Allahabad High Court
Gyani vs State Of U.P. on 30 November, 2011
Bench: Ashok Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
RESERVED
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 22680 of 2009
Petitioner :- Gyani
Respondent :- State Of U.P.
Petitioner Counsel :- A.C. Srivastava,Nitin Gupta
Respondent Counsel :- Govt. Advocate
Hon'ble Ashok Srivastava,J.
This is the fourth bail application moved on behalf of the applicant Gyani, who is involved in Case Crime No. 150 of 2007 (S.T.No.379/07) under Sections 302, 307 IPC, P.S. Dankaur, District Gautambudh Nagar. The first bail application was rejected by this Court on merits and the second & third were rejected in non-prosecution.
Certain facts relating to this case need a mentioning here. The applicant is in jail since 28.4.2007. An FIR was registered against him and three other persons under Sections 302, 307 IPC at P.S. Dankaur, district Gautambudh Nagar in which the applicant was arrested and his first bail was rejected by this Court on merits.
I have heard learned counsel for the parties and perused the record.
According to the applicant there is a cross-case of this case. After the incident of the alleged murder the applicant tried to lodge his FIR with the police station, but in vain. Thereafter, he approached the Court of the learned Magistrate with an application under Section 156(3) Cr.P.C. After hearing the applicant the learned Magistrate directed the police station concerned to register an FIR and investigate the matter. The case was registered at case crime no.150-A of 2007 against four persons namely Devendra, Rinku Bhati, Navneet and Salekh. After the investigation the investigating officer filed a charge sheet against all these four persons under Sections 147, 148, 149, 307,452, 504, 323, 336 IPC. The learned Magistrate took cognizance of the case and issued summons. The accused persons in the cross case did not appear before the Court and kept on avoiding the summons issued by it. As a consequence the cross-case lingered in the lower Court. On the other hand the case against the applicant was committed to the Court of Sessions and the trial proceeded. When the trial progressed considerably the applicant informed the trial Court that the cross-case of the Sessions Trial was pending before the learned Magistrate which had not been committed and he prayed the trial Court that necessary order be passed that the case against the applicant and the cross-case should proceed simultaneously and must be decided finally together. The application, it appears , could not find favour from the learned trial Court. As a consequence the applicant moved this Court under Section 482 Cr.P.C. through Criminal Misc. Application No.19591 of 2008, Kuldeep Vs. State of U.P. & Others. After hearing, this Court, on 31.7.2008 disposed of the application under Section 482 Cr.P.C. and passed the following order:
"Therefore, this petition is hereby disposed of with the direction that cross case crime no.150-A/07 State Vs. Devendra and others pending in the Court of Judicial Magistrate Gautambudh Nagar be decided on the same day with the cross case ST No.379/07 (case crime no.,150/07 State Vs. Gyani and others.)"
When this order was communicated to the learned Magistrate where the cross case was pending, the learned Magistrate expedited the matter pending before him. Thereafter the accused persons of the cross-case moved this Court and filed Criminal Revision No.906 of 2010, Devendra & Another Vs. State of U.P. & Another. After hearing the revisionists and the State this Court on 8.3.2010 stayed further proceedings pending before the Court of learned Magistrate, Gautambudh Nagar till the next date of listing.
As mentioned above, the case pending before the Court of learned Magistrate is the cross-case of the case in which the applicant is an accused. As a consequence all the proceedings of the cross case were stayed and are stayed till date as is informed by the learned counsel for the applicant. This factum has not been denied by the learned AGA.
Now the position in the entire case is that the trial in which the applicant is an accused which is virtually ripe now, cannot be decided because this Court has ordered that the relevant sessions trial should be disposed of with the cross case. The proceeding of the cross case has been stayed by this Court as a consequence the sessions trial has also been stayed, though there is no direct order for the same.
In the above set of circumstances the learned counsel for the applicant has contended that disposal of the cross-case may take a few years and the applicant is already in jail since 28.4.2007. He has further stated that because of the illegal action on the part of the accused persons of the cross-case the disposal of sessions trial has been indirectly stayed but the factum of stay is undisputed.
The bail application has been vehemently opposed by the learned AGA.
My attention has been drawn towards the judgment passed by the Apex Court on 16.1.2009 in Criminal Appeal No.81 of 2009, Ashok Kumar Todi & Another Vs. CBI, photocopy of which has been supplied by learned counsel for the applicant. In this case the Apex Court has said that it is always advisable to release an accused on bail, if for any reason, his trial has been stayed and there is possibility that the stay may not be vacated in the near future. These guidelines are squarely applicable in the present bail application.
From the perusal of the records it is evident that all the witnesses of facts in the trial Court have been examined which is evident from various orders passed by the learned trial Court, the extract of which has been filed as Annexure-3 to the affidavit filed alongwith this bail application and only one or two formal witnesses has been left to be examined.
I do not find any force in this second bail application as far as the merits is concerned, but keeping in view the fact that the disposal of the sessions trial in which the applicant is in jail has been stayed though indirectly by this Court and there is definitely no likelihood of disposal of the same in the near future, I am of the view that the applicant should be released on bail.
Considering all the aspects of the case and without expressing any opinion as to the merits of the case, I am of the view that the applicant should be released on bail
Let the applicant Gyani, who is involved in Case Crime No. 150 of 2007 (S.T.No.379/07) under Sections 302, 307 IPC, P.S. Dankaur, District Gautambudh Nagar. be released on bail on his executing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned.
Order Date :- 30.11.2011
IA
