# Lakhanshah & Anr v. State of U.P

- **Citation:** (2022) 11 ILRA 29
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-05
- **Case number:** Criminal Misc. IV Bail Application No. 26 of 2022
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lakhanshah-anr-v-state-of-u-p-47814
- **Pages:** 4

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Section - 389 - Criminal Appeal - Bail
Application - during appeal three bail application
were rejected time and again - fourth Bail
application - only on the ground that accused
has entitle for enlargement on bail in the light of
judgment of Saudan Singh's case - no new
grounds
are
alleged
except
period
of
incarceration - accused in jail for more than 10
years - pendency of bail applications adds to the
list of pending bail applications - main matter
could have been heard on merits - but, the over
insistence of counsel to argue the subsequent
30 INDIAN LAW REPORTS ALLAHABAD SERIES
bail application only - in the light of judgment of
the Apex Court i.e. Lav Parasher @ Chinu Case,
court have no other option but to dismissed the
fourth bail application - further, direction to list
the appeal for final hearing. (Para - 11, 12, 16,
17)

Bail Application in appeal rejected. (E-11)

List of Cases cited:

## Text

11 All. Lakhanshah & Anr. Vs. State of U.P.
29

58. It is pertinent to mention here that
the convict/accused is in jail since 16 years.
We are astonished at the way that the State
machinery functions as they have not even
considered the case of the accused after the
14th year is over and thereby the purpose
of Section 433 Cr.P.C., is frustrated which
reads as follows:

"433.
Power
to
commute
sentence. The appropriate Government
may, without the consent of the person
sentenced, commute-

(a) a sentence of death, for any
other punishment provided by the Indian
Penal Code;

(b) a sentence of imprisonment
for life, for imprisonment for a term not
exceeding fourteen years or for fine;

(c)
a
sentence
of
rigorous
imprisonment, for simple imprisonment for
any term to which that person might have
been sentenced, or for fine;

(d)
a
sentence
of
simple
imprisonment, for fine".

59. It was brought to the notice of this
Court that the convict has also a wife and three
children, he is the sole earning member of the
family, hence we deem it fit to substitute his
punishment of life imprisonment to 14 years
as it appears that he has not been even able to
engage any advocate for him. This is the jail
appeal pending since 2007 and very strangely
after 10 years of its filing the matter has been
numbered.

60. Accordingly, the appeal is partly
allowed and the appellant is convicted for
the offence under Section 304 Part-I I.P.C.
and is sentenced to undergo 14 years of
incarceration with remission. We maintain
the fine amount and default sentence. The
default sentence will start after 14 years,
which would also now over.

61. The appellant shall be released
immediately, if not, wanted any other
offence.

62. We are thankful to Shri Ram Lal
Mishra, counsel for the informant, Mr.
Mohd. Furkan Khan, Law Clerk (Trainee),
for ably assisting the Court.
----------
(2022) 11 ILRA 29
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.08.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Criminal Misc. IV Bail Application No. 26 of 2022
In
Criminal Appeal No. 866 of 2010

Lakhanshah & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri P.K. Yadav, Sri A.K. Mishra, Sri Harish
Chandra Tiwari A/C, Sri Noor Mohammad,
Sri P.K. Shukla, Sri P.S. Chauhan, Sri Rajesh
Kumar Singh

Counsel for the Respondent:
Govt. Advocate, Sri Lokendra Pratap Singh

Criminal Law - Criminal Procedure Code,
1973 - Section - 389 - Criminal Appeal - Bail
Application - during appeal three bail application
were rejected time and again - fourth Bail
application - only on the ground that accused
has entitle for enlargement on bail in the light of
judgment of Saudan Singh's case - no new
grounds
are
alleged
except
period
of
incarceration - accused in jail for more than 10
years - pendency of bail applications adds to the
list of pending bail applications - main matter
could have been heard on merits - but, the over
insistence of counsel to argue the subsequent
30 INDIAN LAW REPORTS ALLAHABAD SERIES
bail application only - in the light of judgment of
the Apex Court i.e. Lav Parasher @ Chinu Case,
court have no other option but to dismissed the
fourth bail application - further, direction to list
the appeal for final hearing. (Para - 11, 12, 16,
17)

Bail Application in appeal rejected. (E-11)

List of Cases cited:

1. Saudan Singh Vs St. of U.P. (Criminal appeal
No. 308/2022 decided on 25.02.2022, Supreme
court),

2. Hariom Vs St. of U.P. (Special Leave to Appeal
(Crl.) No. 4545/2022 decided on 18.07.2022),

3. Lav Parasher @ Chainu Vs St. of U.P. Special
Leave to Appeal (Crl.) No. 1891/2022 decided
on 17.05.2022).

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
&
Hon'ble Ajai Tyagi, J.)

