# Shahzan (In Jail) v. State of U.P. Opp. Party

- **Citation:** (2024) 3 ILRA 1240
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-05
- **Case number:** Crl. Misc. Bail Application No. 55042 of 2023
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shahzan-in-jail-v-state-of-u-p-opp-party-51553
- **Pages:** 7

## Headnote

Criminal Law -Code of Criminal Procedure,
1973 - Sections 226, 309, 439 - Indian
Penal Code, 1860 - Sections 147, 148,
149, 302 & 506 - Criminal Law Amendment
Act - Section 7 - Bail Application - Murder Case
- Trial Delays - Mandatory Compliance with
Section 226 Cr.P.C. and Rule 35 General Rules
(Criminal)
The applicant, Shahzan, sought bail in Case
Crime No. 34 of 2021 under Sections 147, 148,
149, 302, 506 IPC and Section 7 of the Criminal
Law Amendment Act, Police Station Haldaur,
District Bijnor, for allegedly shooting and killing
the deceased, as corroborated by eyewitnesses
and the postmortem report. The applicant, in
jail since 06.02.2021, had his bail rejected by
the trial court on 29.06.2022. The prosecution's
case was supported by evidence of multiple
bullet injuries. Held: The court, without delving
into the merits, rejected the bail application due
3 All. Shahzan Vs. State of U.P.
1241
to the gravity of the offense, the applicant's role
as a principal offender, and the risk to a fair trial
if released. The court expressed concern over
the slow trial pace (only 7 of 67 witnesses
examined) and the prosecution's failure to
submit a witness calendar under Section 226
Cr.P.C. and Rule 35 of the General Rules
(Criminal), which are mandatory for ensuring
fairness and pre-trial clarity. The court directed
the trial court to expedite the trial within one
year, enforce witness attendance through
coercive measures, and ensure compliance with
statutory provisions. The Director General
(Prosecution)
and
police
authorities
were
instructed to adhere to these provisions and
prior court directives in Bhanwar Singh @
Karamvir (Criminal Misc. Bail Application No.
16871 of 2023) and Jitendra (Criminal Misc. Bail
Application No. 9126 of 2023). The trial court
was mandated to monitor compliance and
report progress fortnightly.

Case Law Cited:

## Text

1240 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence and stage of the trial of the
applicant as noted above, I do not find any
good ground to release the applicant on
bail.

16- Accordingly, the bail application
of applicant is rejected.

17- Section 12 of U.P. Gangsters and
Anti Social Activities (Prevention) Act,
1986 provides that trial under the Act of
any offence by special court shall have
precedence over the trial of any other case
against the accused in any other court and
shall be concluded in preference to the trial
of such other case and accordingly trial of
such other case shall remain in abeyance.
The validity of the aforesaid Act was in
question before the Hon'ble Supreme Court
in the case of Dharmendra Kirthal Vs.
State of U.P. and another, (2013) 8 SCC
368. The Apex Court after detail analysis,
upheld the constitutional validity of Section
12 of the U.P. Gangsters and Anti Social
Activities (Prevention) Act, 1986 by
holding that it does not infringe any of the
facets of Articles 14 and 21 of the
Constitution of India.

18- Accordingly, it goes without
saying that the case against the applicant
under the U.P. Gangsters and Anti Social
Activities (Prevention) Act, 1986 shall
have precedence over the trial of any other
case against the accused.

19- In the matter of MPs and MLAs
directions have also been issued by the
Hon'ble Supreme Court for expeditious
disposal of cases. Accordingly trial Court is
directed to conclude the trial of the
applicant expeditiously in accordance with
provisions of Section 309 Cr.P.C. without
granting any adjournment to either of the
parties
taking
into
consideration
the
provisions of Section 12 of U.P. Gangsters
and Anti Social Activities (Prevention) Act,
1986.

20- It is made clear that the
observations contained in the instant order
is confined to the issue of bail and shall not
affect the merit of the trial.
----------
(2024) 3 ILRA 1240
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.02.2024

BEFORE

THE HON'BLE AJAY BHANOT, J.

Crl. Misc. Bail Application No. 55042 of 2023

Shahzan ...Applicant (In Jail)
Versus
State of U.P. ...Opp. Party

Counsel for the Applicant:
Ms. Shivangi Singh, Sri Mohd. Afzal

Counsel for the Opp. Party:
G.A.

