# Jaikun Nisha v. State of U.P

- **Citation:** (2024) 9 ILRA 24
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-02
- **Case number:** Criminal Misc. Bail Application No. 2737 of 2024
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jaikun-nisha-v-state-of-u-p-52582
- **Pages:** 7

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 498-A, 304-B, 302 & 201 - Dowry
Prohibition Act, 1961 - Section 3⁄4 - Code
of Criminal Procedure, 1973 - Section 309
- Second Bail - Ground - Subsequent to
rejection
of
first
bail
application
of
applicant, informant (P.W.-1) has not
supported
cross-examination
and
her
husband (P.W.-2) has been declared
hostile
-
Accused
persons
harassed
informant's daughter by demanding dowry
- On 29.07.2022, her son-in-law told her
that her daughter had ran away from
home at 12:00 in night - Six days
thereafter, her dead-body was recovered
from septic tank situated adjacent to
accused persons' house. (Para 3, 4)

Held, a perusal of St.ment of P.W.-1
recorded on 18.10.2023 and continued till
07.08.2024 shows that she supported
prosecution case but on last date i.e.
07.08.2024, she took u-turn and started
supporting accused - PW-2 was examined
and turned hostile - This prima facie
indicates that long period of about 10
months spent in recording St.ment of PW1, gave an opportunity to accused persons
to influence prosecution witnesses - Thus,
no case for grant of bail to applicant.
(Para 10, 12)

Bail application rejected. (E-13)

List of Cases cited:

## Text

24 INDIAN LAW REPORTS ALLAHABAD SERIES
administration
without
following
due
process of law. The said proceedings were
challenged by the Petitioner by filing WritC 5623 of 2024 wherein this Hon'ble Court
has been pleased to stay the proceedings
vide order dated 26.06.2024.

During this period, the impugned FIR
was lodged U/s. 420, 425, 468, 467, 471 and
120-B of IPC on 01.11.2023 at PS- Kotwali,
Barabanki. However, the Applicant is not named
in the FIR, but, in the name of investigation he
has been called several times for interrogation
by the investigating agency, and therefore, there
is an apprehension for arrest. Hence this
Anticipatory Bail."

Learned A.G.A. has opposed the
contention of learned counsel for the applicant .

Learned counsel for the applicant
undertakes that applicant will cooperate in the
investigation.

Learned Addl. Government Advocate
prays for and is granted two weeks' time to file
counter affidavit.

List on 20.09.2024.

Considering the above aspect of the
matter, perusal of the record as well as the fact
that civil suit is pending between the parties
before the competent civil court, Barabanki
prima facie dispute appears to be civil in nature
and the applicant is undertaking to cooperate in
the investigation as also the judgment of Apex
Court passed in Sushila Aggarwal and others
versus State (NCT of Delhi) and another (2020)5
SCC 1, it would be appropriate to grant interim
protection to the applicant under Section 438
Cr.P.C.

Till the next date of listing, it is
provided that in the event of arrest, the
applicant-Dr. Vinay Kumar Jain shall be
released on bail on his furnishing a personal
bond and two sureties of the like amount to the
satisfaction of the arresting officer/I.O./S.H.O.
concerned.

The applicant shall cooperate in the
investigation and he will not influence the
witness. The accused-applicant will remain
present
as
and
when
the
arresting
officer/I.O./S.H.O.
concerned
call(s)
for
investigation/interrogation. The applicant shall
not leave India without previous permission of
the Court.

In case of default, it would be open for
the investigating agency to move application for
vacation of this interim protection. "

4. Learned AGA has submitted that
investigation in the matter is going on, however,
he could not show from the material on record
that the applicant is not cooperating in the
investigation.

