Allahabad High Court

Rahul vs State Of U.P. on 9 May, 2024

Author: Saurabh Shyam Shamshery

Bench: Saurabh Shyam Shamshery





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2024:AHC:83528
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9014 of 2024
 

 
Applicant :- Rahul
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Avanish Kumar Pandey
 
Counsel for Opposite Party :- G.A.,Shivam Yadav,Vinod Kumar
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. Heard Sri Chaman Chaudhary, Advocate holding brief of Sri Avanish Kumar Pandey, learned counsel for applicant, Sri Roshan Kumar Singh, learned AGA for State and Sri Shivam Yadav, Advocate for Informant.

2. Applicant-Rahul has approached this Court by way of filing present bail application seeking enlargement on bail in Case Crime No. 397 of 2018, under Sections 302, 506, 120B, 34 IPC, Police Station Sector 49, District Gautambudh Nagar.

3. This Court has passed following order on 04.04.2024:

"1. Heard Sri Chaman Chaudhary, learned counsel for applicant, Sri D.P.S. Chauhan, learned A.G.A. and Sri Shivam Yadav, learned counsel for informant.

2. Applicant has approached this Court for bail in Case Crime No. 397 of 2018 under Section 302, 506, 120-B, 34 I.P.C., Police Station- Sector-49, District- Gautam Buddh Nagar.

3. This is second bail application. The first bail application was rejected on 17.05.2022 on ground of non prosecution and relevant part thereof is quoted below-:

"None appeared on behalf of the applicant even in the revised call.

Bail application is dismissed for want of prosecution."

4. It is brought on record that out of 7 accused, 4 have been granted bail by different coordinate Bench, however, second bail application of one co-accused Anil Gurjar was rejected by an order dated 20.04.2023 and challenge to it before Supreme Court was filed, however, by an order dated 10.10.2023 passed in Special Leave to Appeal (Criminal) No. 11089 of 2023, the order passed by this Court was confirmed. All orders granting bail to co-accused are annexed along with this application, however, aforesaid rejection order of bail application of co-accused Anil Gurjar and its confirmation order by Supreme Court are not annexed to this application which are supplied by learned counsel for complainant Sri Shivam Yadav.

5. In pursuance of order passed by this Court, trial Court has submitted a status report dated 15.03.2024 that out of proposed 38 witnesses, examination-in-chief of PW-1 was not concluded though it was commenced on 04.07.2019 and despite huge number of dates and even after issuance of bailable warrant, PW-1 has not appeared to depose further.

6. At this stage, Sri Shivam Yadav, learned counsel for informant submits that now PW-1 has appeared and has filed an application that his earlier examination-in-chief already recorded be considered as examination-in-chief so far as accused charge-sheeted by way of supplementary charge sheet.

7. Learned counsel for applicant has placed his first argument that prosecution witnesses despite coercive measures have not appeared and matter is lingering and status quo is maintained since 2019 and applicant is in jail since 24.04.2018 i.e. about 6 years; he further submits that one co-accused Amit was granted bail by this Court by an order dated 17.04.2019 which was challenged at the instance of complainant and bail so granted was rejected by Supreme Court by an order dated 19.08.2019 in Criminal Appeal No. 1250/2019; learned counsel further submits that later on second bail application of co-accused Amit was considered by this Court and by a reasoned order dated 11.07.2023, bail was granted; according to his instructions, said order has not been challenged before Supreme Court; learned counsel points out that bail granted to co-accused was mainly on a ground that trial was proceeding in a snail?s speed; he further submits that case of applicant is on better footing than co-accused Amit; he also submits that recovery was not made either from person or pointing out of applicant.

8. Learned A.G.A. and learned counsel for informant point out that applicant has a prior criminal history.

9. At this stage, learned counsel for applicant submits that deponent has no instructions in this regard and he seeks time to disclose entire criminal history after taking proper instructions within a week.

