# Fayanath Yadav v. State of U.P. Opp. Party

- **Citation:** (2022) 8 ILRA 463
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-29
- **Case number:** Crl. Misc. Bail Appl. No. 7404 of 2022
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/fayanath-yadav-v-state-of-u-p-opp-party-48846
- **Pages:** 7

## Headnote

G.A.

A. Long Detention and Delay in Trial- If the
accused perso is in jail for substantially long
period and there is no possibility to conclude the
trial in near future, the bail application may be
considered.

Bail Application allowed. (E-12)

List of Cases relied upon:-

## Text

8 All. Fayanath Yadav Vs. State of U.P.
463
(2022) 8 ILRA 463
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 29.07.2022

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Crl. Misc. Bail Appl. No. 7404 of 2022

Fayanath Yadav ...Applicant
Versus
State of U.P. ...Opp. Party

Counsel for the Applicant:
Ramakar Shukla, Ashish Kumar, Ravindra Gupta

Counsel for the Opp. Party:
G.A.

A. Long Detention and Delay in Trial- If the
accused perso is in jail for substantially long
period and there is no possibility to conclude the
trial in near future, the bail application may be
considered.

Bail Application allowed. (E-12)

List of Cases relied upon:-

1. U.O.I. Vs K.A. Najeeb, AIR 2021 Supreme
court 712

2. Paras Ram Vishnoi Vs The Director, CBI,
[Criminal Appeal No. 693 of 2021 (Arising out of
SLP (Crl) No. 3610 of 2020)]

3. Saudan Singh Vs St. of U.P., [Criminal Appeal
No. 308 of 2022 (Arising out of SLP (Crl) No.
4633 of 2021)]

4. Brijesh Kumar @ Ramu Vs St. of U.P.,
[Criminal Appeal No. 540 of 2022 (SC)]

5. Vipul Vs St. of U.P., [SLP (Crl) No. 3114 of 2022]

6. Suleman Vs St. of U.P., [Criminal Appeal No.
491 of 2022 (SC)]

7. Kamal Vs St. of Har., 2004 (13) SCC 526

8. Takht Singh Vs St. of M.P., 2001 (10) SCC 463
(Delivered by Hon'ble Shamim Ahmed, J.)

1. This case is taken up in the revised
call.

2. Heard Sri Ramakar Shukla, learned
counsel for the applicant as well as Sri
Anirudha Singh, and Sri Shiv Ram Singh,
learned A.G.A.-I for the State and perused
the record.

3. The applicant, Fayanath Yadav,
has moved this fourth bail application
seeking bail in Case Crime 381/2011, under
Sections 498-A, 304B I.P.C. and Section
3/4 Dowry Prohibition Act, Police Station
Kurebhar, District Sultanpur.

4. This fourth bail application has
been placed before this regular Bench in
the light of Hon'ble The Chief Justice's
order dated 13.11.2018.

5. Learned counsel for the applicant
has submitted that the applicant is innocent
and has been falsely implicated in the
present case. He further submits that the
applicant has almost completed more than
eleven years in incarceration, but till date
the trial of this case has not been
concluded.

6. Learned counsel for the applicant
further submits that the F.I.R. was lodged
on 23.05.2011 and the applicant is named
in the F.I.R. along with other co-accused
persons and during investigation the
complicity of four co-accused persons was
not found, as such they were exonerated by
the Investigating Officer. He further
submits that there is no overt act assigned
to the accused applicant and the allegation
that the deceased was beaten in-front of
464 INDIAN LAW REPORTS ALLAHABAD SERIES
villagers and was taken around the village
is not supported by any independent
witness
of
the
village.
The
entire
prosecution story developped in the F.I.R.
is false and fabricated with the intention to
falsely implicate the applicant and his
relatives.

7. Learned counsel for the applicant
further submits that the mother of the
applicant, namely, Smt. Kesh Pati was
already granted bail by this Court vide
order dated 13.09.2011 passed in Bail No.
6355 of 2011, but the applicant is
languishing in jail since 01.06.2011 and his
first bail application was rejected by
Hon'ble Mr. Justice Ashok Pal Singh (now
retired) vide order dated 27.05.2013 passed
in Bail Application No. 5793/2012. The
order dated 13.09.2011 is being reproduced
as under:

"List revised.

None present for the petitioner.

This bail application is rejected for
want of prosecution."

8. Learned counsel for the applicant
further submits that thereafter the applicant
has moved second bail application, which
was also rejected by Hon'ble Mr. Justice
Surendra Vikram Singh Rathore (now
retired) vide order dated 27.08.2015 passed
in Bail Application No. 8318/2014 and
while rejecting the second bail application,
Hon'ble Court however directed the trial
court to expedite the trial strictly adhering
to the provisions of Section 309 Cr.P.C.
The order dated 27.08.2015 is being
reproduced as under:

"Heard learned counsel for the
applicant, learned A.G.A. and perused the
record.

