Allahabad High Court
Rakesh Prasad vs State Of U.P. on 13 March, 2023
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 76
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 13533 of 2022
Applicant :- Rakesh Prasad
Opposite Party :- State of U.P.
Counsel for Applicant :- R.B.Pal,Ashok Kumar Tripathi,Prem Narayan Singh,Rajesh Kumar Vishwakarma,Sr. Advocate
Counsel for Opposite Party :- G.A.,Rajiv Lochan Shukla
Hon'ble Saurabh Shyam Shamshery,J.
1. Supplementary affidavit filed today by learned counsel for applicant is taken on record.
2. Heard Sri Anil Tiwari, learned Senior Advocate assisted by Sri R.B. Pal, Advocate for applicant, learned AGA for State and Sri Rajiv Lochan Shukla, Advocate for first informant/ complainant.
3. This is a second bail application filed by applicant-Rakesh Prasad under Section 439 Cr.P.C. in Case Crime No.180 of 2019, under Sections 147, 148, 149, 302, 202, 120B IPC, Police Station Pipri, District Sonbhadra.
4. First bail application of applicant was rejected by this Court on 16.12.2020 after taking note of rival submissions, specifically that, applicant was named in FIR; deceased was done to death by hired criminal in a conspiracy hatched by applicant; there is sufficient evidence in the form of call details of applicant and co-accused to establish that on the date of incident applicant was present near the place of occurrence and also near the place where main accused, who fired upon deceased, was stayed; and, call details collected by Investigating Officer also shows that a conspiracy was hatched.
5. Learned Senior Advocate appearing for applicant submits that after the first bail application was rejected on 16.12.2020, out of many prosecution witnesses only nine witnesses have been examined and there is no possibility of early conclusion of trial. Learned Senior Advocate also placed reliance on order dated 23.01.2023 passed by a Coordinate Bench of this Court in second bail application filed by co-accused, Anil Singh, which was allowed taking note that till August, 2022 only nine prosecution witnesses were examined and as such there is likelihood of delay in conclusion of trial. He also placed reliance on Supreme Court's judgments in Union of India vs. K.A. Najeeb, AIR 2021 SC 712 and Satendra Kumar Antil vs. Central Bureau of Investigation and another, (2021) 10 SCC 773. Learned Senior Advocate further placed reliance on another decision of Coordinate Bench dated 03.03.2023 whereby another co-accused, Kumar Saurabh alias Lav Singh was enlarged on bail.
6. Per contra, learned AGA appearing for State and learned counsel for first informant, submit that above referred order dated 23.01.2023 has been challenged before Supreme Court by filing Special Leave Petition (Criminal) bearing Diary No. 9411 of 2023. They also pointed out that presently 13 prosecutions witnesses have been examined and there is possibility that some prosecution witnesses may be dropped and trial may be concluded expeditiously. They further submit that first bail order of present applicant was challenged before Supreme Court, however, it was not interfered and Special Leave Petition was dismissed with liberty to renew bail application after six months.
7. Heard learned counsel for parties and perused the material available on record.
8. LAW ON BAIL - A SUMMARY
(A) The basic rule may perhaps be tersely put as bail, not jail.
(B) Power to grant bail under Section 439 Cr.P.C., is of wide amplitude but not an unfettered discretion, which calls for exercise in a judicious manner and not as a matter of course or in whimsical manner.
(C) While passing an order on an application for grant of bail, there is no need to record elaborate details to give an impression that the case is one that would result in a conviction or, by contrast, in an acquittal. However, a Court cannot completely divorce its decision from material aspects of the case such as allegations made against accused; nature and gravity of accusation; having common object or intention; severity of punishment if allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of witnesses being influenced by accused; tampering of evidence; character, behaviour, means, position and standing of accused; likelihood of offence being repeated; the frivolity in the case of prosecution; criminal antecedents of accused and a prima facie satisfaction of Court in support of charge against accused. The Court may also take note of participation or part of an unlawful assembly as well as that circumstantial evidence not being a ground to grant bail, if the evidence/ material collected establishes prima facie a complete chain of events. Parity may not be an only ground but remains a relevant factor for consideration of application for bail.
(D) Over crowding of jail and gross delay in disposal of cases when undertrials are forced to remain in jail (not due to their fault) may give rise to possible situations that may justify invocation of Article 21 of Constitution, may also be considered along with other factors.
(See, State Of Rajasthan, Jaipur vs. Balchand @ Baliay (AIR 1977 SC 2447 : 1978 SCR (1) 535; Gurcharan Singh vs. State (Delhi Administration), (1978) 1 SCC 118); State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC 21; Prasanta Kumar Sarkar vs. Ashis Chatterjee and Anr (2010)14 SCC 496; Mahipal vs. Rajesh Kumar, (2020) 2 SCC 118; Ishwarji Mali vs. State of Gujarat and another, 2022 SCC OnLine SC 55; Manno Lal Jaiswal vs. The State of U.P. and others, 2022 SCC OnLine SC 89; Ashim vs. National Investigation Agency (2022) 1 SCC 695; Ms. Y vs. State of Rajasthan and Anr :2022 SCC OnLine SC 458; Manoj Kumar Khokhar vs. State of Rajasthan and Anr. (2022)3 SCC 501; and, Deepak Yadav vs. State of U.P. and Anr. (2022)8 SCC 559)
9. There is no dispute that speedy trial is a right of accused as well as complainant also. Coordinate Bench while considering second bail application of co-accused, Anil Singh, has made reference of K.A. Najeeb (supra) and Satendra Kumar Antil (supra) that an undertrial cannot be kept in jail for indefinite period and delay can be a factor to grant bail though said order is under challenge before Supreme Court.
10. Allegations against applicant are that he hatched conspiracy with co-accused to eliminate deceased and in pursuance of conspiracy shooters were hired to cause death. However, while considering effect of delay in conclusion of trial the Court cannot ignore role assigned to applicant as well as likelihood of conclusion of trial. In the present case it has been pointed out that about 13 prosecution witnesses have been examined and though about 65 witnesses are proposed in charge sheet but there is overlapping of names also as well as some of witnesses may be dropped by prosecution.
11. It is true that two co-accused have already been granted bail and one of the order is under challenge before Supreme Court. However, considering that there are very serious charges against applicant and prima facie there are cogent evidence against him, therefore, before considering bail on the ground of delay in conclusion of trial, it is appropriate to grant an opportunity to Trial Court to conclude trial expeditiously, preferably within a period of six months from today.
12. In view of above, while rejecting prayer for bail, the application is disposed of with liberty to applicant to approach this Court or Trial Court afresh after six months alongwith the outcome of challenge by complainant to the order of bail granted to co-accused, Anil Singh.
Order Date :- 13.3.2023
AK
