Allowed

Om Singh v. State of U.P.

Allahabad HC12 Jul 2023BAIL/18930/2023

Case brief

AI extract

What is this about?

This High Court allowed a bail application filed by Om Singh, an undertrial accused in a murder case. The court granted bail citing the prolonged incarceration (over three years) and the failure of the trial court to conclude early proceedings despite a specific directive, invoking Article 21 of the Constitution.

What did the court decide?

Applicant Om Singh released on bail furnished a personal bond and two sureties subject to specific conditions regarding attendance and trial conduct.

Om Singh Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2023)

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Court No. - 71

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 18930 of 2023

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Applicant :- Om Singh Opposite Party :- State of U.P. Counsel for Applicant :- Abhay Raj Yadav,Raj Kumar Sharma Counsel for Opposite Party :- G.A.,Pankaj Bharti

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Hon'ble Shekhar Kumar Yadav,J.

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Heard Mr Raj Kumar Sharma, learned counsel for the applicant, Mr Pankaj Bharti, learned counsel for the informant and learned AGA for the State.

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This is second bail application of applicant Om Singh, involved in Case Crime No. 446 of 2013, under Sections 302,120-B IPC, P.S. Civil Lines, District Muzaffar Nagar.

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The first bail application of applicant has already been rejected vide order dated 31.05.2022 directing the trial court to conclude the trial expeditiously preferably within a period of six months without granting any unnecessary adjournments to either of the parties. Record further discloses that after the rejection of the first bail application, applicant approached Hon'ble Apex Court by filing SLP (Criminal) No. 30786 of 2022, which has been dismissed vide order dated 17.01.2023 with the clarification that the applicant would be entitled to file an application for bail in case of change in the circumstances or in case the trial gets prolonged due to reasons not attributable to the applicant or the co accused.

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Learned counsel for the applicant has submitted that he may not raise any ground in the second bail application which could have been raised at the time of rejection of first bail application, therefore, he is pressing this second bail application only on the point that (i) the period of incarceration of the present applicant i.e. 26.08.2020, about three years; (ii) there is no possibility of conclusion of trial in near future; (iii) despite the specific direction being issued by this Court on 31.05.2022 to conclude the trial within six months more than three years period have passed but neither the trial has been concluded nor there is any possibility of conclusion of trial in near future inasmuch as only charge has been framed as yet.

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According to the prosecution case, an FIR was lodged by informant-Dharmendra on 11.7.2013 at Police Station Civil Lines to the effect that the murder of elder brother of the informant, namely, Bijendra was committed in the way, while his brother was returning from Shamli in January 2011 by Shauran, Naresh, Vivek, Brajpal, Charan Singh, Amit and Sumit of the village of which the informant, Devendra and brother-in-law of Devendra, namely, Yogesh and Krishnapal are eyewitnesses. The report of this incident was lodged by brother of the informant, namely, Devendra, at the P.S. Fugana. It is further alleged that after the murder of Bijendra, Devendra's wife, namely, Sunita is the Village Pradhan of Village Bahawadi. The case of murder of Bijendra is going on in the court of Additional District Judge's Court No. 10. It is further alleged that the above named person and his family members were pressurizing and threatening the informant not to testify in the court. Devendra, the brother of the informant had given his testimony. It is further alleged that on 11.7.2013 the testimony of Yogesh was to happen in the case of murder of Bijendra. Due to the threat, Devendra had come to the court along with his relative, namely Vijaypal to testify Yogesh. A call was made for testimony in the court and when the above named persons reached near the court building, they threatened to either stop the testimony or else they would end the whole matter today. It is further alleged that brother of the informant, namely, Devendra came near the banyan tree in front of the court building at around 12:30 in the afternoon to drink water and at that time Yogesh and Vijaypal were also with Devendra. It is further alleged that at that time Ajay, Saurabh and Sagar of the village, who are the nephews of the accused Naresh, Vicky and Brajpal, suddenly, came with country made pistols in their hands and opened fire with an intention to kill Devendra as a result of which Devendra fell on the ground due to bullet injuries. It is further alleged that Yogesh, Vijaypal and other persons caught Ajay and Sagar with country made pistol but Saurabh fled away from the spot taking advantage of the opportunity. The injured Devendra was taken to hospital where the doctor declared him dead. It is further alleged that on the last date of trial i.e. on 2.7.2013, the brothers of the accused persons, namely, Om Singh and Ranveer, who were in jail, are said to have extended threats to Yogesh to not to give his testimony. Both of them are also said to have involved in the murder of the Devendra. It is further alleged that in the year 1999, Saurabh and Vicky etc. had also caused murder of informant's brother, namely, Jitendra.