The applicant is involved in Case
Crime No. 381 of 2011, under Sections
498-A & 304-B I.P.C. and Section 3/4 of
the Dowry Prohibition Act, Police Station
Kurebhar, District Sultanpur.

It is a case of dowry death. The
applicant is the husband of the deceased.
The victim died an unnatural death within a
very short span of time after her marriage
i.e. about one year. There is specific
allegation of demand of dowry and
consequential ill treatment.

Submission of learned counsel for the
applicant is that the victim had committed
suicide by pouring kerosene oil on her and
the applicant made an effort for her rescue
due to which he also received burn injuries.
It is further submitted that in this case some
other family members were also arrayed as
accused
persons,
however,
during
investigation, their involvement was found
to be false.

Learned A.G.A. has opposed prayer
for bail.

Perusal of the record shows that the
incident had taken place in the intervening
night of 22/23-5-2014 and the applicant
was medically examined after about eight
days of the incident on 1.6.2014. During
this period he remained absconding.

It is further submitted on behalf of the
applicant that there is no dying declaration
of the deceased.

Had there been any dying declaration,
then the accused applicant would have
been charge sheeted under Section 302
I.P.C.

Learned counsel for the applicant has
informed the Court that PW-1 complainant
has been examined during trial but his
cross examination is not yet concluded.

Cross examination has to be done on
behalf of the accused himself and not on
behalf of the prosecution. It appears that
8 All. Fayanath Yadav Vs. State of U.P.
465
the applicant himself is delaying the
disposal of the trial.

Keeping in view the short period
within which the victim died an unnatural
death and suffered cruelty in connection
with demand of dowry, no case for bail is
made out. Bail application is accordingly
rejected as the husband is the main accused
in such nature of cases.

However, the trial court is hereby
directed to expedite the trial strictly
adhering to the provisions of Section 309
Cr.P.C. "

9. Learned counsel for the applicant
further submits that there was a specific
direction of this Court to expedite the trial
but the trial of the case was not concluded
for three year. Thereafter, the applicant
again moved the third bail application,
which was also rejected by Hon'ble Mr.
Justice Anant Kumar (now retired) vide
order dated 25.07.2019 passed in Bail
Application No. 3860/2018 with the
direction that the trial court is directed to
expedite the trial and take proper coercive
steps against the witnesses to ensure that
the trial will be concluded preferably
within a period of six months. The order
dated 25.07.2019 is being reproduced as
under:

"This is the third bail application. The
first bail application being Bail No.5793 of
2012 was rejected for want of prosecution.
The second bail application being Bail
No.8318 of 2014 was rejected on merits.

Supplementary affidavit filed today is
taken on record.

Heard
learned
counsel
for
the
applicant, learned A.G.A. for the State and
perused the record.

The present bail application has been
filed by the applicant in Case Crime
No.381/2011, under Sections 498A, 304B
I.P.C. & Section 3/4 D.P. Act, Police
Station - Kurebhar, District - Sultanpur.

As an additional ground, it is stated by
learned counsel for he applicant that the
applicant is in jail since 2011 and the trial
has not yet been concluded. It is also stated
that during course of trial, statement of two
witnesses has been recorded but they have
not stated specifically about the demand of
dowry.

Opposing the bail, learned A.G.A. has
stated that the mother of the deceased
Sumita has been examined as PW.1 before
the trial court. She has clearly stated that
even before the occurrence the deceased
was badly beaten by the inlaws and the
present applicant. She was roamed around
the village. Her clothes were also torn. The
death has been caused by burning.
Kerosene oil was poured upon her and put
her to fire.

All these facts have already been
considered by the court while considering
the second bail application. The trial is in
progress. There is no good ground for
granting bail.

Accordingly, the bail application is
rejected.

The trial court is directed to expedite
the trial and take proper coercive steps
against the witnesses to ensure that the
trial will be concluded preferably within a
period of six months. "

10. Learned counsel for the applicant
further submits that more than three years
have been passed after the rejection of the
third bail, but the trial of the present case
till date has not been concluded and as per
information received out of 18 prosecution
witnesses only 06 prosecution witnesses
have been examined till date. He further
submits that there is a clear cut direction of
this Court to expedite the trial of the case
and the time prescribed by this Court i.e.
466 INDIAN LAW REPORTS ALLAHABAD SERIES
six months have already been expired and
more than 11 years have been passed from
the date of detention of the applicant, but
the trial of the present case has been yet
been concluded and further submits that it
will take much time for conclusion of trial.
Therefore, in the light of the dictum of the
Hon'ble Apex Court in re; Union of India
vs. K.A. Najeeb reported in AIR 2021
Supreme Court 712 and Paras Ram
Vishnoi
vs.
The
Director,
Central
Bureau
of
Investigation
passed
in
Criminal Appeal No.693 of 2021 (Arising
out of SLP (Crl) No.3610 of 2020),
wherein it has been held that if the accused
person is in jail for substantially long
period and there is no possibility to
conclude the trial in near future, the bail
application may be considered. Besides,
learned counsel for the applicant has
referred the 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 and they were entitled for bail.
Para-16 of the case K.A.Najeeb (supra) is
being reproduced here-in-below:-

"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."

