Dhirendra Chand Sarkar vs State Of U.P.
2022 Latest Caselaw 19105 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 71
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38404 of 2020
 

 
Applicant :- Dhirendra Chand Sarkar
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Dinesh Kumar Pandey
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Manish Mathur,J.

1. Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State and perused the record.

2.Third bail application has been filed with regard to Case Crime No.398 of 2012, under Sections 147,148, 149,302, 323, 504 and 506 IPC, registered at Police Station Kothibhar, District Maharajganj with first bail application being rejected vide order dated 14.01.2016; second bail application having been rejected vide order dated 18.11.2019 by Hon'ble Justice Vipin Sinha. Since his Lordship has demitted office and therefore this bail application has been listed before this Court as per roster.

3. As per contents of FIR, the incident is said to have taken place on 22.05.2012 with the allegation that the applicant and co-accused were instrumental in causing death of brother of first informant.

4. First bail application had been rejected primarily on the ground that it was a day light incident and eye witness account corroborates the postmortem report against the applicant. While rejecting the bail application, direction was issued for deciding trial expeditiously, if possible within a period of one year. Second bail application was also rejected with a further direction that trial be expedited within a period of one month from the date of production of certified copy of order in accordance with section 309 Cr.P.C.

5. Learned counsel for applicant submits that despite aforesaid specific directions issued by this Court, trial has not yet concluded although statements of all the witnesses of fact have concluded but applicant is under custody since 01.06.2012. Reliance has been placed in the case of Union of India v. K. A. Najeeb reported in (2021) 3 Supreme Court Cases 713.

6. Learned Additional Government Advocate appearing on behalf of State has opposed the bail application with the submission that first and second bail applications have been rejected on merits and no new subsequent development has been indicated by learned counsel for applicant for entertaining a fresh bail application.

7. In Union of India v. K. A. Najeeb reported in (2021) 3 Supreme Court Cases 713 Hon'ble the Supreme Court has considered the aspect of liberty guaranteed by Part III of the Constitution and elucidates that it could cover within its protected ambit not only due procedure and fairness but also access to justice and speedy trial. It has been held that ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. It has also been held that once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for significant period of time, the courts would ordinarily be obligated to enlarge them on bail. The relevant portion of judgment is as follows:-

"15. 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 (1994) 6 SCC 731, it was held that under trials 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, the 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, the Courts would ordinarily be obligated to enlarge them on bail."

"17. It is thus clear to us that the presence of statutory restrictions like Section 43-D (5) of the UAPA per se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, the Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D (5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial."

"18. Adverting to the case at hand, we are conscious of the fact that the charges levelled against the Respondent are grave and a serious threat to societal harmony. Had it been a case at the threshold, we would have outrightly turned down the Respondent's prayer. However, keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with no other option except to grant bail. An attempt has been made to strike a balance between the Appellant's right to lead evidence of its choice and establish the charges beyond any doubt and simultaneously the Respondent's rights guaranteed under Part III of our Constitution have been well protected."

8. Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, reported in (2012) 1 SCC 40 has specifically held that bail is to be a norm and an under-trial is not required to be in jail for ever pending trial. Relevant paragraphs of the judgment are as under :-

"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty."

"27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."

9. Considering the submissions advanced by learned counsel for parties and upon perusal of material available on record, it appears that the first bail application was rejected on merits with a direction to the trial court to expedite the matter way back in January 2016. Second bail application was rejected in November 2019 again with a direction that trial should be decided expeditiously within a period of one month. The applicant is jail since 01.06.2012 without trial yet concluding despite aforesaid directions of this Court. Applicant has put in more than ten years in custody as an under trial and would be entitled to the benefit of judgment of Hon'ble the supreme Court in the case of Union of India v. K. A. Najeeb reported in (2021) 3 Supreme Court Cases 713.

10. Looking to the nature of allegations levelled against the applicant and submission made in the bail application, without expressing any opinion on the merits of case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, particularly since no reasonable apprehension of tampering with the witnesses has been alleged, prima facie, this Court finds, the applicant is entitled to be released on bail in this case.

11. Accordingly bail application is allowed.

12. Let applicant, Dhirendra Chand Sarkar, involved in the 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.

Order Date :- 29.11.2022

Subodh/-