# Pankaj Third Bail Appl v. State of U.P. & Anr. 130 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2022) 4 ILRA 129
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-13
- **Case number:** Criminal Misc. Bail Application No. 1629 of 2020
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pankaj-third-bail-appl-v-state-of-u-p-anr-130-indian-law-reports-allahabad-48412
- **Pages:** 7

## Headnote

A. Constitution of India, 1950 - Article
21 - Under-trials cannot indefinitely be
detained pending trial. (Para 24)

If the trial is being delayed unnecessarily and
for such delay there is no fault on the part of
the accused, rather, it is on the part of the
prosecution and the period of incarceration of
such accused is long, his/her bail application
may be considered subject to his previous
criminal records. (Para 25)

Bail Application Allowed. (E-10)

List of Cases cited:-

## Text

4 All. Pankaj Third Bail Appl. Vs. State of U.P. & Anr.
129

(घ) यि तथ्य सक अपराध सकस़ी सशक्षा
संस्र्था या सामासजक सेवा संकाय में या ऐस़ी संस्र्था या
संकाय के ठ़ीक सनकि या ऐसे अन्य स्र्थान में, सजसमें
सवद्यालय के बालक और छात्र सशक्षा, ि़ीडा और
सामासजक सियाकलापों के सलए आते-जाते िैं, सकया
जाता िै;

(ङ) यि तथ्य सक अपराध़ी संगसठत
अंतरराष्टऱीय या सकस़ी ऐसे अन्य अपराध़ी समूि का िै
जो अपराध करने में लगा हुआ िै ; और

(च) यि तथ्य सक अपराध़ी अपराध करके
सुकर बनाए गए अन्य अवैध सियाकलापों में लगा
हुआ िै।"

17. उपरोक्त उल्लेण्डित सवसधक सवश्लेषण क़ी
पृष्ठिूसम में यि सनधााररत करना िै सक आक्षेसपत
दंडादेश में पाररत कारावास क़ी अवसध व अर्थादंड क़ी
मात्रा को वतामान प्रकरण के तथ्य जैसे घिना का 13
वषा पूवा में काररत िोना, दोनों अप़ीलासर्थायों द्वारा 13
वषा का कारावास व्यत़ीत कर लेना, अप़ीलार्थी
यशपाल क़ी वतामान उम्र कऱीब 37 वषा व अप़ीलार्थी
संजय क़ी वतामान उम्र 52 वषा का िोना तर्था यि ि़ी
ध्यान में रिना िोगा क़ी वतामान प्रकरण में सपकअप
वैन में एक गुि स्र्थान से 100 सकलोग्राम चरस
(वासणिक मात्रा से 99 गुऩी) बरामद क़ी गई र्थ़ी तर्था
यि अपराध एक समासजक अपराध िै तर्था ऐस़ी
स्वापक औषसधयों और मनः प्रिाव़ी पदार्थों के अवैध
व्यापार का समपिरण करने के कडे उपबन्ध करने
के सलए ि़ी 'असधसनयम 1985' असधसनयसमत सकया
गया िै। वतामान प्रकरण में दोनों अप़ीलार्थी ने समान
अपराध काररत सकया िै अतः दोनों को समान
दंडादेश से दण्डित करना चासिये र्था। अप़ीलार्थी
संजय को मात्र इस कारण से सक वो सपक अप वैन का
मासलक िै, अप़ीलार्थी यशपाल से असधक कारावास
क़ी अवसध व असधक अर्थादंड क़ी मात्रा का आदेश
पाररत करने का कोई यर्थोसचत कारण नि़ीं माना जा
सकता।

18. वतामान प्रकरण में अप़ीलासर्थायों को
दोषससण्डद्ध के उपरान्त दस वषा से ब़ीस वषा का
कारावास व अर्थादंड एक लाि रुपये तक तर्था सवशेष
कारण से 2 लाि रुप से असधक ि़ी िो सकता िै परन्तु
सकस़ी ि़ी दशा में एक लाि रुपये से कम नि़ीं िो
सकता िै। अप़ीलासर्थायों को अर्थादि रु0 त़ीन लाि व
रु0 चार लाि सनधााररत करने का कोई सवशेष आधार,
आक्षेसपत आदेश में नि़ीं सदया गया िै।

