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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