Allahabad High Court

Ehsan vs State Of U.P. Thru. Prin. Secy. Deptt. Of ... on 10 May, 2024

Author: Rajesh Singh Chauhan

Bench: Rajesh Singh Chauhan





HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2024:AHC-LKO:36307
 
Court No. - 11
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1803 of 2024
 

 
Applicant :- Ehsan
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Deptt. Of Home Lko.
 
Counsel for Applicant :- Arun Kumar Saxena
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajesh Singh Chauhan,J.

1. Heard Shri Arun Kumar Saxena, learned counsel for the applicant and Shri Aniruddh Singh, learned A.G.A. for the State.

2. This is a third bail application. First bail application bearing Bail No.4072 of 2021 and second bail application bearing Criminal Misc. Bail Application No.13507 of 2021 have been rejected by Hon'ble Dinesh Kumar Singh, J. vide orders dated 07.04.2021 and 21.09.2022 respectively. While rejecting the second bail application on 21.09.2022 (supra), this Court directed the trial court to conclude the trial within a period of one year but the trial has not been concluded till date.

3. Learned counsel for the applicant has stated that he shall not address those grounds, which have already been argued at the time of disposal of the first bail application and the second bail application and he shall address only those grounds which may be considered as subsequent/ fresh ground to consider the third bail application.

4. The present applicant is in jail since 14.12.2019 in Sessions Trial No.323 of 2021, Case Crime No.861 of 2019, under Section 302 IPC, Police Station- Kotwali, District- Sitapur.

5. Learned counsel for the applicant has further submitted that total period of incarceration in judicial custody/ jail of the applicant is about four years and five months. The stipulated period of one year has expired on 21.09.2023, therefore, about seven and half months' period has lapsed after the expiry of stipulated time but neither the trial has been concluded nor there is any possibility to conclude the trial in near future inasmuch as out of total 21 prosecution witnesses, only 11 prosecution witnesses have been examined. Though, out of these 11 prosecution witnesses, who have been examined, all fact witnesses and some formal witnesses have been examined. To record the evidence of remaining prosecution witnesses; thereafter, to complete the mandatory exercise of Section 313 Cr.P.C.; thereafter, to record the evidence of defence witnesses, if any, and to conclude the arguments of the trial may take substantial period looking into the pace of the trial court. Since all fact witnesses and some formal witnesses have been examined, therefore, if the present applicant is released on bail, he may not influence any witness or may tamper any evidence/ material. Learned counsel for the applicant has stated that the accused-applicant is having fundamental right of speedy trial enshrined under Article 21 of the Constitution of India.

6. Learned counsel for the applicant has relied upon the judgments of the Apex Court in re; Union of India vs. K.A. Najeeb reported in AIR 2021 Supreme Court 712 and Paras Ram Vishnoi vs. The Director, Central Bureau of Investigation passed in Criminal Appeal No. 693 of 2021 (Arising out of SLP (Crl) No.3610 of 2020), wherein the Apex Court has held that if there is no possibility to conclude the trial in near future and the accused applicant is in jail for a substantial period then the period of incarceration may be considered as a fresh ground. Besides, he has referred the dictum of the Apex Court in re; Gokarakonda Naga Saibaba v. State of Maharashtra, (2018) 12 SCC 505, wherein it has been held that if all fact/ material witnesses have been examined, the bail application of the accused may be considered. Learned counsel has submitted that in the present case, eleven fact/ material witnesses have been examined, therefore, the present applicant may be enlarged on bail. He has further submitted that the applicant undertakes that he shall co-operate in the trial proceedings and shall not misuse the liberty of bail, if so granted by this Court. Further, the applicant shall abide by all terms and conditions of the bail order.

7. Learned A.G.A. has opposed the aforesaid bail application by submitting that whatever relevant/ cogent material is available with the prosecution is clearly suggesting that the present applicant has committed the offence. Since the present applicant is the main accused, therefore, his bail application may be rejected. However, he could not dispute the settled proposition of law that the accused applicant is having fundamental right of speedy trial enshrined under Article 21 of the Constitution of India and in the present case, despite the specific directions having been issued by this Court to conclude the trial within stipulated time, the trial has not been concluded till date.

8. Without entering into merits of the issue; considering the arguments of learned counsel for the parties; the fact that despite the specific direction being issued by this Court while rejecting the second bail application on 21.09.2022 to conclude the trial within a period of one year, more than one year and seven months' period has passed w.e.f. 21.09.2022, the trial has not been concluded till date; eleven fact/ relevant witnesses have been examined and still some prosecution witnesses are to be examined, thereafter the defence witnesses would be examined, therefore, there is no possibility of the trial to be concluded in near future; considering the dictum of the Apex Court in re; K.A. Najeeb (supra), Paras Ram Vishnoi (supra) and Gokarakonda Naga Saibaba (supra) and considering the period of incarceration of the present applicant i.e. about four years and five months, I find it appropriate to release the applicant on bail.

9. Accordingly, the bail application is allowed.

10. Let applicant- Ehsan be released on bail in the aforesaid case crime number 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:-

(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.