Allowed

Shiv Bahadur Fourth Bail v. State of U.P.

Allahabad HC30 May 2022/8295/2019

Case brief

AI extract

What is this about?

The Single Judge allowed the fourth bail application, releasing the applicant on personal bond and two sureties. The decision was based on the applicant's incarceration exceeding 14 years without a near-future trial conclusion, relying on Supreme Court precedents regarding indefinite custody.

What did the court decide?

Accused released on personal bond and two sureties with strict undertakings not to seek adjournments.

Shiv Bahadur Fourth Bail Vs State of U.P. — Bail and Remand | Allahabad HC (2022)

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Court No. - 11

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 8295 of 2019

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Applicant :- Shiv Bahadur Fourth Bail Opposite Party :- State of U.P. Counsel for Applicant :- Manoj Kumar Misra,Ravindra Shukla Counsel for Opposite Party :- G.A.

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Hon'ble Rajesh Singh Chauhan,J.

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Heard Sri Ravindra Shukla, learned counsel for the applicant and Sri Anurag Singh Chauhan, learned AGA-I.

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Rejoinder affidavit filed by learned counsel for the applicant is taken on record.

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As per learned counsel for the applicant, the present applicant is in jail since 19.11.2007 in Case Crime No.848 of 2007, under Sections 302/34, 323, 504, 506 IPC and Section 3 (1) of U.P. Gangster Act, Police Station – Gosaiganj, District – Sultanpur.

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This is the fourth bail application. First bail application was rejected on 13.01.2010 by Hon'ble Raj Mani Chauhan, J. (since retired). Second bail application was rejected on 08.10.2010 by Hon'ble Raj Mani Chauhan, J. (since retired). Third bail application was rejected on 22.05.2013 by Hon'ble Vishnu Chandra Gupta, J. (since retired).

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Learned counsel for the applicant has submitted that he is conscious about the fact that in his fourth bail application he cannot take any ground, which could have been taken at the time of hearing of first, second and third bail applications. He is only pressing this fourth bail application on the ground that despite the direction being issued by this Court on 13.01.2010 while rejecting the first bail application and on 08.10.2010 while rejecting his second bail application to expedite the trial, but more than 12 years' period has passed, the trial has not been concluded. Secondly, the period of incarceration of the present applicant i.e. about 14 years and 6 months and there is no possibility to conclude the trial in near future.

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Learned AGA has informed that the status report was called in this case on earlier occasion and he has requested that the same may be perused. One status report dated 21.12.2021 is on record, which indicates that from PW-1 to PW-7 have been examined. As per learned AGA, there are six fact witnesses. Therefore, it appears that all fact witnesses have been examined

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and PW-7 is writer of the FIR, who is formal witness. This fact has been taken into notice vide order dated 10.12.2021 in the present bail application. Learned counsel has submitted that in the present case, there is one cross case wherein the prosecution witnesses are being examined, however, in that cross case, the examination of prosecution witnesses has not been concluded.

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Therefore, learned counsel for the applicant has submitted that in view of the aforesaid facts and circumstances that the trial has not been concluded despite the specific directions being issued by this Court while rejecting first and second bail applications on 13.01.2010 & 08.10.2010 and there is no possibility to conclude the trial in near future, therefore, the period of incarceration of the present applicant i.e. about 14 years and 6 months may be considered to grant him bail. Learned counsel for the applicant has explained the criminal history of the present applicant in the rejoinder affidavit.

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Learned AGA has opposed the prayer for bail by submitting that this being the fourth bail application, therefore, the same may be rejected as no new ground has been taken by the learned counsel for the applicant.

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On being confronted on the point as to whether the trial has been concluded finally or not when the present applicant is in jail for about 14 years and 6 months and this Court has ordered twice on 13.01.2010 & 08.10.2010 to conclude the trial expeditiously, learned AGA has submitted that on the basis of material available on record, the trial has not been concluded as yet. However, he has submitted that direction may be issued to conclude the trial with expedition.

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Heard learned counsel for the applicant and learned AGA.

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At the very outset, I must express my anguish towards the poor progress of the trial inasmuch as despite the learned trial court having coercive powers and power under Section 309 Cr.P.C. to conclude the trial with expeditions, the trial is pending for about 14 years and the present applicant is in jail for more than 14 years and 6 months. Therefore, in the light of the dictum of the Hon'ble 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 it has been held that if the accused person is in jail for substantially long period and there is no possibility to conclude the trial in near future, the bail application may be considered. The Hon'ble Apex Court in re; K.A. Najeeb (supra) has held in para 16 as under:-

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"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."

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The Hon'ble Apex Court in re; Paras Ram Vishnoi (supra) has observed as under :

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"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."

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Considering the fact that all fact/ material witnesses and one formal witness have been examined and still other 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 and in view of the dictum of the Hon'ble Apex Court in re; K.A. Najeeb (supra) and Paras Ram Vishnoi (supra), the present case may be considered to grant bail to the present applicant. In the present case, the applicant is in jail for more than 14 years and 6 months, therefore, considering the long incarceration of the present applicant and the fact that all fact/ material witnesses have been examined, the applicant may be granted bail.

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Accordingly, without entering into merits of the case, the bail application is allowed.

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Let applicant- Shiv Bahadur 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:-

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(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.

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(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.

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(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.

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(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.

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(v) The applicant shall not leave India without previous permission of the court.

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Before parting with, it is expected that the trial shall be concluded with expedition. 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 at the earliest.

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[Rajesh Singh Chauhan,J.]

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Order Date :- 30.5.2022 RBS/-

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Digitally signed by RAM BIR SINGH Date: 2022.05.30 19:02:54 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Shiv Bahadur Fourth Bail v. State of U.P.

Case brief

What is this about?

What did the court decide?

Shiv Bahadur Fourth Bail v. State of U.P.

Case brief

What is this about?

What did the court decide?

What the court decided

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