11. The Apex Court in the case of
Paras Ram Vishnoi (supra) has observed
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."

12. Learned counsel for the applicant
has also placed reliance on the latest order
of the Supreme Court dated 25th February,
2022 in Criminal Appeal No.308/2022
(Saudan Singh vs. State of UP) arising
out of SLP (Crl) No.4633 of 2021. The
relevant part of the order is reproduced
herein below:-

"We have put to learned AAG and the
learned counsel for the High Court that a
list should be prepared of all cases where
the person has served out a sentence of 14
years, is not a repeat offender, and in any
case if in these cases at one go bail can be
granted and cases remitted for examination
under the Uttar Pradesh Prisoners Release
on Probation Rules, 1938. In all these
8 All. Fayanath Yadav Vs. State of U.P.
467
cases, there is a high possibility that if these
people are released, they may not be even
interested in prosecuting their appeals.

The second category of cases can be
one where the person has served out more
than 10 years of sentence. In these cases
also at one go bail can be granted unless
there are any extenuating circumstances
against him.

We are quite hopeful that the High
Court will adopt the aforesaid practice and
thus prevent the Supreme Court to be
troubled with such matters"

Similar view has also been reiterated
by Hon'ble the Apex Court in Brijesh
Kumar @ Ramu v. State of U.P.,
Criminal Appeal No. 540 of 2022 in its
judgment dated 01.04.2022 and in Vipul
Vs. State of U.P., Special Leave to Appeal
(Crl) No (s). 3114 of 2022 in its judgment
dated 08.04.2022 and in Suleman Vs.
State of U.P., Criminal Appeal No.
491/2022 in its judgment dated 09.05.2022.

13. Learned counsel for the applicant
has also placed reliance of Hon'ble Apex
Court judgment in the case of Kamal Vs.
State of Haryana, 2004 (13) SCC 526 and
submitted that the Hon'ble Apex Court was
pleased to observe in paragraph no. 2 of the
judgment as under :-

"2. This is a case in which the
appellant has been convicted u/s 304-B of
the India Penal Code and sentenced to
imprisonment for 7 years. It appears that
so far the appellant has undergone
imprisonment for about 2 years and four
months. The High Court declined to grant
bail pending disposal of the appeal before
it. We are of the view that the bail should
have been granted by the High Court,
especially having regard to the fact that the
appellant has already served a substantial
period
of
the
sentence.
In
the
circumstances, we direct that the bail be
granted to the appellant on conditions as
may be imposed by the District and
Sessions Judge, Faridabad."

14. Learned counsel for the applicant
has also placed reliance of Hon'ble Apex
Court judgment in the case of Takht Singh
Vs. State of Madhya Pradesh, 2001 (10)
SCC 463, and submitted that the Hon'ble
Apex Court was pleased to observe in
paragraph no. 2 of the judgment as under:-

"2.
The
appellants
have
been
convicted under Section 302/149, Indian
Penal Code by the learned Sessions Judge
and have been sentenced to imprisonment
for life. Against the said conviction and
sentence their appeal to the High Court is
pending. Before the High Court application
for suspension of sentence and bail was
filed but the High Court rejected that
prayer
indicating
therein
that
the
applicants can renew their prayer for bail
after one year. After the expiry of one year
the second application was filed but the
same has been rejected by the impugned
order. It is submitted that the appellants
are already in jail for over 3 years and 3
months. There is no possibility of early
hearing of the appeal in the High Court. In
the aforesaid circumstances the applicants
be released on bail to the satisfaction of the
learned Chief Judicial Magistrate, Sehore.
The appeal is disposed of accordingly."

Learned counsel for the applicant
further submits that ratio of law applicable
in aforesaid cases is also applicable in the
case of the applicant, therefore, the
applicant be enlarged on bail by this Court
sympathetically.

15.

Several
other
submissions
regarding legality and illegality of the
allegations made in the F.I.R. have also
468 INDIAN LAW REPORTS ALLAHABAD SERIES
been placed forth before the Court. The
circumstances which, according to the
counsel, led to the false implication of the
accused, have also been touched upon at
length. It has been assured on behalf of the
applicant that he is ready to cooperate with
the process of law and shall faithfully make
himself available before the court whenever
required and is also ready to accept all the
conditions which the Court may deem fit to
impose upon him. The applicant undertakes
that in case he is released on bail he will
not misuse the liberty of bail and will
cooperate in trial. It has also been pointed
out that the applicant is not having any
criminal history.

