Sameer vs State Of U.P.
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Allahabad High Court

Sameer vs State Of U.P. on 22 January, 2025

Author: Samit Gopal

Bench: Samit Gopal

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:10829
 
Court No. - 78
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 54995 of 2022
 

 
Applicant :- Sameer
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Mukti Nath Pandey,Pawan Kumar Shukla
 
Counsel for Opposite Party :- Ashutosh,G.A.,Sunil Kumar Upadhyay
 
with
 
Case :- CRIMINAL REVISION No. - 3541 of 2021
 

 
Revisionist :- Sagir
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Pawan Kumar Shukla
 
Counsel for Opposite Party :- G.A.,Jai Singh Yadav
 

 
Hon'ble Samit Gopal,J.
 

1. List revised.

2. Co-accused Sagir filed a Criminal Revision No. 3541 of 2021 (Sagir Vs. State of U.P. and another) which is connected with the bail application of accused Sameer in compliance of order dated 11.10.2023 passed in the present bail application.

3. The bail application and the said revision were placed before Hon'ble The Chief Justice by the office along with its report dated 17.10.2023 which were nominated to this Bench vide order dated 31.10.2023 of Hon'ble The Chief Justice. Thus both the matters are before this Bench and are being decided by a common order.

Order in Criminal Revision No. 3541 of 2021

1. Heard Sri Pawan Kumar Shukla, learned counsel for the revisionist, Sri Jai Singh Yadav, learned counsel for the opposite party no.2 and Sri Ram Prakash Shukla, learned counsel for the State and perused the record.

2. The criminal revision under Section 397/401 of Cr.P.C. has been filed by the revisionist Sagir with the prayers to allow the present revision and set aside the impugned order dated 26.10.2021 passed by learned Additional Sessions Judge, Court No.9, Moradabad in S.T. No. 668 of 2018 (State Vs. Sagir and others), Case Crime No. 113 of 2018, under Sections 302, 504, 34 IPC, P.S. Nagphani, District Moradabad and with a further prayer to direct the trial court to examine the witnesses Wasim, Shafiq, Phooljahan, Nasim Jahan, Usman, Islam, Smt. Shajiya and Abdul Hakim in the aforesaid case, during the pendency of trial.

3. The facts of the case are that a First Information Report was lodged on 24.05.2018 by Mohd. Nadim/opposite party no.2 against the revisionist, Sameer, Shahrukh and Km. Mantasha for an offence under Sections 302, 504 IPC. The prosecution story as of now is not being dilated herein since the same is having no relevance at this stage.

4. The matter was investigated and a charge sheet dated 05.08.2018 was submitted against Sagir (the present revisionist) and Sameer under Sections 302/34, 504 IPC whereas co-accused Shahrukh and Km. Mantasha were exonerated from the matter and their names were mentioned in column No. 12 of the same in the column of persons not charge-sheeted. The trial in the matter started which is numbered as Sessions Trial No. 668 of 2018 (State Vs. Sagir and others) concerning Case Crime No. 113 of 2018, under Sections 302, 504, 34 IPC, P.S. Nagphani, District Moradabad, pending in the court of Additional Sessions Judge, Court No.9, Moradabad.

5. An application dated 26.10.2021 paper No. 29-B was filed by Mohd. Nadim before the trial court with the prayer that the eight witnesses namely Wasim, Shafiq, Phooljahan, Nasim Jahan, Usman, Islam, Smt. Shajiya and Abdul Hakim be discharged. The said application was duly signed by the A.D.G.C. (Criminal) and submitted in the court on 26.10.2021, the certified copy of the same is annexure 4 to the affidavit. The trial court concerned vide its order dated 26.10.2021 which is impugned herein allowed the same and discharged the said witnesses and issued summons against remaining witnesses. At this stage, the present revision has been filed with the prayers as aforesaid.

6. Counter affidavit by opposite party no.2 and rejoinder affidavit to the same have been filed which are already on record. On 23.12.2021 a co-ordinate Bench of this Court passed an order whereby an interim order was passed directing that the proceedings of the trial court may go on but the same be finally not decided. The said order reads as under:

"Heard Shri Pawan Kumar Shukla, learned counsel for the revisionist and learned AGA for the State.

