Allahabad High Court
Malook Khan And 2 Others vs State Of U.P. Thru. Prin. Secy. Deptt. ... on 30 July, 2025
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:44089
Court No. - 6
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2174 of 2025
Applicant :- Malook Khan And 2 Others
Opposite Party :- State Of U.P. Thru. Prin. Secy. Deptt. Home U.P. Lko.
Counsel for Applicant :- Jai Prakash Yadav,Amit Kumar Awasthi
Counsel for Opposite Party :- G.A.
Hon'ble Alok Mathur,J.
1. Heard learned counsel for the applicants as well as learned Additional Government Advocate for the State.
2. This is the 2nd bail application of the applicant, the 1st bail application of the applicant no.1, Malook Khan has been dismissed as not pressed vide order dated 30.09.2024 passed in Criminal Misc. Bail Application No.4816 of 2024, while bail application of the applicant no.2 and 3 were rejected on merits vide orders dated 18.04.2024 in Criminal Misc. Bail Application Nos.13296 of 2023 and 8411 of 2023, respectively.
3. The 2nd bail application has been preferred by the applicants, who are accused in Case Crime No.639 of 2019, under Sections 147, 148, 302, 307, 120-B, 34 IPC, Police Station - Mohammadi, District - Kheri.
4. As per the first information report, the occurrence relates to the incident date 06.02.2019 where all the applicants were at the spot and riding in Alto Car bearing registration No.UP27 H 5280 and they all started firing upon the deceased, who died due to firearm injuries. The main ground urged by the counsel for the petitioners is that the length of incarceration during the period of trial, it has been submitted that the applicants no.1 to 3 were taken in custody on 15.12.2019, 09.12.2019 and 15.12.2019, respectively and have spent five years and seven months in jail. It has further been submitted that out of 20 prosecution witnesses, only seven have been examined and submits that there is no likelihood of conclusion of the trial in near future and relies upon various judgments of Coordinate Bench and the Supreme Court for grant of bail.
6. Learned counsel for the applicants has further submitted that since there is no possibility to conclude the trial in near future, therefore, in view of the dictum of Hon'ble 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 granting bail to those accused persons on the ground that there is no possibility to conclude the trial in near future and there is a long incarceration of that accused, therefore, they were entitled for bail. Para-15 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."
7. 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 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."
8. Learned counsel for the applicants 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.
9. Learned Additional Government Advocate has vehemently opposed the prayer for bail of the present applicant by submitting that since involvement of the applicant has been found in the commission of crime, therefore, he may not be enlarged on bail, but he could not dispute the aforesaid submissions of learned counsel for the applicant.
10. Considering the aforesaid submissions of learned counsel for the parties; the fact that there are 20 prosecution witnesses, out of them, only 7 witnesses have been examined; those 04 witnesses are the star/ fact witnesses; the period of incarceration of the applicant, the fact that despite the order being passed by this Court to conclude the trial expeditiously, more than 9 months period have passed after the lapse of stipulated period but the trial has not been concluded and there is no likelihood to conclude the trial shortly; the various dictum of Apex Court and without expressing any opinion on merits of the case, I am of the opinion that the present applicant may be released on bail and thus, this bail application is, therefore, allowed.
11. Let the applicants, Malook Khan, Isail Khan and Maseel Khan, be released on bail in the aforesaid case crime number on their 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 applicants shall file an undertaking to the effect that they 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 applicants shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of their absence, without sufficient cause, the trial court may proceed against them under Section 229-A of the Indian Penal Code.
(iii) In case, the applicants misuses the liberty of bail during trial and in order to secure their presence proclamation under Section 82 Cr.P.C. is issued and the applicants fail to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against them, in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) The applicants 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 applicants 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 them in accordance with law.
(v) The applicants shall not leave the country without prior permission of the Court.
[Alok Mathur,J.]
Order Date :- 30.7.2025
KR
