Shiv Yadav Third Bail vs State Of U.P.
2022 Latest Caselaw 4538 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 11
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1281 of 2019
 
Applicant :- Shiv Yadav Third Bail
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Atul Verma,Deepa Mishra,Hari Krishna Verma,Nikita Mishra,Payal Singh,Sudhir Kumar
 
Counsel for Opposite Party :- G.A.,Ishan Baghel
 

 
Hon'ble Rajesh Singh Chauhan,J.

1. Heard Sri Sudhir Kumar, learned counsel for the applicant assisted by Ms. Khushbu Tripathi and Ms. Rubi Tripathi, Advocates, Sri Rupendra Kumar Singh, learned State Counsel and Sri Shourya Parmar, Advocate holding brief of Sri Ishan Baghel, learned counsel for the complainant/ informant.

2. This is the third bail application. The first bail application of the present applicant bearing Bail Case No.265 of 2017 has been rejected on merits by Hon'ble Satyendra Singh Chauhan, J (since retired) vide order dated 16.11.2017. The second bail application bearing Bail Case No.2552 of 2018 has also been rejected by Hon'ble Satyendra Singh Chauhan, J (since retired) vide order dated May 31st, 2018.

3. Since Hon'ble Mr. Justice Satyendra Singh Chauhan, who has rejected the first and second bail applications, has been retired, therefore, this third bail application has been listed before the regular Court.

4. While rejecting the second bail application on May 31th, 2018, this Court was pleased to observed as under:-

"Heard learned counsel for the applicant and learned AGA as well as learned counsel for the complainant.

This is the second bail application moved on behalf of the applicant and the first bail application moved on behalf of the applicant was rejected by this Court vide order dated 16.11.2017.

Learned counsel for the applicant submits that the weapon used and cartridge recovered do not tally and 34 dates have been fixed but the statement of the witnesses has not been recorded and the statement of only PW-1 has been recorded. He also submits that the applicant has not taken any adjournment except on one or two occasions. Learned counsel further submits that the deceased has received other injuries apart from fire arm injuries.

All these arguments have been advanced at earlier point of time and the Court has refused to grant bail to the applicant. In these circumstances, I find that no new ground has been made out for grant of bail to the applicant.

The second bail application is accordingly rejected. However, the trial is directed to be concluded within a period of six months."

5. Learned counsel for the applicant has submitted that four years period have passed from the order dated 31.05.2018 but the trial has not been concluded.

6. Learned counsel for the applicant has submitted that he is conscious about the fact that this is the third bail application, therefore, he cannot raise those grounds which could have been taken in the first and second bail applications but he is pressing the present bail application only on the ground that despite the specific order of this Court dated 31.05.2018 to conclude the trial within a period of six months the trial has not been concluded and about four years period have passed but there is no good progress in the trial.

7. Learned Additional Government Advocate has produced the letter dated 15.03.2022 issued by the learned trial court apprising the status of trial which clearly indicates that out of 30 prosecution witnesses only 07 prosecution witnesses have been examined. The letter dated 15.03.2022 is taken on record.

8. Learned counsel for the applicant has precisely apprised the Court that the present applicant is languishing in jail since 02.11.2015 in Case Crime No.632 of 2015, under Sections 307, 302 & 120-B I.P.C. and Section 7 Criminal Law Amendment Act, Police Station-Hazratganj, District-Lucknow.

9. Learned counsel for the applicant has submitted that considering the period of incarceration of the present applicant i.e. more than six-years-and-six-months and the fact that despite the specific direction being issued by this Court, there is no good progress in the trial the present applicant may be released on bail in view of the proposition of law of Apex Court laid down in the case 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."

10. 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."

11. 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.

12. Learned Additional Government Advocate as well as learned counsel for the complainant/ informant have vehemently opposed the prayer for bail of the present applicant by submitting that since this is a third bail application, therefore, unless any new ground is taken the third bail application may not be allowed.

13. On being confronted on the point about the progress of trial and period of incarceration of the present applicant, learned Additional Government Advocate as well as learned counsel for the complainant/ informant have submitted that this is being a matter of record, therefore, they have nothing to say. On being further confronted on the point that despite specific direction being issued by this Court vide order dated 31.05.2018 to conclude the trial within a period of six months about four years period have passed but the trial has not been completed, learned Additional Government Advocate and learned counsel for the complainant/ informant have submitted that the aforesaid fact being the matter of record, therefore, they have nothing to say. However, they have submitted that direction may be issued to expedite the trial.

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

15. At the very outset, I must express my anguish towards the poor progress of trial inasmuch as if the specific direction was issued by this Court on 31.05.2018 while rejecting the second bail application of the present applicant, the trial must have been concluded by now. The learned trial court is having powers to take coercive method to conclude the trial and also armed with the provisions of Section 309 Cr.P.C., therefore, I am unable to comprehend as to how there is no good progress in the trial.

16. Therefore, considering the fact that out of total 30 prosecution witnesses only 07 prosecution witnesses have been examined and there is no chance to conclude the trial in near future. The period of incarceration of the present applicant may also be considered inasmuch as he is languishing in jail for more than six-years-and-four-months and also considering the dictum of Apex Court in re:K.A.Najeeb (supra) and Paras Ram Vishnoi (supra), the aforesaid ground may be considered as a new ground to consider the third bail application, this bail application is liable to be allowed.

17. Therefore, without entering into merits of issue, I am of the opinion that this bail application deserves to be allowed and is hereby allowed.

18. Let the applicant-Shiv Yadav, 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.

19. 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. If the present applicant fails to co-operate with the trial proceedings 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 on priority basis.

Order Date :- 30.5.2022 [Rajesh Singh Chauhan,J.]

Suresh/