Allahabad High Court
Dharmendra Kushwaha Alias Lakhan vs State Of U.P. on 21 October, 2024
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:168960 Court No. - 80 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41676 of 2023 Applicant :- Dharmendra Kushwaha Alias Lakhan Opposite Party :- State of U.P. Counsel for Applicant :- Amit Daga,Umesh Singh Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.
1. Heard Sri Amit Daga, learned counsel for the applicant, Sri Triveni Saran Rai, learned A.G.A. for the State and perused the material on record.
2. This is the fourth bail application under Section 439 of Code of Criminal Procedure filed by the applicant Dharmendra Kushwaha Alias Lakhan, seeking enlargement on bail during trial in connection with Case Crime No. 546 of 2020 (S.T. No. 634 of 2020), under Sections 302, 201 & 120B IPC, registered at P.S. Kotwali, District Ghazipur.
3. The first bail application of the applicant being Criminal Misc. Bail Application No. 42738 of 2020 was rejected by this Court vide order dated 02.12.2020 on merits. The second bail application of the applicant being Criminal Misc. Bail Application No. 12041 of 2021 was also rejected by this Court vide order dated 20.09.2021 on merits. The third bail application of the applicant being Criminal Misc. Bail Application No. 19.447 of 2022 was also rejected by this Court vide order dated 14.3.2023.
4. Previously this Court vide order dated 27.8.2024 called for a report from the concerned trial court regarding status of trial. Office has placed the report of the trial court vide its report dated 03.10.2024.
5. The sole argument of learned counsel for the applicant is with regards to delay in trial. It is submitted that there are 25 prosecution witnesses who are to be examined and there is a delay in conclusion of trial. It is submitted that the applicant thus be released on bail.
6. Per contra, learned counsel for the State opposed the prayer for bail and submitted that the first bail application, the second bail application and the third bail application of the applicant have been rejected by this Court by a detailed order. The trial is going on in which 07 prosecution witnesses have been examined and as such it cannot be said that the same is not progressing. It is submitted that the prayer for bail thus be rejected.
7. After having heard learned counsel for the parties and perusing the records, it is evident that this is the fourth bail application. The the first bail application of the applicant was rejected by this Court vide order dated 02.12.2020. The said order reads as under:-
"Heard Sri Satish Chandra Sinha, learned counsel for the applicant, Sri Jai Narayan, learned AGA for the State and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Darmendra Kushwaha @ Lakhan, seeking enlargement on bail during trial in connection with Case Crime No. 546 of 2020, under Sections 302, 201, 120B I.P.C., registered at P.S. Kotwali, District- Ghazipur.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that Shamim Ahmad@Wazir went out of the house voluntarily for which a missing report was lodged on 29.6.2020 by his brother. Subsequently the first information report was got registered on 22.7.2020 by the same person who got lodged the missing report i.e. Mohammad Naseem Ahmad in which it is for the first time stated that the missing person was taken away by the applicant from his house. It is further argued that the applicant has been nominated in this case as afterthought along with the wife of the missing person as there was some information and suspicion by the first informant that there was some illicit relationship between the applicant and the wife of missing person Smt. Sarvari Begum, who is also an accused in the present. It is argued that the applicant is having no criminal history as stated in para-17 of the affidavit and is in jail since 24.7.2020.
Per contra, learned A.G.A. opposed the prayer for bail and argued that the matter is being taken up by the investigating agency through electronic surveillance also in which location of mobile phone of missing person and that of the applicant after the date of going from house are being consistently found together at the same place. It is further argued that even the dead body of the missing person has not yet been recovered.
On a pointed query made from the learned counsels for the parties whether the investigation in the matter has been concluded and any report under Section 173(2) Cr.P.C. has been submitted or not, both the learned counsels are unable to inform the Court about the same.
After having heard learned counsel for the parties and perusing the record, it is apparent that even the dead body of the missing person has not yet been recovered. The applicant is said to have had some illicit relationship with the wife of the missing person namely Shamim Ahmad @Wazir. The first information report also states that the applicant had taken away the missing person for which Smt. Haseena Begum and Smt. Shakina Begum who are the sisters of the informant, were the eye witnesses. In this view of the matter I do not find it to be a fit case for bail.
Hence, the prayer for bail of the applicant is rejected at this stage.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing."
8. Subsequently the second bail application of the applicant was also rejected by this Court vide order dated 20.09.2021. The same reads as under:-
"Heard Sri Satish Chandra Sinha, learned counsel for the applicant, Sri B.B. Upadhyay, learned A.G.A. for the State and perused the material on record.
This is the second bail application under Section 439 of Code of Criminal Procedure filed by the applicant Dharmendra Kushwaha @ Lakhan, seeking enlargement on bail during trial in connection with Case Crime No. 546 of 2020, under Sections 302, 201,120B I.P.C., registered at P.S. Kotwali, District Ghazipur.
The first bail application of the applicant being Criminal Misc. Bail Application No. 42738 of 2020 was rejected by this Court on merits vide order dated 2.12.2020.
