Allowed

Arvind Mishra v. State of U.P.

Allahabad HC9 May 2024/9036/2021

Case brief

AI extract

What is this about?

Regular bail application in a murder case where trial remained unconcluded despite prior High Court expedite directions. Citing prolonged incarceration and slow pace of evidence recording, and relying on Supreme Court precedents on bail after long detention, the High Court released the applicant on bond and sureties with conditions ensuring trial cooperation.

What did the court decide?

Applicant Arvind Mishra released on bail on personal bond and two sureties, with conditions to cooperate with trial and not misuse liberty.

Arvind Mishra Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:35909

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Court No. - 11

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9036 of 2021

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Applicant :- Arvind Mishra Opposite Party :- State of U.P. Counsel for Applicant :- Alok Singh,Chandan Srivastava,Maharaj Baksh Singh,Pranshu Agrawal,Vijay Kumar Counsel for Opposite Party :- G.A.

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Hon'ble Rajesh Singh Chauhan,J.

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Heard Sri Pranshu Agarwal, learned counsel for the applicant and Sri Anirudh Kumar Singh, learned A.G.A. for the State.

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It has been contended by the learned counsel for the applicant that the applicant is in jail since 9.3.2021 in Case Crime No. 97/2021 u/s 302 IPC, P.S. Para, District Lucknow. It has been submitted that the applicant has been falsely implicated in this case as he has not committed any offence as alleged.

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At the very outset learned counsel for the applicant has drawn attention of this Court towards some orders of this Court in the present bail application which indicate the concern of the Court. Those orders are dated 13.9.2022, 2.1.2024 and 13.3.2024 which are being reproduced herein below :

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" 13.9.2022

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Shri Alok Singh, learned counsel for applicant has sent an illness slip today. However, Shri Vijay Prakash Dwivedi, learned A.G.A. for State-respondent is present.

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The present bail application has been moved on behalf of applicant- Arvind Mishra, seeking bail in Case Crime No.97 of 2021, under Section 302 I.P.C., Police Station Para, District Lucknow.

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It transpires from order-sheet that the matter is pending since 26.08.2021 and it has been listed time and again. It was lastly listed on 01.08.2022 and on which date, on request of learned counsel for applicant, the matter was directed to be listed on 05.09.2022.

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Taking into account the allegations levelled against the applicant and looking to the period of incarceration of the applicant in jail, in the interest of justice, this Court deem it appropriate to direct the trial Court to expedite the trial.

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Accordingly, the trial court is directed to expedite the trial of the present case and conclude the same expeditiously preferably within a period of eight months from

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the date of production of a certified copy of this order, if there is no legal impediment.

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List the instant bail application in due course.

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The Senior Registrar is directed to communicate this order to the trial court concerned for necessary information and follow up action."

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"2.1.2024

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In the present case, this Court had passed an order on 13.09.2022 directing the conclusion of the trial preferably within eight months, however, the contention of learned counsel for the applicant is that only two of the witnesses out of the total 18 witnesses proposed to be examined, have been examined. He, thus, essentially argues that right of speedy trial enshrined under Article 21 of the Constitution of India has been adversely affected as the applicant is in custody since 09.03.2021.

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Although, the directions were issued for expeditious trial, however, before the bail can be considered, I direct the trial Court concerned to record the statement of P.W. 5 Dev Mishra and P.W. 6 Adarsh Mishra within a period of two months from today.

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3. List this case on 13.03.2024.

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The Senior Registrar of this Court is directed to sent a copy of this order to the trial Court concerned for recording the statements of the two witnesses as directed above, within the time frame."

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" 13.3.2024

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Vide order dated 02.01.2024, directions were issued for recording the statement of PW-5 and PW-6 within a period of two months.

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In terms of the said directions, a report has been sent stating that PW-5 Dev Mishra was summoned for giving evidence and he sought adjournment on two occasions and despite issuance of bailable warrants, he did not appear and an application was moved that on account of his practical examination, he could not appear for the deposition.

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In view of the said report coupled with the fact that PW-5 is appearing in the intermediate examinations which are going on, it is directed that the deposition of two witnesses i.e. PW-5 and PW-6 shall be recorded positively within a period of six weeks from today.

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The Commissioner of Police, Lucknow shall ensure that the witnesses specially PW-5 and PW-6 are produced for examination within the time granted.

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The Trial Court is directed to fix any date after 01.04.2024 for recording their evidences.

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List after six weeks on 01.05.2024, by which date the fresh report shall be sent by the trial court.

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Learned AGA is directed to communicate this order for ensuring the compliance."

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By means of an order dated 13.9.2022 this Court directed the learned trial court to expedite the trial within a period of 8 months and that 8 months period has expired on 13.5.2023 but the trial could not be concluded till date.

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By means of an order dated 2.1.2024 this Court has,

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however, observed that the bail of the present applicant may be disposed of for the reason that the order of this Court dated 13.9.2022 has not been complied with in its letter and spirit but so as to secure the ends of justice the direction was issued to the learned trial court to record the evidence of P.W. 5 and P.W.-6 within a period of two months.

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In the order dated 13.3.2024 this Court took cognizance of the fact that the recording of the statement of the aforesaid prosecution witnesses is under process, therefore, this Court fixed the next date for 1.4.2024 directing the learned trial court to record the evidence of P.W.-5 and P.W.-6.