5. On due consideration to the fact that
civil suit is pending between the parties and
dispute is civil in nature, there is nothing on
record to show that the applicant is not
cooperating in the investigation; as well
as considering the undertaking given by
the applicant that he will cooperate in
the investigation, the interim protection
granted by this Court vide order dated
29.08.2024 is made absolute in view of
dictum of Apex Court in re: Sushila
Aggarwal Vs. State (NCT of Delhi)-
2020 SCC online SC 98.

6. In view of the aforesaid, the application
is allowed.
----------
(2024) 9 ILRA 24
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 02.09.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Misc. Bail Application No. 2737 of 2024

Jaikun Nisha ...Applicant
Versus
State of U.P. ...Opposite Party
9 All. Jaikun Nisha Vs. State of U.P.
25
Counsel for the Applicant:
Suraj Singh Visen, Aman Kumar Shrivastav

Counsel for the Opposite Party:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 498-A, 304-B, 302 & 201 - Dowry
Prohibition Act, 1961 - Section 3⁄4 - Code
of Criminal Procedure, 1973 - Section 309
- Second Bail - Ground - Subsequent to
rejection
of
first
bail
application
of
applicant, informant (P.W.-1) has not
supported
cross-examination
and
her
husband (P.W.-2) has been declared
hostile
-
Accused
persons
harassed
informant's daughter by demanding dowry
- On 29.07.2022, her son-in-law told her
that her daughter had ran away from
home at 12:00 in night - Six days
thereafter, her dead-body was recovered
from septic tank situated adjacent to
accused persons' house. (Para 3, 4)

Held, a perusal of St.ment of P.W.-1
recorded on 18.10.2023 and continued till
07.08.2024 shows that she supported
prosecution case but on last date i.e.
07.08.2024, she took u-turn and started
supporting accused - PW-2 was examined
and turned hostile - This prima facie
indicates that long period of about 10
months spent in recording St.ment of PW1, gave an opportunity to accused persons
to influence prosecution witnesses - Thus,
no case for grant of bail to applicant.
(Para 10, 12)

Bail application rejected. (E-13)

List of Cases cited:
1. Raj Deo Sharma (II) Vs St. of Bihar: (1999) 7
SCC 604

2. St. of U.P. Vs Shambhu Nath Singh: (2001) 4
SCC 667, (Para 11 to 13)

3. Doongar Singh Vs St. of Raj.: (2018) 13 SCC
741, (Para 8, 10)

4. Ramesh Vs St. of Har.: (2017) 1 SCC 529,
(Para 39, 44, 45)
(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Suraj Singh Visen,
learned counsel for the applicant, Sri
Abhishek Kumar Singh, the learned AGA
for the State and perused the records.

2. This is the second bail application
seeking release of the applicant on bail in
Case Crime No.121 of 2022, under
Sections 498-A, 304-B, 302 and 201 IPC
and 3/4 D.P. Act, registered at Police
Station - Khodhare, District - Gonda.

3. The first bail application of the
applicant bearing No.14638 of 2022 was
rejected
by
means
an
order
dated
22.03.2023. The second bail application
has been moved on the ground that
subsequent to rejection of the first bail
application of applicant, the informant has
been examined as P.W.-1 and her husband
has been examined as P.W.-2. P.W.-1 has
not supported the cross-examination and
P.W.-2 has been declared to be hostile.

4. When this Court perused the
statement of P.W.-1, which was recorded
on 5 dates between 18.10.2023 and
07.08.2024, it appears that in her statement
recorded on 18.10.2023, the informant fully
supported the prosecution case. She stated
that all the accused persons used to harass
her daughter by demanding dowry. On
29.07.2022, her son-in-law Mukeem had
told her that her daughter had ran away
from the home at 12:00 in the night. Six
days thereafter, the dead-body of the
informant's daughter was recovered from a
septic tank situated in front of a Madarasa
adjacent to the accused persons' house. Her
cross-examination
was
recorded
on
21.03.2024, 23.05.2024, 05.06.2024 and
07.08.2024. She supported the prosecution
case till 05.06.2024, on which date she
26 INDIAN LAW REPORTS ALLAHABAD SERIES
stated that she had visited the matrimonial
home of her daughter about one month's
prior to the incident and her daughter had
told her that the accused persons used to
harass
her.
However,
in
her
crossexamination recorded on 07.08.2024, P.W.-
1 turned turtle and started supporting the
accused persons. Statement of P.W.-2 was
recorded thereafter on 27.08.2024 and he
has been declared hostile. Now the
applicant is seeking his release on bail on
this ground after his first bail application
was rejected by a reasoned order.

