bail application of the
present applicant bearing Bail Application
No.6874 of 2016 has been rejected by this
Court on merits on 07.10.206. For
convenience, the order dated 07.10.2016 is
being reproduced here-in-below:-
250 INDIAN LAW REPORTS ALLAHABAD SERIES

"Rejoinder
affidavit
filed
on
behalf of the applicant today in Court is
taken on record.

Heard
Shri
Kunwar
Mirdul
Rakesh, learned Senior Advocate assisted
by Shri Santosh Kumar, the learned
counsel for the applicant, Shri Arun Sinha,
learned counsel for the complainant and
the learned A.G.A. for the State as well as
perused the record.

The
applicant-
Dr.
Naimish
Trivedi has sought bail in Crime No. 01 of
2016, under Sections 302/34, 120-BIPC,
relating to Police Station Mahanagar,
District Lucknow.

It has been contended by the
learned Senior Advocate that the applicant
is not named in the FIR. During the course
of investigation the applicant was made
accused in this case on the ground that
prior to the alleged occurrence, the
applicant had agreed to sell his house to
the deceased for a sum of Rs. 7.5 Crores
and had received more than one crore as
advance. A deed of agreement was also
executed between the applicant and the
deceased. It is said that since the applicant
did not execute the sale deed and the
deceased was pressurizing him to receive
the balance amount of sale consideration
and execute sale deed, the applicant in
order to get rid of the deceased, engaged
shooters and got him murdered. The
submission of the learned Senior advocate
is that the motive as alleged by the
prosecution is not sufficient to cause death
of any person. Even if it is believed to be
true that the applicant had agreed to sell
his house and had also received advance
money, the dispute was purely of civil
nature and the applicant could not get
benefit by the death of the deceased. With
regard to the telephonic conversation and
call details record, the submission of the
learned Senior Advocate is that the said
call record and telephonic conversation
placed on record by the complainant with
the counter affidavit, is not an authentic
document and cannot be made basis of
presumption
that
the
applicant
had
conspired to kill the deceased. The
applicant is a renouned Dental Surgeon
having his clinic in Mahanagar and it
cannot be presumed that he would conspire
to kill the deceased. The learned Senior
Advocate has referred to the statement of
the witnesses, who have been interrogated
during the investigation and has submitted
that it has come in evidence that the
complainant, who is the daughter of the
deceased, had relation with Haseeb @ Asif
and he was following the car in which the
deceased
and
the
complainant
were
traveling soon before the occurrence.
There is every possibility that Haseeb
might have conspired to kill the deceased
because being Muslim, his relation and
affair with complainant was objected by the
deceased. It is also a submission on behalf
of the applicant that the only evidence
against the applicant is the statement of coaccused and as per the provision of the
Indian Evidence Act, the statement of the
co-accused cannot be read in evidence
against the applicant. It has lastly been
submitted that co-accused Adnan has
already been granted bail by this Court
vide order dated 16.6.2016.

The learned counsel for the
complainant as well as the learned
Additional Government Advocate, both
have vehemently opposed the prayer for
bail on the ground that it is admitted that
the applicant had agreed to sell his house
situated at Mahanagar, Lucknow to the
deceased for a sum of Rs. 7.5 Crores and
had also received 1.5 Crore as advance.
The deceased was the owner of the Ritz
Hotel and he had been continuously
requesting the applicant to receive the
12 All. Dr. Naimish Trivedi (Second Bail) Vs. State of U.P.
251
balance amount and execute the sale deed
but since the applicant had no intention to
sell his house, therefore out of advance
money, he spent Rs. 5,00,000/- (Five
Lakhs) to engage shooters and got the
deceased killed so that he may get rid of the
deceased. The learned counsel for the
complainant has taken the court to the call
details
record
and
the
telephonic
conversation annexed with the counter
affidavit and has submitted that it has come
in evidence that one Subhash Yadav was
acting as mediator and on the instructions
of the applicant, he arranged the shooters,
namely, Adnan Ahmad and Wasif @ Saif. It
has also come in evidence that co-accused
Adnan provided his firearum and the coaccused Wasif @ Saif using that firearm,
killed the deceased. The co-accused Adnan
was granted bail on the ground that the
only allegation against him was that he
provided his gun to the actual shooter but
so far as the case of the present applicant is
concerned, he is master mind of the crime
and the call detail record as well as
telephonic conversation, clearly reveal that
he had engaged shooters to execute the
crime. With regard to call detail records
and the telephonic conversation, the
submission of Shri Arun Sinha is that the
investigation of this case was conducted by
Special Task Force and the voice call as
well as the call detail record was sent to
the expert from where the same were
verified. It has also been submitted by the
learned counsel for the complainant that
during the course of investigation the
Investigating
Officer
of
STF
sought
permission of the Court to take the sample
of voice of the applicant in order to tally
the
telephonic
conversation
but
the
applicant refused to give the sample of his
voice and this circumstance should be
treated as adverse to the applicant. The
learned counsel for the complainant has
also pointed out that prior to the
occurrence, one Pappu was contacted for
commission of crime but after the crime
was committed and he came to know that
work was done by some one else, he started
negotiations
with
the
applicant
and
demanded money because he had suffered
a loss on account of crime being committed
by some one else. The conversation
between Pappu and the present applicant is
on record and has also been verified. With
regard to the affair of the complainant with
Haseeb, the submission on behalf of the
learned counsel for the complainant is that
even if it is found that the complainant was
having affairs with some Muslim Boy, there
is no evidence to the effect that he had
planned to kill the deceased and he could
have benefited by the death of the
deceased.

