Pankaj Singh S/O Shri Surya ... vs State Of U.P. Thru. Addl. Chief ...
2023 Latest Caselaw 24018 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


(Reserved)
 

 
Neutral Citation No. - 2023:AHC-LKO:58182
 
Court No. - 27
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9228 of 2022
 

 
Applicant :- Pankaj Singh S/O Shri Surya Narayan Singh
 
Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Home Lko
 
Counsel for Applicant :- Purnendu Chakravarty,Shivanshu Goswami
 
Counsel for Opposite Party :- G.A.,Ashok Kumar Srivastava
 

 
Hon'ble Brij Raj Singh,J.

1. Heard Sri Purnendu Chakravarty, learned counsel for the applicant, Sri Ashok Kumar Srivastava, learned counsel for the complainant, Sri Rajesh Kumar Singh, learned AGA-I, for State and perused record.

2. This first bail application has been filed by the applicant for grant of bail in Case Crime No.302 of 2016 under Section 147, 148, 149, 302, 307, 404, 120B and 34 IPC, PS Baghrai, district Pratapgarh.

3. Sri Purnendu Chakravarty learned counsel for the applicant has submitted that in the case diary, there is no incriminating material with respect to conspiracy collected by the police. In paragraph-17, 19, 20 and 21 of the affidavit to the bail application, the said fact has been stated by the learned counsel for the applicant. He has submitted that reply has been given by the learned AGA in paragraph-18 and 19 of the aforesaid argument but no credible and incriminating evidence has been shown as to show the applicant did conspiracy in the case. He has further submitted that the applicant is in Jail since 30.6.2017 and more than 6 years have passed.

4. Learned counsel for the applicant has relied upon the judgment of Supreme Court in the case of Union of India. Vs. K.A. Najeeb, reported in AIR 2021 SC 712 (Para-16).

5. Learned counsel for the applicant has relied upon various judgments of Supreme Court in which Supreme Court has considered the period of incarceration and has observed that delay in concluding the trial of an under-trial who is having substantial period of incarceration, may be considered as ground to grant bail. He has relied on the following judgments:-

1. Paras Ram Vishnoi Vs. The Director, Central Bureau of Investigation Criminal Appeal No.693 of 2021 (Arising out of SLP(Cri.) No.361 of 2020,

2. Gokarakonda Naga Saibaba Vs. State of Maharashtra (2018) 12 SCC 505,

3. Saudan Singh Vs. State of U.P. (Arising Out of SLP(Cri.) No.4633 of 2021,

4. Brijesh Kumar @ Ramu Vs. State of U.P. Criminal Appeal No.540 of 2022,

5. Vipul Vs. State of U.P. SLP(Cri.) No.3114 of 2022,

6. Suleman Vs. State of U.P. Criminal Appeal No.491 of 2022,

7. Kamal Vs. State of Haryana 2004 (13) SCC 526,

8. Takht Singh Vs. State of Madhya Pradesh 2001 (10) 3 SCC 463,

9. Dataram Singh Vs. State of U.P. (2018) 3 SCC 22.

6. He has submitted that no circumstantial evidence has emerged in the case diary that may give some physical manifestation of an illegal agreement which is alleged to have been hatched. It has been further submitted by the learned counsel for the applicant that the injured witness namely, Sonu Singh PW-4 has become hostile and in the statement of Dheeraj Singh PW-2 witness of fact, there is nothing incriminating found against the applicant. He has further submitted that deceased had long criminal history and was facing prosecution in as many as 32 criminal cases and the informant has long criminal history of 38 cases. There is strong possibility that someone else might have perpetrated the murder of the deceased and because of political rivalry the informant has falsely implicated the applicant. He has further submitted that six accused persons namely, Pakka Pasi, Jwala Singh, Pramod Kumar, Daddu Pasi, Pawan Mishra and Santosh Vaish have been granted bail. He has submitted that main assailants have been released on bail whereas, the applicant is named on the basis of conspiracy without incriminating evidence.

7. Learned counsel for the applicant Sri Purnendu Chakravarti has submitted that the bail application of co-accused Vivek @ Deepak Ojha being Crl. Misc. Bail Application No.3643 of 2018 was rejected on 7.5.2022 by this Court with a direction that the Trial Court will decide the case within one year. Thereafter, Vivek @ Deepak Ojha was granted bail by this Court in Crl. Misc. Bail Application No.9383 of 2023 on 24.8.2023. He has further submitted that the trial has not been concluded within stipulated period; that is why, this Court allowed the bail application of Vivek @ Deepak Ojha.

