Om Singh vs State Of U.P.
2023 Latest Caselaw 22332 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:166737
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 25547 of 2023
 

 
Applicant :- Om Singh
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Arvind Srivastava,Anil Kumar Pandey
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. Arvind Srivastava, Advocate along with Mr. Anil Kumar Pandey, the learned counsel for applicant and the learned A.G.A. for State.

2. Perused the record.

3. This application for bail has been filed by applicant-Om Singh, seeking his enlargement on bail in Case Crime No. 571 of 2014, under Sections 302, 307, 504 IPC, Police Station-Padri, District-Mirzapur during the pendency of trial.

4. Record shows that in respect of an incident, which is alleged to have occurred on 02.01.2014, a delayed FIR dated 02.10.2014 was lodged by first informant-Sanju Singh (widow of the deceased-Brijraj Singh) and was registered as Case Crime No. 571 of 2014, under Sections 302, 307, 504 IPC, Police Station-Padri, District-Mirzapur. In the aforesaid FIR, 2 persons namely Sarvesh Kumar Pandey and Om Singh have been nominated as named accused whereas one unknown person has also been arraigned as an accused.

5. After completion of investigation, Investigating Officer submitted the charge sheet dated 21.01.2015 whereby 2 persons namely Om Singh (i.e. applicant herein) and Sarvesh Kumar Pandey, the named accused, were charge sheeted under Sections 302, 307, 504 IPC. After submission of aforementioned charge sheet, cognizance was taken upon same by concerned Magistrate. As offence complained of is exclusively triable by court of Sessions, accordingly, concerned Magistrate committed the case to the Court of Sessions. Resultantly Sessions Trial No. 59 of 2015 (State Vs. Sarvesh Kumar Pandey) came into existence. Applicant, who was also a charge sheeted accused, however, absconded from the proceedings of aforementioned trial. Resultantly, in exercise of jurisdiction under Section 317(2) Cr.P.C., the trial of the applicant was segregated.

6. Above-mentioned Sessions Trial No. 59 pf 2015 (State Vs. Sarvesh Kumar Pandey) cam to be decided by means of judgment and order dated 05.02.2019 whereby co-accused Sarvesh Kumar Pandey has been acquitted of the charges alleged against him.

7. Learned counsel for applicant contends that subsequently, the applicant was arrested on 06.06.2022. In spite of the fact that the period of more than 1 year has rolled by, the charges have not yet been framed against applicant. He, further submits that since the record of aforementioned Sessions Trial was misplaced and not traceable, therefore, in the light of the aforesaid fact, this Court had earlier passed the order dated 27.07.2023, which reads as under:-

"1. Heard Mr. Arvind Srivastava, the learned counsel for applicant and the learned A.G.A. for State.

2. At the very outset, the learned counsel for applicant contends that the record of concerned Session Trail pending against applicant before court below is not traceable.

3. In view of above, let a report be submitted by concerned Sessions Judge before this Court on or before 10.08.2023.

4. Matter shall re-appear as fresh on 11.08.2023."

8. Subsequent to the above order dated 27.07.2023, the concerned District Judge has submitted his report wherein it is mentioned that the record has not been reconstructed by obtaining photo copies of the documents available.

9. Learned counsel for applicant contends that up to this stage, the entire prosecution stands crystallized. The prosecution itself has not yet been able to prove the story, which it is set out to prove against charge sheeted accused. He, therefore, submits that in view of above, no useful purpose shall be served in prolonging the custodial arrest of applicant during the pendency of trial. Even otherwise, applicant is a man of clean antecedents having no criminal history to his credit except the present one. Applicant is in jail since 06.06.2022. As such, he has undergone more than 1 year and 1 month of incarceration. It is by now well settled that an accused has a right to speedy trial. The delay in the conclusion of the trial court be attributed to the applicant as he is in custody. Reliance in support of above is placed upon the judgment of the Supreme Court in A.R. Antulay Vs. R.S. Nayak, 1992 (1) SCC 225. On the above premise, it is thus urged that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

10. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that applicant is absconder inasmuch as, rights from the date of lodging of the FIR giving rise to present criminal proceedings, he did not surrender to the process of law. Resultantly, the trial of the applicant segregated from other co-accused. Applicant has been evading the judicial process since 2014 to 2022. As such, applicant has evaded the process of Court for almost 9 years. On the above premise, he submits that no indulgence be granted by this Court in favour of applicant.

11. Having heard, the learned counsel for applicant, the learned A.G.A. for State and upon perusal of record, evidence, nature and gravity of offence, accusations made and complicity of accused coupled with the fact that it is an admitted fact that applicant has been absconding from the proceedings of criminal case referred to above since 2014, on account of above, the charge sheet was submitted against applicant declaring him to be an absconder, however, in view of above, the trial of the applicant was segregated from another charge sheeted accused, however, the prosecution could not be establish the very story which is set out to prove in the trial i.e. Sessions Trial No. 59 of 2015 (State of U.P. Vs. Sarvesh Kumar Pandey), in view of above, this Court finds that no useful purpose shall be served in maintaining the custodial arrest of applicant during the pendency of trial, the period of incarceration undergone by applicant, the clean antecedents of the applicant inasmuch as, he has no criminal history to his credit except the present one, the delay in the conclusion of trial inasmuch as, the applicant is in custody for 1 year and 2 months that the charges have not yet been framed, the judgment of the Supreme Court in A.R. Antulay (Supra), but without making any comments on the merits of the case, applicant has made out a case for bail.

12. Accordingly, the bail application is allowed.

13. Let the applicant-Om Singh, be released on bail in the aforesaid case crime number on his furnishing a personal bond of Rs. 1,00,000/- and two heavy 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/SHE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE 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/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.

(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

(iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) 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 THE HIM/HER IN ACCORDANCE WITH LAW.

(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.

14. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in case of violation of any of the condition mentioned above.

Order Date :- 18.8.2023

Vinay