After having heard learned counsel
for the parties and after having gone through
the material on record but without expressing
any opinion on merit of the case, I find that
on the basis of evidence on record, the
applicant has no case for bail at this stage,
hence his bail application is rejected."

4. The instant second bail application
has been filed on 20.06.2018.

5. This second bail application has
been filed mainly on the ground that PW-1
the daughter of the deceased, who is
informant, and PW-2, wife of the deceased,
have not supported the prosecution case
while recording their chief statement and
the cross-examination. Further, the motive
suggested by the prosecution is so week
inasmuch as the present applicant shall not
be gaining anything to eliminate the
deceased on account of alleged agreement
to sale entered into between the present
applicant and the deceased along with his
wife.
252 INDIAN LAW REPORTS ALLAHABAD SERIES

6. Ms. Samidha, learned counsel for
the applicant has submitted that the material
relating to the telephonic calls and the
conversation are not authentic documents,
therefore, those documents cannot be made
the basis of presumption. It has also been
submitted that the agreement to sale appears
to be fictitious on the face of it inasmuch as
neither the proper signatures have been
made thereon nor the dates have correctly
been
indicated.
Admittedly,
the
said
agreement is subject matter of one civil suit
wherein the original deed has been filed
before the court concerned.

7. On 02.09.2019, one supplementary
affidavit has been filed on behalf of the
accused-applicant reiterating the grounds
taken in the second bail application. It has
been submitted by Ms. Samidha referring
the supplementary affidavit that there was
one person namely Haseeb, who was
having relation with the informant, who is
daughter of the deceased, was chasing the
vehicle of the deceased when the deceased
was returning back to his home from his
hotel at about 11:00 p.m. (night) on
01.01.2016 i.e. the date of incident. As per
the statement recorded under Section 161
Cr.P.C. the Haseeb has admitted that he
was having relation with the informant and
on the date of incident the informant was
willing to meet him. They met for
sometime but in the meantime on account
of another engagement of Haseeb, he told
the informant that they shall meet another
day. However, after sometime on the same
day at about 10:45 p.m. Haseeb again rang
the informant to meet her but she told that
she was returning back to home with her
father, therefore, she was unable to meet
and told that if he was behind the car of the
informant would not overtake as his father
is with her. Thereafter, Haseeb returned
back to his home.

8. Referring the aforesaid statement,
learned counsel for the applicant has
submitted
that
Haseeb
might
have
conspired to kill the deceased for the reason
that father of the informant was not happy
for the relation of the informant with the
Haseeb. Therefore, he should have been
made either accused or one of the witnesses
but nothing was done for the reason best
know to the prosecution.

9. Ms. Samidha, learned counsel for
the applicant has referred para-32 of the
supplementary affidavit wherein it has been
indicated that all the private witnesses have
been examined and only the police officials
are left to be examined, as such, the present
applicant may be granted bail as he would
not be in a position to affect the trial in any
manner whatsoever.

