Rakesh Yadav Second Bail vs State Of U.P.
2022 Latest Caselaw 4696 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 11
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10061 of 2020
 

 
Applicant :- Rakesh Yadav Second Bail
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Santosh Kumar Srivastava
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajesh Singh Chauhan,J.

Heard Sri Santosh Kumar Srivastava, learned counsel for the applicant and learned Additional Government Advocate for the State.

This is the second bail application as the first bail application was rejected by Hon'ble Anant Kumar,J, vide order dated 28.02.2018 passed in Criminal Misc. Case No.2965(B) of 2017.

Learned counsel for the applicant has pressed the present bail application only on the ground that all fact witnesses have been examined and presently the examination of formal witnesses are going on, therefore, period of incarceration of the present applicant with effect from 30.08.2016 may be considered in view of the fact that there is no possibility to conclude the trial in near future and if he is released on bail, there would be no apprehension of absconding or tampering the evidence. Since this is second bail application therefore, he cannot raise any ground which could have been taken at the time of first bail application.

In compliance of the order of this Court, status report dated 13.05.2022 has been filed which is on record which also verifies the submission of the learned counsel for the applicant.

As per learned counsel for the applicant, the present applicant is languishing in jail since 30.08.2016 in Case Crime No.123 of 2016 under Sections 302,120-B IPC , Section 7 Criminal Law Amendment Act and Section 3/25 Arms Act, Police Station- Alapur, District Ambedkar Nagar.

It has been submitted by learned counsel for 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.

Per contra, learned A.G.A. has opposed the prayer for bail by submitted that this is the second bail application and no new ground has been taken, therefore, the present bail application may be rejected.

On being confronted on the point that the present applicant is in jail for a period of about six years and all the fact witnesses have been examined, therefore, there would be no possibility or apprehension regarding influencing the trial, on that learned A.G.A. has submitted that this is a matter of the record, therefore, he has nothing to say, however, direction to expedite the trial may be issued.

Having heard learned counsel for the parties and having perused the material on record, I am of the view that if all the fact witnesses have been examined and the examination of formal witnesses are going on and since there is no possibility to conclude the trial in near future, therefore, the period of long incarceration of the present applicant in jail i.e. about six years 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). 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 formal 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. In the present case, the applicant is in jail w.e.f. 30.08.2016, 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.

Therefore, without entering into the merits of the case, the present bail application is allowed.

Let applicant-Rakesh Yadav 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.

Before parting with it is expected that the trial shall be concluded with expedition. 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 :- 31.5.2022

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