8. Learned counsel for the applicant has further submitted that in the bail rejection order of Ashish Pathak, wrong fact has been mentioned that bail of Daddu Pasi and Pawan Mishra has been rejected whereas, Daddu Pasi was granted second bail on 3.8.2023 in Crl. Misc. Bail Application No.11325 of 2022 and Pawan Mishra was also granted second bail on 3.7.2023 in Crl. Misc. Bail Application No.2088 of 2023. He has submitted that wrong fact has been apprised to the Court otherwise, both have been granted bail and eight main co-accused have been granted bail.

9. Sri Rajesh Kumar Singh, learned AGA-I, has also submitted that bail application of co-accused Ashish Pathak having similar role has been rejected. It is submitted that the bail application of co-accused Sunil Gupta, Sanjay Singh @ Seenu, Shiv Sagar @ Pankaj Mishra, Brijesh Kumar @ Deepu Ojha, Manoj Upadhyaya @ Manoj Pathak, Pawan Mishra @ Ram Sagar Mishra have been rejected.

10. On the other hand, Sri Ashok Kumar Srivastava, learned counsel for the complainant has argued that the applicant is involved in the murder of brother-in-law of deceased and FIR was registered in case crime No.236 of 2013 under Section 147, 148, 149, 302, 120-B IPC PS Holagarh district Allahabad in which the applicant along with other co-accused were involved in commission of crime. He has submitted that deceased of the present case was informant/witness of the said case. It has been further submitted by Sri Ashok Kumar Srivastava for the complainant that the applicant along with other co-accused were pressurizing the deceased to enter into compromise but the deceased denied and there is strong motive for murder. He has submitted that though the acquittal order has been passed in the aforesaid case crime No.236 of 2013 in which the deceased was witness, but the Government Appeal has been filed before the High Court at Allahabad being Government Appeal No.264 of 2022 (State of U.P. Vs. Pankaj Singh @ Lal Raghvendra Pratap Singh And 6 Others) in which bailable warrants have been issued against the applicant and other co-accused. He has further submitted that bail applications of co-accused Sunil Gupta, Sanjay Singh @ Seenu, Shiv Sagar @ Pankaj Mishra, Daddu Pasi @ Krishna Kumar, Brijesh Kumar@ Deepu Ojha, Vivek @ Deepak Ojha, Manoj Upadhyaya @ Manoj Pathak, Pawan Mishra @ Ram Sagar Mishra (given separately), Ashish Pathak @ Sonu Pathak (given separately) have been rejected.

11. Learned counsel for the complainant Sri Ashok Kumar Srivastava has further submitted that bail of Ashish Pathak @ Sonu Pathak has been rejected in Crl. Misc. Bail Application No.7561 of 2022 on 3.8.2023. He has further submitted that conspiracy role has also been assigned to Ashish Pathak, therefore, the bail of the present applicant is also liable to be rejected on the ground that he has also been assigned role of conspiracy.

12. I have heard learned counsel for the parties. The Court while granting bail to Pawan Mishra, passed the order which is quoted below:-

"...Considering the facts and circumstances of the case, perusing the record and also considering the nature of allegations, arguments advanced by the learned counsel for the parties and keeping in mind the statement(s) of Manoj Kumar Singh/PW-1 (Informant), Dheeraj Singh/PW-2 (witness of fact), as also that Sonu Singh/PW-4 (injured witness) has become hostile and the period of incarceration and without expressing any opinion on the merit of the case, I find it to be a fit case for granting bail.

Let the applicant- Pawan Mishra @ Ram Sagar Mishra be released on bail in aforesaid Case Crime, on his furnishing personal bond to the satisfaction of the court concerned forthwith. Applicant is also directed to furnish two reliable sureties each of the like amount to the satisfaction of the court concerned subject to following conditions...."

13. Learned counsel for the applicant has relied on paragraph-16 of the judgment in the case of K.A. Najeeb (supra). The said paragraph-16 is quoted below:-

"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."

