Vijay Kumar (Third Bail) vs State Of U.P.
2021 Latest Caselaw 9850 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 15
 

 
Case :- BAIL No. - 11815 of 2019
 

 
Applicant :- Vijay Kumar (Third Bail)
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Rajendra Prasa Mishra
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Alok Mathur,J.

1. Heard Sri R.P. Mishra, learned counsel for applicant as well as learned Additional Government Advocate.

2. This is the third bail application preferred by the applicant who is an accused in Case Crime N. 1397/2014, U/S - 302, 307, 342, 323 IPC & 7 Criminal Law Amendment Act, P.S. Kot. Dehat District - Balrampur.

3. The first bail application having been rejected on 04.04.2016 while relying upon the rejection order of the co-accused/Shravan Kumar, the bail application of the applicant was also duly considered.

4. Subsequently, after three years, the applicant preferred second bail application which was dismissed as not pressed on 23.04.2019 with the direction to the trial court to expedite the trial and conclude the same within a period of one year from the date of production a certified copy of that order.

5. The present third bail application has been preferred by learned counsel for applicant mainly on the ground that despite a clear direction by this Court directing the trial court to conclude the trial within a period of one year, still the trial is pending and looking into the Covid-19 situation, it is not likely to conclude in any time soon. It has further been submitted as per the supplementary counter affidavit filed by the State that all the prosecution witnesses have been examined and the examination of the defence witnesses is underway but the same also likely to take time because the normal functioning of the court have not been resumed.

6. It has been submitted by learned counsel for applicant that the applicant is in jail since 05.11.2014 and has spent nearly six and a half years in jail. He lies upon the judgment of the Supreme Court in the case of Satya Brat Gain Vs. State of Bihar, AIR 2000 SC 1925, where the Supreme Court held that "In the light of the report submtited by the trial Judge as well as by the Director General and I.G. Police, Patna (Bihar) we do not see any reasonable prospect of the trial against the appellant registering substantial progress in the future. It is already 5 years passed since appellant has been taken into custody in connection with this case. We are definitely not appreciating the reasons for this slow paced progress of the proceedings against the appellant. Be that as it may, we cannot permit the appellant to continue in incarceration for a further period without the adjudication being finalised. We, therefore, order him to be released on bail on his executing a bond to the satisfaction of the trial Judge. We permit the trial Judge to impose such conditions as he feels necessary for ensuring his attendance on the dates of posting in the trial Court.

7. Reliance has further been placed upon the judgment dated 27.07.2021 passed in the case of Paras Ram Vishnoi Vs. The Director, Central Bureau of Investigation, (Criminal Appeal No. 693/2021) where in the said case, the accused was in custody for eight and a half years and the prosecution evidence was over as well as the statement of the accused under Section 313 Cr.P.C., the Supreme Court was of the considered opinion that "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. It has been vehemently submitted by learned counsel for applicant that looking into the fact that all the prosecution witnesses are over there is no chance of the applicant either tampering of the evidence or with the witnesses so as to interfere with the trial.

9. Learned A.G.A. on the other hand opposes the bail application and submitted that looking into the role of the applicant as well as gravity of the offence, the application is liable to be rejected.

10. After hearing learned counsel for the applicant and perusing the record, it is clear that the first bail application was rejected merely on considering the rejection order of the bail application of the co-accused. It is also noteworthy that in the F.I.R. a general role has been ascribed to the applicant while in the statement under Section 161 Cr.P.C. exhortation has been levelled against the applicant.

11. Looking into the fact that this Court has directed the trial court to conclude the trial within a period of one year from 23.04.2019 and the said period of one year has expired in April, 2020. Even period of one year and three months has passed subsequent to the time when the trial court was to conclude the trial as per orders of this Court, but the same is still pending consideation and also considering the fact that during Covid-19 period, the working of the trial court was severely crippled and till date most of the hearings are taking place by on-line mode and during the said Covid-19 pandemic none of the witnesses could reach the court for giving statements and consequently the proceedings of the Court have been delayed.

12. Considering the aforesaid facts including the fact of the present case as well as the judgment passed by the Apex Court, it is clear that a person cannot be kept languishing in jail for an indefinite period, looking into the fact that the trial proceeding may be delayed for one reason or the another as in the case cited by the applicant where are large number of witnesses are liable to be produced before the Court the trial may take longer time to conclude. There may be other circumstances for prolonging the trial but the adverse effect of the prolong trial should not be on the applicant who is languishing in jail.

13. In the present case, considering the fact that all the prosecution witnesses have been examined and the defence witnesses have yet to be examined. Further looking into the fact that applicant has already been spent 6 and half years in jail and considering the arguments advanced by the learned counsel for the parties and, without expressing any opinion on the merit of the case, I find it to be a fit case for granting bail.

14. Let applicant-Vijay Kumar be released on bail in aforesaid case on his furnishing a personal bond and two sureties of the like amount to the satisfaction of the Magistrate/Court concerned, subject to following conditions :-

(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.

(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

15. In case of breach of any of the above conditions, the Court below shall be at liberty to cancel the bail and proceed against the applicant in accordance with law.

16. The application stands disposed of.

17. This order shall not influence the trial court for proceeding the trial.

18. The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by him alongwith a self attested identity proof of the said person(s) (preferably Aadhar Card) mentioning the mobile number(s) to which the said Aadhar Card is linked before the concerned Court/Authority/Official.

19. The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

(Alok Mathur, J.)

Order Date :- 9.8.2021

Ravi/