5. The long period of about 10
months consumed by the trial Court in this
case in recording the statement of PW-1,
during which period PW-1 has sided with
the accused, is very disturbing Crossexamination of prosecution witnesses need
to be recorded on day-to-day basis to avoid
the
possibility
of
witnesses
being
influenced. The statutory provision in this
regard in contained in Section 309 Cr.P.C.,
which is being reproduced below: -

"309. Power to postpone or
adjourn
proceedings.-(1)
In
every
inquiry or trial the proceedings shall be
continued from day-to-day until all the
witnesses
in
attendance
have
been
examined, unless the court finds the
adjournment of the same beyond the
following day to be necessary for reasons
to be recorded:

Provided that when the inquiry or
trial relates to an offence under Section
376, Section 376-A,
Section 376-AB,
Section 376-B, Section 376-C, Section 376D, Section 376-DA or Section 376 - DB of
the Indian Penal Code (45 of 1860), the
inquiry or trial shall be completed within a
period of two months from the date of filing
of the charge sheet.

(2) If the Court, after taking
cognizance
of
an
offence,
or
commencement of trial, finds it necessary
or
advisable
to
postpone
the
commencement of, or adjourn, any inquiry
or trial, it may, from time to time, for
reasons to be recorded, postpone or
adjourn the same on such terms as it thinks
fit, for such time as it considers reasonable,
and may by a warrant remand the accused
if in custody:

Provided that no Magistrate shall
remand an accused person to custody
under this section for a term exceeding
fifteen days at a time:

Provided
further
that
when
witnesses
are
in
attendance,
no
adjournment or postponement shall be
granted, without examining them, except
for special reasons to be recorded in
writing:

Provided
also
that
no
adjournment shall be granted for the
purpose only of enabling the accused
person to show cause against the sentence
proposed to be imposed on him:

Provided also that-

(a) no adjournment shall be
granted at the request of a party, except
where the circumstances are beyond the
control of that party;

(b) the fact that the pleader of a
party is engaged in another Court, shall
not be a ground for adjournment;

(c) where a witness is present in
Court but a party or his pleader is not
present or the party or his pleader though
present in Court, is not ready to examine
or cross-examine the witness, the Court
may, if thinks fit, record the statement of
the witness and pass such orders as it
thinks
fit
dispensing
with
the
examination-in-chief
or
crossexamination of the witness, as the case
may be.
9 All. Jaikun Nisha Vs. State of U.P.
27

Explanation
1.-If
sufficient
evidence has been obtained to raise a
suspicion that the accused may have
committed an offence, and it appears likely
that further evidence may be obtained by a
remand, this is a reasonable cause for a
remand.

Explanation 2.-The terms on
which an adjournment or postponement
may be granted include, in appropriate
cases, the payment of costs by the
prosecution or the accused.
(Emphasis added)

6. In Raj Deo Sharma (II) v. State
of Bihar: (1999) 7 SCC 604, the Hon'ble
Supreme Court stated that "We cannot
permit the trial court to flout the said
mandate of Parliament unless the court has
very cogent and strong reasons. No court
has permission to adjourn examination of
witnesses who are in attendance beyond
the next working day" (emphasis added).

