Mahesh Kumar Tiwari Fourth Bail vs State Of U.P.
2022 Latest Caselaw 2696 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 
Case :- CRIMINAL MISC. BAIL APPLICATION No.10731 of 2020
 
Applicant :- Mahesh Kumar Tiwari (Fourth Bail)
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Sharad Pathak, Pawan Kumar Pandey, Sudhir Kumar Singh
 
Counsel for Opposite Party :- G.A., Brij Mohan Sahai, Raj Priya Srivastava
 

 
Hon'ble Rajesh Singh Chauhan,J.

1. Heard Sri Sharad Pathak, learned counsel for the applicant, Sri Rupendra Kumar Pathak, learned Additional Government Advocate for the State and Sri R.P. Srivastava, learned counsel for the complainant/ informant.

2. This is the fourth bail application. The first bail application bearing Bail Case No.8820 of 2015 (Mahesh Kumar Tiwari vs. State of U.P.) has been rejected vide order dated 06.04.2016 passed by Hon'ble Mr. Justice Mahendra Dayal (since retired). The second bail application bearing Bail Case No.8847 of 2016 (Mahesh Kumar Tiwari vs. State of U.P.) has been rejected by Hon'ble Mr. Justice Ramesh Sinha vide order dated 16.08.2017 and third bail application bearing Bail Case No.8817 of 2018 (Mahesh Kumar Tiwari vs. State of U.P.) has been rejected vide order dated 10.05.2019 passed by Hon'ble Mr. Justice Anant Kumar (since retired).

3. While rejecting the second bail application, this Court has observed as under:-

"However, the trial court is directed to expedite the trial and conclude the same preferably within the period of eight months from the date of production of the certified copy of this order before the trial court, if there is no legal impediment."

4. While rejecting the third bail application, this Court has observed as under:-

"However, at this stage, learned counsel for the applicant states that a direction may be given to the trial court for expeditious disposal of trial. Accordingly, trial court is directed to expedite the trial and make an endeavour to conclude the trial, within a period of six months. No unnecessary adjournment shall be granted and in case witnesses are not forthcoming, appropriate coercive action shall be taken against them."

5. As per Sri Pathak, the learned counsel for the applicant, the present applicant is in jail since 16.12.2014 in Case Crime No. 628 of 2014, under Sections 147, 302, 323, 325, 307, 504 & 506 IPC, Police Station-Gauriganj, District-Amethi. It has been submitted that the applicant has been falsely implicated in this case as he has not committed any offence as alleged.

6. 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 16.12.2014, about seven years and five 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 out of many prosecution witnesses only 9 fact/ material witnesses have been examined and the trial is pending for examination of formal witnesses and in the 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 the 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.

7. Sri Pathak, learned counsel for the applicant has apprised the Court that there is one cross case in the present case bearing Case Crime No.909 of 2014, under Sections 147, 323, 325, 308, 504 & 506 I.P.C., Police Station-Gauriganj, district-Amethi and trial thereof has been connected with the present case i.e. Case Crime No.628 of 2014. In the Case Crime No.909 of 2014, there is no good progress in that trial. However, in the case relating to the present applicant all fact witnesses have been examined.

8. Sri Pathak has drawn attention of this Court towards the judgment of Hon'ble Apex Court in re: Nathi Lal vs. State of U.P. reported in 1990 SCC (SUPP) 145 wherein the Hon'ble Apex Court has held that in the case of cross case the joint trial should be conducted in view of Section 223 Cr.P.C. The same Judge must try both the cross cases one after other by considering the evidence and the matter is to be disposed of by two separate judgments. In deciding each of the case, he can rely only on the evidence recorded in that particular case is to be considered. The evidence recorded in the cross case cannot be looked into at that time nor can the Judge be influenced by whatever is argued in the cross case.

9. Therefore, Sri Pathak has submitted that even if there is no good progress in the cross case bearing Case Crime No.909 of 2014, wherein the fact witnesses have not been examined, the bail application of the present applicant may not be adjourned. Since in the present case all the fact witnesses have been examined and despite the specific direction of this Court twice the trial has not been concluded within the time framed, therefore, the present applicant is entitled to be released on bail.

10. 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.

11. Learned Additional Government Advocate 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.

12. On being confronted the learned Additional Government Advocate on the point that despite the two orders being passed by this Court on 16.08.2017 and 10.05.2019 to expedite the trial within eight months and six months respectively, there was no good progress in the trial and the present applicant is in jail for about seven years and five months, learned Additional Government Advocate has submitted that since the aforesaid fact is matter of record, therefore, he has nothing to say on this point.

13. Heard learned counsel for the parties and perused the record.

14. 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 16.08.2017 and 10.05.2019 has directed to conclude the trial within eight months and six months respectively, the trial should have been concluded within that period 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. Therefore, this approach of the learned trial court may not be appreciated. When the learned trial court is having the powers enshrined under Section 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.

15. 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."

16. 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."

17. 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.

18. 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.

19. Therefore, without entering into the merits of the case, I am considering the period of incarceration of the present applicant in jail i.e. seven years and five 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.

20. Accordingly, the present bail application is allowed.

21. Let the applicant-Mahesh Kumar Tiwari, 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.

22. 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 :- 13th May, 2022

Suresh/