16. Sri Aniruddh Singh, learned
A.G.A. opposed the prayer for bail, but
does not dispute this fact that till date as per
information furnished by the Investigating
Officer, out of 18 prosecution witnesses
only 06 prosecution witnesses have been
examined, which is also mentioned in para
21 of the counter affidavit filed by the State
and also does not dispute this fact that the
applicant is languishing in jail since
01.06.2011 and has completed more than
11 years in incarceration.

17. After perusing the record in the
light of the submissions made at the Bar
and after taking an overall view of all the
facts and circumstances of this case, at the
very outset, this Court anguish towards the
poor progress of trial, the trial must have
been concluded by now and the learned
trial court is having powers to take coercive
method to conclude the trial and also armed
with the provisions of Section 309 Cr.P.C.,
therefore,
this
Court
is
unable
to
comprehend as to how there is no good
progress in the trial, the nature of evidence,
the period of detention already undergone,
the unlikelihood of early conclusion of trial
and also the absence of any convincing
material to indicate the possibility of
tampering
with
the
evidence,
and
considering that applicant is in jail since
01.06.2011 and has completed more than
11 years in incarceration and the trial has
not yet been concluded and out of 18
witnesses only 06 witnesses have been
examined as per the counter affidavit filed
by the State as well as considering the
larger mandate of the Article 21 of the
Constitution of India and the law laid down
by the Hon'ble Apex Court in the cases of
Saudan
Singh's
case
(supra)
and
Suleman (supra), K.A. Najeeb (supra),
Paras
Ram
Vishnoi
(supra),
Gokarakonda Naga Saibaba (supra),
Kamal (supra), Takht Singh (supra) and
Dataram Singh vs. State of U.P. and
another, reported in (2018) 3 SCC 22, this
Court is of the view that the applicant may
be enlarged on bail.

18. The prayer for bail is granted. The
application is allowed.

19. Let the applicant, Fayanath
Yadav, involved in Case Crime 381/2011,
under Sections 498-A, 304B I.P.C. and
Section 3/4 Dowry Prohibition Act, Police
Station Kurebhar, District Sultanpur, be
enlarged on bail on his executing a personal
bond and two sureties each in the like
amount to the satisfaction of the court
concerned on the following conditions :-

(i) The applicant will not make any
attempt to tamper with the prosecution
evidence in any manner whatsoever.

(ii) The applicant will personally
appear on each and every date fixed in the
court below and his personal presence shall
not be exempted unless the court itself
deems it fit to do so in the interest of
justice.
8 All. Alok Vs. State of U.P. & Ors.
469

(iii) The applicant shall cooperate in the
trial
sincerely
without
seeking
any
adjournment.

(iv) The applicant shall not indulge in
any criminal activity or commission of any
crime after being released on bail.

(v) In case, the applicant misuses the
liberty of bail 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.

(vi) 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 default of this condition is
deliberate or without sufficient cause, then it
shall be open for the trial court to treat such
default as abuse of liberty of his bail and
proceed against him in accordance with law.

(vii) The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad or certified copy issued from the
Registry of the High Court, Allahabad.

(viii) The concerned Court/ Authority/
Official shall verify the authenticity of such
computerized copy of the order from the
official website of High Court Allahabad and
shall make a declaration of such verification
in writing.

20. It may be observed that in the event
of any breach of the aforesaid conditions, the
court below shall be at liberty to proceed for
the cancellation of applicant's bail.

21. It is clarified that the observations,
if any, made in this order are strictly
confined to the disposal of the bail
application and must not be construed to
have any reflection on the ultimate merit of
the case.

22. Being a peculiar case, the trial
court is directed to conclude the trial of this
case preferably, within a period of four
months from today without granting any
unnecessary adjournment to either parties
except there is any legal impediment or
order of higher Court.
----------
(2022) 8 ILRA 469
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.07.2022

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Crl. Misc. Bail Appl. No. 15184 of 2021

Alok ...Applicant
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicant:
Manoj Kumar Misra, Awadhesh Kumar Misra,
Pawan Kishor Mishra

Counsel for the Opp. Parties:
G.A., Hemant Kumar Mishra

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 319 since it is a
discretionary power given to the Court under
Section 319 Cr.P.C. and is also an extraordinary
one, same has to be exercised sparingly and
only in those cases where the circumstances of
the case so warrants. The degree of satisfaction
is more than the degree which is warranted at
the time of framing of the charges against
others in respect of whom chargesheet was
filed. Only where strong and cogent evidence
occurs against a person from the evidence led
before the Court that such power should be
exercised. It is not to be exercised in a casual or
a cavalier manner. The prima facie opinion