Saturday 9 April 2022

Should the court release the accused on bail if he has been in jail for a long time and there be no possibility of an early conclusion of a trial?

The Apex Court in the case of Paras Ram Vishnoi vs. The

Director, Central Bureau of Investigation passed in Criminal

Appeal No. 693 of 2021 (Arising out of SLP (Crl) 3610 of

2020) has observed as under :

"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."

19. In the aforesaid cases the Hon'ble 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 long period then

a period of incarceration may be considered as a fresh ground.

 ALLAHABAD HIGH COURT

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6869

of 2019

Applicant :- Anokhi Lal Second Bail

Opposite Party :- State of U.P.

Hon'ble Rajesh Singh Chauhan,J.

Order Date :- 30.3.2022

1. Heard Sri Arun Sinha, learned counsel for the applicant and

Sri Balkeshwar Srivastava, learned Additional Government

Advocate for the State.

2. This is the second bail application as the first bail application

bearing Bail Case No.7160 of 2018 (Anokhi Lal vs. State of

U.P.) has been rejected by Hon'ble Anant Kumar, J. (since

retired) on 23.04.2019.

3. While rejecting the first bail application, the Hon'ble Court

was pleased to observe as under:-

"However, at this stage, learned counsel for the applicant states

that a direction may be given to the trial court for expeditious

disposal of the trial. Accordingly, trial court is directed to

expedite the trial and make an endeavour to conclude the trial,

within a period of five months."

4. Sri Sinha has submitted that despite the specific direction of

this Court vide order dated 23.04.2019 to conclude the trial

within a period of five months, about three years period have

passed but the examination of PW-2 has not been concluded

inasmuch as such prosecution witness is a fact witness, who is

not co-operating with the trial proceedings.

5. Sri Sinha has filed certified copy of orders of trial court for

the last one year, the same are taken on record. Those certified

copies shall be kept properly with this paper-book.

6. Sri Sinha has submitted that the present applicant is

languishing in jail since 15.04.2018 in Case Crime No.36 of

2018, under Sections 498-A & 304-B I.P.C. and Section 3/4 of

Dowry Prohibition Act, Police Station-Khargupur, District-

Gonda. He has further submitted that in the impugned First

Information Report (in short F.I.R.), the entire family of the inlaws

of the victim has been implicated. The present applicant is

not a direct family member of the in-laws of the victim as he is

a cousin brother of husband of the victim and such fact has been

shown in the pleadings as well as in the family register which

has been annexed in the bail application.

7. Sri Sinha has further submitted that in the dying declaration,

the allegation has been levelled against the mother-in-law

(Smt. Munni Devi) and the present applicant. However, as per

statement of the family members of the victim the main

allegation has been levelled against the mother-in-law (Smt.

Munni Devi).

8. As per the prosecution story, the victim had been brought to

the hospital by her husband (Vinay Kumar Awasthi), and the

victim died in the hospital. As per the family members of the

victim, all the family members including the husband of the

victim were involved.

9. Attention has been drawn by learned counsel for the

applicant towards Annexure No.5 of the bail application, which

is a bail order of mother-in-law (Smt. Munni Devi) dated

05.07.2019 passed by this Court in Bail Case No.2035 of 2019

(Smt. Munni Devi vs. State of U.P.) whereby this Court granted

bail to the mother-in-law (Smt. Munni Devi).

10. Further attention has been drawn by learned counsel for the

applicant towards Annexure No.6 of the bail application, which

is a bail order of the husband of the victim dated 20.02.2019

passed by this Court in Bail Case No.6236 of 2018 (Vinay

Kumar Awasthi vs. State of U.P.).

11. Sri Sinha has submitted that if the allegations of the family

members of the victim are considered on its face value, then all

the family members were involved but the mother-in-law (Smt.

Munni Devi) and the husband (Vinay Kumar Awasthi) have

been granted bail. Further, if dying declaration is considered on

its face value, then despite having similar allegations the

mother-in-law (Smt. Munni Devi) has been granted bail.

Besides in various statements of family members of the victim

the main culprit was the mother-in-law (Smt. Munni Devi).

12. Sri Sinha has submitted that however all the aforesaid

arguments were available at the time of rejection of first bail

application of the present applicant but since the mother-in-law

(Smt. Munni Devi) has been granted bail subsequent to the

rejection of the bail application of the present applicant,

therefore, this may be considered as fresh ground.