7. In State of U.P. v. Shambhu Nath
Singh: (2001) 4 SCC 667, the Hon'ble
Supreme Court explained the legislative
mandate contained in Section 309 Cr.P.C.
in the following words:

"11. The
first
sub-section
mandates on the trial courts that the
proceedings shall be held expeditiously but
the words "as expeditiously as possible"
have provided some play at the joints and it
is through such play that delay often creeps
in the trials. Even so, the next limb of the
sub-section sounded for a more vigorous
stance to be adopted by the court at a
further advanced stage of the trial. That
stage is when examination of the witnesses
begins. The legislature which diluted the
vigour of the mandate contained in the
initial limb of the sub-section by using the
words "as expeditiously as possible" has
chosen to make the requirement for the next
stage (when examination of the witnesses
has started) to be quite stern. Once the case
reaches that stage the statutory command
is that such examination "shall be
continued from day to day until all the
witnesses
in
attendance
have
been
examined". The solitary exception to the
said stringent rule is, if the court finds that
adjournment "beyond the following day to
be necessary" the same can be granted for
which a condition is imposed on the court
that reasons for the same should be
recorded. Even this dilution has been taken
away when witnesses are in attendance
before the court. In such situation the court
is not given any power to adjourn the case
except in the extreme contingency for
which the second proviso to sub-section (2)
has imposed another condition,

"provided further that when
witnesses
are
in
attendance,
no
adjournment or postponement shall be
granted, without examining them, except
for special reasons to be recorded in
writing".
(emphasis in original)

12. Thus, the legal position is that
once examination of witnesses started, the
court has to continue the trial from day to
day until all witnesses in attendance have
been examined (except those whom the
party has given up). The court has to
record reasons for deviating from the said
course. Even that is forbidden when
witnesses are present in court, as the
requirement then is that the court has to
examine them. Only if there are "special
reasons", which reasons should find a
place in the order for adjournment, that
alone can confer jurisdiction on the court
to adjourn the case without examination of
witnesses who are present in court.

13. Now, we are distressed to
note that it is almost a common practice
28 INDIAN LAW REPORTS ALLAHABAD SERIES
and regular occurrence that trial courts
flout the said command with impunity. Even
when witnesses are present, cases are
adjourned on far less serious reasons or even
on flippant grounds. Adjournments are
granted even in such situations on the mere
asking for it. Quite often such adjournments
are granted to suit the convenience of the
advocate concerned. We make it clear that
the legislature has frowned at granting
adjournments on that ground. At any rate
inconvenience of an advocate is not a
"special reason" for bypassing the mandate
of Section 309 of the Code."

8. This High Court issued a Circular
Letter
No.
20/Admin.
'G-II'
Dated
14.05.2015, which provides as follows: -

In continuation of marginally quoted
Court's earlier Circular Letters and
in the light of Hon'ble Apex Court's
orders passed in the cases of Akil
alias Javed VS. State of NCT of
Delhi, reported in 2012 (11) SCALE
709, in paras 27 to 36: State of UP
Vs. Shambhu Nath Singh and others,
reported in 2001 (4) SCC 667; Raj
Deo Sharma Vs. State of Bihar, 1999
Cr.L.J. 4541 and Lt. Col. SJ.
Chaudhari
Vs.
State
(Delhi)
Administration, (1984) 1 SCC 722, I
am directed to state that the High
Court is noticing disturbing trend in
criminal trials, where Sessions cases
are being adjourned, in some cases
to suit convenience of counsels or
because the prosecution or the
defence is not fully ready and
considers it necessary to draw the
attention of all the Sessions Judges
and Additional Sessions Judges once
again to the provision of Section 309
of the Code of Criminal Procedure,
1973 and directs 73 them to adhere
strictly to these provisions and
instructions
given
below
while
granting adjournment in Sessions
Cases:
1.
C.L.
No.
152/VIII-b13,
28.10.1974
2. C.L. No. 5850/Admn „G‟,
23.11.1992
3.
C.L.
No.
54/VIIb-18,
06.12.2000
4.
C.L.
No.
8/VIIb-18,
07.02.2000
5. C.L. No. C72/1990,
26.07.1990

(1) Trial Judges are reminded of
the need to comply with Section 309 of the
Code in letter and spirit.