10. List after one week.

11. Learned counsel for parties shall inform on next date of listing that whether statement of PW-1 is concluded or not?"

4. This Court has rejected a second bail application of co-accused, Anil Gurjar vide order dated 20.04.2023 and relevant part thereof is reproduced hereinafter:

"7. As referred above, first bail application was rejected by this Court by a reasoned order and challenge thereof was not successful before Supreme Court as well as that no transfer petition was filed before this Court in regard to transfer of Sessions Trial qua to applicant and that now charges have been framed against applicant.

8. As noted above, the first bail application was rejected on merits as well as Supreme Court has taken note that two co-accused were granted bail which were affirmed by the Supreme Court. However, challenge to rejection order of first bail application passed by this Court was rejected by Supreme Court. Therefore, it cannot be a ground for consideration of second bail application.

9. It has also been urged that subsequently also, bail was granted to co-accused Vikram by coordinate Bench of this Court after taking note that applicant's bail application was rejected and was affirmed by the Supreme Court also. Therefore, bail application may be considered on merits, however, abovereferred order was decided on its own merit considering the role of applicant therein whereas in the present case, role of applicant has already been considered and only thereafter this Court has rejected the first bail application of applicant, therefore, the said event also cannot be considered in this bail application.

10. Therefore, considering the overall aspect of the case as well as that first bail application was rejected on merit and taking note of specific allegations on the applicant that he was the mind behind hatching a conspiracy as well as taking note that detention of applicant and that status of trial, I do not find any subsequent event which may be considered to allow this second bail application.

11. In view of above, this application is rejected. However, Trial Court is directed to conclude the trial expeditiously."

5. Said order was challenged at the instance of co-accused, Anil Gurjar before Supreme Court by way of filing Special Leave to Appeal (Crl.) No. 11089 of 2023 which was dismissed and said order is reproduced hereinafter:

"Heard learned counsel for the petitioner and the State.

We do not find any reason to interfere with the order impugned in this petition.

The special leave petition is, accordingly, dismissed.

Pending application(s), if any, shall stand disposed of."

6. A Coordinate Bench of this Court has allowed second bail application of another co-accused, Amit vide order dated 11.07.2023 (first bail application of said accused was allowed vide order dated 17.04.2019, which was challenged before Supreme Court and order was set aside vide order dated 19.08.2019 passed in Criminal Appeal No. 1250 of 2019).

7. Learned counsel for applicant has vehemently urged that applicant's case is similar to co-accused, Amit as well as now applicant has disclosed his criminal history. He further submits that trial is proceeding in a snail's speed.

8. Learned AGA and learned counsel appearing for Informant submit that trial has now been transferred and an order has been passed that PW-1 has to record his examination-in-chief again for accused persons against whom supplementary charge sheet has been filed.

9. This Court has rejected second bail application of co-accused, Anil Gurjar by above referred reasons and order has been confirmed by Supreme Court. Second bail application of co-accused, Amit was allowed by Coordinate Bench mainly relying upon judgments of Supreme Court in Union of India vs. K.A. Najeeb, AIR 2021 SC 712 and Satendra Kumar Antil vs. C.B.I. and another, (2021) 10 SCC 773, which may not be applicable in the facts and circumstances of present case (see, Gurwinder Singh vs. State of Punjab and another, 2024 INSC 92).

10. In view of above, this Court has no reason to take a contrary view from the order dated 20.04.2023 passed in second bail application of co-accused, Anil Gurjar, referred above, which has been upheld by Supreme Court as well as that applicant has a long criminal history of 12 cases and that he is a menace to society. Court also takes note of para 61 of Nanha vs. State of U.P. 1992 SCC OnLine All 871.

11. The bail application is accordingly rejected.

12. Trial Court concerned is directed to record statement of PW-1 expeditiously, preferably within a period of two months from today.

13. Registrar (Compliance) to take steps.

Order Date :- 09.05.2024