The Allahabad High Court has granted bail to Nem Singh, who has been in jail for 11 years, who is serving a life sentence for murder.

The Division Bench of Justice Om Prakash-VII and Justice Vikas Budhwar passed this order while hearing a Criminal Appeal filed by Nem Singh.

The bail application has been preferred by the appellant / applicant – Nem Singh, convicted and sentenced in Sessions Trial, under Section 302 IPC as well as in Sessions Trial, under Section 25 Arms Act, Police Station Chharra, District Aligarh.

It is submitted by the counsel for the appellant / applicant that the appellant / applicant is innocent and has been falsely implicated in the present case. He has not committed the present offence. No prima facie case is made out against him. Findings recorded by the trial court in the order are perverse and illegal. Referring to the evidence discussed in the order, it is further argued that the appellant / applicant is in jail from the date of arrest. Total period of incarceration of the appellant / applicant in this matter comes to around 11 years. If the remission period accrued in favour of the appellant / applicant is also added in the total period of incarceration, it will come more than 11 years. Thus, he has already undergone around 11 years of sentence in the matter.

Counsel for the appellant / applicant lastly submitted that if the appellant / applicant is released on bail, he will cooperate in early disposal of the appeal without taking any unnecessary adjournment.

Per contra, Additional Government Advocate as well as the counsel for the informant have opposed the prayer for bail but could not dispute the period of detention.

Counsel for the informant further argued that the appellant / applicant has not served out more than 14 years of sentence, therefore, he cannot take benefit of the law laid down in Saudan Singh (supra) case.

The Court noted that,

One of the directions issued by the Apex Court in Saudan Singh’s case (supra), which is relevant to this case, is as follows:-

“We have put to the AAG and the counsel for the High Court that a list should be prepared of all cases where the person has served out a sentence of 14 years, is not a repeat offender, and in any case if in these cases at one go bail can be granted and cases remitted for examination under the Uttar Pradesh Prisoners Release on Probation Rules, 1938. In all these cases, there is a high possibility that if these people are released, they may not be even interested in prosecuting their appeals.

We are quite hopeful that the High Court will adopt the aforesaid practice and thus prevent the Supreme Court to be troubled with such matters.”

In Brijesh Kumar @ Ramu case (supra), the Apex Court, inter-alia, held as under :

“As on date the appellant has undergone more than 14 years of actual sentence and 16 years with remission while the appeal is pending for seven years. Even if the date of the order of the High Court is taken into account which is about a little more than two years ago, the appellant would have spent about 12 years in custody by then and if the appeal is pending, we see no reason why in this kind of a single incident case, bail should not be granted”.

“Keeping in view of the above observations made by the Apex Court in the case of Saudan Singh (supra) and also in the case of Brijesh Kumar @ Ramu (supra) and there being no dispute that the appellant / applicant by now has served-out around 11 years of imprisonment in connection with the case, without expressing any opinion on the merits and without prejudice to the right of the appellant /applicant to pursue this appeal or pray for remission as per law, we are of the view that the appellant / applicant is entitled to be released on bail”, the Court observed.

The Court ordered that,

Let the aforesaid accused appellant-applicant be released on bail in the above case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to furnishing an undertaking that he will cooperate in the hearing of the appeal and will report to the local police station on the first Monday of every month in the forenoon till the final disposal of the appeal.

Prayer for stay of realization of fine imposed by the trial court in the impugned judgment and order is refused. However, it is provided that the appellant / applicant shall deposit the same within a period of three month from the date of release.

List this matter in the month of January, 2023 in the heading of ‘final hearing’.

The Allahabad High Court will hear on June 14 a case where a petition seeking cancellation of an FIR which was filed and withdrawn from the Lucknow Bench of Allahabad High Court be filed in the Principal Bench at Prayagraj without seeking permission for it.

The Division Bench of Justice Om Prakash-VII and Justice Vikas Budhwar passed this order while hearing a petition filed by Rameshwar Singh Yadav and Another.

The petitioners approached the Lucknow Bench seeking the following reliefs:

“Wherefore, it is most respectfully prayed that the Court may graciously be pleased to-

(i) to issue a writ, order or direction in the nature of mandamus commanding the opposite party no 1 to transfer the investigation of Case Crime No.235 of 2022, under Section 2 and 3 U.P Gangsters and Anti-Social Activities (Prevention) Act, 1986 to CBCID, Uttar Pradesh or to any other independent investigating agency as the Court deems, just and proper in the interest of justice.