Criminal Law -Code of Criminal Procedure,
1973 - Sections 226, 309, 439 - Indian
Penal Code, 1860 - Sections 147, 148,
149, 302 & 506 - Criminal Law Amendment
Act - Section 7 - Bail Application - Murder Case
- Trial Delays - Mandatory Compliance with
Section 226 Cr.P.C. and Rule 35 General Rules
(Criminal)
The applicant, Shahzan, sought bail in Case
Crime No. 34 of 2021 under Sections 147, 148,
149, 302, 506 IPC and Section 7 of the Criminal
Law Amendment Act, Police Station Haldaur,
District Bijnor, for allegedly shooting and killing
the deceased, as corroborated by eyewitnesses
and the postmortem report. The applicant, in
jail since 06.02.2021, had his bail rejected by
the trial court on 29.06.2022. The prosecution's
case was supported by evidence of multiple
bullet injuries. Held: The court, without delving
into the merits, rejected the bail application due
3 All. Shahzan Vs. State of U.P.
1241
to the gravity of the offense, the applicant's role
as a principal offender, and the risk to a fair trial
if released. The court expressed concern over
the slow trial pace (only 7 of 67 witnesses
examined) and the prosecution's failure to
submit a witness calendar under Section 226
Cr.P.C. and Rule 35 of the General Rules
(Criminal), which are mandatory for ensuring
fairness and pre-trial clarity. The court directed
the trial court to expedite the trial within one
year, enforce witness attendance through
coercive measures, and ensure compliance with
statutory provisions. The Director General
(Prosecution)
and
police
authorities
were
instructed to adhere to these provisions and
prior court directives in Bhanwar Singh @
Karamvir (Criminal Misc. Bail Application No.
16871 of 2023) and Jitendra (Criminal Misc. Bail
Application No. 9126 of 2023). The trial court
was mandated to monitor compliance and
report progress fortnightly.

Case Law Cited:

1. St. of Har. Vs Raghubir Dayal, (1995) 1 SCC
133

2. Ram Dhani Vs St. of U.P., 1997 SCC OnLine
All 407

3. Noor Alam Vs St. of U.P., Criminal Misc. Bail
Application No. 53159 of 2021

4. Bhanwar Singh @ Karamvir Vs St. of U.P.,
Criminal Misc. Bail Application No. 16871 of
2023, decided on 24.08.2023 (All. HC)

5. Jitendra Vs St. of U.P., Criminal Misc. Bail
Application No. 9126 of 2023, decided on
20.12.2023 (All. HC)

(Delivered by Hon'ble Ajay Bhanot, J.)

1. Heard Ms. Shivangi Singh, learned
counsel for the applicant and Shri Paritosh
Kumar Malviya, learned AGA-I for the
State.

2. By means of this bail application
the applicant has prayed to be enlarged on
bail in Case Crime No. 34 of 2021 at Police
Station Haldaur District Bijnor under
Sections 147, 148, 149, 302, 506 IP.C and
Section 7 of Criminal Law Amendment
Act. The applicant is in jail since
06.02.2021.

3. The bail application of the
applicant was rejected by learned trial court
on 29.06.2022.

4. The applicant has been identified as
one of the principal offenders who
discharged his firearm and shot dead the
deceased. The deceased sustained multiple
bullet injuries. Eye witnesses to the
incident
and
the
postmortem
report
corroborate the prosecution case. The trial
is on foot. Enlarging the applicant on bail at
this stage would not be conducive to a fair
trial. The offence is grave. There is
likelihood that the applicant committed the
offence. At this stage, no case for bail is
made out.

5. Without going into the merits of
the case, at this stage the bail application is
dismissed.

6. Before parting, some essential
observations arising in the facts of this case
are being made as regards the conduct of
the trial.

7. This Court would like to express its
dissatisfaction at the pace of the trial. The
status report sent by the learned trial court
records that as per the chargesheet the
prosecution
proposes to
examine
67
witnesses to bring home the charges. Till
date only 7 prosecution witnesses have
been examined.

8. Earlier this Court had directed the
trial court to provide all relevant details
regarding the status of the trial including
1242 INDIAN LAW REPORTS ALLAHABAD SERIES
the number of prosecution witnesses
mentioned in the chargesheet, and the
prosecution witnesses depicted in the
calendar.

9. The trial court in its status report
only depicts the witnesses mentioned in the
chargesheet. The proposed prosecution
witnesses depicted in the calendar given by
the public prosecutor at the commencement
of the trial has not been disclosed in the
said status report. The State too has failed
to furnish the calendar before this Court.
Evidently the calendar has not been
produced before the trial court by the
prosecution.

10.

The
prosecution
at
the
commencement of the trial is required to
submit a calendar under Rule 35 of the
General Rules (Criminal) read with Section
226 of the Criminal Procedure Code.

