Allahabad High Court
Dr. Avinash Chandra Sharma vs State Of U.P. on 27 March, 2023
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 76
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11589 of 2023
Applicant :- Dr. Avinash Chandra Sharma
Opposite Party :- State of U.P.
Counsel for Applicant :- Lal Mani Singh,Avanish Kumar Srivastava
Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Shyam Shamshery,J.
1. Applicant-Dr. Avinash Chandra Sharma has approached this Court by way of filing present bail application seeking enlargement on bail in Complaint Case No. 1523 of 1990, under Sections 302, 201 IPC, Police Station Gurshaiganj, District Farrukhabad, after rejection of his bail application vide order dated 23.02.2023 passed by Sessions Judge, Farrukhabad.
2. This Court passed following order on 17.03.2023:
?The fact of present case has disturbed the Court that alleged occurrence took place in the year 1979 and it appears that a criminal complaint was lodged wherein applicant and two co-accused were summoned under the provisions of Section 204 Cr.P.C. way back in the year 1980, it appears that an application for quashing summoning order was referred before this Court and according to learned counsel for applicant Sri Lal Mani Singh, said application is still pending wherein interim order was also passed, however, records are not available.
As the interim order was in operation, further proceeding in criminal complaint case were stayed, later on in the light of judgment passed in case of Asian Resurfacing of Road Agency P. Ltd. and Anr. Vs. Central Bureau of Investigation, (2018) 16 SCC 299, trial was initiated in criminal complaint case and accordingly, summons were issued to applicant.
Learned counsel further submits that in these circumstances, applicant has rushed to this Court by way of filing an application under Section 482 Cr.P.C. for quashing of summoning order dated 24.07.1980 as well as entire proceedings, however, by order dated 07.02.2023, prayer to quash the entire proceeding was declined, however, liberty was granted to file a bail application.
Accordingly, applicant surrendered and a bail application was filed by applicant, however, learned trial court rejected the application on 23.02.2023.
Learned counsel further submits that according to his instruction out of 7 proposed witnesses, 6 has already been expired and only one is alive, therefore, in all probability, applicant and other co-accused will be granted acquittal and refers Section 256 Cr.P.C. Learned counsel further submits that proof of death (death certificate) have already been placed before learned trial court along with bail application. Presently, applicant is aged about 80 years.
A specific query is raised by this Court to learned counsel for applicant as well as learned AGA for State that whether trial court has taken any endeavour to call proposed witnesses in order to confirm their living status. However, they have no instruction in this regard.
In these circumstances as well as taking note that alleged offence occurred way back more than 4 decades, therefore, learned trial court shall submit its report in regard to living status of witnesses proposed by complainant including complainant also within a period of 10 days from today.
Put up on 27.03.2023 as fresh.
Registrar(Compliance) to take steps.?
3. Chief Judicial Magistrate, Farrukhabad has sent a report through Registrar General of this Court which is placed before this Court. According to report as many as ten witnesses including complainant were proposed and present living status is as follows:
(i) Complainant-Sri Krishna Sharma-Died about 15 years ago
(ii) Sujan Singh-Died
(iii) Raghuraj Singh-Died
(iv) Fakir-Not traceable
(v) Atru-Died
(vi) Sri Pal-Died
(vii) Sewa Ram-alive and notice has been served but not appeared
(viii) Sikdar-Died
(ix) Manfool-Died
(x) Deen Dayal-Died
4. Learned counsel for applicant submits that in view of above living status of complainant and witnesses, now only one witness is alive however despite service he has not appeared before Trial Court and one other witness is not traceable as well as that son of complainant has not come forward to give any application for further prosecution, therefore, possibility of conviction is very low and Trial Court ought to have pass an order under the provisions of Section 256 Cr.P.C.
5. In view of above submission and taking note of living status of complainant as well as proposed witnesses, a case of bail is made out.
6. Let the applicant- Dr. Avinash Chandra Sharma be released on bail in the aforesaid case crime number on furnishing a personal bond and two 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
(ii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment or exemption from appearance on the date fixed in trial. 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 will not misuse the liberty of bail in any manner whatsoever. 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., 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, in accordance with law, under section 174-A I.P.C.
(iv) The Trial Court may make all possible efforts/endeavour and try to conclude the trial expeditiously, preferably within a period of six months after release of applicant, if there is no other legal impediment.
(v) Trial Court is also directed to pass appropriate order and if necessary may take note of provisions of Section 256 Cr.P.C.
7. The identity, status and residential proof of sureties will be verified by Court concerned and in case of breach of any of the conditions mentioned above, Court concerned will be at liberty to cancel the bail and send the applicant to prison.
8. The bail application is allowed.
9. It is made clear that the observations made hereinabove are only for the purpose of adjudicating the present bail application.
10. The Trial Court is directed to fix an early date in above referred case and after taking note of above factors will pass an order, taking note of the provisions of Section 256 Cr.P.C. as well as taking note of judgment passed by Supreme Court in BLS Infrastructure Limited vs. Rajwant Singh and others, 2023 SCC OnLine SC 200, in accordance with law, if there is no legal impediment.
Order Date :- 27.3.2023
AK