10. Ms. Samidha, learned counsel for
the applicant has lastly contended that the
present applicant is in jail since 02.03.2016
i.e. almost about four years and nine
months period have passed, therefore, he
may be enlarged on bail on the ground of
long period of incarceration in the jail.

11. Per contra, learned Additional
Government Advocate has opposed the
second bail application by submitting that
since no fresh grounds after rejection of the
first bail application have been taken,
therefore, the present applicant may not be
granted bail. He has also submitted that the
bail may not be granted on the grounds so
raised by the learned counsel for the
applicant that all the material witnesses
including eye witness have been examined
and there is no possibility of winning over
or tampering the prosecution witnesses, for
the reason that in the present case the eye
witness has not turned hostile and all other
witnesses have supported the prosecution
12 All. Dr. Naimish Trivedi (Second Bail) Vs. State of U.P.
253
case and considering the allegations made
against the present applicant that he hired
professional killers to eliminate the father
of the informant (now deceased), therefore,
the applicant may not be granted bail. He
has also submitted that the relevant
material e.g. the telephonic calls and the
conversations of present applicant with the
accused-persons have been filed before the
trial
court,
therefore,
those
material
evidence shall be examined by the learned
trial court strictly in accordance with law.

12. Learned Additional Government
Advocate has also submitted that without
the actual change in the circumstances after
rejection of the first bail application, the
second bail application would be deemed to
be seeking review of the earlier order,
which is not permissible under law. He has
also submitted that it has been the view of
Hon'ble Supreme Court as well as this
Court
that
mere
long
period
of
incarceration in jail by itself will not make
out a case for grant of any indulgence,
therefore, taking into consideration the
facts and circumstances of the present case
and gravity of the offence, the present
applicant may not be enlarged on bail on
the ground of long period of incarceration
in jail.

13. Sri Arun Sinha, learned counsel
for
the
complainant
has
vehemently
opposed the second bail application by
submitting that golden rule for maintaining
the second bail application is that it can
only be entertained when some fresh
grounds or events have come up after the
disposal of the first bail application. The
hearing of the second bail application is not
the review of the order which was passed
on merit. He has further submitted that the
law is settled that if the second bail
application is entertained on the grounds
which were already existed, it will create
no ending process and even, the day if the
bail application is rejected, the second bail
application will be moved and in that case
the precious time of the court will
unnecessarily be wasted. He has drawn
attention of this Court towards the order
dated 07.10.2016, the rejection order of
first bail application, whereby almost all
the grounds so taken by the learned counsel
for the applicant by filing the second bail
application
have
been
considered
thoroughly e.g. the factum of agreement to
sale; motive; role of Haseeb; statement of
the co-accused; call details/ record and
telephonic conversation etc. Even the
charge-sheet was filed on 27.05.2016 and
the first bail application has been rejected
thereafter on 07.10.2016. Therefore, as
submitted by Sri Sinha, in the absence of
raising fresh grounds or events those might
have been emerged after disposal of the
first bail application, this second bail
application may not be entertained and may
therefore be rejected.

14. Sri Arun Sinha, learned counsel
for the complainant has drawn attention of
this Court towards Annexure No.CA-1 to
the counter affidavit, which is a deed i.e.
agreement to sale. The internal page 3 of
agreement to sale indicates that one cheque
worth
Rs.51:00
lacs
vide
Cheque
No.792599 dated 11.04.2015 has been paid
as advance to the present applicant by the
deceased in consideration to the property in
question which was to be purchased in
worthy Rs.7:50 crores. Thereafter, he has
drawn attention of this Court towards
Annexure No.-CA-18 to the counter
affidavit, which is a bank details of the
deceased, which indicates that the same
cheque worth Rs.51:00 lacs was debited
from the account of the deceased for the
present applicant. Not only the above,
254 INDIAN LAW REPORTS ALLAHABAD SERIES
another cheque of Rs.25:00 lacs was given
to the present applicant and the said amount
of Rs.25:00 lacs was also debited from the
account of the deceased for the present
applicant.

15. Sri Sinha has further submitted
that besides the aforesaid amount, Rs.8:00
lacs, Rs.4:00 lacs, Rs.10:00 lacs, Rs.15:00
lacs, Rs.10:00 lacs and Rs.10:00 lacs
respectively have been given to the present
applicant by the deceased through cash
from time to time. Those receipts have
been enclosed with the counter affidavit.