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Learned counsel for the applicant has contended that the

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applicant has been falsely implicated in the present case. It is further submitted that there is no credible evidence to connect the applicant with the role of hatching conspiracy. There has been no recovery of any kind from him. There is no public witness to the incident. It is further submitted that there is no material on record to show the complicity of the applicant either by direct or indirect material except the oral testimony of the first informant and two alleged witnesses, whose presence on the alleged place of incident is doubtful. It is argued by learned counsel for the applicant that the applicant has not been attributed with any active role rather the allegation against him is of only hatching of the conspiracy to eliminate the deceased without there being any plausible evidence. The applicant is alleged to have been involved in four criminal cases which has been duly explained by him under para 50 of the affidavit filed in support of the bail application. It is further submitted that in case the applicant is released on bail, he will not misuse the liberty of bail and will cooperate in trial. Therefore, the applicant, who is languishing in jail since 26.08.2020, deserves to be enlarged on bail during the pendency of trial.

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Learned A.G.A. as well as learned counsel for the informant have opposed the prayer for bail but could not dispute the aforesaid submissions advanced by learned counsel for the applicant.

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8. LAW ON BAIL - A SUMMARY

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(A) The basic rule may perhaps be tersely put as bail, not jail.

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(B) Power to grant bail under Section 439 Cr.P.C., is of wide amplitude but not an unfettered discretion, which calls for exercise in a judicious manner and not as a matter of course or in whimsical manner.

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(C) While passing an order on an application for grant of bail, there is no need to record elaborate details to give an impression that the case is one that would result in a conviction or, by contrast, in an acquittal. However, a Court cannot completely divorce its decision from material aspects of the case such as allegations made against accused; nature and gravity of accusation; having common object or intention; severity of punishment if allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of witnesses being influenced by accused; tampering of evidence; character, behaviour, means, position and standing of accused; likelihood of offence being repeated; the frivolity in the case of prosecution;

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criminal antecedents of accused and a prima facie satisfaction of Court in support of charge against accused. The Court may also take note of participation or part of an unlawful assembly as well as that circumstantial evidence not being a ground to grant bail, if the evidence/ material collected establishes prima facie a complete chain of events. Parity may not be an only ground but remains a relevant factor for consideration of application for bail.

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(D) Over crowding of jail and gross delay in disposal of cases when undertrials are forced to remain in jail (not due to their fault) may give rise to possible situations that may justify invocation of Article 21 of Constitution, may also be considered along with other factors. (See, State Of Rajasthan, Jaipur vs. Balchand @ Baliay (AIR 1977 SC 2447 : 1978 SCR (1) 535; Gurcharan Singh vs. State (Delhi Administration), (1978) 1 SCC 118); State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC 21; Prasanta Kumar Sarkar vs. Ashis Chatterjee and Anr (2010)14 SCC 496; Mahipal vs. Rajesh Kumar, (2020) 2 SCC 118; Ishwarji Mali vs. State of Gujarat and another, 2022 SCC OnLine SC 55; Manno Lal Jaiswal vs. The State of U.P. and others, 2022 SCC OnLine SC 89; Ashim vs. National Investigation Agency (2022) 1 SCC 695; Ms. Y vs. State of Rajasthan and Anr :2022 SCC OnLine SC 458; Manoj Kumar Khokhar vs. State of Rajasthan and Anr. (2022)3 SCC 501; and, Deepak Yadav vs. State of U.P. and Anr. (2022)8 SCC 559)

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Upon hearing learned counsel for the parties, perusal of record and considering the complicity of accused, severity of punishment, role attributed to him, only charges have been framed from the date of rejection of the first bail application, bleak possibility of conclusion of trial as well as totality of facts and circumstances, at this stage without commenting on the merits of the case, I find it a fit case for bail. However, any observation made herein-above, will not affect the trial of the case.

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Let the applicant- Om Singh, who is involved in aforementioned 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 subject to following conditions. Further, before issuing the release order, the sureties be verified.

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(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date 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

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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 IPC.

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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., may be issued and if 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 IPC.

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(iv) The applicant shall remain present, in person, before the Trial Court on dates fixed for (1) opening of the case, (2) framing of charge and (3) 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 Trial Court may make all possible efforts/endeavour and try to conclude the trial within a period of one year after the release of the applicant.

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In case of breach of of any of the above conditions, it shall be a ground for cancellation of bail.

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Order Date :- 12.7.2023 RavindraKSingh

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Digitally signed by :- RAVINDRA KUMAR SINGH High Court of Judicature at Allahabad

Om Singh v. State of U.P.

Case brief

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Om Singh v. State of U.P.

Case brief

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