Allahabad High Court
Gajendra Singh vs State Of U.P. on 2 March, 2023
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved On:- 21.02.2023
Delivered On:- 02.03.2023
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1746 of 2022
Applicant :- Gajendra Singh
Opposite Party :- State of U.P.
Counsel for Applicant :- Sanjay Vikram Singh,Gaurav Singh Tomar,Inder Pal Singh Tomar
Counsel for Opposite Party :- G.A.,Kamlendra Singh Jadaun,Sanjay Kr. Srivastava
Hon'ble Siddharth,J.
Heard Shri I.P.S. Tomar, learned counsel for the applicant; Shri Omkar Singh Malik, learned counsel for informant as well as the learned AGA for the State and perused the material placed on record.
This is the second bail application of the applicant. The first bail application was rejected by coordinate Bench of this Court by the order dated 23.07.2020. The certified copy of ordersheet placed by the counsel for informant before the court is taken on record.
The instant bail application has been filed on behalf of the applicant, Gajendra Singh, with a prayer to release him on bail in Case Crime No. 186 of 2018, under Sections 147, 148, 149, 302, 307, 504 and 34 of IPC, Police Station Hathras Junction, District- Hathras, during pendency of trial.
Learned counsel for the applicant has filed supplementary affidavit with averment that only two prosecution witnesses have been examined till date. Statement of P.W.-1 has been brought on record, who has not made any specific allegation against the applicant. He has made general allegations against all the accused persons in his statement before the court. There are fourteen prosecution witnesses. The applicant has been falsely implicated in this case. He has criminal history of one case to his credit and is languishing in jail since 10.06.2018. The trial in the aforesaid case is not likely to be concluded in near future.
Learned A.G.A. and learned counsel for informant have vehemently opposed the prayer for bail of the applicant and have submitted that from the orders of the trial court dated 13.04.2022 and 10.05.2022, it is clear that there is apprehension to the life and safety of the witnesses. They have further submitted that there is old enmity between the parties. Under Section 319 Cr.P.C., an application was made by prosecution which has been allowed and six more accused persons have been summoned for facing trial in this case by the order dated 23.09.2022, who are not appearing before the trial court and summons are being issued to them.
After hearing the rival contentions, this court is of the view that keeping in view, the safety of the witnesses, the applicant shall be enlarged on bail after the statements of the witnesses of facts are recorded. The trial court is directed to record the statements of fact within a period of four months.
Regarding long incarceration of under trials prisoners in jail due to delay in conclusion of trial, the Hon'ble Apex Court in re: Union of India vs. K.A. Najeeb reported in AIR 2021 Supreme Court 712 has held in Para 16 of the judgment being reproduced herein below as follows :-
"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."
Having considered the submissions of the parties noted above, finding force in the submissions made by the learned counsel for the applicant, keeping in view the uncertainty regarding conclusion of trial; one sided investigation by police, ignoring the case of accused side; applicant being under-trial having fundamental right to speedy trial; larger mandate of the Article 21 of the Constitution of India, considering the dictum of Apex Court in the case of Satendra Kumar Antil Vs. C.B.I. & Another, passed in S.L.P.(Crl.) No. 5191 of 2021, judgement dated 11.7.2022 and considering 5-6 times overcrowding in jails over and above their capacity by under trials and without expressing any opinion on the merits of the case, let the applicant involved in the aforesaid 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 that :-
(i) The applicant shall not tamper with the evidence or threaten the witnesses.
(ii) 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.
(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code.
(iv) In case the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fail 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.
(v) 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.
In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
The court below is directed to conclude the trial against the applicant, as expeditiously as possible, preferably within a period of one year from the date of production of certified copy of this order.
Order Date :- 02.03.2023
Abhishek