16. Sri Sinha has therefore submitted
that the total Rs.1:33 crores was paid to the
present applicant by the deceased. As per
Sri Sinha, after sometime, as soon as the
deceased
managed
the
remaining
considering amount, he asked the present
applicant to execute the sale-deed in his
favour pursuant to the agreement to sale but
the present applicant refused to execute the
sale-deed by apprising that value of the
house property in question is much more
than Rs.7:50 crores.

17. Sri Sinha has submitted that
having malafide intention and ulterior
motives in his mind to usurp the amount,
which was paid to the present applicant
through cash, he approached the sharp
shooter for eliminating the deceased. There
is no doubt that Rs.76:00 lacs was given to
the present applicant through cheques and
remaining Rs.57:00 lacs was given by cash.
The present applicant was willing to usurp
the said amount which was paid by the
deceased through cash. Not only the above,
during the concurrence of agreement to sale
the present applicant came to know that the
value of his property is more than Rs.8:00
crores, therefore, he was not willing to
execute the sale-deed in favour of the
deceased. Hence, the motives of the present
applicant was clear as submitted by Sri
Sinha.

18. Sri Sinha, learned counsel for the
complainant has drawn attention of this
Court towards other material which was
filed with the counter affidavit however the
said material was available before the
Court at the time of disposal of the first bail
application e.g. conversation details of
Pappu Yadav, whereby the said Pappu
Yadav had
talked
with
the
present
applicant. Besides, so as to verify the voice
of the present applicant with the calls/
conversations filed before the Court in the
form of CD the voice sample of the present
applicant was required and firstly he agreed
to provide his voice sample but later on, he
refused, therefore, the factum of such
refusal would be considered against the
present applicant, as the adverse inference
would be drawn against the present
applicant. Since all these materials have
been considered by this Court while
rejecting the first bail application on
07.10.2026, therefore, there is no need to
discuss those things in detail again.

19. Sri Arun Singh, learned counsel
for the complainant has submitted that the
accused-applicant is delaying the trial for
for no cogent reasons inasmuch as the chief
statement of the informant was recorded on
01.08.2017 and cross-examination has been
completed by the counsel on 27.08.2018.
Thereafter, the trial court had closed the
opportunity of cross-examination of the
accused
two
times,
however,
the
application was moved from the side of the
present
applicant
under
Section
311
Cr.P.C., which was allowed by the trial
court. Further, the chief statement of PW-1
Mrs. Usha Khanna was recorded on
25.09.2017 and after taking adjournment by
12 All. Dr. Naimish Trivedi (Second Bail) Vs. State of U.P.
255
the accused, the cross-examination of the
said witness was completed on 06.01.2018.
He has also submitted that five witnesses
including the eye witness have been
examined and all the witnesses have
supported the prosecution story.

20. Sri Arun Sinha, learned counsel
for the complainant has referred the
judgment of Hon'ble Supreme Court dated
18.01.2005 in re:- Kalyan Chandra Sarkar
vs. Rajesh Ranjan @ Pappu Yadav & Anr.
delivered in Appeal (Crl.) 1129 of 2004,
whereby the Hon'ble Supreme Court has
held that the second bail application can
only be entertained if there are fresh
grounds or events which have been
emerged after disposal of the first bail
application. The Hon'ble Supreme Court
has turned down the plea of the period of
long incarceration in jail by observing that
"this Court held since the above factors go
to the root of the right of the accused to
seek bail, non consideration of the same
and grant of bail solely on the ground of
long incarceration vitiated the order of the
High Court granting bail."

21. The Division Bench of this Court
in Criminal Appeal No.3495 of 2009;
Anees Miya vs. State of U.P. has turned
down the plea of long incarceration in jail.
In the case of Anees Miya (supra), the
appellant was in jail since 17.07.2007 and
at the time of final disposal of the aforesaid
case by the Division Bench of this Court
vide order dated 25.04.2018, about 11 years
period had lapsed but this Court referring
the various dictums of Hon'ble Supreme
Court and this Court has held that mere
long detention in jail does not entitle a
convict of bail pending appeal.