(ii) to issue a writ, order or direction in the nature of certiorari quashing the impugned First Information Report dated 18.04.2022 at Case under Section 2 and 3 UP Gangsters and Anti-Social Activities (Prevention) Act, 1986 lodged in Police Station Kotwali Nagar, District Etah as contained in Annexure No 1 to the writ petition.

(iii) to pass any other suitable order or direction which is deemed just and proper in the circumstances of the case.

(iv) Allow the writ petition with costs.”

The Court noted,

Eventually, at the instance of the petitioners herein, relief no 2 in so far as it pertains to the challenge made to the FIR dated 18.4.2022, case under section 2/3 of the UP Gangsters and AntiSocial Activities (Prevention) Act, 1986 lodged at Police Station Kotwali Nagar, District Etah was withdrawn while deleting the prayer therein and seeking liberty to seek legal remedy as admissible to the petitioners.

Essentially, the argument of Additional Advocate General appears for the State is at the first instance that once the petitioner herein has got deleted the relief in so far as it pertains to challenging the FIR coupled with the fact that while withdrawing the said relief, the petitioner herein has further sought liberty to seek legal remedies as available under law, then the writ petition at the behest of the petitioners herein is not maintainable as even otherwise in absence of any liberty so granted by the Lucknow Bench of the Court to approach the Court while filing the writ petition, the petition is not maintainable and secondly, two simultaneous proceedings, one at Lucknow Bench and second at Allahabad before the Court is not maintainable.

“Goyal has sought to rely upon the decision of the Division Bench of the Court dated 22.4.2019 in Writ – C No – 12468 of 2019 (Dheer Singh and Another Versus State of U.P and 3 Others) in order to buttress his submission.

Confronted with the said situation, Ashok Mehta, senior counsel for the petitioner, has sought short indulgence to address the Court on both the issues. On the request of Mehta, include the case in the list of fresh matters on 14.6.2022,” the order reads.

The Allahabad High Court has upheld the life imprisonment sentence of five convicts in connection with a 2003 murder case and observed that the benefit provided under Section 57 IPC cannot be extended to appellants merely because they are languishing in jail for 18 years.

The Division Bench of Justice Sunita Agarwal and Justice Om Prakash-VII passed this order while hearing a Criminal Appeal filed by Ahsan And Others.

The Criminal Appeal has been preferred by appellants Ahsan, Naushey, Ahmad Hasan, Abdul Hasan and Sher Ali against the order dated April 13, 2006 passed by Sessions Judge, Rampur in Sessions Trial (State Versus Ahsan & others) whereby accused-appellants were convicted for the offence under sections 147, 148, 302/149 IPC and sentenced for offence under section 302/149 IPC to imprisonment for life and a fine of Rs 15,000. Appellants were also directed to undergo one year additional RI in default of payment of fine. They were also sentenced for the offence under section 147 IPC to undergo one year (rigorous imprisonment) RI and for the offence under Section 148 IPC to undergo two years RI.

Further, in Sessions Trial (State Versus Abdul Hasan), appellant Abdul Hasan was convicted and sentenced for the offence under section 25 Arms Act to undergo two years RI with a fine of Rs 5000 and in default of payment of fine, he has to further undergo three months RI. Further, in Sessions Trial (State Versus Sher Ali), appellant Sher Ali was convicted and sentenced for the offence under section 25 Arms Act to undergo two years RI with a fine of Rs 5000 and in default of payment of fine, he has to further undergo three months RI. All the sentences were directed to run concurrently.

According to the prosecution on December 29, 2003, informant Shareef Ahmad, son of Chotey, moved a written report scribed by Irshad mentioning therein that on December 29, 2003, informant’s cousin brother Abrar (deceased) along with Karamat was coming back to Rampur on a motorcycle and on another motorcycle, informant Afsar and Ibrahim were following them. Due to muddy terrain, they slowed down their motorcycles as and when they reached the fields of Navi Ahmad. At the same time, at about 8:30 AM, from the shrubs standing on the East side, Ahsan, Naushey, Ahmad Hasan, Abdul Hasan and Sher Ali, who belong to same village, armed with firearms, appeared in front of them, dragged Abrar from the motorcycle and with common intention, all the accused persons fired upon him with their respective firearms with intention to kill, which resulted in the death of Abrar on the spot.

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When the informant’s side raised the alarm, the accused persons ran away from the sugarcane field situated on the west side. Incident is of Jungle Kishanpur. Informant’s side and the accused persons were having an old enmity and there was litigation pending between them.

On the basis of a written report on the same day i.e 29.12.2003 at 9:30 A.M, Chik First Information Report at Crime under Sections 147, 148, 149, 302 IPC was registered against accused-persons.

