Pankaj Third Bail Appl. vs State Of U.P. And Another
2022 Latest Caselaw 1288 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

? A.F.R. 
 
Court No. - 11
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1629 of 2020
 

 
Applicant :- Pankaj Third Bail Appl.
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Sukh Deo Singh,Paritosh Shukla,Ramakar Shukla
 
Counsel for Opposite Party :- G.A.,Shiv Shankar Singh
 

 
Hon'ble Rajesh Singh Chauhan,J.

1. Heard Sri Ramakar Shukla, learned counsel for the applicant, learned Additional Government Advocate for the State and Ms. Shobha Rajpoot, Advocate holding brief of Sri Shiv Shankar Singh, learned counsel for opposite party no.2 i.e. the complainant/ informant.

2. Learned Additional Government Advocate has filed counter affidavit, today in the Court, the same is taken on record.

3. Learned counsel for the applicant has filed supplementary affidavit, today in the Court, the same is taken on record. Sri Shukla has also filed certified copy of the F.I.R. and the order-sheet of learned trial court showing the status of trial on various dates, the same are also taken on record.

4. This is the third bail application. The first bail application has been rejected on 26.02.2015 by Hon'ble Surendra Vikram Singh Rathore, J. (since retired). The second bail application has been rejected on 20.09.2017 by Hon'ble Ravindra Nath Mishra-II, J. (since retired).

5. The first bail application of the present applicant was rejected on merits and the second bail application of the applicant was rejected on the ground that no knew facts have been pointed out to consider the second bail application, therefore, such bail application has been rejected.

6. Sri Ramakar Shukla, learned counsel for the applicant has submitted that he is cautious about the fact that while arguing third bail application, he may not raise any ground which could have been taken at the time of arguing the first bail application or the second bail application. Therefore, he is not arguing on merits of the present case. He has submitted that he shall argue the present bail application on the ground that about seven years and eight months period have passed, to be more precise with effect from 17.08.2014 the present applicant is in jail, and there is no possibility to conclude the trial in near future so considering the dictum of Apex Court in catena of cases his period of incarceration may be considered to release him on bail. Further, since the complainant and the prosecutrix have already been examined, therefore, if the present applicant is released on bail there would be no apprehension on his part to influence the star witnesses i.e. the complainant/ informant and the prosecutrix.

7. Only for the purpose to apprise the fact in brief Sri Shukla has submitted that the present applicant is languishing in jail since 17.08.2014 in Case Crime No.417 of 2014, under Section 376 & 323 I.P.C. r/w Section 3/4 of Protection of Children from Sexual Offences Act (in short POCSO), Police Station-Chanda, District-Sultanpur. He has further submitted that as per the prosecution story so narrated in the First Information Report (in short F.I.R.), the prosecutrix was said to be a minor girl, aged about 12 years at the time of incident in question, and her radiological age was 16 years. She had levelled allegations against the present applicant in the statements recorded under Sections 161 Cr.P.C. and 164 Cr.P.C. As per medical examination report, no injury was found on her body and due to some quarrel took place in the year 2012, in the month of August, 2014 when the cattle of the applicant entered into the field of the complainant, the false F.I.R. has been lodged and he has been falsely implicated.

8. Sri Shukla has drawn attention of this Court towards Section 309 Cr.P.C. with its 1st proviso, which reads as under:-

"309. Power to postpone or adjourn proceedings. [(1) In every inquiry or trial the proceedings shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded.

Provided that when the inquiry or trial relates to an offence under Section 376, [Section 376-A, Section 376-AB, Section 376-B, Section 376-C, Section 376-D, Section 376-DA or Section 376-DB of the Indian Penal Code (45 of 1860), the inquiry or trial shall] be completed within a period of two months from the date of filing of the charge-sheet.]"

