# Rameshwar Pandey Third Bail v. State of U.P

- **Citation:** (2022) 4 ILRA 139
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-31
- **Case number:** Criminal Misc. Bail Application No. 11785 of 2019
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rameshwar-pandey-third-bail-v-state-of-u-p-48418
- **Pages:** 6

## Headnote

G.A.

A. Bail - Third Bail - The Court on
observing that the applicant was almost
seven years in jail and examination of all
except formal witnesses is pending and
there is no likelihood of conclusion of
trial in near future due to non cooperation of witnesses, the bail was
granted. (Para 15)
Bail Application Allowed. (E-10)

List of Cases cited:-

## Text

4 All. Rameshwar Pandey Third Bail Vs. State of U.P.
139
torture etc. to the mother-in-law (Smt.
Munni Devi), who has been granted bail
subsequent to the rejection of the first bail
application of the present applicant. Hence,
these grounds may be considered as fresh
ground to consider the second bail
application.

25.

Therefore,
in
the
given
circumstances and considering the dictum
of Hon'ble Apex Court in re: K.A. Najeeb
(supra) and Paras Ram Vishnoi (supra),
the aforesaid grounds are considered as
fresh
to
consider
the
second
bail
application, therefore, without expressing
any opinion on merits of the case, the
instant second bail application of the
present applicant is allowed.

26. Let applicant -Anokhi Lal, be
released on bail in aforesaid case crime
number on his furnishing a personal bond
and two reliable sureties each of the like
amount to the satisfaction of the court
concerned subject to 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.

(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.

27. Before parting with it is expected
that the trial shall be concluded with
expedition. 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. The learned trial court
shall fix short dates to ensure that trial is
concluded at the earliest.
----------
(2022)04ILR A139
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 31.03.2022

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Criminal Misc. Bail Application No. 11785 of
2019

Rameshwar Pandey Third Bail ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Anil Kumar Tripathi
140 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Opposite Party:
G.A.

A. Bail - Third Bail - The Court on
observing that the applicant was almost
seven years in jail and examination of all
except formal witnesses is pending and
there is no likelihood of conclusion of
trial in near future due to non cooperation of witnesses, the bail was
granted. (Para 15)
Bail Application Allowed. (E-10)

List of Cases cited:-

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

2. Anokhi Lal Vs State of U.P. Criminal Misc. Bail
Application No. 6869 of 2019

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

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

1. Heard Sri Anil Kumar Tripathi,
learned counsel for the applicant and
learned A.G.A. for the State.

2. This case was listed on 15.3.2022
and on that date this Court has passed the
following order :

"Heard Sri Anil K. Tripathi,
learned counsel for the applicant and
learned AGA.

Sri Anil K. Tripathi has filed a
questionnaire dated 12.2.2020 in the
present case to apprise the Court that no
prosecution witness has been examined,
however, charges have been framed on
13.11.2018, the same is taken on record.

This is the third bail application.
First and second bail applications have
been rejected by Hon'ble Prashant Kumar,
J. on 22.2.2017 and 17.5.2018 vide
Criminal Misc. Bail Applications No.7312
of 2015 and 7137 of 2017 respectively.

On being confronted on the point
as to what is the fresh ground to consider
the third bail application, Sri Anil K.
Tripathi has submitted that the present
applicant is in jail since 27.5.2015 in Case
Crime No.840 of 2015, under Sections 302,
504 & 506 IPC, Police Station Ikauna,
District
Shrawasti
and
there
is
no
possibility to conclude the trial in near
future,
therefore,
considering
the
fundamental
right
of
the
applicant
enshrined
under
Article
21
of
the
Constitution of India, he may be released
on bail.

I have noted that vide order dated
17.5.2018, the Hon'ble Court has directed
the Chief Judicial Magistrate, Bahraich to
commit the case to the Court of Session
immediately within a period of one month.
It appears that after the aforesaid order, the
case has been committed to the Court of
Session, who has framed the charges on
13.11.2018.

List this case on 31.03.2022 to
enable the District and Sessions Judge,
Bahraich to provide the status report of the
trial.
Such
status
report
should
be
exhaustive indicating therein about the
relevant dates of the trial.

The Registry of this Court shall
intimate this order to the District and
Sessions Judge, Bahraich within three
working days for compliance of the
direction.

On
the
next
date,
after
considering the status of the trial, the
present bail application may be disposed of
finally and learned counsel for the
applicant as well as learned AGA shall
4 All. Rameshwar Pandey Third Bail Vs. State of U.P.
141
prepare the case on the point as to whether
inordinate delay in concluding the trial
may be considered as one of the fresh
grounds to consider the bail application if
two bail applications have already been
rejected."

3. In compliance of the aforesaid
order the District Judge, Bahraich has
provided a detailed and exhaustive status
report dated 28.3.2022 relating to the trial
proceedings.

4. The learned counsel for the
applicant has fairly submitted that he is
aware about the fact that he cannot take
any ground in third bail application which
was available with him at the time of first
bail
application
or
second
bail
application. Therefore, he has restrained
himself to raise factual arguments and
grounds of the bail except that the present
applicant is in jail since 27.5.2015 in
Case Crime No. 840 of 2015 u/s 302,
504, 506 IPC, P.S. Ikauna, District
Shrawasti. He has further submitted that
the present applicant has been falsely
implicated as he has not committed any
offence as alleged by the prosecution in
the F.I.R.

5. Sri Tripathi has submitted that he
has also received instructions in respect
of status of the trial and as per his
information after the committal of the
trial to the sessions on 7.8.2018 the fact
witnesses remained absent till 28.10.2021
and
the
bailable
and
non-bailable
warrants were issued against them. He
has further submitted that after the
issuance of bailable warrants and NonBailable Warrants on several dates the
fact witnesses namely, Bablu Pandey Raj
Kumari
and
Kanhaiya
Lal
Pandey
appeared before the learned trial court.
Besides, one more witness Dharam Raj
also appeared before the learned trial
court.

6. So as to verify the aforesaid
submission of Sri Tripathi, I perused the
status report dated 28.3.2022 which
clearly reveals that all the fact witnesses
i.e. P.W. 1 Bablu Pandey, P.W. 2 Raj
Kumari and P.W. 3 Dharam Raj have
been finally examined. Further, the chiefexamination
of
another
prosecution
witness no. 4 Kanhaiya Lal Pandey has
been completed and his part crossexamination has also been completed.
Further, the prosecution has shown its
willingness not to examine witness
Umesh Kumar Pandey and Yugal Sharan
Pandey. It has been further indicated that
the
examination
of
some
more
prosecution witnesses is yet to take place,
thereafter the formal witnesses e.g.
Doctor
who
has
done
postmortem
examination, chick writer of the F.I.R.
and investigating officer are to be
examined. After their examination the
defence witnesses would be examined
and the trial would be finally concluded
adopting legal requirements.

7. Sri Tripathi has submitted that
since all fact witnesses have been examined
and there is no possibility that the trial
would be concluded in near future,
therefore. the period of incarceration of
present applicant i.e. w.e.f. 27.5.2015,
about seven years may be considered to
grant bail.

8. Sri Tripathi has also drawn
attention of this Court towards para 23 of
the bail application wherein he has
categorically indicated that the present
applicant is having no criminal history and
such fact has not been disputed in the
142 INDIAN LAW REPORTS ALLAHABAD SERIES
counter affidavit. Therefore, the fact that
the present applicant is not a past criminal
may be considered while granting him bail.
In support of his aforesaid submission the
reliance has been placed in para 4 of the
dictum of Hon'ble Apex Court in re:
Gokarakonda Naga Saibaba v. State of
Maharashtra, (2018) 12 SCC 505, has held
in para-4 as under:-

"4. Having given our thoughtful
consideration to the submissions advanced
at the hands of the learned counsel for the
rival parties, specially the undisputed
position that the petitioner has never been
accused of having misused the concession
of bail, we are of the view, that the
submission made by the learned counsel for
the respondent is extremely unfair. Since all
the material witnesses have been examined
and cross-examined, the release of the
petitioner on bail ought not to have been
opposed, especially keeping in mind the
medical condition of the petitioner."

 (emphasis supplied)

9. Besides, the reliance has also been
placed on a recent decision of this Court in
re; Anokhi Lal vs. State of U.P. passed in
Criminal Misc. Bail Application No. 6869
of 2019 wherein almost aforesaid facts and
circumstances
were
considered
while
granting bail in second bail application. In
the aforesaid order the dictum of Apex
Court in re: Union of India vs. K.A.
Najeeb, AIR 2021 Supreme Court 712 and
in re: 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) have been
followed.