1. A projection is made in the country
that bail application of accused-persons
who were in jail for more than 10 years are
not being listed and not being heard in the
High Court of Allahabad.

2. With lot of pain, we mention here
that this is the fourth Bail application filed
by the accused. The third bail application
was filed after the paper book was ready.
The paper book is prepared way back in the
year
2018. The
office
report
dated
11.7.2018 shows that the paper book has
been prepared as per order of the Court.
The case was put up for hearing. On
10.1.2020 on the request of counsel for
appellants, matter was adjourned. On
29.1.2020,
once
again
matter
was
adjourned because of the illness slip of
counsel for appellants, thereafter, the third
bail application was rejected and order
application reads as follows:-

"Put up for hearing in the
additional cause list on 25.2.2020.

This order has been passed in the
presence of Shri Rajesh Kumar Singh,
learned counsel for the appellant and Dr.
S.B. Maurya, learned AGA."

3. Thereafter, again on 25.2.2020,
much after the pandemic set into this
country, the appellants counsels have
absented themselves and Shri Harish
Chandra Tiwari was appointed as amicus
curie.

4. Thereafter, once again Shri Rajesh
Kumar Singh has filed this bail application.

5. We are really at pains to convey to
Shri Rajesh Kumar Singh that he may point
out any single ground except incarceration
and he has argued the bail application as he
is arguing the main matter, namely, that one
of the eye witnesses has not been
examined. There is general rule assigned of
firing. It was a petty offence. It is further
submitted that only interested witnesses
have been examined and it is lastly pointed
out that for a period of 15 years the accused
are in jail.

6. We note that not a single
application was filed for getting the matter
heard.

7. Today, though the matter is in the
caption of cases in which appellants are in
jail for more than 10 years, learned counsel
for appellants is reluctant to argue the main
matter, he has substituted five counsels and,
thereafter, has appeared for both the
accused.
11 All. Lakhanshah & Anr. Vs. State of U.P.
31

8. One more aspect which requires to
be mentioned in this appeal is that despite
the fact that the appeal is listed for hearing,
learned counsel does not permit the Court
to decide the appeal and they claim only to
argue bail application.

9. A situation would arise that the
judgment of Saudan Singh (supra) is placed
press into service in all the matters and the
learned Advocate refuses to argue main
matter though the paper book is ready. A
latter judgment of the Apex Court in
Hariom v State of UP, Petition for
Special Leave to Appeal (Crl.) No.4545
of 2022 decided on 18.7.2022 will not
permit us to grant bail at this juncture as
this is the subsequent bail application. This
tendency
of
filing
bail
application
subsequently despite the fact that earlier
orders for prepare all the paper book, this
would only add to the pendency as after
accused are enlarged on bail. Counsel are
reluctant to argue the matters and statistical
data of Allahabad High Court shows that
matters of the year 1990 are pending where
the accused are on bail, similar would
become the situation in latter part if such
pendency is not sough out, the pendency
would enough come down. In this case
counsel was requested to argue the matter
even he was convey that this Court may
settle with costs as no new grounds are
urged but in consisted that judgment of
Sudan Singh (supra) be pressed into service
and his accused should be enlarged on bail.
We deprecate this practice which is
deprecated by the Apex Court in Hariom
(supra).

10.

The
only
change
in
the
circumstance is change of learned Advocate
and is only wanting to argue for enlargement
bail and press the application for enlargement
on bail on the basis of the judgment of Sudan
Singh (supra).

11. In our case, learned counsel for
accused after getting the bail application
rejected time and again has filed this bail
application, therefore, the judgment in Sudan
Singh (supra) cannot be made applicable to
the facts of the case. A group of matters
cannot be made applicable in the facts of the
case.