19. दोनों अप़ीलार्थी अब तक 13 वषा का
कारावास व्यत़ीत कर चुके िैं। जैसा पूवा में उल्लेण्डित
सकया गया क़ी दोनों अप़ीलार्थी समान दंडादेश के
असधकाऱी िै। अतः दोनों अप़ीलार्थीयों द्वारा अबतक 13
वषा का कारावास पूणा सकया जा चुका िै तर्था दोनों
अप़ीलासर्थायों क़ी उम्र को ि़ी ध्यान में रिते हुए एवं इस
अपराध से पूवा कोई और अपराध का इसतिास न िोने
व कारावास में रिते हुए कोई प्रसतकूल सिप्पण़ी का ि़ी
न िोना, ऐसे उसचत कारण िै, जो दंड के सुधारवाद़ी
ससद्धान्त व पूणा में वसणात दिादेश के ससद्धान्तो के
अनुसार व न्यायसित के उद्देश् क़ी प्राण्डि के सलए दोनों
अप़ील सनम्न आदेश के सार्थ सनस्ताररत क़ी जात़ी िै।

आदेश:-

20. अप़ीलार्थी यशपाल ससंि यादव व अप़ीलार्थी
संजय कुमार सवश्वकमाा के सवरुद्ध उपरोक्त वसणात
दोषससण्डद्ध के आदेशों को मान्य करते हुए उपरोक्त
वसणात संबंसधत दंडादेश में पाररत कारावास क़ी अवसध,
उनके द्वारा आज तक व्यत़ीत कारावास क़ी अवसध में
पररवसतात सकया जाता िै तर्था संबंसधत अर्था दंड क़ी
मात्रा को न्यूनतम करते हुए दोनों अप़ीलार्थी पर अलग
अलग एक-एक लाि रुपये का अर्थादि सनधााररत
सकया जाता िै, सजसक़ी अदायग़ी न करने पर दोनों
अप़ीलार्थी को अलग अलग एक-एक वषा का असतररक्त
कारावास िुगतना पडेगा।

21. उपरोक्त वसणात दोनों अप़ील उपरोक्त
आदेशानुसार आंसशक रुप से स्व़ीकार क़ी जात़ी िै।
----------
(2022)04ILR A129
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 13.04.2022

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Criminal Misc. Bail Application No. 1629 of 2020

Pankaj Third Bail Appl. ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties
130 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Applicant:
Shuk Deo Singh, Paritosh Shukla, Ramakar
Shukla

Counsel for the Opposite Parties:
G.A., Shiv Shankar Singh

A. Constitution of India, 1950 - Article
21 - Under-trials cannot indefinitely be
detained pending trial. (Para 24)

If the trial is being delayed unnecessarily and
for such delay there is no fault on the part of
the accused, rather, it is on the part of the
prosecution and the period of incarceration of
such accused is long, his/her bail application
may be considered subject to his previous
criminal records. (Para 25)

Bail Application Allowed. (E-10)

List of Cases cited:-

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

2. Paras Ram Vishnoi Vs The Director, Central
Bureau of Investigation Criminal Appeal No.
693 of 2021

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

4. Saudan Singh Vs The St. of U.P. Criminal
Appeal No. 308 of 2022 (@ SLP (Crl.) No.
4633 of 2021)
(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Ramakar Shukla, learned
counsel for the applicant, learned Additional
Government Advocate for the State and Ms.
Shobha Rajpoot, Advocate holding brief of Sri
Shiv Shankar Singh, learned counsel for opposite
party no.2 i.e. the complainant/informant.

2. Learned Additional Government
Advocate has filed counter affidavit, today
in the Court, the same is taken on record.

3. Learned counsel for the applicant
has filed supplementary affidavit, today in
the Court, the same is taken on record. Sri
Shukla has also filed certified copy of the
F.I.R. and the order-sheet of learned trial
court showing the status of trial on various
dates, the same are also taken on record.