Learned counsel for the applicant argued that when the first bail application of the applicant was rejected, this Court had observed that learned counsels were unable to inform the Court as to whether charge sheet in the matter has been submitted or not. He argued that as of now the charge sheet has been submitted in the case, copy of which has been annexed as annexure no. 2 to the affidavit. It is argued that the present case is a case of circumstantial evidence and the implication of the applicant is false. The two alleged witnesses Smt. Haseena Begum and Smt. Shakina Begum who are the witnesses of last seen of the deceased with the applicant, are interested witnesses whose testimony cannot be accepted as Smt. Shakina Begum is the sister of the first informant and Smt. Haseena Bagum is the neighbour and as such are interested witnesses and their testimony should be discarded on the very ground.
It is argued that there is no evidence except for the confessional statement of the co-accused before the police. It is further argued that the co-accused Sarvari Begum has been granted bail by a co-ordinate Bench of this Court vide order dated 19.8.2021 passed in Criminal Misc. Bail Application No. 24628 of 2021, copy of which has been produced before the Court which is taken on record. The applicant is in jail since 24.7.2020 having no criminal history as stated in para-19 of the affidavit.
Per contra, learned A.G.A. opposed the prayer for bail and argued that the first bail application of the applicant was rejected by this Court by a detailed order on merits. The two witnesses being Smt. Shakina Begum and Smt. Haseena Begum were interrogated 22.7.2020 itself which is the date of lodging of the F.I.R. wherein they have stated that they saw the applicant taking away the deceased with him. No explanation whatsoever is coming forth from the side of the applicant as to how and when they parted ways. It is argued that even the dead body of the deceased has not been recovered.
Learned counsel for the applicant, in rebuttal, argued that the statements of the said two ladies is suspect as they at the time of lodging of the missing report, did not disclose the factum of the applicant taking away the deceased with him and as such, their statements should not be relied upon.
After having heard learned counsels for the parties and perusing the record, it is apparent that the first bail application of the applicant was rejected by a detailed order by this Court. The charge sheet has been submitted prior to rejection of the first bail application. Smt. Haseena Begum and Smt. Shakina Begum are the witnesses of the charge sheet and the prosecution relies on their testimony. In so far as the co-accused Sarvari Begum is concerned, her case is distinguishable with that of the applicant as the case is that she was having an illicit relationship with the applicant.
Looking to facts I do not find any new and fresh ground to release the applicant on bail.
Accordingly, the second bail application is rejected.
However, it is directed that the trial of the aforesaid case pending before the concerned trial court be concluded, as expeditiously as possible, strictly in accordance with Section 309 Cr.P.C. and in view of the principles as has been laid down by the Apex Court in the cases of Shailendra Kumar Vs. State of Bihar and others : (2002) 1 SCC 655, Vinod Kumar Vs. State of Punjab : (2015) 3 SCC 220 and Hussain and another Vs. Union of India : (2017) 5 SCC 702, subject to any legal impediment, and, further subject to the fact that the working of the trial court is not disturbed due to the modalities of working of court due to pandemic Covid-19, the abstinence of work by lawyers and leave of the Presiding Officer.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing."
9. The third bail application of the applicant was also rejected by this Court vide order dated 14.3.2023. The said order reads thus:-
"Heard Kashi Nath Singh Yadav, learned counsel for the applicant, Sri U.P. Singh, learned A.G.A. for the State and perused the material on record.
This is the third bail application under Section 439 of Code of Criminal Procedure filed by the applicant Dharmendra Kushwaha Alias Lakhan, seeking enlargement on bail during trial in connection with Case Crime No. 546 of 2020, under Sections 302, 201, 120B I.P.C., registered at P.S. Kotwali, District Ghazipur.
The first bail application of the applicant was rejected by this Court vide order dated 2.12.2020 passed in Criminal Misc. Bail Application No. 42738 of 2020. The second bail application of the applicant was also rejected by this Court vide order dated 20.9.2021 passed in Criminal Misc. Bail Application No. 12041 of 2021.
Learned counsel for the applicant argued that only ground for pressing the third bail application is that the applicant is in jail since 24.7.2020 and there are 25 witnesses who have to be examined in the trial but as of now only one witness has been examined in the trial. It is argued that looking to same, the applicant be released on bail.
Per contra, learned AGA opposed the prayer for bail and argued that the first bail application and the second bail application of the applicant were rejected on merits by this Court. It is argued that there is no fresh and new ground taken and argued to release the applicant on bail.
After having heard learned counsels for the parties and perusing the records, it is evident that the first and the second bail applications of the applicant have been rejected by this Court on merits and even while rejecting the second bail application, the Court has expedited the trial of the case. There is no fresh and new ground made out in favour of the applicant. In these circumstances, this Court is not inclined to release the applicant on bail.
The present third bail application is, accordingly, rejected."
10. A perusal of the report dated 26.09.2024 of the trial court which was duly forwarded by the District Judge, Ghazipur goes to show that out of 25 witnesses, 07 witnesses have been examined and will make an endeavour to conclude the trial at the earliest and is expecting to dispose it of in the next three months. The same goes to show that the trial is under progress. Since the trial is going on in which 07 prosecution witnesses have already been examined by the trial court, it cannot be said that the same is not progressing. No fresh and new ground exists to entertain the fourth bail application.
11. The bail application is, accordingly, rejected.
(Samit Gopal,J.) Order Date :- 21.10.2024 Naresh