13. Sri Sinha has further drawn attention of this Court towards

supplementary affidavit filed on 12.07.2021 showing Annexure

No.SA-3, which is a statement of PW-2 dated 04.04.2019 to

show that despite the specific direction being issued by this

Court on 23.04.2019 to conclude the trial within a period of five

months, there is no progress in the trial. On last date of hearing

of the present bail application on 24.03.2022 Sri Sinha prayed

sometime to show the current status of trial, therefore, he was

granted time. Today, he has provided the certified copy of the

orders of the trial court for the last one year to show the

progress of trial.

14. As per the certified copies of orders of the trial court, PW-2

is absent since 03.04.2021 and on 03.04.2021 a bailable warrant

of Rs.10,000/- has been issued against him for his appearance.

The latest order dated 23.03.2022 provides that for evidence/

examination of PW-2 the next date has been fixed for

07.04.2022. The perusal thereof clearly reveals that the

examination of PW-2 could not be completed since April, 2019.

15. Sri Sinha has shown the charge-sheet which indicates that

there are 19 prosecution witnesses. Presently, the examination

of PW-2 has not been completed.

16. Therefore, Sri Sinha, learned counsel for the applicant has

submitted that despite the specific direction of this Court vide

order dated 23.04.2019 to conclude the trial within a period of

five months, there is no possibility to conclude the trial in near

future inasmuch as out of 19 prosecution witnesses even

examination of PW-2 has not been concluded. Therefore, this

ground may be considered as a fresh ground to consider the

second bail application. Besides, after rejection of first bail

application of the present applicant on 23.04.2019 the main

accused (Smt. Munni Devi) i.e. mother-in-law of the victim has

been granted bail on 05.07.2019, therefore, this may also be

considered as a fresh ground.

17. Sri Sinha has placed reliance upon the dictum of Hon'ble

Apex Court rendered in re: 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."

18. The Apex Court in the case of Paras Ram Vishnoi vs. The

Director, Central Bureau of Investigation passed in Criminal

Appeal No. 693 of 2021 (Arising out of SLP (Crl) 3610 of

2020) has observed as under :

"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."

19. In the aforesaid cases the Hon'ble 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 long period then

a period of incarceration may be considered as a fresh ground.

20. Sri Sinha has submitted that since the charge-sheet has

already been filed in this case and the present applicant is cooperating with the trial proceedings and if there is any lapse in

not concluding the examination of PW-2 it is no fault on the

part of the present applicant but on the part of the prosecution,

therefore, he may be released on bail.

21. Learned counsel for the applicant has undertaken on behalf

of the present applicant that the applicant shall not misuse the

liberty of bail, if so granted by this Court and shall abide by all

terms and conditions of the bail order and shall cooperate with

the trial proceedings.

22. On the other hand, learned Additional Government

Advocate has opposed the prayer for bail by submitting that

since the specific allegations has been levelled against the

present applicant by the victim herself, therefore, his bail

application may be rejected.

23. However, on being confronted on the fact that on the basis

of statement of family members of the victim as well as of the

victim the allegations have been levelled against the mother-inlaw

(Smt. Munni Devi) who has been granted bail and the

family members of the victim have also levelled allegations

against the husband, who has also been granted bail, the learned

Additional Government Advocate has submitted that those

orders being a matter of record, therefore, he has nothing to say.

24. Having considered the fact that despite the specific direction

being issued by this Court vide order dated 23.04.2019 to

conclude the trial within a period of five months but about three

years period have passed and the progress of trial is the same as

it was in the month of April, 2019 when the first bail

application was rejected. As a matter of fact, there is no

progress of trial as such. The PW-2 is not co-operating with the

trial and has absconded for quite sometime. The period of

incarceration of the present applicant in jail since 15.04.2018 is

also worth considering at this stage when there is no possibility

to conclude the trial in near future inasmuch as out of 19 PWs

the examination of PW-2 is going on. Besides, all the family

members of the victim including the victim herself have

levelled specific allegation of torture etc. to the mother-in-law

(Smt. Munni Devi), who has been granted bail subsequent to

the rejection of the first bail application of the present applicant.

Hence, these grounds may be considered as fresh ground to

consider the second bail application.

25. Therefore, in the given circumstances and considering the

dictum of Hon'ble Apex Court in re: K.A. Najeeb (supra) and

Paras Ram Vishnoi (supra), the aforesaid grounds are

considered as fresh to consider the second bail application,

therefore, without expressing any opinion on merits of the case,

the instant second bail application of the present applicant is

allowed.

26. Let applicant -Anokhi Lal, be released on bail in aforesaid

case crime number on his furnishing a personal bond and two

reliable sureties each of the like amount to the satisfaction of

the court concerned subject to 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 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.

(v) The applicant shall not leave the country without prior

permission of the Court.

27. 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.

Order Date :- 30.3.2022 [Rajesh Singh Chauhan,J.]


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