4. This is the third bail application.
The first bail application has been rejected
on 26.02.2015 by Hon'ble Surendra Vikram
Singh Rathore, J. (since retired). The
second bail application has been rejected
on 20.09.2017 by Hon'ble Ravindra Nath
Mishra-II, J. (since retired).

5. The first bail application of the
present applicant was rejected on merits
and the second bail application of the
applicant was rejected on the ground that
no knew facts have been pointed out to
consider the second bail application,
therefore, such bail application has been
rejected.

6. Sri Ramakar Shukla, learned
counsel for the applicant has submitted that
he is cautious about the fact that while
arguing third bail application, he may not
raise any ground which could have been
taken at the time of arguing the first bail
application or the second bail application.
Therefore, he is not arguing on merits of
the present case. He has submitted that he
shall argue the present bail application on
the ground that about seven years and eight
months period have passed, to be more
precise with effect from 17.08.2014 the
present applicant is in jail, and there is no
possibility to conclude the trial in near
future so considering the dictum of Apex
Court in catena of cases his period of
incarceration may be considered to release
him on bail. Further, since the complainant
and the prosecutrix have already been
4 All. Pankaj Third Bail Appl. Vs. State of U.P. & Anr.
131
examined,
therefore,
if
the
present
applicant is released on bail there would be
no apprehension on his part to influence the
star
witnesses
i.e.
the
complainant/
informant and the prosecutrix.

7. Only for the purpose to apprise
the fact in brief Sri Shukla has submitted
that the present applicant is languishing
in jail since 17.08.2014 in Case Crime
No.417 of 2014, under Section 376 & 323
I.P.C. r/w Section 3/4 of Protection of
Children from Sexual Offences Act (in
short POCSO), Police Station-Chanda,
District-Sultanpur.
He
has
further
submitted that as per the prosecution
story so narrated in the First Information
Report (in short F.I.R.), the prosecutrix
was said to be a minor girl, aged about 12
years at the time of incident in question,
and her radiological age was 16 years.
She had levelled allegations against the
present
applicant
in
the
statements
recorded under Sections 161 Cr.P.C. and
164 Cr.P.C. As per medical examination
report, no injury was found on her body
and due to some quarrel took place in the
year 2012, in the month of August, 2014
when the cattle of the applicant entered
into the field of the complainant, the false
F.I.R. has been lodged and he has been
falsely implicated.

8. Sri Shukla has drawn attention of
this Court towards Section 309 Cr.P.C. with
its 1st proviso, which reads as under:-

"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.]"

9. Sri Shukla has submitted that in the
present case, the trial relates to Section 376
I.P.C. and Section 3/4 of POCSO Act,
therefore, the trial must be completed
within a period of two months from the
date of filing the charge-sheet. However,
the
charge-sheet
has
been
filed
on
06.10.2014 and the learned court has taken
cognizance on 20.10.2014, as shown in the
charge-sheet filed along with the counter
affidavit as Annexure No.CA-5 but there is
no good progress in the process of trial.
Therefore, the same aspect may be
considered as disobedience of mandatory
and statutory provisions enshrined under
the proviso of Section 309 Cr.P.C.

10. Sri Shukla has drawn attention of
the certified copy of the F.I.R. and the
order-sheet
of
the
trial
court
from
21.09.2019 till 16.03.2022 and perusal
thereof
reveals
that
the
prosecution
witnesses are not co-operating with the trial
proceedings. As a matter of fact, with effect
from 21.09.2019, more than two dozen
dates have been fixed for examination of
the
prosecution
witnesses
but
those
witnesses have not appeared. The court has
taken coercive steps issuing warrant but to
no
avail.
Orders
dated
21.01.2021,
17.02.2021 and 01.04.2021 reveals that the
Doctor and the Investigating Officer were
summoned and the warrants were issued
against them but no one has appeared.
Further, vide orders dated 04.09.2021,
132 INDIAN LAW REPORTS ALLAHABAD SERIES
28.09.2021 again the Doctor and the
Investigating Officer, PW-3 and PW-6 were
summoned but to no avail. The last date of
the aforesaid order-sheet reveals that on
16.03.2022
the
case
was
fixed
for
30.03.2022 for examination of the aforesaid
prosecution witnesses.

