Ashraf Vs State of U.P. Thru. Prin. Secy. Home Deptt. Lko.

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Neutral Citation No. - 2025:AHC-LKO:13485

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Court No. - 11

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11531 of 2024

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Applicant :- Ashraf Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko.

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Counsel for Applicant :- Rishad Murtaza,Aishwarya Mishra,Arnnav Prakash Tikku,Dildar Khan Counsel for Opposite Party :- G.A.

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Hon'ble Rajesh Singh Chauhan,J.

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1. Heard Sri Rishad Murtaza, learned counsel for the applicant and Sri Ravi Srivastava, learned AGA for the State.

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2. This is the fourth bail application as the first bail application has been rejected by Hon'ble Dinesh Kumar Singh, J. vide order dated 25.04.2022, the second bail application has been rejected by Hon'ble Dinesh Kumar Singh, J. vide order dated 30.09.2022 and the third bail application has been rejected by Hon'ble Pankaj Bhatia, J. vide order dated 03.04.2024.

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3. Since, the third bail application has been rejected by Hon'ble Pankaj Bhatia,J. but he released this bail application vide order dated 28.11.2024, therefore, it has been listed before the regular court.

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4. Notably, while rejecting the first bail application on 25.04.2022, this Court directed the learned trial court to expedite the trial, preferably within a period of one year, but trial has not been expedited. While rejecting the second bail application on 30.09.2022, this Court again directed the learned trial court to expedite the trial, preferably within a period of one year, but trial has not been expedited and while rejecting the third bail application on 03.04.2024, this Court directed to record the evidence of two witnesses, namely, Mohammed Mehfooz and Mehfooz Khan with the further direction to the Superintendent of Police, Pratapgarh to ensure that the statements of the aforesaid two fact witnesses are recorded without any hindrance, but till date the statement of the aforesaid two fact witnesses have not been recorded.

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5. Shri Murtaza stated that despite the specific direction being issued by this Court time and again while rejecting the first, second and third bail application, the compliance thereof has

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not been done by the learned trial court in its letter and spirit, and this may be one of the grounds to consider the fourth bail application.

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6. Sri Murtaza has further submitted that considering the slow pace of trial in the present case, and also considering the long incarceration in jail, i.e., with effect from 08.09.2018, in case crime no. 306 of 2018 under Sections 302/120-B of IPC at P.S. Antu District Pratapgargh, he may be enlarged on bail for the reason that the present applicant despite having criminal history of 10 cases has got fundamental right, i.e., right to speedy trial enshrined under the Constitution of India.

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7. Shri Murtaza has stated that the Hon'ble Apex Court in Prabhakar Tewari Vs. State of U.P and Another, reported in (2020) 11 SCC 648 has held that the criminal history of any accused person may not be the sole ground to reject the bail application, if other circumstances are there convincing the Court that the accused applicant may be enlarged on bail.

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8. Shri Murataza has stated that since this is the fourth bail application, therefore he will not address the Court on those points of prosecution which have already been addressed to the Court at the time of arguing first, second and third bail application, but he will address the Court on the fresh grounds which may be considered. So as to apprise the Court about one relevant fact that the informant of the FIR is the son of the deceased, his statement has been shown wherein he has not levelled any allegation against the present applicant. As a matter of fact, the informant/son of the accused has not levelled any allegation against the present applicant while recording his evidence. The informant alleged against Asad Ali @ Munna, Babloo, Mahroj, Awadhesh Kumar Mishra and one unknown person. On statement of the informant, the learned trial court summoned the aforesaid persons under Section 319 CrPC as order to this effect dated 23.05.2024 has been enclosed as Annexure No. 20.

