Pappu @ Moinuddin Second Bail vs State Of U.P.
2022 Latest Caselaw 2577 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 11
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 158 of 2021
 

 
Applicant :- Pappu @ Moinuddin Second Bail
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Sagar Singh,Abhishek Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajesh Singh Chauhan,J.

Heard learned counsel for the applicant and learned A.G.A.

As per learned counsel for the applicant, the present applicant is in jail since 19.05.2014 in Case Crime No.377 of 2014 (S.T. No.236 of 2014), under Sections 302/307/323/504/34 IPC, Police Station ? Asiwan, District ? Unnao.

This is the second bail application. First bail application was rejected by Hon'ble Rang Nath Pandey, J. (since retired) on 25.4.2018 in Bail No.10351 of 2016. While rejecting the first bail application, the Hon'ble Court has observed as under:-

"However, the trial court is directed to expedite the trial and conclude the same preferably within the period of three months from the date of production of certified copy of this order before the trial court, if the trial already not concluded."

Learned counsel for the applicant has submitted that the aforesaid period of three months has lapsed on 25.07.2018 but the trial has not been concluded. Further, learned counsel has submitted that more than four years' period has passed w.e.f. 25.04.2018, the trial has not been concluded.

Learned counsel for the applicant has filed questionnaire dated 09.05.2022 issued from the learned trial court to show that all fact witnesses i.e. PW-1 to PW-8 have been examined. The said questionnaire is taken on record.

Learned counsel for the applicant has submitted that he is conscious about the fact that he cannot raise such grounds in the second bail application which could have been taken at the time of rejection of first bail application, therefore, he is only pressing this bail application on the point that since eight fact/ material witnesses have 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, 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 19.05.2014, 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 eight fact/ material witnesses have been examined and the applicant is in jail for about eight years, learned AGA 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. 19.05.2014, 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- Pappu alias Moinuddin 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 :- 12.5.2022

RBS/-