Amit Pasi vs The State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 21508 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:53360
 
Court No. - 18
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 5283 of 2023
 
Applicant :- Amit Pasi
 
Opposite Party :- The State Of U.P. Thru. Prin. Secy. Home Deptt. And 3 Others
 
Counsel for Applicant :- Pradeep Kumar Tripathi
 
Counsel for Opposite Party :- G.A.,Satti Charan Tiwari
 

 
Hon'ble Saurabh Lavania,J.

1. Heard.

2. This is the second bail application filed by the applicant. It is stated that the first Criminal Misc. Bail Application No. 1922 of 2020 (Amit Pasi Vs. State Of U.P. and Anr.) was rejected by this Court vide order dated 22.7.2022 with the direction to the trial court to conclude the trial expeditiously preferably within a period of six months from the date of receipt of certified copy of order of this Court.

3. The present bail application has been filed on behalf of the applicant in Session Trial No. 405 of 2019 arising out of Case Crime No. 254 of 2019, under Section 376 I.P.C. & 3/4 POCSO Act 2012, Police Station- Imliya Sultanpur, District- Sultanpur, with the prayer to enlarge him on bail.

4. While pressing the present bail application, learned counsel for the applicant states that at the time of rejection of first bail application vide order dated 22.7.2022, the statement of victim (P.W. 1) was recorded before the trial court and considering the said fact as also other material available on record, this Court had rejected the bail application and directed the trial court to conclude the trial within a specified time i.e. six months from the date of receipt of order of this Court.

5. It is also submitted that till date only the victim and her mother (P.W. 1 & 2, respectively) have been examined and no other witness has been examined though as per the charge-sheet, total seven witnesses have to be examined before the trial court.It is further submitted that despite the specific direction of this Court, the trial has not been concluded till date though the same ought to have been concluded in view of Section 309 of Cr.P.C. as also the direction of this Court vide order dated 22.7.2022 and the statute namely Protection of Children from Sexual Offenses Act, 2012 (hereinafter referred to as 'Act, 2012') particularly Section 35 (2) of Act, 2012 which provides that trial court under the act should complete the trial, as far as possible, within a period of one year from the date of taking cognizance of the offense.

6. In the present case, the trial has not been completed and the applicant is in jail since 06.11.2019, almost for a period of more than three and half years and on the ground of delay in conclusion of trial, the applicant is entitled to be released on bail.

7. He has also submitted that the medical opinion does not support the story of prosecution as therein it has been indicated that 'no recent forceful penetration injury is found'.

8. It is further submitted that considering the aforesaid aspect of the case particularly, the period of incarceration, the stage of the trial as also the fact that on account of witnesses of the prosecution which are remained to be examined and the chances of conclusion of trial in near future is bleak, the applicant, who has no criminal history, is entitled to be released on bail. In case of being enlarged on bail, he will not misuse the liberty of bail and will cooperate in trial and would also not influence the prosecution witnesses.

9. Learned counsel for the applicant has submitted that incarceration period is much higher in the present case and in view of law laid down by Hon'ble Supreme Court in the case of Union of India Vs. K.A. Najeeb reported in AIR 2021 SCC 712 and Paras Ram Vishnoi. Vs. The Director General Bureau of Investigation, passed in Criminal Appeal No.693 of 2021 (Arising out of SLP (Crl.) 3610 of 2020), bail can be granted 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 period of that accused. Relevant para-16 of the case of K.A. Najeeb (supra) is quoted 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. In the case of Paras Ram Vishnoi (supra), the Apex Court has observed regarding point of incarceration period and delay in trial. The relevant part of the said judgment is quoted below:-

"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."

8. Learned counsel for the applicant has further submitted that long period of detention is cause of action and he has submitted that second bail can be considered on this fresh ground. He has invited attention of this Court towards the judgment of Hon'ble Apex Court in the case of Gokarakonda Naga Saibaba. Vs. State of Maharashtra, (2018) 12 SCC 505. The relevant para-4 of the said judgment is quoted below:-

"4. Having given our thoughtful consideration to the submissions advanced at the hands of the learned counsel for the rival parties, specially the undisputed position that the petitioner has never been accused of having misused the concession of bail, we are of the view, that the submission made by the learned counsel for the respondent is extremely unfair. Since all the material witnesses have been examined and cross-examined, the release of the petitioner on bail ought not to have been opposed, especially keeping in mind the medical condition of the petitioner."

(Emphasis supplied)

11. Shri Hansraj Verma, learned A.G.A. for the State opposed the prayer for grant of bail and stated that the witnesses who have already been examined have supported the story of prosecution as such the applicant is not entitled to be released on bail. However, on being asked, learned A.G.A. stated that in view of the statutory provisions and in compliance of order of this Court dated 22.7.2022, the trial court should have concluded trial. He also could not dispute the aforesaid particularly period of incarceration and the chances of conclusion of trial in near future which appears to be bleak and that the applicant has no criminal history.

12. Considering the aforesaid and perusal of the record.

13. This Court is of the view that as to whether the witnesses, who have already been examined, have supported the story of the prosecution or not is the subject matter of the trial court and this Court, at this stage, is not supposed to observe on the merits of the case.

14. Considering the rival submissions of learned counsel for parties, material available on record including medical opinion and period of incarceration in particular as also that trial could not be concluded in near future and the submission of counsel for the applicant to the effect that while on bail in this case, the applicant would not commit any crime/offense nor he would try to tamper the evidence or influence the witnesses in any manner whatsoever it may be and without expressing any opinion on the merits of the case, this Court finds force in the argument of the application and is of the view that the applicant is entitled to be released on bail.

15. Let applicant- Amit Pasi be released on bail in aforesaid Case Crime, on his furnishing personal bond to the satisfaction of the court concerned forthwith. Applicant is also directed to furnish two reliable sureties each of the like amount to the satisfaction of the court concerned subject to following conditions:-

(1) Applicant will not try to influence the witnesses or tamper with the evidence of the case or otherwise misuse the liberty of bail.

(2) Applicant will fully cooperate in expeditious disposal of the case and shall not seek any adjournment on the dates fixed for evidence when witnesses are present in the Court.

(3) Applicant shall remain present, in person, before the trial court on the dates fixed for recording of statement under Section 313 Cr.P.C.

(4) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.

(5) The computer generated copy of such order shall be self attested by the counsel of the party concerned.

(6) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

16. Any violation of above conditions will be treated misuse of bail and learned Court below will be at liberty to pass appropriate order in the matter regarding cancellation of bail.

Order Date :- 10.8.2023

Mohit Singh/-