Vivek Verma (Third Bail ... vs The Union Of India Through Cbi
2022 Latest Caselaw 1563 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

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

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1464 of 2022
 

 
Applicant :- Vivek Verma (Third Bail Application)
 
Opposite Party :- The Union Of India Through Cbi
 
Counsel for Applicant :- Atul Verma,Akhilendra Pratap Singh
 
Counsel for Opposite Party :- Anurag Kumar Singh
 

 
Hon'ble Rajesh Singh Chauhan,J.

1. Heard Sri Atul Verma, learned counsel for the applicant and Sri Anurag Kumar Singh, learned counsel for the Central Bureau of Investigation (C.B.I.).

2. As per learned counsel for the applicant, the present applicant is languishing in jail since 15.02.2017 in Case Crime No.52 of 2017, R.C. No.4 (S) /2017, under Sections 302, 120-B and 201 I.P.C., Police Station-C.B.I/SCB, Lucknow, District-Lucknow. He has submitted that the present applicant has been falsely implicated in this case as he has not committed any offence as alleged in the prosecution story.

3. This is the third bail application. The first bail application bearing Bail Case No.5860 (B) of 2017 was rejected on 21.01.2020 by Hon'ble Mr. Justice Chandra Dhari Singh, who has been transferred from this Court to another High Court. The second bail application bearing Bail Case No.3464 (B) of 2020 was dismissed as withdrawn on 08.11.2021 by Hon'ble Mr. Justice Salil Kumar Rai, who is sitting at Allahabad.

4. Since Hon'ble Mr. Justice Chandra Dhari Singh has been transferred to another High Court and Hon'ble Mr. Justice Salil Kumar Rai is sitting at Allahabad, therefore, in view of the order of Hon'ble the Chief Justice dated 13.11.2018 the present bail application has been listed before the regular Court.

5. At the very outset, Sri Atul Verma, learned counsel for the applicant has submitted that he is cautious about the legal position that he cannot take any fresh ground to argue the third bail application which could have been taken at the time of rejection of first or second bail applications.

6. Sri Verma has submitted that he is only pressing this bail application on the ground that the present applicant is in jail since 15.02.2017 and out of total 101 prosecution witnesses only 25 prosecution witnesses have been examined. Therefore, there is no possibility to conclude the trial in near future, so the present applicant may be enlarged on bail. He has further submitted that after rejection of first bail application on merits on 21.01.2020 the bail of the other co-accused persons, namely Aman Singh and Faisal, who have been implicated invoking the provisions of Section 120-B I.P.C. in a same manner the present applicant has been implicated invoking Section 120-B I.P.C., inasmuch as the present applicant has not been attributed the role of main assailant. Even the present applicant was not present on the spot, however, co-accused persons, namely, Aman Singh and Faisal have been attributed the role that they were on Motorbike near the place where incident in question has taken place and the Motorbike which was being used at that point of time by the co-accused was of the present applicant.

7. Sri Verma has also submitted that however before rejection of first bail application of the present applicant on 21.01.2020 the bail of one co-accused, Ajay Patel who was also implicated invoking Section 120-B I.P.C., has been granted bail on 07.11.2019 but he shall not take such ground for the reason that such ground was available to the present applicant at the time of rejection of his first bail application. However, the fact remains that so far as the implication of co-accused persons, namely, Ajay Patel, Aman Singh and Faisal is concerned, all accused persons have been implicated invoking Section 120-B I.P.C., therefore on that score, the present applicant is having parity with all the co-accused persons. Hence, on the aforesaid ground the present applicant may be enlarged on bail.

8. On the other hand, Sri Anurag Kumar Singh, learned counsel for the C.B.I. has submitted that he has provided copy of the counter affidavit to the learned counsel for the applicant, however, he could not file the hard copy thereof whereas copy of the said counter affidavit has been shown to the Court for perusal.

9. Therefore, Sri Singh is directed to file and upload the counter affidavit forthwith and as soon as the said counter affidavit is filed and uploaded, the same shall be processed by the office at the earliest. Even though I am deciding the present bail application on the basis of material available on record but for the purposes of record of the bail application, the same shall be filed and uploaded in view of the aforesaid order.