11. Sri Shukla has further drawn
attention of this Court towards Annexure
No.SA-1 of the supplementary affidavit
dated 13.04.2022 to show that PW-1,
(complainant/ informant), was examined on
19.02.2016 and he was cross-examined on
23.06.2016.
PW-2
(prosecutrix),
was
examined on 20.10.2016 and her crossexamination was done on 30.05.2017 and
finally concluded on 24.07.2017.

12. In view of the above, Sri Shukla
has submitted that PW-1 (complainant/
informant), and PW-2 (prosecutrix) were
finally
examined
by
24.07.2017.
Thereafter, couple of dates have been fixed
till 16.03.2022 but no other prosecution
witnesses have been examined despite the
learned trial court issued warrants.

13. As per Sri Shukla, for all practical
purposes the prosecution witnesses are not
co-operating with the trial proceedings and
the trial proceedings are unnecessarily held
up for no fault on the part of the present
applicant.

14. Sri Shukla has also drawn
attention of this Court towards order dated
30.03.2022 passed by this Court in
Criminal Misc. Bail Application No.6869
of 2019 (Anokhi Lal (Second Bail) vs.
State
of
U.P.)
whereby
this
Court
considered the dictum of Apex Court in re:
Union of India vs. K.A. Najeeb 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.)
3610 of 2020 granted bail to such accused
Anokhi Lal while allowing his second bail
application on the ground that there was no
good progress in the trial and there was a
long
incarceration
of
that
accused,
therefore, he was 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."

15. 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
4 All. Pankaj Third Bail Appl. Vs. State of U.P. & Anr.
133
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."

16. Sri Shukla has further drawn
attention of this Court towards the dictum
of
Apex
Court
rendered
in
re:
Gokarakonda Naga Saibaba vs. State of
Maharashtra reported in (2018) 12 SCC
505 wherein the Apex Court has observed
that if the material and fact witnesses have
been examined, the bail of the accused
persons may be considered.

17. Sri Shukla has placed reliance
upon the recent judgment of Apex Court
dated 25.02.2022 in re: Saudan Singh vs.
The State of Uttar Pradesh passed in
Criminal Appeal No.308 of 2022 (@ SLP
(Crl.) No.4633 of 2021), wherein the Apex
Court has held that period of long detention
of the accused may be considered even if
the issue is pending consideration before
the Appellate Court.

18. Therefore, to sum up his
arguments Sri Shukla has vehemently
submitted that about seven years and eight
months period have passed since the
present applicant is in jail, the informant/
complainant (PW-1) and the prosecutrix
(PW-2) have already been examined in the
year 2017 and since then the prosecution
witnesses are not co-operating with the trial
proceedings, therefore, the trial could not
be concluded. On the side of the present
applicant, the proper co-operation is being
given to the trial court as no unnecessary
adjournment has been sought from his side
but it is on account of unwarranted attitude
and approach of the prosecution not to cooperate in the trial properly the trial is still
pending. The present applicant has got no
previous criminal history, therefore, he may
be enlarged on bail. If the present applicant
is enlarged on bail, it has been submitted by
Sri Shukla that he shall co-operate with the
trial proceedings and shall abide by all
terms and conditions of bail order.

19. Learned counsel for the applicant
has undertaken on behalf of the present
applicant that the applicant shall not misuse
the liberty of bail, if so granted by this
Court and shall abide by all terms and
conditions of the bail order and shall
cooperate with the trial proceedings.

20. Learned Additional Government
Advocate as well as learned counsel for the
complainant/ informant have vehemently
opposed the prayer for bail of the present
applicant by submitting that since two bail
applications of the present applicant have
already been rejected, therefore, this bail
application may not be entertained.

21. However, on being confronted on
the point, on the basis of material available
on record, that the prosecution witnesses
are
not
co-operating
with
the
trial
proceedings, resultant thereof, the trial
could not be concluded, both the learned
counsel for the opposite parties have
submitted that since this is matter of record,
therefore, they have nothing to say.

22. Heard learned counsel for the
parties and perused the material available
on record.

23. At the very outset, there is
displeasure in my mind towards approach
of the trial court for the reason that the star
witnesses
i.e.
PW-1
(informant/
complainant) and PW-2 (prosecutrix) have
134 INDIAN LAW REPORTS ALLAHABAD SERIES
already
been
examined
finally
by
24.07.2017 but since then no positive
efforts have been taken to conclude the trial
despite
the
clear
cut
statutory
and
mandatory provisions enshrined under
Section 309 Cr.P.C. which provides that the
trial in the cases of 376 I.P.C. etc. shall be
completed within a period of two months
from the date of filing of the charge-sheet.
In the present case, what is to say about the
period of two months, more than four years
and three months period have passed after
examination of both the star witnesses and
despite
noticing
the
fact
that
other
prosecution witnesses are not co-operating,
no appropriate coercive steps have been
taken by the learned trial court for which
they are properly armed with. If the
prosecution witnesses were not properly
co-operating in the trial proceedings, the
learned trial court must take coercive steps
strictly in accordance with law so that the
trial could be concluded at the earliest. In
the present case, Covid-19 Pandemic may
not be the reason of delay in proceeding the
trial inasmuch as both the star witnesses
have been examined finally on 24.07.2017
and Covid-19 sparked in the country in the
month of March and April, 2020.

24. Since there is no report that
there is any unnecessary delay on the part
of the present applicant/ defence, rather,
the
order-sheet
reveals
that
no
adjournment has been sought from his
side before the learned trial court and it is
deliberate delay on the part of the
prosecution, resultant thereof, the trial is
unnecessary held up, therefore, the
benefit thereof should be extended to the
present applicant in terms of his right
enshrined under Article 21 of the
Constitution of India as the fundamental
rights enshrined under Article 21 is
available to the accused/ detenu also. It is
also
trite
that
under-trials
cannot
indefinitely be detained pending trial.

25. In view of the various dictum of
Apex Court to the effect that if the trial is
being delayed unnecessarily and for such
delay there is no fault on the part of the
accused, rather, it is on the part of the
prosecution
and
the
period
of
incarceration of such accused is long, his/
her bail application may be considered.
The facts and circumstances of the
present case qualifies such test. Besides,
the fact that the present applicant is not
having any previous criminal history,
may also be considered to release him on
bail.

26. Therefore, in view of the above
and without entering into merits of the
issue, I find it a fit case for grant of bail.

27. Let the applicant-Pankaj, be
released on bail in the aforesaid case
crime number 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:-

(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.
4 All. Anokhi Lal Second Bail Vs. State of U.P.
135

(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 fail 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 prior permission of the
Court.

28. 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.
----------

(2022)04ILR A135
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 30.03.2022

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Criminal Misc. Bail Application No. 6869 of 2019

Anokhi Lal Second Bail ...Applicant
Versus
State of U.P. ...Opposite Party
Counsel for the Applicant:
Dinesh Chandra Tewari, Arun Sinha

Counsel for the Opposite Party:
G.A.

A. Bail - Second Bail - The grounds
subsequent to the rejection of the first bail
application has come up which was considered
by the court as fresh ground for considering
second bail application. (Para 25)
Bail Application Allowed. (E-10)

List of Cases cited:-

1. U.O.I. Vs. K.A. Najeeb AIR 2021 Supreme
Court 712 (followed)

2. Paras Ram Vishnoi Vs. The Director, Central
Bureau of Investigation Criminal Appeal No. 693
of 2021 (followed)
(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Arun Sinha, learned
counsel
for
the
applicant
and
Sri
Balkeshwar Srivastava, learned Additional
Government Advocate for the State.

2. This is the second bail application
as the first bail application bearing Bail
Case No.7160 of 2018 (Anokhi Lal vs.
State of U.P.) has been rejected by Hon'ble
Anant Kumar, J. (since retired) on
23.04.2019.

3. While rejecting the first bail
application, the Hon'ble Court was pleased
to observe as under:-

"However, at this stage, learned
counsel for the applicant states that a
direction may be given to the trial court for
expeditious
disposal
of
the
trial.
Accordingly, trial court is directed to
expedite the trial and make an endeavour