Allahabad High Court
Shanu @ Shan Khan vs State Of U.P. on 8 May, 2023
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:97853
Court No. - 75
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 52760 of 2022
Applicant :- Shanu @ Shan Khan
Opposite Party :- State of U.P.
Counsel for Applicant :- Keshari Nandan Singh
Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the applicant and learned Additional Government Advocate representing the State.
The instant second bail application under Section 439 of Cr.P.C. has been filed on behalf of the applicant with a prayer to release him on bail in Case Crime No. 1097 of 2014, under Sections 302 and 307 I.P.C., Police Station-Sumerpur, District-Hamirpur, during the pendency of trial.
The first bail application of the applicant was rejected vide order dated 08.04.2015 in Criminal Misc. Bail Application No. 11695 of 2015.
It is submitted by learned counsel for the applicant that the applicant has been languishing in jail since 13.05.2014 but till date, his trial has not been concluded, therefore, considering the detention period of the applicant, he is entitled to be released on bail. In support of his submission, learned counsel for the applicant placed reliance upon the judgment of the Hon'ble Apex Court in the case of Tinku Gaur @ Avinash vs. The State of Uttar Pradesh decided on 17.01.2023 in Special Leave to Appeal (Crl.) No. 10215 of 2022.
On the other hand, learned A.G.A. submits that in this case, out of nineteen prosecution witnesses, seven prosecution witnesses have been examined and the trial of the applicant is proceeding, therefore, bail application of the applicant is not liable to be allowed at this stage.
Having heard learned counsel for the parties and examined the matter in its entirety, I find that there is no dispute that out of nineteen prosecution witnesses, seven prosecution witnesses have been examined. Vide order dated 10.02.2023, a report was called for with regard to current status of trial of the applicant. Pursuant thereto, the trial court submitted its report dated 21.02.2023 mentioning therein that statement of six prosecution witnesses have already been recorded and thereafter examination-in-chief of the Investigating Officer-Jagdev Prasad was recorded as PW-7 on 30.09.2021 but after that, he did not appear before the trial court. This Court vide order dated 07.04.2023 asked for an explanation from the concerned Presiding Officer that in spite of non-appearance of the investigating officer/PW-7 for about one and a half year, why he has not taken any coercive steps against him. Thereafter Senior Superintendent of Police, Hamirpur, in compliance of order dated 07.04.2023, filed his personal affidavit mentioning inter-alia that investigating officer/PW-7 had retired on 31.08.2022, therefore, despite having knowledge, he did not appear before the trial court. However after the order dated 07.04.2023 of this Court, Jagdev Prasad/investigating officer has been produced before the trial court and learned A.G.A. also pointed out that his statement has been recorded on 29.04.2023. It is also not disputed that The Protection of Children from Sexual Offences Act, 2012 is a special Act and in view of sub-Section 2 of Section 35 of the said Act, it is the duty of the Special Court to complete the trial, as far as possible, within a period of one year from the date of taking cognizance of the offence but in the present case, the trial has been delayed on account of slackness on the part of the prosecution. So far as the judgment of the Apex Court in the case of Tinku Gaur @ Avinash (Supra) is concerned, I find that in the said case, all the crucial witnesses had already been examined by the trial court, only formal witnesses were left out and the accused had undergone incarceration for a period of more than five years, the Apex Court considering the fact that the conclusion of the trial will take still some time, granted bail to the accused. In the present case also, applicant is languishing in jail since 13.05.2014 which is about nine years but his trial has not been concluded, therefore, applicant has made out prima-facie case for bail.
Hence the second bail application of the applicant is hereby allowed.
Let the applicant-Shanu @ Shan Khan, 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) That the applicant shall cooperate in the expeditious disposal of the trial and shall regularly attend the court unless inevitable.
(ii) That the applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.
(iii) That after his release, the applicant shall not involve in any criminal activity.
(iv) The identity, status and residential proof of sureties will be verified by court concerned before the release of the applicant on bail.
In case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of the applicant.
Order Date :- 8.5.2023
Saurabh