The present revision has been filed challenging the impugned order dated 26.10.2021 passed by learned Additional Sessions Judge, Court No.9, Moradabad in S.T. No. 668 of 2018 (State Vs. Sagir and Others), case crime no. 113 of 2018, under Sections 302, 504, 34 I.P.C., P.S. Nagphani, district Moradabad, whereby the informant's application for discharge of as many as eight witnesses has been allowed.

The main ground of challenge is that the application for discharge of the witnesses was filed by the informant on 26.10.2021 and the said application has been allowed on the same date observing that no objection has been filed against it, whereas the record reveals that no opportunity was given to file objections against the application.

This is a case under Sections 302, 504 and 34 IPC and on the mere asking of the informant as many as eight witnesses have been discharged without assigning any cogent reasons.

The matter requires consideration.

Issue notice to the respondent no.2 returnable at an early date.

Learned counsel for the opposite parties may file counter affidavit within four weeks. The revisionist will have two weeks' thereafter to file rejoinder affidavit.

List immediately after expiry of the aforesaid period.

Till the next date of listing, proceedings of the trial may go on but the same will not be finally decided."

7. Subsequently, on 27.11.2024 this Court passed the following order:

"1. Heard Sri Pawan Kumar Shukla, learned counsel for the revisionist, Sri Jai Singh Yadav, learned counsel for the opposite party no. 2, Sri Ajay Singh, learned A.G.A.-I for the State and perused the record.

2. This revision under Section 397/401 Cr.P.C. has been preferred against the impugned order dated 26.10.2021 passed by the Additional Sessions Judge, Court No. 9, Moradabad in S.T. No. 668 of 2018 (State vs. Sagir and others) arising out of Case Crime No. 113 of 2018, under Sections 302, 504, 34 I.P.C. Police Station Nagphani, District Moradabad whereby the application dated 26.10.2021 (Annexure No. 4) of the opposite party no. 2 with the prayer to discharge Vaseem, Shafik, Phuljahan, Naseem Jahan, Usman, Islam, Smt. Shazia and Abdul Hakim has been allowed by the trial court vide the impugned order.

3. Learned counsel for the revisionist submits that the revisionist is accused in the matter.

4. Learned counsel for the opposite party no. 2, at the very outset, submits that trial in the matter has concluded and the matter has been reserved for delivery of judgement but due to interim order in this matter, the judgement has not been delivered till date. He submits that he has filed counter affidavit in the office on 24.01.2024.

5. Learned counsel for the revisionist submits that he has filed rejoinder affidavit to the same in the office on 05.07.2024.

6. Both the said affidavits are not in the records. Office to trace them out and place them in the record by the next date.

7. Let the matter be listed on 11.12.2024 for final disposal."

8. It is not disputed by the learned counsel for the revisionist and learned counsel for the opposite party no.2 that the trial in the matter has concluded and the judgment has been reserved but due to an interim order passed in the present matter on 23.12.2021, the judgment has not been delivered and the trial is pending.

9. Learned counsel for the revisionist submitted that the application dated 26.10.2021 was filed by the informant on the same day and the same was decided by the trial court concerned on the same day and the said witnesses were discharged and thus no opportunity was given to the applicant accused for objection on the same. It is submitted that the witnesses who have been discharge are eye witnesses and their testimony is important to be recorded in the trial. It is submitted that without the examination of the said persons, a proper decision in the present matter is not possible. It is submitted that as such the order impugned be set aside and the said application dated 26.10.2021 be rejected and a direction be issued to the trial court to summon the said witnesses for recording of their testimonies. It is submitted that the revision thus be allowed.

10. Learned counsel for the opposite party no.2 vehemently opposed the present revision and submitted that the revisionist and the other co-accused were present before the trial court on the day, the said application was moved as would appear from the order sheet itself wherein they had made their signatures for marking their appearance in the trial court but they did not object to the said application and also did not seek any time for filing any objection to the same. It is submitted that even in para 20 of the affidavit in support of the present revision, the fact that the accused persons were present in Court while passing the impugned order dated 26.10.2021 and have signed on the order sheet on the said date, has been admitted by them but as of now it is alleged that the trial court had not given any opportunity to file objections. It is submitted that the trial court has in the order impugned also specifically observed that there has been no objection raised from the side of the accused on the said application. It is submitted that now at a later stage, the present revision has been filed just in order to delay the trial and for ulterior motives. It is submitted that the present revision be dismissed.