After lodging the first information report, police rushed to the spot, prepared an inquest report and after sealing the dead body on the spot sent the same for postmortem along with necessary papers. Police had also recovered 3 empty cartridges of 12 bore and 1 empty cartridge of 315 bore from the place of incident.

During investigation, accused Abdul Hasan, Naushey and Sher Ali were arrested. On the evidence of accused Abdul Hasan, 1 live cartridge of 315 bore with country made pistol used in the crime was recovered on 6.1.20004. On the same day, 2 live cartridges of 12 bore along with a country made pistol used in the crime was also recovered by the police on pointing out the accused Sher Ali.

On the basis of this recovery memo, a first information report was lodged at police station Kotwali, Rampur against accused Abdul Hasan at crime under section 25 Arms Act and against accused Sher Ali at crime under section 25 Arms Act.

Counsel for appellants castigating prosecution evidence and finding recorded by Trial Court in impugned judgment and order has addressed the Court that prosecution was not able to prove its case beyond reasonable doubt. First information report said to have been lodged in the matter is antedated document. Presence of the scribe of the written report at the time of preparing the written report at the place of occurrence is improbable and unbelievable. He was a resident of another village. He has not clearly explained the reason for which he had gone to the place of occurrence. It was next argued that a special report was not sent immediately after the registration of the F.I.R.

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On the other hand, AGA appearing for the State submitted that the written report was prepared at the place of occurrence by the Scriber Irshad. Presence of the scriber at the place of occurrence is not improbable and unbelievable. Referring to the inquest report and other papers prepared along with it, it was further argued that all the aforesaid documents were prepared at the place of occurrence itself.

The Court observed that,

Findings arrived at by the trial court in the impugned judgment and order are that the first information report is not ante-timed document. Presence of the scribe at the time of preparing the written report has been proved by the prosecution beyond reasonable doubt. Non-sending of a special report immediately after the incident by the police concerned is not sufficient to disbelieve the prosecution evidence. Prosecution was able to prove the date, time and place of the incident, which is also supported by the statement of Karamat. Presence of eye account witnesses at the place of occurrence at the time of incident is not doubtful. Incident took place before them. Death was done to death on the date, time and place of occurrence by the appellants opening indiscriminate fire upon him. Medical evidence fully supports the oral version. Recovery of country made pistols has also been proved by the prosecution beyond reasonable doubt.

In this matter, prosecution for the offence under section 25 Arms Act has also been started after obtaining sanction / permission from the then District Magistrate. Thus, the Court is of the view that prosecution was able to prove its case against the appellants Abdul Hassan and Sher Ali for the offence under section 25 Arms Act beyond reasonable doubt. Finding arrived at by the trial court in this respect is not interfereable.

Trial court has convicted and sentenced the appellants for the offence under sections 147, 148, 302/149 IPC. Since appellants were five in numbers, they committed the offence in furtherance of common object forming an unlawful assembly armed with deadly weapons. Thus, conviction and sentence of the appellants for the offence under section 147 IPC cannot be termed to be illegal or perverse. Similarly, all the appellants were armed with deadly weapons, thus their conviction and sentence for the offence under section 148 IPC is also not interfereable. All the appellants have actively participated in commission of the crime in furtherance of common object of an unlawful assembly formed by them, thus conviction and sentence for the offence under section 302 / 149 IPC is also in accordance with law and it does not require any interference, the Court said.

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The Court stated that, as regards sentence imposed upon the appellants is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding a sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases.

The Court further said that, it is a settled legal position that appropriate sentences should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is the obligation of the court to constantly remind itself of the right of victim, and be it said, on certain occasions a person aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to the gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such a sentence which reflects the conscience of society and the sentencing process has to be stern where it should be. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against society to which criminal and victim belong.

In view of the above propositions of law, the paramount principle that should be the guiding laser beam is that punishment should be proportionate to gravity of offence.

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Appellants were convicted and sentenced for the offence under section 302 / 149 IPC for life imprisonment and a fine of Rs 15000/- and in default of payment of fine, one year rigorous imprisonment. Hence in view of the Court, sentence imposed upon the appellants is neither exorbitant nor excessive and same is adequate and also proportionate to gravity of offence. They have been awarded minimum sentences for the offence under Section 302 / 149 IPC.

The Court observed,

Considering entire aspects of the matter and looking to the circumstances, under which offence has been committed, we are of the view that impugned judgment and order passed by trial court is well thought and well discussed and trial court has rightly held that prosecution has succeeded to prove guilt of accused-appellants beyond reasonable doubt. As such, impugned judgment and order passed by trial court is liable to be upheld.

