Akeel (Third Bail Application) vs State Of U.P. Through Principal ...
2022 Latest Caselaw 4025 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 11
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2702 of 2022
 
Applicant :- Akeel (Third Bail Application)
 
Opposite Party :- State Of U.P. Through Principal Secretary Home Department, Government Of U.P., Lucknow
 
Counsel for Applicant :- Amit Kumar Awasthi
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajesh Singh Chauhan,J.

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

Learned counsel for the applicant has filed supplementary affidavit, the same is taken on record.

This is the third bail application. First and second bail applications have been rejected by Hon'ble Chandra Dhari Singh, J. (who has been transferred to another High Court) on 02.09.2020 & 09.08.2021 in Bail Nos.3458 of 2020 & 6409 of 2020.

While rejecting the second bail application on 09.08.2021, this Court granted one year's time to conclude the trial. However, such period of one year has not been expired till date. Sri Awasthi has submitted that after rejection of the bail applications of the present applicant, another accused person, Anas, has been granted bail by this Court on 01.11.2021 in Bail No.3227 of 2020, therefore, this may be considered as a fresh ground to consider the third bail application.

Sri Chauhan, learned Additional Government Advocate has apprised that there are total 24 prosecution witnesses, out of them, eight are fact witnesses.

In compliance of order of this Court, the learned trial court has submitted report dated 19.05.2022. As per status report dated 19.05.2022, which has been filed in compliance of order of this Court, only two prosecution witnesses have been examined. However, this Court vide order dated 25.04.2022 was pleased to direct the learned trial court to examine the maximum fact witnesses taking recourse of Section 309 Cr.P.C.. The aforesaid two prosecution witnesses have been examined in compliance of that order.

Therefore, Sri Awasthi has submitted that keeping in view the poor progress of trial proceedings and one co-accused namely Anas has been granted bail by this Court on 01.11.2021 after rejection of the second bail application on 09.08.2021, therefore, the present applicant may be released on bail.

Sri Awasthi, has submitted that the present applicant is in jail since 01.11.2019 in Case Crime No.1323 of 2019, under Sections 302/201/34 IPC, Police Station-Kotwali Sadar, District-Kheri.

Sri Awasthi has further submitted that he is cautious about the fact that in the third bail application he may not take those grounds which could have been taken in the first and second bail applications and he is pressing the present bail application only on the aforesaid two grounds. Firstly, despite specific order of this Court dated 09.08.2021 to conclude the trial within a period of one year the trial has not been concluded even as per the order dated 25.04.2022 passed in the present bail application to examine the maximum fact witnesses only two fact witnesses have been examined out of eight fact witnesses; secondly, on the ground that after rejection of the second bail application the co-accused, who has been attributed the similar role, has been granted bail by this Court.

Sri Awasthi has further submitted that the issue as to whether this Court consider the fact that if after rejection of the bail application of the applicant, the co-accused has been granted bail who has been attributed similar role may be considered as new grounds in view of the decision of Hon'ble Division Bench of this Court rendered 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."

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."

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."

Sri Awasthi has submitted with vehemence that the present applicant has got no criminal history of any kind whatsoever and he is in jail since 01.11.2019 only in the present crime case. Since the charge-sheet has been filed in this case, therefore, there is no apprehension of absconding the present applicant or tampering with the evidence if the present applicant is released on bail.

Learned counsel for the applicant has undertaken on behalf of the present applicant that the applicant shall not misuse the liberty of bail, if so granted by this Court and shall abide by all terms and conditions of the bail order and shall cooperate with the trial proceedings.

On the other hand, learned Additional Government Advocate has opposed the prayer for bail by submitting that this is the third bail application wherein no new ground has been taken by the learned counsel for the applicant, therefore, the present bail application may be rejected.

However, on being confronted to learned Additional Government Advocate as to whether one co-accused who has been attributed similar role, has been granted bail after rejection of the first and second bail applications of the present applicant, learned Additional Government Advocate has submitted that the aforesaid order being matter of record, therefore, he has nothing to say.

On being further confronted on the point that despite the specific direction being issued by this Court on 09.08.2021 to conclude the trial within a period of one year, as to whether there is any possibility to conclude the trial within a period of one year inasmuch as out of 24 prosecution witnesses only two prosecution witnesses have been examined. Further more, despite the specific order being passed by this Court in the present bail application on 25.04.2022 to examine almost all the fact witnesses within a period of one month only two fact witnesses have been examined, learned Additional Government Advocate has submitted that keeping in view the aforesaid status report being provided by the learned trial court, there is no likelihood to conclude the trial on or before 09.08.2022. However, he has requested that further direction may be issued to the learned trial court to conclude the trial at the earliest.

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

At the very outset, after perusing the status report dated 19.05.2022 which indicates that in compliance of order of this Court dated 25.04.2022 issued in the present bail application only two fact witnesses have been examined in a period of one month whereas the direction was issued to examine the maximum fact witnesses which are eight in number. Besides, there are total 24 prosecution witnesses and the progress of trail is clear from the report dated 19.05.2022 that there is no likelihood to conclude the trial on or before 09.08.2022 i.e. the period of one year which was granted by this Court while rejecting the second bail application.

Therefore, keeping in view the aforesaid fact and circumstances, the third bail application of the present applicant may be considered considering his period of incarceration in jail i.e. about two-years-and-six-months.

One Accused, Anas, has been granted bail by this Court on 01.11.2021 and second bail application of the present applicant was rejected on 09.08.2021 and role attributed to the co-accused Anas is identical to the role of present applicant, therefore, in view of the decision of the Division Bench of this Court rendered in re: Nanha (supra), the aforesaid ground may be taken as new ground to consider the present bail application. Therefore, on the aforesaid ground too this bail application may be disposed of.

Since the charge-sheet has been filed in this case, therefore, it is expected that the present applicant being released from jail shall co-operate with the trial proceedings and shall not take unnecessary adjournment and shall not influence any material witness/ witnesses and if anything adverse is found against the present applicant, any appropriate application for cancellation of his bail may be filed either by the prosecution or by the informant/ complainant and such application may be considered with promptness.

However, in view of the given facts and circumstances as discussed above, without entering into merits of the issue, considering the period for which the applicant is in jail i.e. about two-years-and-six-months and also the fact that co-accused Anas who has been attributed similar role has already been enlarged on bail by this Court, I find it to be a fit case for bail.

Accordingly, the bail application is allowed.

Let the applicant-Akeel, 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 present 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 :- 25.5.2022 [Rajesh Singh Chauhan,J.]

Suresh/