12. The pendency of this bail
application adds to the list of pending bail
application though this is subsequent bail
application for enlargement on bail where no
new grounds are alleged except period of
incarceration.

13. The main matter could have been
heard on merits today itself but the over
insistence of counsel to argue the subsequent
bail application shows that the counsel is only
wanting to argue on bail.

14. However, learned counsel insisted
that we should hear the bail application on
merits. The First bail application was rejected
on merits holding that there are litigations
going on and the appellants had fired gunshot
on the deceased and two other persons were
injured equally seriously however, accused
Lakhanshah was released on bail.

15. The matter is ready for final
disposal despite that the counsels in these
matters are not ready to make their
submissions
on
merits
assailing
the
conviction but instead are insisting on
hearing application for enlargement on
accused on bail.

16. We have no other option but to
dismiss this application, we are supported
32 INDIAN LAW REPORTS ALLAHABAD SERIES
our view by subsequent judgment of the
Apex Court in Lav Parasher @ Chinu v.
State of U.P. in Special Leave to Appeal
(Crl.) No.1891 of 2022 decided on
17.05.2022 decided by larger bench, where
this practice of learned Advocates only
insisting for getting the bail application
heard has been deprecated as follows:-

"In the normal course, we would
have granted the relief of bail, especially,
after the petitioner has undergone a
sentence of 12 years. In the facts and
circumstances of the case, where the
petitioner has not shown interest in arguing
the appeal, we are not inclined to interfere
with the order passed by the High Court.
However, taking into account the fact that
the petitioner has undergone incarceration
for more than 12 years, the High Court is
requested
to
dispose
of
the
appeal
expeditiously not later than a period of 3
months from today. In case, the appeal is
not disposed of within the said period,
liberty is granted to the petitioner to renew
his application for bail."

17. The application for enlargement
of the accused on being dismissed bail, this
appeal requires to be listed on 17th of
August, 2022 for final hearing before the
Court taking up such matters.
----------
(2022) 11 ILRA 32
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.11.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 5702 of 2016

Raj Kumar @ Raju ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Krishna Murari Tripathi, Sri Anil Kumar,
Sri Arvind Srivastava, Sri Dinesh Mishra, Sri
Rajrshi Gupta, Sri Rateesh Singh, Sri
Subhash Chandra Yadav, Sri Vimlesh Kumar

Counsel for the Opposite Party:
G.A.

(A) Criminal Law - Criminal Procedure
Code, 1973 - Section - 161 & 313 - Indian
Penal Code, 1860 - Sections 34, 299, 300,
302, 304 Part -I, 304 Part - II, 304(1),
304B & 498 - The Dowry Prohibition Act,
1961 - Sections 2 & 4 - Indian Evidence
Act, 1872 -Section 106 - Criminal Appeal -
Conviction & Sentence - Life imprisonment with
fine - Evaluation of Evidences - offence of
murder & dowry demand - FIR lodged by father
of deceased with allegations that his son-in-law
(accused- appellant) committed offence of
strangulating
the
deceased
for
want
of
demanded of additional dowry - distinction
between 'murder' and 'culpable homicide' - held,
all the ingredients of dowry death u/s 304B IPC
viz.
unnatural
death
of
deceased
by
strangulation
within
seven
years
of
her
marriage, cruelty for demand of dowry by her
husband, the theory of soon before, are proved
beyond reasonable doubt - conviction sustained.
(Para - 17, 30)
(B) Criminal Law - Criminal Procedure
Code, - Sections 161, 313 - Indian Penal
Code, 1860 - Sections 34, 299, 300, 302,
304 Part -I, 304 Part - II, 304(1), 304B &
498, - The Dowry Prohibition Act, 1961 -
Sections - 2 & 4, - Indian Evidence Act, -
Section 106 - Criminal Appeal - Conviction &
Sentence - Life imprisonment with fine -
quantum of punishment - offence of murder &
dowry demand - Awarding sentence cannot be
exercised by arbitrary or whimsically - in the
light of certain judicial pronouncement and
precedents applicable in such matters and
keeping in mind the Principle of proportionality,
gravity of offence, manner of commission of
crime, age and sex of accused - court
considered that, no accused person is incapable
of
being
reformed
in
view
of
criminal