11. Learned counsel for the State has also been heard who has also adopted the arguments of learned counsel for the opposite party no.2.

12. After having heard learned counsels for the parties and perusing the records, it is evident that the revisionist is an accused in a matter and is facing trial. The prosecution has moved an application dated 26.10.2021 seeking discharge of eight witnesses which was allowed by the trial court concerned and the said witnesses were discharged. The trial court concerned in its order allowing the application has specifically mentioned that the accused persons have not raised any objection to the same. The order sheet of the said date of the trial court goes to show that the revisionist and co-accused who are the only two persons facing trial were present before the trial court and have signed on the order sheet. Even the said fact that the said revisionist and co-accused were present before the trial court on the said date and had signed their appearance on the order sheet, is stated in para 20 of the affidavit in support of the present revision, thus it is clear that the application was moved in the presence of the revisionist and co-accused and they were in the knowledge of it and no objection was raised by them and then the trial court passed the order impugned therein.

13. It is the prerogative of the prosecution to produce any witness before the trial court or not. The prosecution can always seek discharge of any witness who were earlier proposed to be produced as per the list of witnesses in the charge sheet and the prosecution can proceed to give up the said witness in the trial. The order impugned does not show any irregularity or illegality in the same.

14. In view of the above facts and circumstances, the present revision thus stands dismissed.

15. Interim order dated 23.12.2021 is hereby discharged. Since the position of trial as stated by learned counsel for the opposite party no.2 and not disputed by learned counsel for the revisionist is that the judgment has been reserved but the same has not been delivered due to the order dated 23.12.2021 passed in the present revision, it is directed that the trial court shall proceed expeditiously with the matter and make an endeavour to conclude the same, as expeditiously as possible without any undue delay and without granting unnecessary adjournments to either of the parties.

16. The District and Sessions Judge, Moradabad to ensure that the trial is concluded at the earliest.

Order in Criminal Misc. Bail Application No. 54995 of 2022

1. Heard Sri Pawan Kumar Shukla, learned counsel for the applicant and Sri Ram Prakash Shukla, learned counsel for the State and perused the record.

2. Sri Ashutosh, Sri Sunil Kumar Upadhyay, learned counsels for the first informant are not present despite the matter being taken up in the revised list.

3. This second bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Sameer, seeking enlargement on bail during trial in connection with Session Trial No. 668 of 2018, Case Crime No. 113 of 2018, under Sections 302, 504/34 IPC, registered at P.S. Nagphani, District Moradabad.

4. The first bail application of the applicant was rejected by this Court vide order dated 12.02.2021 passed in Crl. Misc. Bail Application No. 24018 of 2019 (Sameer Vs. State of U.P.).

5. The only arguments of learned counsel for the applicant is regarding the period of detention of the applicant. It is submitted that since the trial has been stayed by an order dated 23.12.2021 passed in Criminal Revision No. 3541 of 2021 (Sagir Vs. State of U.P. and another) directing that the same may go on but will not be finally decided and the fact that the applicant is in jail since 24.05.2018 he be directed to be released on bail.

6. Learned counsel for the applicant submits that since the present bail is the second bail application, he does not propose to raise any argument on the merits of the matter.

7. The bail is opposed by learned counsel for the State vehemently and it is submitted that the first bail application of the applicant has been rejected by this Court on merits vide order dated 12.02.2021. It is submitted that in so far as the trial is concerned, the same has been stayed on a revision filed by co-accused Sagir wherein although the same has concluded but judgment has not been delivered as there was an order as such in it and as such the prosecution cannot be taken up to be at fault for the incarceration of the applicant and the delay in trial. It is submitted that as such the present bail application is having no fresh and new ground and is devoid of any merit and be dismissed.

8. After having heard learned counsels for the parties and perusing the records, it is evident that the first bail application was rejected by this Court vide order dated 12.02.2021. The only argument as raised in the present second bail application by learned counsel for the applicant is regarding the period of detention. The said revision has been dismissed by this Court today vide order dated 22.01.2025. The interim order therein has been discharged and a direction for expeditious disposal of trial has been passed therein.

9. In view of the same and looking to the fact that the trial has concluded and it is only at the stage of delivery of judgment and also no fresh and new ground has been argued in the present second bail application, the bail application is, accordingly, rejected.

Order Date :- 22.1.2025

M. ARIF

(Samit Gopal, J.)