Allahabad High Court
Ashish Kumar vs State Of U.P. Thru. Prin. Secy. Home Lko. on 18 November, 2024
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:75865
Court No. - 11
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11638 of 2024
Applicant :- Ashish Kumar
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko.
Counsel for Applicant :- Dhirendra Pratap Singh
Counsel for Opposite Party :- G.A.
Hon'ble Rajesh Singh Chauhan,J.
Heard Sri Dhirendra Pratap Singh, learned counsel for the applicant, Sri Bhanu Pratap Singh, learned AGA for the State.
The first bail application (Criminal Misc. Bail Application No. 4547 of 2021) of the present applicant has been rejected by Hon'ble Justice Ram Krishna Gautam on 19.04.2022.
The present applicant is in jail since 11.07.2020, in case crime no. 331 of 2020, under Section 304 of IPC at Police Station Lalganj District Raebareli.
On 07.11.2024, this Court called the medical examination report of the present applicant which was filed by the Superintendent of Police, Raibareli. The Medical Officer, District Raibareli apprised the medical condition of the applicant vide report dated 16.11.2024, which reads as under:-
"Medical report of Undertrial Prisoner Ashish Kumar S/o Rajesh Kumar in Cri. Misc. Case No. 11638(B) 2024, Case. No. 331/2020 Under Section 304 1.P.C. P/s Lalganj, Raebareli.
Undertrial Prisoner Prisoner Ashish Kumar Aged About 35 yrs S/o Rajesh Kumar Entered District Jail Raebareli On 11-07-2020. He was Kept in Hospital Barracks Due to Weak Gen. Health and Recived Extra Diet and Medical Suppliments in Addition to Regular Diet.
On 23 October, 2024 He Developed Abdominal Distension and Urgently Sent to AIIMS, Raebareli by Jail Guard on Life Saving Basis. At AIIMS, Raebareli he was Given Treatment and Liquid was Taken out from Abdomen (Ascitic Tap) And Liquid Was Sent To Laboratory.
Prisoner Was Again Sent to AIIMS, Raebareli on 04 November, 2024 By Police Guard and He Got Treatment Till Evening And Then, Referred for KGMU, Lucknow.
At KGMU, Lucknow, He was Seen At Trauma Centre And Recived Treatment. Due To Non Availability of Bed, He Was Sent to Balrampur, Where He Received Two Bottles of Blood Along With Oxygen and Supportive Treatment.
At This Point, Doctor's Found Out That, He is not a Simple Case Of Ascites (Liquid In Abdomen), But He is Having Following Illness In Addition. i.e. Bilateral Pneumonia, Parietal Infarct (Brain Stroke) And Psychiatric Changes.
Presently, He is Getting Treatment at District Hospital Raebareli (Treatment advised By Doctor's Of RML, Hospital, Lucknow). His General Condition is not Satisfactory but Improving."
The learned counsel has stated that the monetary condition of the present applicant is very poor and he was not able to engage his counsel, therefore, one Amicus Curie has been provided to the applicant for the learned trial Court. The present applicant is cooperating with the trial proceeding but despite all possible efforts only three prosecution witnesses have been examined till date, whereas, there are total nine fact witnesses and total 15 prosecution witnesses. Looking into the pace of trial, there is no likelihood to conclude the trial in the near future.
Learned counsel for the applicant has submitted that since there is no possibility to conclude the trial in near future, therefore, in view of the dictum of Hon'ble Apex Court in re: Union of India vs. K.A. Najeeb AIR 2021 Supreme Court 712 and Paras Ram Vishnoi vs. The Director, Central Bureau of Investigation reported in 2021 SCC OnLine SC 3606 granting bail to those accused persons on the ground that there is no possibility to conclude the trial in near future and there is a long incarceration of that accused, therefore, they were entitled for bail. Para 15 of the case K.A.Najeeb (supra) is being reproduced here-in-below:
"This Court has clarified in numerous judgments that the libertyguaranteed 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."
13. The Apex Court in the case of Paras Ram Vishnoi (supra) in para 4 has observed as under:
"4. On consideration of the matter, we are of the view that pending the trial we cannot keep a person in custody for an indefinite period of time and taking into consideration the period of custody and that the other accused are yet to lead defence evidence while the appellant has already stated he does not propose to lead any evidence, we are inclined to grant bail to the appellant on terms and conditions to the satisfaction of the trial court."
He has further submitted that though the petitioner is provided proper treatment by the jail authorities, but if he is released on bail, he may get better treatment by the help of family members and his friends.
The learned counsel has further submitted that considering the total period of incarceration of the present applicant in jail, i.e., four years and four months and also considering the pace of trial as well as his medical condition, he may be enlarged on bail. The learned counsel has further submitted that if the applicant is released on bail, he shall shall cooperate in the trial proceedings and shall not misuse the liberty of bail. Further, the applicant shall abide by all terms and conditions of the bail order, the applicant may be enlarged on bail.
Learned A.G.A. has, however, opposed the prayer for bail but he could not dispute the aforesaid submissions of learned counsel for the applicant.
Without entering into merits of the issue, considering the arguments of learned counsel for the parties; contents and allegations of the FIR and the fact that the present applicant is languishing in jail since 11.07.2020 and four years and four months period has been passed; there is no likelihood to conclude the trial in the near future; the judgement of Apex Court in Re:-Union of India vs. K.A. Najeeb AIR 2021 Supreme Court 712 and Paras Ram Vishnoi vs. The Director, Central Bureau of Investigation reported in 2021 SCC OnLine SC 3606 granting bail to those accused persons on the ground that there is no possibility to conclude the trial in near future and there is a long incarceration of that accused and undertaking of the applicant that he shall cooperate in the trial proceedings and shall not misuse the liberty of bail, I find it appropriate to release the applicant on bail.
The bail application is allowed.
Let the applicant-Ashish Kumar, 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 applicants fail 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.
Order Date :- 18.11.2024
Anurag