In the case of Anees Miya
(supra), the Division Bench of this Court
has held that "however, the fact remains
that the Hon'ble Supreme Court in a
number of cases has taken a consistant
view
that
ignoring
the
facts
and
circumstances of the case mere long
period of incarceration in jail by itself will
not make out a case for grant of any
indulgence." Referring the judgment of
Hon'ble Supreme Court in re: Rajesh
Ranjan Yadav vs. CBI through its
Director reported in 2007 (1) SCC 70;
some portion thereof has been narrated as
under:-

"...... None of the decisions cited
can be said to have laid down any absolute
and unconditional rule about when bail
should be granted by the Court and when it
should not. It all depends on the facts and
circumstances of each case and it cannot
be said there is any absolute rule that the
mere fact that the accused has undergone a
long period of incarceration by itself would
entitle him to be enlarged on bail."

In the case of Anees Miya
(supra), the judgment of Hon'ble Supreme
Court in re: Pramod Kumar Saxena vs.
Union of India and others reported in
2008 (63) ACC 115 has been quoted
whereby the Hon'ble Supreme Court has
held
that
"mere
long
period
of
incarceration in jail would not be per se
illegal. If the accused has committed an
offence, he has to remain behind bars.
Such detention in jail even as an under
trial prisoner would not be violative of
Article 21 of the Constitution."

22. The Hon'ble Supreme Court in re:
State of Madhya Pradesh vs. Kajad vide
judgment dated 06.09.2001 in Appeal
(Crl.) 907 of 2001 has held as under:-

"It has further to be noted that the
factum of the rejection of his earlier bail
application bearing Misc. Case No.2052 of
256 INDIAN LAW REPORTS ALLAHABAD SERIES
2000 on 05.06.2000 has not been denied by
the respondent. It is true that successive
bail applications are permissible under the
changed circumstances. But without the
change in the circumstances the second
application would be deemed to be seeking
review of the earlier judgment which is not
permissible under criminal law as has been
held by this Court in Hari Singh Mann v.
Harbhajan Singh Wajwa & Anr (2001 (1)
SCC 169] and various other judgments."

23. In view of the above, learned
Additional Government Advocate as well
as Sri Arun Sinha, learned counsel for the
complainant
have
submitted
with
vehemence that since no fresh grounds or
events have come up after disposal of the
first bail application and none of the
witnesses have turned hostile rather those
witnesses have supported the prosecution
case and the trial in question is reaching to
complete, therefore, the present applicant
may not be granted bail. They have also
submitted that the submission of learned
counsel for the applicant in respect of long
period of incarceration in jail i.e. about four
years and nine months may not be
sufficient in view of the dictums of Hon'ble
Supreme Court as well as of this Court as
cited above, therefore, the present second
bail application may be rejected.

24. Having heard learned counsel for
the parties and having perused the material
available on record, I am of the considered
opinion that in the light of the settled
proposition of law for filing second bail
application, there is no merit in the
submissions of learned counsel for the
applicant inasmuch as no fresh grounds or
events have been raised which are emerged
after disposal of the first bail application.
As a matter of fact, all the grounds taken in
the second bail application and material
shown to the Court, have already been
considered by this Court while rejecting the
first bail application on 07.10.2016. So far as
the submission on the point of long period of
incarceration in jail is concerned, I am of the
view that in the light of the facts and
circumstances of the issue in question such
ground is not tenable in the eyes of law. It is
made clear that I am not expressing my
opinion on merits of the case as I have only
considered the merit of the second bail
application. It is clarified that my aforesaid
observation
shall
not
affect
the
trial
proceedings in any manner whatsoever as the
learned trial court shall not take any adverse
inference out of my aforesaid observations
while conducting and concluding the trial.

25. Since the learned counsel for the
parties have submitted that all the relevant
witnesses have already been examined
including the eye witness and only the
police officials etc. are left to be examined,
therefore, I hereby direct the learned trial
court to conclude the trial expeditiously,
preferably within a period of six months by
fixing short dates and ensuring the
remaining witnesses to be examined at the
earliest. While ensuring the witnesses to be
examined, the coercive steps as prescribed
under the law may be adopted keeping in
view the guidelines issued from time to
time to meet out the situation of Covid-19,
if any witness deliberately avoids the trial
proceedings. In any case, the trial shall be
concluded by 31st of May, 2021.

26. Accordingly, the instant second
bail application stands rejected.
----------
(2020)12ILR A257
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.12.2020

BEFORE