Vishal @ Vishal Kashyap @ Vishal Kumar Vs State of U.P. Thru. Prin. Secy. Home Lko. and 2 Others

Neutral Citation No. - 2025:AHC-LKO:46845

Court No. - 11

Case :- CRIMINAL APPEAL No. - 801 of 2025

Appellant :- Vishal @ Vishal Kashyap @ Vishal Kumar Respondent :- State Of U.P. Thru. Prin. Secy. Home Lko. And 2 Others

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Counsel for Appellant :- O.P. Tiwari Counsel for Respondent :- G.A.,Gulam Mustafa

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Hon'ble Saurabh Lavania,J.

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Heard learned counsel for the appellant, Sri Ajay Kumar Srivastava, learned AGA for the State and Sri Gulam Mustafa, learned counsel for the opposite party Nos.2 and 3 and perused the record.

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By means of instant appeal under Section 14-A (2) of Scheduled Castes and Scheduled Tribes Act, 1989 the appellant has challenged the impugned order dated 13.12.2022 passed by Special Judge, SC/ST Act/Additional District and Sessions Judge, Court No. 1, Unnao in Bail Application No. 3404 of 2022, arising out of Case Crime No. 297 of 2022 under Sections 307, 120-B IPC and Section 3(2)V of SC/ST Act, P.S.-Purwa, District-Unnao.

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This is the second criminal appeal filed by the appellant. First criminal appeal No. 1478 of 2023 has been dismissed as not pressed vide order dated 20.09.2024.

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While pressing the present criminal appeal, it is stated that appellant was apprehended on 30.07.2022 and thereafter roped in two cases by the police and since then he is in jail. Accordingly, the period of incarceration of the appellant would be three years and one month. In this view of the matter alone the appellant is entitled to be released on bail.

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Learned counsel for the appellant has submitted that incarceration period is much higher in the present case and in view of law laid down by Hon'ble Supreme Court in the case of Union of India Vs. K.A. Najeeb reported in AIR 2021 SCC 712 and Paras Ram Vishnoi. Vs. The Director General Bureau of Investigation, passed in Criminal Appeal No.693 of 2021 (Arising out of SLP (Crl.) 3610 of 2020) , bail can be granted 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 period of that accused. Relevant para-16 of the case of K.A. Najeeb (supra) is quoted below:-

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"This Court has clarified in numerous judgments that the liberty

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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."

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In the case of Paras Ram Vishnoi (supra) , the Apex Court has observed regarding point of incarceration period and delay in trial. The relevant part of the said judgment is quoted below:-

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"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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Learned counsel for the applicant has further submitted that long period of detention is cause of action and he has submitted that second bail can be considered on this fresh ground. He has invited attention of this Court towards the judgment of Hon'ble Apex Court in the case of Gokarakonda Naga Saibaba. Vs. State of Maharashtra, (2018) 12 SCC 505 . The relevant para-4 of the said judgment is quoted below:-

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"4. Having given our thoughtful consideration to the submissions advanced at the hands of the learned counsel for the rival parties, specially the undisputed position that the petitioner has never been accused of having misused the concession of bail, we are of the view, that the submission made by the learned counsel for the respondent is extremely unfair. Since all the material witnesses have been examined and cross-examined, the release of the petitioner on bail ought not to have been opposed, especially keeping in mind the medical condition of the petitioner."

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(Emphasis supplied)

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Further stated that in Case Crime No. 206 of 2022, under Sections 307, 506, 120-B IPC, P.S.-Banthara, Lucknow, in which the appellant was roped, has already been released on bail by the Sessions Judge, Lucknow vide order dated 25.04.2023 passed in Bail Application under Section 439 CrPC No. 3022 of 2023.

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Further submissions is that if the case of prosecution is taken on its face value, then in that eventuality, it can be inferred that the case of

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the appellant would fall under Section 324 IPC as a bare perusal of the FIR would show that motive and element of planing are missing.

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It is also stated that the gun shot injury, as per Doctor concerned who examined the injured, was sustained above the abdomen, which is not fatal in nature and this aspect of the case can be deduced from the statement of the Doctor concerned, who did not indicate that the injury is fatal.

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Thus, taking note of aforesaid facts and circumstances of the case including period of incarceration of the appellant, indulgence of this Court is required in the matter and the impugned order is liable to be set aside and the appeal is liable to be allowed.

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Learned A.G.A. and Sri Gulam Mustafa, learned counsel for the opposite party Nos.2 and 3, vehemently opposed the prayer of the appellant, however, he could not dispute the above contentions made by the appellant's counsel.

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Considered the rival submissions of learned counsel for parties, material available on record and period of incarceration i.e. about three years and one month as also that chances of conclusion of trial in near future and the submission of counsel for the appellant to the effect that while on bail in this case, the applicant would not commit any crime/offense nor he would try to tamper the evidence or influence the witnesses in any manner whatsoever it may be and the medical report of the victim as also the statement(s) of witnesses of the fact recorded by the Investigating Officer during investigation.

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Upon due consideration of above facts and circumstances as also keeping in view the fact that the trial of the case is not likely to be concluded in near future, this Court is of the view that the appeal has substance and it is accordingly, allowed .

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The order dated 13.12.2022 passed by Special Judge, SC/ST Act/Additional District and Sessions Judge, Court No. 1, Unnao in Bail Application No. 3404 of 2022, arising out of Case Crime No. 297 of 2022 under Sections 307, 120-B IPC and Section 3(2)V of SC/ST Act, P.S.-Purwa, District-Unnao, is hereby set aside.

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Let appellant - Vishal @ Vishal Kashyap @ Vishal Kumar, be released on bail in the aforesaid case crime number on his furnishing personal bond of Rs. 25,000/- and two reliable sureties each of the like amount to the satisfaction of the court concerned subject to following additional conditions :-

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(i) The appellant will cooperate with the prosecution during trial. (ii) The appellant will not tamper with the evidence during trial.

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(iii) The appellant will not pressurize/intimidate the prosecution witness(es).

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(iv) The appellant shall not commit an offence.

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(v) The appellant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.

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(vi) The appellant shall remain present before the trial court on each date fixed, either personally or through counsel.

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(vii) The appellant will not seek any adjournment on the dates fixed for evidence when the witnesses are present in court.

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(viii) The appellant shall remain present, in person, before the trial court on the dates fixed for recording of statement under Section 313 Cr.P.C.

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As this order relates to enlargement of the appellant on bail, it is clarified that observations made in this order shall have no bearing on the merits of the case and the trial court shall not be influenced by any observation made in this order.

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Order Date :- 11.8.2025 Vinay/-

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Digitally signed by :- VINAY KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Vishal @ Vishal Kashyap @ Vishal Kumar v. State of U.P. Thru. Prin. Secy. Home Lko. and 2 Others

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Vishal @ Vishal Kashyap @ Vishal Kumar v. State of U.P. Thru. Prin. Secy. Home Lko. and 2 Others

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