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Learned counsel for the applicant has submitted that the statements of the aforesaid prosecution witnesses have been recorded and copy thereof have been filed with the paper-book. Learned counsel for the applicant has further submitted that there are total 18 prosecution witnesses and out of those prosecution witnesses the evidence of four prosecution witnesses have been recorded by the learned trial court. Therefore, looking into the pace of the trial it will take substantial time to record the statement of further 14 prosecution witnesses.

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Sri Agarwal has further submitted that the evidence of four prosecution witnesses have been recorded and those prosecution witnesses are mainly fact / relevant prosecution witnesses. However, still there are some more fact witnesses whose evidence should be recorded by the learned trial court.

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So far as the merit of the case is concerned Sri Agarwal has stated that the present applicant has been falsely implicated as he has not murdered his own wife as his relation with his wife was so cordial as they were living happily as husband and wife. He has further submitted that the statements, so relied by the prosecution against the present applicant, are itself creating doubt on the prosecution story. There is no eye witness account. The alleged recovery memo has been prepared without following the due procedure of law and there is no

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independent witness at the time of preparation of the recovery memo. He has also stated that the statement of the son of the applicant and deceased namely, Devraj Mishra is also creating doubt inasmuch as, as per the statement of Devraj Mishra he was present at the time when the incident in question has taken place but as per the information, so provided by the institution in question where son of the applicant namely, Devraj Mishra was studying, reveals that at the time of incident in question he was present in the college to appear in the examination of Science. He has further submitted that during the course of recording evidence of P.W.-3 one fact emerged that the neighbour of the applicant namely, Aneeta Devi to whom Devraj Mishra says Aneeta Aunty has not been made a prosecution witnesses. However, her statement would be very relevant so as to unearth the truth of the incident.

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Learned counsel has further stated that while rejecting the bail application of the present applicant by the learned Sessions Judge the reason has been indicated that in case the accused-applicant is released on bail then the apprehension that accused-applicant may tamper the evidence or allure the witnesses may not be rules out. Now in compliance of the order of this Court the relevant fact witnesses have been examined. The present applicant is having no prior criminal history of any kind whatsoever. Therefore, the learned counsel for the applicant has submitted that in the present case despite the specific directions issued by this Court to conclude the trial within 8 months, same has not been concluded and to record the evidence of all prosecution witnesses will take substantial time, thereafter the mandatory exercise of section 313 Cr.P.C. would be carried out, thereafter the evidence of defence witnesses, if any, may be recorded. So in the light of the aforesaid facts and circumstances the period of long incarceration of the applicant in jail may be considered to grant him bail.

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Learned counsel for the applicant has lastly submitted for the purposes of bail that in the given circumstances, there is no possibility of the trial to be concluded in near future

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inasmuch as fourteen prosecution witnesses are yet to be examined. Thereafter, defence witnesses would be examined and after following the required formalities, the trial would be concluded but it will take much time. Therefore, in the light of the dictum of the Hon'ble Apex Court in re; Union of India vs. K.A. Najeeb reported in 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) No.3610 of 2020 ) wherein it has been held that if the accused is in jail for substantially long period and there is no possibility to conclude the trial in near future, his bail application may be considered.

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Learned counsel undertakes on behalf of the applicant that the applicant shall co-operate with the trial proceedings and shall not misuse the liberty of bail, if so granted by this Court. Further, the applicant shall abide by all terms and conditions of the bail order.

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Considering the fact that there is no possibility to conclude the trial in near future. In view of the dictum of the Hon'ble Apex Court in re; K.A. Najeeb (supra) and Paras Ram Vishnoi (supra) , the present case may be considered to grant bail to the present applicant.

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The learned counsel for the applicant has given an 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.

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Learned A.G.A. opposed the prayer for bail but could not dispute the aforesaid facts as argued by the learned counsel for the applicant.

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Without entering into the merits of the case and considering the arguments of learned counsel for the parties, contents and allegations of the F.I.R., the fact that despite the specific directions issued by this Court to conclude the trial within 8 months, same has not been concluded, the statements, so relied by the prosecution against the present applicant, are itself creating doubt on

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the prosecution story, there is no eye witness account, the alleged recovery memo has been prepared without following the due procedure of law and there is no independent witness at the time of preparation of the recovery memo, the statement of the son of the applicant and deceased namely, Devraj Mishra is also creating doubt inasmuch as, as per the statement of Devraj Mishra he was present at the time when the incident in question has taken place but as per the information, so provided by the institution in question where son of the applicant namely, Devraj Mishra was studying, reveals that at the time of incident in question he was present in the college to appear in the examination of Science, the neighbour of the applicant namely, Aneeta Devi to whom Devraj Mishra says Aneeta Aunty has not been made a prosecution witnesses, the period of long incarceration of the applicant in jail and the undertaking given on behalf of the applicant that he shall not misuse the liberty of bail and shall cooperate in the trial proceedings, the applicant is entitled to be released on bail in this case.

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Let the applicant Arvind Mishra , 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:-

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(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.

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(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.

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(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation

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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.

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(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.

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(v) The applicant shall not leave the country without permission of the Court concerned.

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(Rajesh Singh Chauhan, J.)

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Order Date :- 9.5.2024 Om

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Digitally signed by :- OM PRAKASH MISHRA High Court of Judicature at Allahabad, Lucknow Bench

Arvind Mishra v. State of U.P.

Case brief

What is this about?

What did the court decide?

Arvind Mishra v. State of U.P.

Case brief

What is this about?

What did the court decide?

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