11. Section 226 Cr.P.C. being
relevant to the discussion is extracted
hereinunder:

"226.
Opening
case
for
prosecution.-When the accused appears
or is brought before the Court in pursuance
of a commitment of the case under section
209, the prosecutor shall open his case by
describing the charge brought against the
accused and stating by what evidence he
proposes to prove the guilt of the accused."
(emphasis supplied)

12. The provision contains the
conditions precedent required to be fulfilled
by the prosecution prior to opening its case
before the trial court. The public prosecutor
is liable to describe the charge brought
against the accused, and also the details by
what evidence it proposes to prove the
charges against the accused.

13. The word 'shall' has been
employed by the legislature giving the
provision a mandatory cast.

14. Rule 35 of the General Rules
(Criminal) has a similar purpose and is
extracted hereunder:

"35. Procedure on commitment
:- When an order of commitment for trial
has been made, the Magistrate shall at once
report the fact to the court to which the
commitment is made by a letter in the
prescribed form (Part IX, no. 2); shall
notify the Public Prosecutor of the
commitment of the case to the Court of
Session and shall within eight days from
making the said order, submit the entire
record of the case and the documents and
articles, if any, which are to be produced in
evidence to the Court of Session or, when
the commitment is made to the High Court,
to the Clerk of the State together with a
calendar in the prescribed form (Part IX,
no. 3). The entries under head of the
calendar shall be full and accurate, so as to
give the court receiving it a clear idea of
the matters to which each witness will
depose. The Public Prosecutor shall submit
a list of witnesses whom he would not
examine out of the, witnesses mentioned in
the calendar." (emphasis supplied)

15. The provision mandates the public
prosecutor to submit a calendar in the
prescribed form before the trial court prior
to commencement of the trial. The entries
in the calendar depict the number of
witnesses, and the matters to which each
witness will depose. The witnesses who are
mentioned in the chargesheet but not
proposed to be examined too have to be
referenced in a separate list. In Rule 35 of
the General Rules (Criminal), the word
"shall" precedes the said tasks which have
to be performed by the prosecution.
3 All. Shahzan Vs. State of U.P.
1243

16. The provision shall be interpreted
in light of the settled canons of statutory
interpretation. The word 'shall' has been
employed in the statute which depicts the
legislative intent of giving the provision a
mandatory
character
[See:
State
of
Haryana Vs. Raghubir Dayal1, and Ram
Dhani And Another Vs. State of U.P.2]

17. Clearly Rule 35 of the General
Rules (Criminal) read with Section 226 of
the
Criminal
Procedure
Code
are
mandatory in nature. Imperative statutory
duty is cast on the public prosecutor to
submit a calendar and other details under
Rule 35 of the General Rules (Criminal)
read with Section 226 of the Criminal
Procedure Code before the trial court prior
to commencement of the trial. The
provisions have been engrafted to give
advance notice to the accused of the
prosecution evidence proposed to be
tendered at the trial. The provisions are also
consistent with the fundamental norms of
fairness
in
criminal
processual
jurisprudence. Prior notice of proposed
prosecution evidence alerts the accused in
advance to the case he/she has to meet. The
provisions enable the accused to prepare
his/her defence thoroughly and refute the
prosecution case, and also precludes the
prosecution from springing a surprise on
the accused. The rights so vested in an
accused cannot be disregarded or negated
by non compliance of the provision.

18. However, it needs to be clarified
that failure of the public prosecutor to
submit the calendar does not ipso facto
vitiate the trial.

19. The scheme of the provisions
have to be looked at from another
perspective.
At
the
stage
of
the
investigations many lines of enquiries are
followed which appear to connect the
accused with the offence. A great number
official witnesses are also associated with
the investigations at different stages. In the
process a large number of witnesses are
nominated in the chargesheet.

20. The pre trial process under Rule
35 of General Rules (Criminal) by the
prosecutor crystallizes the implicatory
evidence
against
the
accused.
The
proceedings under Rule 35 of the General
Rules (Criminal) read with Section 226 of
the Criminal Procedure Code enable the
prosecution
to
identify
the
relevant
witnesses and critical pieces of evidence
which should be adduced in the trial, and
exclude irrelevant materials and witnesses
named during the course of investigations.

21. The said provision ensures that
there is due application of mind by the
prosecutor on various aspects of the
prosecution
evidence
prior
to
commencement of the trial. Pre trial
strategizing of this nature enables the
prosecution to package and present its
evidence in a coherent sequence and
professional
manner.
The
provisions
contemplate a statutory interface between
the prosecutor and the investigating agency
which has submitted the chargesheet. In
case deficiencies in the investigations are
highlighted in the process of creation of the
calendar, the investigation agency may take
appropriate steps as per law.

