HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW CRIMINAL APPEAL No. - 2605 of 2023 Court No. - 11 HON'BLE SAURABH LAVANIA, J. 1. Heard learned counsel for the appellant and learned AGA for the State as well as Sri Arun Singh Somvanshi, learned counsel for the opposite party No.2 and perused the record. 2. 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 03.06.2022 passed by II Additional Sessions Judge/Special Judge, SC/ST Act, Lakhimpur Kheri in Bail Application No. 148 of 2022, arising out of Case Crime No. 137 of 2022, under Sections 302, 452, 34 IPC and Section 3(2)5 of SC/ST Act, P.S.-Gola, District-Kheri. 3. While pressing the present bail appeal, learned counsel for the appellant stated that the main role of causing fire-arm injury to the deceased has been attributed to the present appellant and the fact as to whether the fatal fire- arm injury was indeed caused to the decesed by the appellant would be examined by the trial Court, after considering the statement(s) of the witnesses of fact on record. 4. It is stated that all the witnesses of the fact namely Suraj Kumar-PW-1, Sunil Kumar-PW-2 and Ashish Kumar-PW-3 have already been examined before the trial Court and examination of last witness i.e. PW-3 was concluded on 18.01.2024 and since then, the trial has not been proceeded further, meanining thereby, the formal witnesses of the fact have not yet been exmined. Versus Counsel for Appellant(s) : Bal Keshwar Srivastava, Shalini Saxena, Vimal Kishore Srivastava Counsel for Respondent(s) : G.A., Arun Singh Somvanshi Bhim Soni @ Pakalu .....Appellant(s) State Of U.P Thru. Prin. Secy. Home Deptt. Lko. And Another .....Respondent(s) 5. On the aforesaid, learned counsel for the opposite party No.2 submitted that as an application, challenging the order passed under Section 319 CrPC was preferred before this Court and therefore the formal witnesses could not be examined, which has been dismissed by this Court vide order dated 27.02.2025 and now, the trial would proceeded. 6. Learned counsel for the appellant also stated that taking note of period of incarceration of the appellant w.e.f. 21.03.2022 which comes to about three and a half year as also the 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), according to which the 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, the revisionist is entitled to be released on bail. Relevant para-16 of the case of K.A. Najeeb (supra) is quoted 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. 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:- "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 appellant has further stated that long period of CRLA No. 2605 of 2023 2 detention is cause of action and 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:- "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." (Emphasis supplied) 9. It is further stated by the learned counsel for the appellant that taking note of aforesaid aspect of the case as also the fact that the main witnesses of the fact have already been examined as PW-1, PW-2 and PW-3 and therefore there is no chance to influencing the witnesses of the fact of the prosecution by the appellant and as such, the appellant, who is in jail since 21.03.2022 is entitled to be released on bail and the impugned order is liable to be set aside and the appeal is liable to be allowed. 10. Learned A.G.A. and Sri Arun Singh Somvanshi, learned counsel for the opposite party No.2, vehemently opposed the prayer of the appellant, however, they could not dispute the above contentions made by the appellant's counsel. 11. Considered the arguments advanced by the learned counsel for the appellant, learned A.G.A., learned counsel for the opposite party No.2 and gone through the contents of the appeal, impugned order, F.I.R., Post- mortem report as well as other relevant documents including the statement(s). 12. Upon due consideration of above facts and circumstances as also the fact that the main witnesses of the fact have already been examined as PW-1, PW-2 and PW-3 as also the period of incarceration of the appellant i.e. about three and a half year and 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. CRLA No. 2605 of 2023 3 13. The impugned order dated 03.06.2022 passed by II Additional Sessions Judge/Special Judge, SC/ST Act, Lakhimpur Kheri in Bail Application No. 148 of 2022, arising out of Case Crime No. 137 of 2022, under Sections 302, 452, 34 IPC and Section 3(2)5 of SC/ST Act, P.S.-Gola, District-Kheri, is hereby set aside. 14. Let appellant-Bhim Soni @ Pakalu, 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 :- (i) The appellant will cooperate with the prosecution during trial. (ii) The appellant will not tamper with the evidence during trial. (iii) The appellant will not pressurize/intimidate the prosecution witness(es). (iv) The appellant shall not commit an offence. (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. (vi) The appellant shall remain present before the trial court on each date fixed, either personally or through counsel. (vii) The appellant will not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. (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. 15. 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. September 4, 2025 Vinay/- CRLA No. 2605 of 2023 4 (Saurabh Lavania,J.) Digitally signed by :- VINAY KUMAR High Court of Judicature at Allahabad, Lucknow Bench