Lavkush Pandey Second Bail vs State Of U.P.
2022 Latest Caselaw 3702 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 11
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 7354 of 2020
 
Applicant :- Lavkush Pandey Second Bail
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Amit Kumar Awasthi,Naveen Gupta
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajesh Singh Chauhan,J.

Heard Sri Amit Kumar Awasthi, learned counsel for the applicant and learned Additional Government Advocate for the State.

This Court has passed the order dated 13.05.2022 as under:-

"Heard.

In compliance of the order of this Court, learned trial court has submitted status report of the trial dated 14.02.2022, which indicates that chief examinations of PW-1, PW-2, PW-3 & PW-4 have been completed and summons have been issued to other witnesses.

Sri Amit Kumar Awasthi, learned counsel for the applicant has submitted that after the chief examinations of PW-1 to PW-4, such witnesses have not appeared before the learned trial court, resultant thereof their cross-examination could not be completed. Further, the trial is deliberately being delayed by the prosecution witnesses, resultant thereof the same is not being concluded. The present applicant is in jail since 22.07.2015 in Case Crime No.752 of 2015, under Section 302 IPC, Police Station - Kotwali Sadar, District - Kheri.

On the request of Sri Awasthi, list on 23.05.2022 to enable him to file certified copy of the order sheet or questionnaire to show the Court as to what is the status of the trial. The bail application of the present applicant may be heard and disposed of finally on the next date after knowing the status of the trial and the arguments so advanced by the learned counsel for the parties. So, the parties shall come prepared on the next date."

In compliance of the aforesaid order, Sri Awasthi, has filed the supplementary affidavit, which is taken on record. Along with the aforesaid supplementary affidavit, Sri Awasthi has enclosed the recent copy of the questionair as Annexure No.SA-1 and copy of the recent order-sheet has enclosed as Annexure No.SA-2.

In view of the aforesaid enclosures, the submission of Sri Awasthi finds force.

As per order dated 05.05.2022, the learned trial court summoned the Investigating Officer.

Sri Awasthi, learned counsel for the applicant has submitted that since PW-1 to PW-4 are not appearing before the learned trial court, therefore, their cross-examination could not be taken place and since the Investigating Officer has not shown his promptness, therefore, such order has been passed by the learned trial court. On the aforesaid strength, Sri Awasthi has pressed the present bail application on merits.

This is the second bail application. The first bail application bearing Bail Case No.10266 of 2017 has been rejected by Ho'ble Mr. Justice Anant Kumar (since retired) vide order dated 11.07.2019.

Sri Awasthi, learned counsel for the applicant has submitted that he is cautious about the fact that he cannot take any ground which he has taken in the first bail application, therefore, he is pressing the present application on the ground that the present applicant is languishing in jail since 22.07.2015 in Case Crime No.752 of 2015, under Section 302 I.P.C., Police Station-Kotwali Sadar, District-Kheri and in view of the fact and circumstances as stated above, there is no possibility to conclude the trial in near future. Therefore, the present applicant may be released on bail in view of the dictum of Apex Court rendered in re: Union of India vs. K.A. Najeeb 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.) 3610 of 2020 granting bail to those accused persons on the ground that there is no possibility to conclude the trial in near future and there is a long incarceration of that accused, therefore, they were entitled for bail. Para-16 of the case K.A.Najeeb (supra) 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."

The Apex Court in the case of 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."

The present applicant has got no previous criminal history. The charge-sheet has been filed, therefore, there is no apprehension of absconding the present applicant or tampering with the evidence if the present applicant is enlarged on bail. He shall co-operate with the trial proceedings and shall not misuse the liberty of bail and shall abide by all terms and conditions of bail order.

Per contra, learned Additional Government Advocate has vehemently opposed the prayer for bail of the present applicant by submitting that this is the second bail application, therefore unless any new ground is taken, his bail application should not be considered.

On being confronted learned Additional Government Advocate on the new ground that despite all co-operations from the side of the accused-applicant, the trial is not being concluded as the prosecution is unable to produce its witnesses for the purpose of cross-examination and the present applicant is in jail for about seven years and the aforesaid ground may be treated as new ground for consideration of the second bail application in terms of the dictum of Apex Court in re: K.A. Najeeb (supra) and Paras Ram Vishnoi (supra), learned Additional Government Advocate has submitted that since the learned trial court has already summoned the Investigating Officer to produce such prosecution witnesses, therefore as soon as such prosecution witnesses would appear the trial would be concluded. However, in the given circumstance, as per learned Additional Government Advocate, there is no likelihood to conclude the trial at the earliest.

Having heard learned counsel for the parties and having perused the material available on record, I find that this is a case wherein the chief examination of PW-1 to PW-4 has been completed way back and the prosecution is unable to produce its aforesaid prosecution witnesses for cross-examination, therefore, those prosecution witnesses could not be examined finally.

Notably, this is no fault on the part of the defence/ accused, rather, it appears that this is a fault on the prosecution not to produce such prosecution witnesses for the purpose of cross-examination. In the given circumstances, there is no likelihood to conclude the trial so the period of incarceration of the present applicant i.e. about seven years and the poor progress of trial proceedings may convenience the Court to consider the case taking new ground and without expressing any opinion on merits of the case, I am of the opinion that this bail application is liable to be allowed. .

Accordingly, the bail application is allowed.

Let the applicant-Lavkush Pandey, be released on bail in the aforesaid case crime number on his furnishing a personal bond and two local and heavy 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.

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 does not co-operate in the trial properly.

Order Date :- 23.5.2022 [Rajesh Singh Chauhan,J.]

Suresh/