22. Calling excessive number of
witnesses for the same purpose is a
repetitive and a time consuming exercise
which does not enure to the benefit of the
prosecution. It is the prerogative of the
prosecution to decide the number of
witnesses to establish its case before the
trial court. However, adherence to Section
1244 INDIAN LAW REPORTS ALLAHABAD SERIES
226 of the Criminal Procedure Code read
with Rule 35 of the General Rules
(Criminal) will curtail unnecessary delays,
prevent duplication of witnesses, preserve
scarce
resources
and
ensure
speedy
conclusion of the trial.

23. Trial courts are also under an
obligation to oversee compliance of Section
226 of the Criminal Procedure Code read
with Rule 35 of the General Rules
(Criminal).

24. Director General (Prosecution),
State of U.P., Lucknow shall ensure that
the mandatory provisions of Rule 35 of the
General Rules (Criminal) read with Section
226 Cr.P.C. are duly complied with by the
prosecution at the time of commencement
of a trial. Appropriate action in this regard
shall be taken by the Director General
(Prosecution) and all other concerned State
authorities in all criminal trials. The
Director
General
(Prosecution)
shall
consider if it so feasible to submit the
calendar at this belated stage to avoid
further unnecessary delays in this trial as
well.

25. Considering the gravity of the
offence, interest of justice will be served by
directing the learned trial court to expedite
the trial within a stipulated period of time.

26. Though no specific time frame to
conclude the trial has been set out in the
Cr.P.C., yet the legislative intent of Section
309 Cr.P.C. is explicit. The scheme of the
provision clearly shows that the legislative
intent is to conclude the trial in an
expeditious time frame. In the facts of this
case, the learned trial court shall make all
endeavours to conclude the trial preferably
within a period of one year from the date of
receipt of a certified copy of this order.

27. The trial court has also to be
conscious of the rights of the accused
persons and is under obligation of law to
ensure that all expeditious, necessary and
coercive measures as per law are adopted to
ensure the presence of witnesses. Counsels
or parties who delay or impede the
proceedings should not only be discouraged
from doing so but in appropriate cases
exemplary costs should also be imposed on
such parties/ counsel. All witnesses and
counsels are directed to cooperate with the
trial proceedings.

28. The learned trial court shall issue
summons by regular process as per Section
62 Cr.P.C. and also by registered post as
provided under Section 69 Cr.P.C. to
expedite the trial.

29. The learned trial court shall
promptly take out all strict coercive
measures against all the witnesses in
accordance with law who fail to appear in
the trial proceeding. Counsels or parties
who delay or impede the proceedings
should not only be discouraged from doing
so but in appropriate cases exemplary costs
should also be imposed on such parties/
counsel.

30. The police authorities shall ensure
that warrants or any coercive measures as
per law taken out by the learned trial court
to ensure that the attendance of the
witnesses are promptly executed.

31. The Superintendent of Police,
Bijnor shall file an affidavit before the trial
court on the date fixed regarding status of
execution
of
the
warrants/service
of
summons taken out by the learned trial
court.

32. In case there is a failure on part of
the police authorities to execute the
3 All. Shahzan Vs. State of U.P.
1245
warrants or other coercive measures, the
Superintendent of Police, Bijnor shall state
the reasons for the same in the said
affidavit and also show the steps taken to
execute the warrants. The Superintendent
of Police, Bijnor shall simultaneously
inform the Additional Director General of
Police (ADG) Bareilly Zone, about the
aforesaid failure of the police authorities in
the first instance to execute the warrants
and coercive measures issued by the
learned
trial court.
If
required, the
Additional Director General of Police
(ADG) Bareilly Zone, may issue an
appropriate directions to ensure that the
warrants issued are promptly executed by
the learned trial court.

33. The delay in execution of
warrants
and
consequent
absence
of
witnesses is one of the principal causes of
delays in criminal trials and has to be
addressed effectively by all stakeholders.

34. The counsels as well as the
learned trial court are directed to comply
with the directions issued by this Court in
Noor Alam Vs. State of U.P. rendered in
Criminal Misc. Bail Application No.
53159 of 2021. In case any strike happens
during the course of the trial, the learned
trial court is directed to ensure full
compliance of the directions issued in Noor
Alam (supra) so that the pace of the trial
does not suffer.

35. It is further directed that in case
any accused person who has been enlarged
on bail does not cooperate in the trial or
adopts dilatory tactics, the learned trial
court shall record a finding to this effect
and cancel the bail without recourse to this
Court.