10. Sri Tripathi has placed reliance on
the judgment of Hon'ble Apex Court in re:
Union of India vs. K.A. Najeeb reported in
AIR 2021 Supreme Court 712. Para 16 of
the judgment is being reproduced herein
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. Sri Tripathi has further placed
reliance on the dictum of Hon'ble Apex
Court in re: 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) wherein the Hon'ble Court 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
4 All. Rameshwar Pandey Third Bail Vs. State of U.P.
143
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. Sri Tripathi has also submitted
that there is no fault on the part of the
present applicant in not concluding the trial
at the earliest and the specific fault is
attributable to the fact witness and other
witnesses
who
remained
absent
till
28.10.2021 w.e.f. 7.8.2018 when the case
was committed to the sessions, therefore,
while considering bail application of the
present applicant this fact may also be
considered. However, Sri Tripathi has given
undertaking on behalf of applicant that the
applicant shall not misuse the liberty of bail
and
shall
cooperate
with
the
trial
proceedings and shall abide by all terms
and conditions of bail, if granted.

13. Learned A.G.A. opposed the
prayer for bail by submitting that since two
bail applications of the present applicant
have been rejected by this Court, therefore,
present third bail application may not be
allowed as no new ground has been shown
to this Hon'ble Court to consider his bail.

14. However, on being confronted on
the point that present applicant is in jail for
almost seven years and the fact witnesses
and other prosecution witnesses were not
cooperating with the trial proceedings,
resultant thereof the trial could not be
concluded despite being committed on
7.8.2018 and the status report was provided
by the District Judge does not indicate any
fault on the part of the applicant, learned
AGA has submitted that since the aforesaid
situation
being
a
matter
of
record,
therefore, he has nothing to say.

15. Without entering into the merits of
the case and considering the period of
incarceration of the present applicant w.e.f.
27.5.2015, almost seven years and there are
total 15 prosecution witnesses out of them
all fact witnesses have been examined and
examination of other witnesses is almost
complete except the examination of formal
witnesses and there is no likelihood of
conclusion of trial in near future and the
non-cooperation of the fact witnesses /
prosecution witnesses is apparent on the
status report of the trial dated 28.3.2022,
therefore, the aforesaid grounds may be
considered as a fresh ground to grant bail to
the present applicant while deciding his
third bail application. Besides, the dictums
of Apex Court in re : Gokarakonda Naga
Saibaba v. State of Maharashtra, (supra),
Union of India vs. K.A. Najeeb (supra)
and Paras Ram Vishnoi vs. The Director,
Central Bureau of Investigation (supra)
are being considered as those judgments, to
me, are supporting the submission of
learned counsel for the applicant.

16. Accordingly, the third bail
application of the applicant is allowed.

17. Let the applicant Rameshwar
Pandey, involved in aforesaid case crime be
released on bail 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
which are being imposed in the interest of
justice:-

(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
144 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

(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 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.

(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 permission of the Court
concerned.

18. Before parting with it is expected
that the trial shall be concluded with
expedition. 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. The learned trial court
shall fix short dates to ensure that trial is
concluded at the earliest.
----------
(2022)04ILR A144
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.01.2022

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Crl. Misc. Bail Application No. 13747 of 2021

Gaurav @ Gaura ...Applicant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Zia
Naz
Zaidi,
Sri
Atul
Kumar,
Sri
Dharmendra Pratap Singh, Sri Praveen
Singh, Sri Brijesh Sahai (Senior Adv.)

Counsel for the Opposite Party:
G.A.

A. Bail - The Court after considering the nature
of accusations, the nature of evidence in
support, the severity of punishment which
conviction will entail, the character of the
accused-applicant, circumstances which are
peculiar
to
the
accused,
reasonable
apprehension of securing the presence of the
accused
at
the
trial,
the
reasonable
apprehension of the witnesses being tampered
with, the larger interest of the public/State and
other circumstances, but without expressing any
opinion on the merits of the case, granted bail
to the applicant. (Para 24)
Bail Application Allowed. (E-10)

List of Cases cited:-

1. Pawan kumar Pandey Vs St. of U.P. 2007 (1)
JIC 680 (Allahabad)

2. Sanjay Chandra Vs Central Bureau of
Investigation AIR 2012 SC 830

3. Mayakala Dharamaraja Vs St.of Telangana
(2020) 2 SCC 743

4. Lachman Dass Vs Resham Chand Kaler AIR
2018 SC 599

5. CBI Vs Vijay Sai Reddy (2013) 7 SCC 452