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9. Shri Murtaza has stated that the aforesaid order dated 23.05.2024 has been passed after rejection of the third bail application. Therefore, it may be considered as a new ground to consider fourth bail application. The aforesaid summoning order dated 23.05.2024 has been assailed by the aforesaid persons by filing Application U/s 482 No. 5465 of 2024. The aforesaid petition has been rejected by this Court, vide detailed and exhaustive order dated 09.08.2024 (Annexure No.21). That order has been assailed by those persons before the Apex Court by filing Special Leave Petition (Criminal) Diary No. 44832 of 2024, which has been rejected by the Apex Court, vide order

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dated 16.12.2024 as photocopy thereof has been shown to the Court and the same is taken on record. Therefore, Shri Murtaza has stated that this is a peculiar case where the informant who is the son of the deceased is not alleging against the present applicant, but has alleged against other persons who were named in the FIR, but no chargesheet was filed against them, whereas the present applicant was not named in the FIR.

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10. Shri Murtuza has stated that till date only informant has been examined by the trial court and no other witnesses have been examined, whereas this Court has directed in its consecutive orders dated 25.04.2022 and 30.09.2022 to expedite the trial within a period of one year. Sri Murtaza has explain the criminal history of the present applicant in the bail application in paragraph 5. He has further submitted that if the present applicant is released on bail, he shall abide by all terms and conditions of the bail order and shall not misuse the liberty of bail.

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11. Shri Ravi Srivastava, learned AGA has opposed this application vehemently by submitting that this is a fourth bail application and any direction may be issued to the learned trial Court to expedite the trial.

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12. Having heard learned counsel for the parties and having perused the material available on record, I am unable to comprehend as to why the learned trial court has shown its careless approach, not taking proper initiative to record the evidence of the prosecution witnesses and as to why the trial has not been concluded within time stipulated by this Court time and again. Besides, despite the specific direction of this Court, vide order date 03.04.2024 to record the evidence of Mohammed Mehfooz and Mehfooz Khan, as to why their evidence have not been recorded till date.

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13. This is a case where the informant who is son of the deceased while recording his evidence has categorically deposed that the present applicant has not committed any offence in this case, whereas, the other accused persons are involved and those accused persons have been summoned by the learn trial court vide order dated 23.05.2024 to the subsequent order to the order being passed rejecting the third bail application. The aforesaid summoning order has been upheld to the Apex Court.

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14. Learned counsel for the applicant has 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

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712 and Paras Ram Vishnoi vs. The Director, Central Bureau of Investigation reported in 2021 SCC OnLine SC 3606 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:

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"This Court has clarified in numerous judgments that the libertyguaranteed 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."

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15. The Apex Court in the case of Paras Ram Vishnoi (supra) in para 4 has observed as under:

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"4. 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."

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16. Therefore, without entering into merits of the issue, considering the aforesaid facts and cirmustances and the fact that the present applicant is in jail, with effect from 08.09.2018 i.e. about 8 years and 6 months; the dictum of Hon'ble Apex Court in Prabhakar Tewari Vs. State of U.P and Another, reported in (2020) 11 SCC 648 , wherein, the Apex Court has held that the criminal history of any accused person may not be the sole ground to reject the bail application, and also considering the aforesaid dictums of Apex Court, I am of the opinion that the present applicant may be released on bail and thus, this fourth bail application is allowed .

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17. Let the applicant-Ashraf be released on bail in the aforesaid case crime number 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:-

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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 Investigating Agency/ trial court on each date fixed, either personally or through his counsel. In case of her absence, without sufficient cause, the trial court may proceed against him under Section 229-A IPC/269 of the B.N.S., 2023.

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(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C./84 of B.N.S.S., 2023 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 IPC/208 of the B.N.S., 2023.

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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./351 of B.N.S.S., 2023. 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. The present applicant shall not leave the country without prior permission of the Court.

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18. Before parting with, the trial court is directed to take recourse of section 309 Cr.P.C. for examining the prosecution witnesses without giving any unnecessary adjourment to any of the parties.

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19. This order shall be placed before Hon'ble Administrative Judge, District-Pratapgarh for information and unnecessary order, if so required, by the Registry of this court within one week.

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[Rajesh Singh Chauhan,J.]

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Order Date :- 5.3.2025 Anurag

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Digitally signed by :- ANURAG SINGH High Court of Judicature at Allahabad, Lucknow Bench

Ashraf v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko.

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