1. Heard Sri Indrajeet Shukla, learned counsel for the applicant as well as learned Additional Government Advocate for the State of U.P. and Sri Ajmal Khan, learned counsel appearing for the complainant.
2. The present bail application has been filed on behalf of the applicant seeking bail in pursuance to the First Information Report registered as Case Crime No. 352 of 2015, under Sections 147, 148, 149, 302/34, 504 I.P.C., Police Station - Kandhai, District - Pratapgarh.
3. Submission of learned counsel for the applicant is that this is third bail application moved on behalf of applicant, the first bail application was rejected by this Court by means of order dated 28.07.2016, passed in Bail No. 3901 of 2019. This Court while rejecting the first bail application has considered other facts as well as the fact that the Investigating Officer recorded statements of two alleged eye witnesses who for the first time stated that the applicant had given blow on the head of the deceased with 'lathi'. The second bail application of the applicant was rejected by this Court for want of prosecution by means of order dated 24.08.2018. Now this third bail application has been moved on behalf of applicant wherein this Court by means of order dated 12.01.2021, directed the trial Court to conclude the trial within two months fixing 15.03.2021 for hearing of the present bail application. Subsequently, this Court asked the Court below to send the status of the trial and the trial Court by means of letter dated 16.08.2021, reported that till date only two witnesses have been examined and due to COVID-19 pandemic adjournment is being sought and with regard to rest of the witnesses who are not appearing has directed to their statements and concerned Superintendent of Police has also been informed of the said state of affairs.
4. It has been next submitted by learned counsel for the applicant that there are certain fresh developments which have taken place during pendency of the trial and before filing of present bail application and consequently presses the bail application in the light of following fresh developments :
(i) During trial an application has been moved by the prosecution with regard to discharge of two eye witnesses namely Shakir Ali S/o Shaukat Ali and Muheeb S/o Habibullah. It has been submitted that the trial Court allowed the said application and consequently the said eye witnesses have been discharged resulting in the fact that now the prosecution will proceed on the basis of evidence of the remaining witnesses so produced by the prosecution. It is submitted that it is infact these two eye witnesses who had given their statements during investigation thereby implicating the applicant assigning him specific role and also that same material was considered by this Court at the state of rejecting first bail application of the applicant.
(ii) It is submitted that only other evidence which has come up during investigation was regarding recovery of weapon used in the crime. During investigation said weapon was to be sent for forensic analysis so as to link the weapon with the crime, but it seems that the said weapon is missing from the custody of Police. According to the report submitted by the Public Prosecutor, Court No. 7, has stated by means of letter dated 01.11.2018 that the said item was never entered into the records and consequently is not available for being sent for forensic analysis.
5. It is lastly submitted by learned counsel for the applicant that he is in jail for the last five years and looking into the fact that there is no possibility of early conclusion of trial the applicant may be released on bail. In support of his contentions he has relied upon the judgment of Hon'ble Apex Court in the case of Satya Brat Gain Vs. State of Bihar,AIR 2000 Supreme Court 1925, where in the similar circumstances five years having been passed when the applicant therein was taken into custody and looking to the slow progress of trial, the Court granted bail to the applicant therein.
6. Learned A.G.A. on the other hand has opposed the bail application and submitted that looking into the gravity of offence and role of the applicant, it is not a fit case for granting bail.
7. Considering the facts and circumstances of the case, perusing the record and also considering the nature of allegations, arguments advanced by the learned counsel for the parties and from the perusal of record it is clear that that two star eye witnesses who were available during investigation have brought forth specific role of the applicant in the said crime and now they are no longer available to the prosecution as discharge application has been allowed by the trial Court, therefore, in absence of said evidence, role of the applicant falls back and now he is at par with other co-accused. It is the other co-accused persons namely Rampal, Mahajan @ Manoj Kumar, Ramesh and Chandan Saroj have been already granted bail on the ground that no specific role was assigned to any individual, by means of orders dated 06.04.2016, 13.02.2017 passed in Bail Nos. 2278 of 2016, 2250 of 2016, 2261 of 2016 and 1103 of 2017 respectively have been annexed collectively as Annexure-7 to the affidavit filed in support of bail application. At this stage it cannot be denied that role of the applicant is similar to that of other co-accused persons in absence of two discharged eye witnesses, who are now not available and also considering the fact that weapon allegedly used by the applicant is no longer available, coupled with the fact that applicant has spent nearly five years in judicial custody and prayer for grant of bail on the ground of parity with other co-accused has also been made as well as the judgment of Apex Court in the case of Satya Brat Gain (supra), without expressing any opinion on the merit of the case, I find it to be a fit case for granting bail.
8. Let applicant Mahipat Saroj be released on bail in Case Crime No. 352 of 2015, under Sections 147, 148, 149, 302/34, 504 I.P.C., Police Station - Kandhai, District - Pratapgarh, on his furnishing a personal bond and two sureties of the like amount to the satisfaction of the Magistrate/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 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.
(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.
9. In case of breach of any of the above conditions, the Court below shall be at liberty to cancel the bail and proceed against the applicant in accordance with law.
10. This order shall not influence the trial Court for proceeding with the trial.
11. The application stands disposed of.
Order Date :- 25.8.2021 A. Verma (Alok Mathur, J.)