Javed Kasai vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 5000 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 11
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 13121 of 2022
 
Applicant :- Javed Kasai
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Up Lko.
 
Counsel for Applicant :- Atiya Abid
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajesh Singh Chauhan,J.

Heard Ms. Atiya Abid, learned counsel for the applicant and learned A.G.A. for the State.

This is the fourth bail application. First bail application was rejected by Hon'ble Rang Nath Pandey, J. (since retired). Second bail application was rejected by Hon'ble Anant Kumar, J. (since retired). Third bail application was rejected by Hon'ble Alok Mathur, J., who has released this bail application.

As per learned counsel for the applicant, the present applicant is in jail since 07.02.2015 in Case Crime No.1045 of 2014, under Sections 302/34, 120-B of IPC, Police Station ? Kotwali Nagar, District ? Pratapgarh.

Status report from the Trial Court was called and as per the report dated 21.01.2023, statement of PW-1 has been recorded on 18.01.2023 and on the same date, he has been cross-examined. Learned Trial Court has tried to explain the delay in conducting the trial. In the present case, charges have been framed on 23.07.2022.

Learned counsel for the applicant has drawn attention of this Court towards supplementary affidavit filed on 07.02.2023 to show the statement of the complainant/ informant/PW-1 whereby he has not supported the prosecution version so far as the role of the present applicant is concerned, therefore, the complainant/ informant has been declared hostile. Ms. Atiya Abid has drawn attention of this Court towards the dictum of the Apex Court in re; Union of India Vs. K.A. Najeeb, Criminal Appeal No.98 of 2021, referring para-16 thereof to submit that the Apex Court has held that the undertrials cannot indefinitely be detained pending trial and no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. The Apex Court has further observed that if there is no possibility to conclude the trial expeditiously, considering the period of incarceration, if it is substantially long, such accused person may be enlarged on bail. Para-16 of the judgment in re; K.A. Najeeb (supra) reads as under:-

"16. 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 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."

Ms. Atiya Abid has also informed the Court that the present applicant was having wife and two minor daughters but his wife has expired on 09/10.02.2023, however, cause of death is not known to her. Now, two minor daughters of the applicant are in an abandoned condition in his home and there is no one in the family to look after them as their father is in jail and their mother has expired. Therefore, she has stated that considering the period of incarceration of the present applicant i.e. more than 8 years, there is no likelihood of the trial to be concluded expeditiously as only evidence of PW-1 has been completed, his wife has expired recently and his two minor daughters are in an abandoned condition in his home to whom there is no one in the family to look after, he may be enlarged on bail. Further, the applicant undertakes that he shall co-operate in 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.

Learned A.G.A. has opposed the prayer for bail and has submitted that this is a case of gruesome murder wherein the evidences are against the present applicant, therefore, he may not be released on bail. However, on being confronted on the point about the delay in concluding the trial and also regarding applicant's period of incarceration in jail i.e. more than 8 years, learned AGA has submitted that on that, he has nothing to say.

Therefore, without entering into merits of the issue; considering the arguments of learned counsel for the parties; contents and allegations of the FIR; other material available on record; the period of incarceration of the present applicant i.e. more than 8 years; there is no likelihood of the trial to be concluded with expedition inasmuch as only PW-1 has been examined on 18.01.2023; wife of the applicant has expired recently; his two minor daughters are in an abandoned condition in his home to whom there is no one in the family to look after; dictum of the Apex Court in re; K.A. Najeeb (supra) and undertaking of the applicant that he shall cooperate in the trial proceedings and shall not misuse the liberty of bail, I find it appropriate to release the applicant on bail.

Let applicant- Javed Kasai be released on bail in the aforesaid case crime number 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:-

(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 India without previous permission of the court.

Before parting with, learned trial court is directed to conduct the trial on day-to-day basis and conclude the same with expedition, if possible, within a period of one year.

[Rajesh Singh Chauhan,J.]

Order Date :- 15.2.2023 /RBS/-