9. Sri Shukla has submitted that in the present case, the trial relates to Section 376 I.P.C. and Section 3/4 of POCSO Act, therefore, the trial must be completed within a period of two months from the date of filing the charge-sheet. However, the charge-sheet has been filed on 06.10.2014 and the learned court has taken cognizance on 20.10.2014, as shown in the charge-sheet filed along with the counter affidavit as Annexure No.CA-5 but there is no good progress in the process of trial. Therefore, the same aspect may be considered as disobedience of mandatory and statutory provisions enshrined under the proviso of Section 309 Cr.P.C.

10. Sri Shukla has drawn attention of the certified copy of the F.I.R. and the order-sheet of the trial court from 21.09.2019 till 16.03.2022 and perusal thereof reveals that the prosecution witnesses are not co-operating with the trial proceedings. As a matter of fact, with effect from 21.09.2019, more than two dozen dates have been fixed for examination of the prosecution witnesses but those witnesses have not appeared. The court has taken coercive steps issuing warrant but to no avail. Orders dated 21.01.2021, 17.02.2021 and 01.04.2021 reveals that the Doctor and the Investigating Officer were summoned and the warrants were issued against them but no one has appeared. Further, vide orders dated 04.09.2021, 28.09.2021 again the Doctor and the Investigating Officer, PW-3 and PW-6 were summoned but to no avail. The last date of the aforesaid order-sheet reveals that on 16.03.2022 the case was fixed for 30.03.2022 for examination of the aforesaid prosecution witnesses.

11. Sri Shukla has further drawn attention of this Court towards Annexure No.SA-1 of the supplementary affidavit dated 13.04.2022 to show that PW-1, (complainant/ informant), was examined on 19.02.2016 and he was cross-examined on 23.06.2016. PW-2 (prosecutrix), was examined on 20.10.2016 and her cross-examination was done on 30.05.2017 and finally concluded on 24.07.2017.

12. In view of the above, Sri Shukla has submitted that PW-1 (complainant/ informant), and PW-2 (prosecutrix) were finally examined by 24.07.2017. Thereafter, couple of dates have been fixed till 16.03.2022 but no other prosecution witnesses have been examined despite the learned trial court issued warrants.

13. As per Sri Shukla, for all practical purposes the prosecution witnesses are not co-operating with the trial proceedings and the trial proceedings are unnecessarily held up for no fault on the part of the present applicant.

14. Sri Shukla has also drawn attention of this Court towards order dated 30.03.2022 passed by this Court in Criminal Misc. Bail Application No.6869 of 2019 (Anokhi Lal (Second Bail) vs. State of U.P.) whereby this Court considered the dictum of Apex Court in re: Union of India vs. K.A. Najeeb AIR 2021 Supreme Court 712 and Paras Ram Vishnoi vs. The Director, Central Bureau of Investigation passed in Criminal Appeal No.693 of 2021 (Arising out of SLP (Crl.) 3610 of 2020 granted bail to such accused Anokhi Lal while allowing his second bail application on the ground that there was no good progress in the trial and there was a long incarceration of that accused, therefore, he was entitled for bail. Para-16 of the case K.A.Najeeb (supra) is being reproduced here-in-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."

15. The Apex Court in the case of Paras Ram Vishnoi (supra) has observed as under:-

"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."

16. Sri Shukla has further drawn attention of this Court towards the dictum of Apex Court rendered in re: Gokarakonda Naga Saibaba vs. State of Maharashtra reported in (2018) 12 SCC 505 wherein the Apex Court has observed that if the material and fact witnesses have been examined, the bail of the accused persons may be considered.

17. Sri Shukla has placed reliance upon the recent judgment of Apex Court dated 25.02.2022 in re: Saudan Singh vs. The State of Uttar Pradesh passed in Criminal Appeal No.308 of 2022 (@ SLP (Crl.) No.4633 of 2021), wherein the Apex Court has held that period of long detention of the accused may be considered even if the issue is pending consideration before the Appellate Court.

18. Therefore, to sum up his arguments Sri Shukla has vehemently submitted that about seven years and eight months period have passed since the present applicant is in jail, the informant/ complainant (PW-1) and the prosecutrix (PW-2) have already been examined in the year 2017 and since then the prosecution witnesses are not co-operating with the trial proceedings, therefore, the trial could not be concluded. On the side of the present applicant, the proper co-operation is being given to the trial court as no unnecessary adjournment has been sought from his side but it is on account of unwarranted attitude and approach of the prosecution not to co-operate in the trial properly the trial is still pending. The present applicant has got no previous criminal history, therefore, he may be enlarged on bail. If the present applicant is enlarged on bail, it has been submitted by Sri Shukla that he shall co-operate with the trial proceedings and shall abide by all terms and conditions of bail order.

19. Learned counsel for the applicant has undertaken on behalf of the present applicant that the applicant shall not misuse the liberty of bail, if so granted by this Court and shall abide by all terms and conditions of the bail order and shall cooperate with the trial proceedings.

20. Learned Additional Government Advocate as well as learned counsel for the complainant/ informant have vehemently opposed the prayer for bail of the present applicant by submitting that since two bail applications of the present applicant have already been rejected, therefore, this bail application may not be entertained.

21. However, on being confronted on the point, on the basis of material available on record, that the prosecution witnesses are not co-operating with the trial proceedings, resultant thereof, the trial could not be concluded, both the learned counsel for the opposite parties have submitted that since this is matter of record, therefore, they have nothing to say.

22. Heard learned counsel for the parties and perused the material available on record.

23. At the very outset, there is displeasure in my mind towards approach of the trial court for the reason that the star witnesses i.e. PW-1 (informant/ complainant) and PW-2 (prosecutrix) have already been examined finally by 24.07.2017 but since then no positive efforts have been taken to conclude the trial despite the clear cut statutory and mandatory provisions enshrined under Section 309 Cr.P.C. which provides that the trial in the cases of 376 I.P.C. etc. shall be completed within a period of two months from the date of filing of the charge-sheet. In the present case, what is to say about the period of two months, more than four years and three months period have passed after examination of both the star witnesses and despite noticing the fact that other prosecution witnesses are not co-operating, no appropriate coercive steps have been taken by the learned trial court for which they are properly armed with. If the prosecution witnesses were not properly co-operating in the trial proceedings, the learned trial court must take coercive steps strictly in accordance with law so that the trial could be concluded at the earliest. In the present case, Covid-19 Pandemic may not be the reason of delay in proceeding the trial inasmuch as both the star witnesses have been examined finally on 24.07.2017 and Covid-19 sparked in the country in the month of March and April, 2020.

24. Since there is no report that there is any unnecessary delay on the part of the present applicant/ defence, rather, the order-sheet reveals that no adjournment has been sought from his side before the learned trial court and it is deliberate delay on the part of the prosecution, resultant thereof, the trial is unnecessary held up, therefore, the benefit thereof should be extended to the present applicant in terms of his right enshrined under Article 21 of the Constitution of India as the fundamental rights enshrined under Article 21 is available to the accused/ detenu also. It is also trite that under-trials cannot indefinitely be detained pending trial.

25. In view of the various dictum of Apex Court to the effect that if the trial is being delayed unnecessarily and for such delay there is no fault on the part of the accused, rather, it is on the part of the prosecution and the period of incarceration of such accused is long, his/ her bail application may be considered. The facts and circumstances of the present case qualifies such test. Besides, the fact that the present applicant is not having any previous criminal history, may also be considered to release him on bail.

26. Therefore, in view of the above and without entering into merits of the issue, I find it a fit case for grant of bail.

27. Let the applicant-Pankaj, be released on bail in the aforesaid case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the 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 fail 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.

(v) The applicant shall not leave the country without prior permission of the Court.

28. Before parting with, it is expected that the trial shall be concluded with expedition in terms of Section 309 Cr.P.C. Further, the learned trial court may take all coercive measures as per law if either of the parties do not co-operate in the trial properly.

Order Date :- 13.4.2022 [Rajesh Singh Chauhan,J.]

Suresh/