So far as submission raised on behalf of the appellants to release the appellants taking recourse to the Section 57 IPC is concerned, looking to the manner in which offence was committed by the appellants, the Court is the view that benefit provided under section 57 IPC cannot be extended to the appellants merely on this ground that they are languishing in jail in this matter for about 18 years. It is not a fit case to release the appellants on the aforesaid ground. Thus submission raised by counsel for the appellants on this ground is also not acceptable.

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Thus Appeal filed by the appellants, for the reason discussed here-in-above, finding no merit, is liable to be dismissed and impugned judgment and order convicting and sentencing accused-appellants is liable to be confirmed.

“Resultantly, Appeal is dismissed. The order dated 13.04.2006 passed by Sessions Judge, Rampur in Sessions Trial (State Versus Ahsan & others) convicting and sentencing all the appellants for the offence under sections 147, 148, 302/149 IPC, in Sessions Trial (State Versus Abdul Hasan) convicting and sentencing the appellant Abdul Hasan for the offence under section 25 Arms Act and in Sessions Trial (State Versus Sher Ali) convicting and sentencing the appellant Sher Ali for the offence under section 25 Arms Act is upheld. Appellants are in jail. They shall serve out the sentences awarded by the trial court until and unless remission is granted by the competent Authority,”

-the Court ordered.

The Allahabad High Court has granted bail to Sunil Kumar Mishra, who has been in jail since July 23, 2017 under the Narcotic Drug and Psychotropic Substance (NDPS) Act.

A Single-Judge Bench of Justice Om Prakash-VII passed this order while hearing a Criminal Miscellaneous Bail Application filed by Sunil Kumar Mishra.

It is submitted by the Senior Counsel appearing for the applicant that the applicant is innocent and has been falsely implicated in the case. He has not committed the offence. Though this is second bail application on behalf of the applicant yet in similar circumstances, second bail application of co-accused Anil Kumar Mishra and third bail application of co-accused Rakesh Singh have been allowed on June 28, 2021 and February 22, 2021.

It is next contended that nothing has been recovered from the applicant. If the entire prosecution case is taken into consideration, then also, the applicant was only sitting on the vehicle concerned. Recovery has been shown from the possession of the co-accused, who was travelling in the Volvo Bus. Statements recorded under Section 67 of the NDPS Act can also not be taken into consideration against the applicant.

Senior Counsel referred to law laid down by the Apex Court in Toofan Singh vs State of Tamil Nadu, 2020 SCC Online SC 882. It was further submitted that relying on the ratio laid down in Toofan Singh case co-accused Anil Kumar Mishra and Rakesh Singh have been allowed bail.

It was next contended that conscious possession can also not be construed in the matter against the applicant and the applicant cannot be denied bail on the ground of criminal history.

The applicant is languishing in jail since March 23, 2017 and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.

It is submitted that the trial has not concluded as yet.

On the other hand, the Counsel appearing for the NCB opposed the prayer for bail and submitted that this is the second bail application on behalf of the applicant. He was a habitual offender and was present on the spot at the time of recovery.

The conscious possession of the recovered contraband can safely be presumed against the applicant. Grounds taken in this application have already been taken and considered in the first bail application of the applicant.

The applicant cannot be allowed bail in view of the law laid down in Toofan Singh case, as there is recovery of huge quantities of contraband from the possession of all co-accused and also there is evidence in the form of call details collected by the Investigating Officer during investigation.

All the circumstances shown by the investigating agency clearly demonstrate that the applicant was involved in the matter.

Daya Shanker Mishra, Senior Counsel appearing for the applicant, argued that there was no evidence case against the applicant to connect him with the matter. Nothing has been recovered from the possession of the applicant.

Simply on the ground of criminal history, applicants cannot be denied bail particularly when criminal history has been explained.

“Having regard to the entire facts and circumstances of the case, considering the submissions made by the counsel for the parties and keeping in view the period of detention of the applicant, the fact that nothing has been recovered from the possession of the applicant, the fact that co-accused having identical role have been released on bail and also the law laid down by the Apex Court in Toofan Singh case and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail”, the Court observed while allowing the bail application.

The Court ordered that, Let the applicant Sunil Kumar Mishra involved in NCB Case under Sections 8/21/29 NDPS Act, P.S N.C.B, District – Lucknow be released on bail on furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned subject to following conditions.

1. The applicant will not tamper with the evidence during the trial.

2. The applicant will not pressurize/ intimidate the prosecution witness.

3. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.

4. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.

5. The applicant 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.

In case of breach of any of the above conditions, the prosecution shall be at liberty to move the bail cancellation application before the Court, the Bench added.