(2) In every inquiry or trial the
proceedings shall be held as expeditiously
as possible, and in particular, when the
examination of witnesses has once begun,
the same shall be continued from day to
day until all the witnesses in attendance
have been examined, unless the court finds
the adjournment of the same beyond the
following day to be necessary for reasons
to be recorded: (Section 309 (1) Cr.P.C.]

* * *"

9. In Doongar Singh v. State of
Rajasthan: (2018) 13 SCC 741, the
Hon'ble Supreme Court reiterated that: -

"8. In spite of repeated directions
of this Court, the situation appears to have
remained unremedied. We hope that the
Presiding Officers of the trial courts
conducting criminal trials will be mindful
of not giving such adjournments after
commencement of the evidence in serious
criminal cases. We are also of the view that
it is necessary in the interest of justice that
the eyewitnesses are examined by the
prosecution at the earliest.
* * *

10. To conclude:

10.1. The trial courts must carry
out the mandate of Section 309 CrPC as
reiterated in judgments of this Court, inter
alia, in State of U.P. v. Shambhu Nath
Singh,
(2001)
4
SCC
667, Mohd.
Khalid v. State of W.B.: (2002) 7 SCC 334
and Vinod Kumar v. State of Punjab,
(2015) 3 SCC 220.

10.2. The eyewitnesses must be
examined by the prosecution as soon as
possible.

10.3. Statements of eyewitnesses
should invariably be recorded under
Section 164 CrPC as per procedure
prescribed thereunder."
9 All. Jaikun Nisha Vs. State of U.P.
29

10. A perusal of the statement of
P.W.-1 recorded in this case, which had
commenced on 18.10.2023 and continued
till 07.08.2024 shows that on 18.10.2023,
21.03.2024, 23.05.2024 and 05.06.2024,
P.W.-1 supported the prosecution case but
on the last date i.e. 07.08.2024, she took uturn and started supporting the accused.
PW-2 was examined thereafter and he
turned hostile. This prima facie indicates
that the long period of about 10 months
spent in recording the statement of
prosecution
witness
PW-1
gave
an
opportunity to the accused persons to
influence or win-over the prosecution
witnesses.

11. In Ramesh v. State of Haryana:
(2017) 1 SCC 529, the Hon'ble Supreme
Court expressed its concern about the
culture of witnesses turning hostile, in the
following words: -

"39. We find that it is becoming a
common phenomenon, almost a regular
feature, that in criminal cases witnesses turn
hostile. There could be various reasons for
this behaviour or attitude of the witnesses. It
is possible that when the statements of such
witnesses were recorded under Section 161 of
the Code of Criminal Procedure, 1973 by the
police during investigation, the investigating
officer forced them to make such statements
and, therefore, they resiled therefrom while
deposing in the court and justifiably so.
However, this is no longer the reason in most
of the cases. This trend of witnesses turning
hostile is due to various other factors. It may
be
fear
of
deposing
against
the
accused/delinquent or political pressure or
pressure of other family members or other
such sociological factors. It is also possible
that witnesses are corrupted with monetary
considerations.
* * *

44. On the analysis of various
cases, the following reasons can be
discerned which make witnesses retracting
their statements before the court and
turning hostile:

(i) Threat/Intimidation.

(ii) Inducement by various means.

(iii) Use of muscle and money
power by the accused.

(iv) Use of stock witnesses.

(v) Protracted trials.

(vi)
Hassles
faced
by
the
witnesses during investigation and trial.

(vii) Non-existence of any clearcut legislation to check hostility of witness.

