Shradchandra Gupta Second Bail vs State Of U.P.
2022 Latest Caselaw 1686 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 11
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1441 of 2021
 

 
Applicant :- Shradchandra Gupta Second Bail
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Neera Yadav,Shailendra Kumar Tripathi
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajesh Singh Chauhan,J.

Heard Ms. Neera Yadav, learned counsel for the applicant and Sri Amit Dwivedi, learned A.G.A.

This is the second bail application. First bail application was rejected by Hon'ble Mahendra Dayal, J. (since retired) on 26.9.2016 in Bail No.5010 of 2016.

As per learned counsel for the applicant, the present applicant is in jail since 08.03.2016 in Case Crime No.392 of 2015, under Sections 302/201 IPC and Section 3 (2) (V) SC/ST Act, Police Station ? Kotwali Ayodhya, District ? Faizabad (now Ayodhya).

This Court vide order dated 27.1.2022 sought current status of the trial. In compliance of the aforesaid order, learned trial court i.e. Special Judge (SC/ST Act), Faizabad vide report dated 01.02.2022 submitted status of the trial, which is on record. The said report indicates that four fact witnesses and one formal witness i.e. Doctor (PW-5) have been examined.

Learned counsel for the applicant has submitted that she is conscious about the fact that she cannot raise such grounds in the second bail application which could have been taken at the time of rejection of first bail application, therefore, she is only pressing this bail application on the point that since four fact/ material witnesses have been examined and one formal witness has been examined and there is no possibility of the trial to be concluded in near future inasmuch as other prosecution witnesses are yet to be examined; thereafter, defence witnesses would be examined and after following the required formalities, the trial would be concluded but it will take much time. Therefore, in the light of the dictum of the Hon'ble Apex Court in re; Union of India vs. K.A. Najeeb reported in 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) No.3610 of 2020), wherein it has been held that if the accused person is in jail for substantially long period and there is no possibility to conclude the trial in near future, the bail application may be considered. Besides, learned counsel for the applicant has referred the 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. Learned counsel has submitted that in the present case, all fact/ material witnesses have been examined, therefore, the present applicant, who is in jail since 08.03.2016, may be enlarged on bail. The applicant is having no previous criminal history. Learned counsel undertakes on behalf of the applicant that the applicant shall co-operate with the trial proceedings and shall not misuse the liberty of bail, if so granted by this Court. Further, the applicant shall abide by all terms and conditions of the bail order.

Learned A.G.A has vehemently opposed the bail application by submitting that since this is the second bail application, therefore, the same may be rejected as no new ground has been taken by the learned counsel for the applicant. However, on being confronted on the point that four fact/ material witnesses and one formal witness have been examined and the applicant is in jail for about six years and one month, learned AGA has submitted that since the same is matter of record, therefore, he has nothing to say.

Heard learned counsel for the parties and perused the material available on record as well as the aforesaid judgments of the Hon'ble Apex Court relied upon by the learned counsel for the applicant. The Hon'ble Apex Court in re; K.A. Najeeb (supra) has held in para 16 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."

The Hon'ble Apex Court in re; 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."

Considering the fact that all fact/ material witnesses have been examined and still other prosecution witnesses are to be examined, thereafter the defence witnesses would be examined, therefore, there is no possibility of the trial to be concluded in near future and in view of the dictum of the Hon'ble Apex Court in re; K.A. Najeeb (supra) and Paras Ram Vishnoi (supra), the present case may be considered to grant bail to the present applicant. Besides, the dictum of the Hon'ble Apex Court in re; Gokarakonda Naga Saibaba (supra) is also liable to be considered, which provides that if all fact witnesses and material witnesses have been examined then considering the period of long incarceration, the accused may be enlarged on bail. In the present case, the applicant is in jail w.e.f. 08.03.2016, therefore, considering the long incarceration of the present applicant and the fact that all fact/ material witnesses have been examined, the applicant may be granted bail.

Accordingly, without entering into merits of the case, the bail application is allowed.

Let applicant- Shradchandra Gupta 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 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 India without previous permission of the court.

[Rajesh Singh Chauhan,J.]

Order Date :- 28.4.2022

RBS/-