10. In view of the above, the question before this court for consideration is as to whether after rejection of bail application of any accused person, the other co-accused persons having similar role or lesser role if granted bail, can be considered as a new ground for considering the subsequent bail application. This question has been cropped up before the Division Bench of this Court in re: Nanha S/o Nabhan Kha vs. State of U.P., reported in 1993 Cri.LJ 938, and the Division Bench has formulated the question in para-1 of the judgement, which reads as under:-

"1. In the third bail application moved by the petitioner for bail in case Crime No. 53 of 1989 under Section 302, IPC of P.S. Ganj, district Rampur Hon'ble N.L. Ganguli, J. has referred the following question to a larger Bench for an authoritative pronouncement:--

Whether an accused is entitled to be released on bail on the ground of parity by moving a second or third bail application in a circumstance that at a later date a co-accused of the same criminal case with a similar role was granted bail by the another Hon'ble Judge before whom without disclosing the fact that the bail application of another co- accused with similar role had already been rejected, by another Bench, bail was granted."

11. While considering the aforesaid question, the Division Bench has observed in paras-53 & 58 of the case in re: Nanha (supra) as under:-

"53. There are large number of cases of this Court in which the question of parity in the matters of bail has been considered earlier and the weight of judicial authority is in favour of the principle of parity being followed. In the case of Hadi v. State, 1986 Allahabad Criminal Cases 390 Hon'ble Parmeshwari Dayal, J. bailed out the accused on the ground that co-accused had been bailed out earlier. In another case of Sanwal Das Gupta v. State of U.P., 1986 Allahabad Criminal Cases 79, D.N. Jha, J. observed that where bail was granted to a co-accused then even the Magistrate can admit co-accused to maintain parity. In the case of Ram Roop Vs. State of U.P. 1987 Criminal Rulings 30, this Court observed that a co-accused having similar role having been granted bail another co-accused should also be granted bail. In the case of Ali Hussain v. State of U.P., 1990 U.P. Criminal Rulings 93, Hon'ble S.K. Dhaon, J. placed reliance on the Supreme Court's case of Kallu (supra) and granted bail on the ground of parity. In a unreported decision of this Court in Criminal Misc. Bail Application No. 1360 of 1987 Rai Munna v. State of U.P. Hon'ble G.P. Mathur, J. granted bail on the ground of parity though the Hon'ble Judge clearly observed that he was still of the opinion that the applicant was not entitled to bail on merits, but, however, as his case was not distinguishable from the case of co-accused the bail was granted on the ground of parity. In his judgment in Sobha Ram's case (supra) Hon'ble V.N. Mehrotra, J. has considered some more unreported decisions of this Court in which bail has been granted on the ground of parity. I respectfully agree with the view of Hon'ble V.N. Mehrotra, J.

58. The word 'parity' means the state or condition being equal or on a level; equality; equality of rank or status (See Shorter Oxford English Dictionary 1936 Ed.). In other words it means being placed at the same footing. All the accused of a case always do not stand on the same footing. While considering bail of different accused the court has to find out whether they stand on the same footing or not. Even if role assigned to various accused is same yet they may stand on different footing. The case of Cap. Jagjeet Singh (supra) is an illustration wherein the Supreme Court distinguished the case of Capt. Jagjeet Singh on the ground that he was in touch with foreign agency and leaking out secrets. The Supreme Court in the case of Gur Charan Singh v. Delhi Administration, AIR 1978 SC 179 : (1978 Cri LJ 129) laid down that the considerations for grant of bail are inter alia the position and status of the accused with reference to the victim and the witnesses; likelihood of the accused; fleeing from justice; of repeating offence; of jeopardising his own life, being faced with grim prospect of possible conviction in the case; of tampering with witnesses; and the like. These are additional factors which are to be judged in the case of individual accused and it may make the cases of different accused distinguishable from each accused. At the same time if there is no real distinction between the individual case of accused the principle of parity comes into play and if bail is granted to one accused it should also be granted to the other accused whose case stands on identical footing."

12. While answering the aforesaid question, the Division Bench has opined in para-61 of the case in re: Nanha (supra) as under:-

"61. My answer to the points referred to is that if on examination of a given case it transpires that the case of the applicant before court is identical, similar to the accused, on facts and circumstances who has been bailed out, then the desirability of consistency will require that such an accused should also be released on bail. (Exceptional cases as discussed above apart). As regards the second part of the question, answer is that it is not at all necessary for an accused to state in his bail application that the bail application of a co-accused has been rejected previously."

13. So as to demonstrate the role of the present applicant, the attention has been drawn by Sri Verma towards the prosecution story wherein the present applicant has been attributed the role of providing the Motorbike to the accused persons who have killed the victim.