45. Threat and intimidation has
been one of the major causes for the
hostility
of
witnesses.
Bentham
said:"witnesses are the eyes and ears of
justice". When the witnesses are not able to
depose correctly in the court of law, it
results in low rate of conviction and many
times even hardened criminals escape the
conviction. It shakes public confidence in
the criminal justice delivery system. It is for
this reason there has been a lot of
discussion on witness protection and from
various quarters demand is made for the
State to play a definite role in coming out
with witness protection programme, at
least in sensitive cases involving those in
power, who have political patronage and
could wield muscle and money power, to
avert trial getting tainted and derailed and
truth becoming a casualty. A stern and
emphatic message to this effect was given
in Zahira Habibullah Sheikh (5) v. State of
Gujarat, (2006) 3 SCC 374 as well."

12. As the aforesaid facts and
circumstances of the case prima facie
indicate that the prosecution witnesses have
been influenced in the present case, no case
for grant of bail to the applicant is made
out.
30 INDIAN LAW REPORTS ALLAHABAD SERIES

13.

Accordingly,
the
second
application of the applicant is rejected.
----------
(2024) 9 ILRA 30
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.09.2024

BEFORE

THE HON'BLE VIKRAM D. CHAUHAN, J.

Criminal Misc. Anticipatory Bail Application U/S
438 Cr. P.C. No. 6396 of 2024

Rahis Ahmad & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Rajendra Prasad, Sri Vinod Singh

Counsel for the Opposite Parties:
G.A.

Criminal Law - Prevention of Damage to
Public Property Act, 1984 - Sections 3⁄4 -
The Mines and Minerals (Regulation of
Development) Act, 1957 - Sections 4/21 -
Code of Criminal Procedure, 1973
-
Sections 61, 62, 64 & 87 - Bharatiya
Nagarik Suraksha Sanhita, 2023 - Sections
63, 64, 66, 90 - Constitution of India, 1950
- Article 21 - In the instant case,
summoning order has been passed on
15.11.2018 and thereafter on subsequent
dates summons have been directed to be
issued - The case before the court
concerned
travel
for
four
years
for
issuance of summons - Thereafter, on
21.11.2023, order for issuance of nonbailable warrant was passed - As per
report of District Judge, summons were
not
issued
to
accused/applicants
in
pursuance to summoning order. (Para 23)

Held, non - issuance of summons affects
right of accused/applicants to defend
himself/herself by various legal remedies
available to them by challenging said
summoning order or filing application u/s
88 Cr.P.C. or to prefer anticipatory bail
application - Hence, non-bailable warrant
against applicants was issued without
following procedure established by law.
(Para 24, 25)

Bail application allowed. (E-13)

List of Cases cited:

Sushila Aggarwal Vs St. (NCT of Delhi), (2020) 5
SCC 1, (Para 56, 57)

(Delivered by Hon'ble Vikram D. Chauhan, J.)

1. Heard learned counsel for the
applicants as well as learned AGA and
perused the material available on record.

2. The present Anticipatory Bail
Application has been filed with the prayer
to grant anticipatory bail to the applicant -
Rahis Ahmad and Mohammad Arif in Case
No. 4364 of 2024 in Case Crime No. 78 of
2018 under Sections 4/21 of Mine and
Minerals Act and Section 3/4 of Damage to
Public Property Act, Police Station - Swar,
District - Rampur.

3. It is submitted by learned counsel
for the applicants that applicant has not
been served with the summons although the
summoning
order
was
passed
on
15.10.2023. On 21.08.2024 this Court has
passed the following order:-

"1. The present Anticipatory Bail
Application has been filed with the prayer
to grant anticipatory bail to the applicants
Rahis Ahmad and Mohammad Arif in Case
Crime No.78 of 2018, under Section 4/21 of
Mines and Minerals Act and Section 3/4
Damage to Public Property Act, Police
Station Swar, District Rampur.

2. In the present case, summoning
order was issued on 15.10.2023 by the
court concerned. A perusal of the order