14. The bail of Daddu Pasi was granted on the ground of incarceration period. The order passed by the Coordinate Bench of this Court in the case of Daddu Pasi is quoted below:-

"1. Heard Sri P.K. Singh Bisen, learned counsel for the applicant and Sri Angad Kumar Vishwakarma, learned A.G.A. for the State.

2. This is second bail application. First bail application bearing Criminal Misc. Case No. 3282(B) of 2018 has been rejected on 7.5.2022. While rejecting the first bail application this Court has observed as under

"Before parting with, it is expected that the trial shall be concluded with expedition, say, within a period of one year. Further, the learned trial court may take all coercive measures as per law if either of the parties do not co-operate in the trial properly. The learned trial court shall fix short dates to ensure that trial is concluded within a period of nine months in terms of Section 309 Cr.P.C"

3. It has been contended by the learned counsel for the applicant that the applicant is in jail since 4.3.2017 in Case Crime No. 302 of 2016 u/s 147, 148, 149, 302, 307, 404, 120B, 34 IPC, P.S. Baghrai, District Pratapgarh. It has been submitted that the applicant has been falsely implicated in this case as he has not committed any offence as alleged.

4. Learned counsel for the applicant has stated that about six years and five months period has passed since the applicant is in jail / judicial custody.

5. He has further submitted that despite the specific direction being issued by this Court while rejecting the first bail application on 7.5.2022 to conclude the trial within one year, about one year and three months period have passed but the trial has not been concluded till date. Out of total 27 prosecution witnesses three prosecution witnesses have been examined, therefore, there is no likelihood to conclude the trial at the earliest. The Hon'ble Apex Court in the case of Union of India vs. K.A. Najeeb reported in AIR 2021 Supreme Court 712. Para 16 of the judgment is being reproduced herein below:-

"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."

6. Learned counsel for the applicant has also submitted that one co-accused Pawan Mishra @ Ram Sagar Mishra has been granted bail by this Court on 3.7.2023 in Crl. Misc. Bail Application No. 2089 of 2023, therefore, it has been submitted that it may be considered as a new ground as after rejection of first bail application of the applicant, the co-accused has been granted bail. So far as the criminal history of the present applicant is concerned, the present applicant has been acquitted in four cases. Presently, the trial in two criminal cases are pending before the Court.

7. Learned counsel for the applicant has also submitted that the injured witnesses namely Sonu Singh and Dheeraj Singh whose statement have been recorded before the trial court subsequent to the rejection of first bail application have not supported the prosecution story and they have stated in their testimony that they have not seen the applicant on the place of incident.

8. The learned counsel for the applicant has given an undertaking on behalf of applicant that the applicant shall not misuse the liberty of bail and shall cooperate with the trial proceedings and shall abide by all terms and conditions of bail, if granted.

9. Sri Angad Kumar Vishwakarma, learned A.G.A. vehemently opposed the prayer for bail and has submitted that this is second bail application and no new grounds has been shown, therefore, this bail application may be rejected.

10. Without entering into the merits of the case and considering the fact that the co-accused person namely, Pawan Mishra @ Ram Sagar Mishra has been granted bail by this Court on 3.7.2023 in Crl. Misc. Bail Application No. 2089 of 2023 and the fact that the injured witnesses have stated in their statement that they have not seen the applicant at the place of incident and also considering the period of his incarceration in jail i.e. six years and five months and there is no likelihood to conclude the trial in near future, therefore, on the principle of parity the applicant is entitled to be released on bail in this case.

11. Let the applicant Daddu Pasi Alias Krishna Kumar, involved in aforesaid case 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 which are being imposed in the interest of justice..."

15. Considering the over all facts and circumstances of the case the argument of incarceration period of more than six years supported by the judgment of K.A. Najeeb (supra), the argument that eight main co-accused have been granted bail, the argument that there is no incriminating, credible, direct or indirect evidence of hatching conspiracy found against the applicant, the argument that PW-4 Sonu Singh has become hostile and nothing incriminating is found against the applicant in the statement of PW-2 Dheeraj Singh, and PW-1 Manoj Kumar Singh, it is a fit case for bail.

16. Let the applicant, Pankaj Singh be released on bail in the above case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of 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.

17. It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The Trial Court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything in this order.

Order Date :- 5.9.2023

Rajneesh JR-PS)