14. Sri Verma has further submitted that from the statement of all 25 prosecution witnesses who have been examined and cross-examined, none of them have alleged anything against the present applicant to the effect that the present applicant has committed the crime in question or he was present on the spot. As a matter of fact, the present applicant has been implicated invoking the provisions of Section 120-B I.P.C. in a same manner as the other co-accused, namely, Ajay Patel, Aman Singh and Faisal have been implicated. Even as per the prosecution, the Aman Singh and Faisal were on the Motorbike near the place of incident putting the Helmet on their head but the present applicant was not even present at the place of incident. Therefore, the case of the present applicant is on better footing than the case of other co-accused persons who have been granted bail. Further, Aman Singh and Faisal have been granted bail by this Court on 29.10.2021 and 15.12.2021, subsequent to rejection of first bail application of the present applicant on 21.01.2020. Therefore, the case of the present applicant may be considered in the light of the decision rendered in re: Nanha (supra).

15. On the basis of aforesaid contention, Sri Verma has submitted that the present applicant may be enlarged on bail and he has given undertaking on his behalf that he shall co-operate with the trial proceedings, shall not misuse the liberty of bail and shall not influence any of the witnesses.

16. Sri Verma has submitted with vehemence that the present applicant is having no criminal history of any kind whatsoever and this fact has not been controverted anyway in the counter affidavit.

17. Per contra, Sri Anurag Kumar Singh, learned counsel for the C.B.I. has vehemently opposed the prayer for bail by submitting that since the first bail application has been rejected and the applicant has got his second bail application dismissed as not pressed on 08.11.2021, therefore, the grounds so taken by Sri Atul Verma as a new ground may not be considered as a new ground so the present bail application may be rejected.

18. However, on being confronted on the point at to whether co-accused persons Ajay Patel, Aman Singh and Faisal have been implicated invoking the provisions of Section 120-B I.P.C. in a same manner as the present applicant has been implicated, Sri Singh has submitted that those co-accused persons have been implicated invoking the provisions of Section 120-B I.P.C.

19. On being further confronted as to whether the present applicant was present at the place of incident in a same manner as the co-accused persons, Aman Singh and Faisal, were present putting on Helmet while driving the Motorbike, Sri Singh has submitted that on the basis of material available on record the present applicant was not present at the place of incident, however, he was actually involved as a conspirator.

20. So far as the criminal history of the present applicant is concerned, Sri Singh has submitted that the prosecution/ C.B.I. could not lay his hands on any of the criminal antecedent of the present applicant.

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

22. Without entering into merits of the issue, considering the fact that after rejection of the first bail application on merits on 21.01.2020, co-accused persons Aman Singh and Faisal have been granted bail on 29.10.2021 and 15.11.2021. Both the co-accused persons have been implicated invoking the provisions of Section 120-B I.P.C. in a same manner as the present applicant has been implicated. As per the prosecution story, Aman Singh and Faisal were present on the spot on their Motorbikes putting the Helmet on their head whereas the present applicant was not present at the place of incident. The Motorbike of the present applicant has allegedly been utilized by the accused persons.

23. Notably, out of 101 prosecution witnesses, only 25 prosecution witnesses have been examined by now, therefore, there is no possibility to conclude the trial in near future and the period of incarceration of the present applicant which is more than five years and two months may be considered in view of the dictum of Apex Court in re: Union of India vs. K.A. Najeeb reported in AIR 2021 Supreme Court 712. Para-16 of the judgment 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."

24. The Apex Court in the case in re: 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) 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."

25. In the aforesaid cases, the Apex Court has held that if there is no possibility to conclude the trial in near future and the accused applicant is in ail for a substantial long period then a period of incarceration may be considered as a fresh ground.

26. Since two co-accused persons, namely, Aman Singh and Faisal have been granted bail subsequent to rejection of first bail application of the present applicant and role of those co-accused persons and the present applicant is more or less similar as considered above, rather, is having lesser gravity, therefore, in view of the decision of the Division Bench of this Court rendered in re: Nanha (supra), wherein the Division Bench of this Court has considered various decisions of Apex Court and the case of the present applicant is squarely covered from that judgment, so the benefit of that judgment may be extended to the present applicant.

27. It is made clear that if after releasing from jail after getting bail the present applicant misuses the liberty of bail or influence any witnesses or evidences, the prosecution may file an appropriate application for cancellation of bail which may be considered at the earliest.

28. In view of the above, the present application for bail is allowed.

29. Let the applicant-Vivek Verma, 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.

30. 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 :- 27.4.2022     [Rajesh Singh Chauhan,J.]
 
Suresh/