36. The delay in the trials caused by
the failure of the police authorities to serve
summons or execute coercive measures to
compel the appearance of witnesses at the
trial despite a statutory mandate, is an issue
of grave concern. The said issue had arisen
for consideration before this Court in
Bhanwar Singh @ Karamvir Vs. State of
U.P. (Criminal Misc. Bail Application
No. 16871 of 2023) & Jitendra v. State of
U.P. .(Criminal Misc. Bail Application
No.9126 of 2023) and was decided by the
judgements dated 24.08.2023 & 20.12.2023
respectively. This Court in Bhanwar Singh
@ Karamvir (supra) & Jitendra (supra)
had issued certain directions to the police
authorities regarding their statutory duty to
promptly serve summons and execute
coercive
processes
to
compel
the
appearance of witnesses.

37. The Director General of Police,
Government of U.P. as well as Principal
Secretary (Home), Government of U.P. had
taken out relevant orders in compliance of
judgements
in
Bhanwar
Singh
@
Karamvir (supra) & Jitendra (supra)
and nominated the Senior Superintendent
of Police of the concerned districts as the
responsible officials for implementing the
said judgments.

38. In case the police authorities are
failing to comply with the directions issued
by this Court in Bhanwar Singh @
Karamvir (supra) & Jitendra (supra)
and do not implement the said directions of
the Director General of Police, Government
of U.P. & the Home Secretary, Government
of U.P. in regard to service of summons
and execution of coercive measures to
compel the appearance of witnesses, the
learned
trial
court
shall
direct
the
concerned Senior Superintendent of Police
to file an affidavit in this regard.

39. The learned trial court shall be
under an obligation to examine whether the
1246 INDIAN LAW REPORTS ALLAHABAD SERIES
judgements of this Court in Bhanwar
Singh @ Karamvir (supra) & Jitendra
(supra) as well as directions of Director
General of Police, Government of U.P. &
the Home Secretary, Government of U.P.
issued in compliance thereof have been
implemented or not and to take appropriate
action as per law.

40. The learned trial court shall also
take appropriate measures in law after
receipt of such affidavit which may include
summoning the concerned officials in
person.

41. The trial judge shall submit a
fortnightly report on the progress of trial
and the steps taken to comply with this
order to the learned District Judge.

42. A copy of this order be
communicated to the learned trial judge
through the learned District Judge, Bijnor
as well as Superintendent of Police, Bijnor
by the Registrar (Compliance) by Email.

43. Government Advocate shall also
communicate a copy of this order to
Director General (Prosecution), State of
U.P., Lucknow for taking appropriate
action to ensure compliance of the
directions in regard to Section 226 of the
Criminal Procedure Code read with Rule
35 of the General Rules (Criminal) by the
public prosecutor in all criminal trials.
----------
(2024) 3 ILRA 1246
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.03.2024

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA,
J.
THE HON'BLE AJAI KUMAR SRIVASTAVA-I,
J.
Contempt Appeal Defective No. 1 of 2024

Rakesh Kumar District Inspector of School
Gonda ...Appellant
Versus
Surendra Pratap Singh & Ors.
 ...Respondents

Counsel for the Appellant:
Jyotinjay Verma

Counsel for the Respondents:
Girish Chandra Verma

Criminal Law - Contempt of Court Act,
1971
-
Section
19
-
Appeal
-
Maintainability of - In instant Contempt
Appeal, order dated 13.12.2023 records
finding
of
guilt
against
appellant
-
contemnor,
rejecting
three
affidavits
tendering unconditional apology along
with applications seeking discharge of
notice - Order further ignored facts
relating
to
approval
of
Competent
Authority
for
termination
of
writ
petitioners' services and for recovery of
loss to public exchequer from then DIOS
and
Committees
of
Management
-
Impugned order does not merely frame
charge simpliciter but records adverse
finding
against
appellant-contemnor,
leaving no scope for him to further explain
his conduct in relation to alleged noncompliance
of
writ
court's
order
-
Supreme Court consistently held where
High Court refuses to exercise jurisdiction
to punish for contempt and does not
initiate proceedings, no appeal shall lie,
and
likewise
no
appeal
lies
from
interlocutory order
- In Baradakanta
Mishra (infra) it was held that orders or
decisions wherein point is determined or
finding recorded in exercise of contempt
jurisdiction would be appealable - Thus,
Contempt Appeal, maintainable. (Para 62
to 64)

Appeal allowed. (E-13)

List of Cases cited: