Bhaiya Ram (Fourth Bail) vs State Of U.P. Thru Prin.Secy. Home ...
2022 Latest Caselaw 1339 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 11
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2610 of 2022
 
Applicant :- Bhaiya Ram (Fourth Bail)
 
Opposite Party :- State Of U.P. Thru Prin.Secy. Home Lucknow
 
Counsel for Applicant :- Ravi Shankar Mishra,Pranav Trivedi
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajesh Singh Chauhan,J.

1. Heard Sri Ravi Shankar Mishra, learned counsel for the applicant and Sri Hans Raj Verma, learned A.G.A. for the State.

2. It has been contended by the learned counsel for the applicant that the applicant is in jail since 3.1.2015 in Case Crime No. 294 of 2014 u/s 147, 148, 149, 323,324, 504,506,452, 307, 308, 304 IPC, P.S. Raniganj, District Pratapgarh. It has been submitted that the applicant has been falsely implicated in this case as he has not committed any offence as alleged.

3. Sri Mishra has filed questionnaire being issued from the learned trial court dated 22.4.2022, the same is taken on record.

4. At the very outset the learned counsel for the applicant has submitted that since the present bail application being fourth bail application, therefore, he shall not advance any arguments or raise any ground which could have been taken at the time of rejection of first, second or third bail application. He has submitted that he shall argue the present bail application on a limited ground to the effect that the present applicant is in jail since 3.1.2015, about seven years and four months and despite the specific directions have been issued by this Court twice to conclude the trial within time frame, there was no good progress in the trial inasmuch as out of total 15 prosecution witnesses nine prosecution witnesses have been examined, out of them all fact witness (P.W.-1 to P.W. -7) have been examined and in given circumstances there is no likelihood to conclude the trial in near future, therefore, the period of incarceration of the present applicant and the progress of trial may be considered in view of dictum of Apex Court in re: Union of India vs. K.A. Najeeb reported in AIR 2021 Supreme Court 712 and in the case of 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) enlarge the present applicant on bail.

5. Sri Mishra has drawn attention of this Court towards the certified copy of the questionnaire which indicates that nine prosecution witnesses have been examined and the next date has been fixed for 25.4.2022 for examination of other prosecution witnesses.

6. The first bail application was rejected by Hon. Mahendra Dayal, J. ( since retired) on 29.3.2016 (Annexure no. 3). The second bail application was rejected by Hon. Prashant Kumar, J. on 25.7.2018 (Annexure no. 4) and the third bail application has been rejected by Hon. Mohd. Faiz Alam Khan, J. on 2.7.2021. In terms of orders of Hon. the Chief Justice dated 13.11.2018 if any Hon'ble Court is not sitting at the place where any bail application is listed which has already been rejected by him or her, the regular Court may hear such bail application, therefore, the present bail application has been put up before this Court.

7. While rejecting the second bail application on 25.7.2018 this Court has observed as under :

"However, it appears that the applicant is in custody since 03.11.2015, thus, the court below is directed to expedite the trial and if possible, conclude the same, within six months."

8. While rejecting third bail application on 2.7.2021 this court has observed as under :

"However, having regard to the fact that the applicant is detained in prison in this case for the last seven years and only five prosecution witnesses have been testified before the trial court, the trial court is directed to conduct the trial of the case pending before it by fixing at least two dates in a week and ensure that on all dates fixed, the remaining prosecution witnesses are examined. The trial court is further directed to conclude the trial within six months from today."

9. In all the three rejection orders this Court has briefly considered the facts and circumstances of the issue in question.

10. While rejecting third bail application on 2.7.2021 this Court has taken cognizance of the fact that by that time five prosecution witnesses had been examined, therefore, this Court was of the view that the trial should be concluded within a period of six months and rejected said bail application. About ten months period have passed since 2.7.2021 but there was no good progress in the trial proceedings inasmuch as only four more prosecution witnesses have been examined including all fact witnesses, two Doctors, two Sub-Inspectors. Six prosecution witnesses are yet to be examined. Thereafter, the defence witnesses would be examined and the trial would be concluded after adopting due procedure of law. In carrying out aforesaid exercise there is no possibility of conclusion of trial in near future, therefore, the present applicant may be enlarged on bail.

11. The learned counsel for the applicant has given an undertaking on behalf of applicant that the applicant shall not misuse the liberty of bail and shall cooperate with the trial proceedings and shall abide by all terms and conditions of bail, if granted.

12. Learned A.G.A. has opposed this bail application by submitting that this is fourth bail application and since no new grounds have been raised by the present applicant, therefore, this bail application may be rejected.

13. On being confronted the learned AGA on the point that despite the two orders being passed by this Court on 25.7.2018 and 2.7.2021 to expedite the trial within six months there was no progress in the trial and the present applicant is in jail for about seven years and four months, learned AGA has submitted that since the aforesaid fact is matter of record, therefore, he has nothing to say on this point.

14. Heard learned counsel for the parties and perused the record as well as the questionnaire dated 22.4.2022 produced today itself.

15. At the very outset, I must express my anguish towards the approach of the learned trial court by not following the direction of this Court in its letter and spirit. When this Court vide order dated 25.7.2018 has directed to conclude the trial within six months, the trial should have been concluded within six by adopting coercive methods and also by taking recourse of section 309 Cr.P.C. It is noted here that at that point of time the Pandemic Covid -19 was not there. Further, when this Court has taken notice of the fact on 2.7.2021 while rejecting their bail application that five prosecution witnesses have already been examined, at least in a period of about ten months the trial should have been concluded but still six prosecution witnesses are to be examined, defence witnesses are to be examined and other legal formalities are required to be followed, therefore, this approach of the learned trial court may not be appreciated. When the learned trial court is having the powers enshrined u/s 309 Cr.P.C. to conclude the trial on day to day basis and they are armed with coercive powers, I fail to understand as to why such provisions of law has not been adopted to conclude the trial within time frame as directed by this Court twice.

16. The Apex Court in re: Union of India vs. K.A. Najeeb (supra) has held as under :

"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."

17. In the case of Paras Ram Vishnoi vs. The Director, Central Bureau of Investigation (supra) the Apex Court has held 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."

18. The Hon'ble Supreme Court in Criminal Appeal No.308 of 2022, @ SLP (Crl.) No.4633 of 2021; Saudan Singh Vs. The State of Uttar Pradesh vide order dated 25.02.2022 has held that if the accused person is in custody for around eight years pending his criminal appeal before the appellate court, he may be granted bail on the terms and conditions to the satisfaction of the learned trial Court.

19. Besides, as per dictum of the Hon'ble Apex Court in re; Gokarakonda Naga Saibaba v. State of Maharashtra, (2018) 12 SCC 505, wherein it has been held that if all fact/ material witnesses have been examined, the bail application of the accused may be considered.

20. Therefore, without entering into the merits of the case, I am considering the period of incarceration of the present applicant in jail i.e. 7 years and 4 months and poor progress of trial despite the specific direction being issued by this court twice. Notably, all fact/material witnesses have been examined. There is no likelihood, in view of the progress of the trial, to conclude the trial in near future. Therefore, the aforesaid grounds entitles the present applicant to be released on bail and aforesaid grounds may be considered as appropriate ground to grant bail while disposing of the fourth bail application of the present applicant.

21. Accordingly, the present bail application is allowed.

22. Let the applicant Bhaiya Ram, involved in aforesaid case crime be released on bail 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 which are being imposed in the interest of justice:-

(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.

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

23. 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. The learned trial court shall fix short dates to ensure that trial is concluded at the earliest.

.

(Rajesh Singh Chauhan, J.)

Order Date :- 25.4.2022

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