Court No. - 74
Case :- CRIMINAL MISC. IInd BAIL APPLICATION No. - 31653 of 2018 Applicant :- Piyush Shyamdasani Opposite Party :- State Of U.P.
Counsel for Applicant :- Dileep Kumar,Kartikeya Saran Counsel for Opposite Party :- G.A.,Sangam Lal Kesharwani,Vinay Saran
Hon'ble Arvind Kumar Mishra-I,J.
Heard Sri Dileep Kumar, learned Senior Counsel assisted by Sri Kartikeya Saran, learned counsel for the applicant, Sri Vinay Saran, learned Senior Counsel assisted by Sri Pradeep Kumar Mishra, learned counsel for the informant, Sri Om Narain Tripathi, learned A.G.A. assisted by S/Sri Bhanu Prakash Singh, S.C. Dwivedi, Jitendra Kumar, S.K. Rajbhar, Brief Holders for the State and perused the material available on record.
This is second bail application. The first bail application was disposed of by a coordinate Bench of this Court on 07.09.2017.
By way of the instant application, the applicant seeks the second bail in Case Crime No.151 of 2014, under Sections 364, 302, 201, 202, 203, 404, 120B, 34 I.P.C., Police Station Swaroop Nagar, District Kanpur Nagar.
Learned Senior Counsel for the applicant has pressed the instant bail application by claiming that the applicant being husband of the deceased has been placed under detention in this case without any basis or credible and clinching evidence. Learned Senior Counsel has adverted to the proceeding of the trial court as has been completed up to this stage by claiming that PW-1 to PW-6 were examined by the trial court, the then Sessions Judge, Kanpur Nagar, thereafter PW-7 to PW-10 were examined by the successor Sessions Judge, Kanpur Nagar. Thereafter, the case was transferred to the Additional Sessions Judge, Court No.1, Kanpur Nagar, who recorded statement of PW-11 to 22. In the meanwhile, this case was withdrawn on the administrative ground from the aforesaid trial court and remitted to the Additional Sessions Judge, Court No.10, Kanpur Nagar.
Whereas, it so happened that one Transfer Application (Criminal) No.432 of 2018 was moved before this Court wherein counter affidavit was called for without staying the proceeding of the case. Now this case was recalled by the Sessions Judge, Kanpur Nagar. In the light of Application moved under Section 482 Cr.P.C. and other applications, a number of directions were issued by this Court to the trial court to conclude the proceeding within stipulated time but the proceeding lingered on and the first bail application moved before this Court by the applicant while being disposed of categorically mandated that in case of delay in disposal of the trial, the applicant will be free to approach this Court for bail. The first bail application was rejected by a coordinate Bench of this Court on 07.09.2017, the applicant is in jail since 30.07.2014 and more than five years have elapsed ever since.
During course of proceeding before this (High Court) in the matter of aforesaid application under Section 482 Cr.P.C., the informant assured the Court that only 30 witnesses are to be examined by the prosecution but the prosecution insisted before the trial court that it is exclusive prerogative of the prosecution to adduce its testimony and the informant cannot determine the number of witnesses to be produced before the trial court. As the trial proceeded, the Sessions Judge, Kanpur Nagar, recorded statement of PW-31 and PW-32.
Now a dramatic situation was created by the informant by moving transfer application before the Sessions Judge, Kanpur Nagar against the Sessions Judge, Kanpur Nagar itself in order to prolong the proceeding of the trial. That transfer application was virtually rendered infructuous on ground that during pendency of the transfer application, the concerned Sessions Judge, Kanpur Nagar, demitted the office on superannuation. Now the successor Sessions Judge concerned has fixed four consecutive dates i.e. 06.08.2019, 07.08.2019 08.08.2019 and 09.08.2019 for recording the statement of the remaining prosecution witnesses.
It is worth mentioning that previously during course of trial, some first information report was also lodged by one Maya Devi, the mother of the victim at Case Crime No.553 of 2015 under Section 406/34 I.P.C. and 3/4 Dowry Prohibition Act, alleging misappropriation of Stridhan by the applicant wherein also charge sheet was filed against the husband, father-in-law, brother-in-law, mother-in-law and Nanad Pinki of the deceased. Now as a measure of settlement, compromise was struck and the informant side obtained Rs.60,00,000/-.
On meritorial aspects of the case, it has been submitted that Om Prakash Shyamdasani expired on account of cancer malignancy. During this period, inordinate delay in concluding the trial itself is an independent ground of bail because delay violates constitutional mandate as enshrined under Article 21 of the Constitution of India as the trial then becomes unfair. The trial is still pending and the bail application of the applicant is not being heard on its merits. That way, fairness of the trial is very much questioned. The entire case is based on circumstantial evidence. There is no direct testimony or eyewitnesses account regarding complicity of the applicant in the commission of the offence, his conduct is also in line with that of an ordinary prudent man reflected during and at the time of the commission of the offence, the accused side itself informed the police and lodged the first information report but because of dilatory and delying tactics played by the informant, the applicant, who being innocent has suffered a lot and till date has completed more than five years of incarceration which in turn is an abuse of the process of law and raises question whether it is due process of law. The informant has taken advantage of the entire situation and is bent upon delaying the disposal of the trial to the detriment of the applicant. The applicant is ready to furnish bond with sufficient conditions.
It is noticeable that the applicant has not sought any adjournment during course of the trial and there is no likelihood of concluding the trial in the near future. In case the applicant is admitted to bail, there is no possibility of his absconding or misusing the liberty of bail. The applicant is languishing in jail since 30.07.2014.
Per contra, Sri Vinay Saran, learned Senior Counsel assisted by Sri Pradeep Kumar Mishra, learned counsel for the informant has vigorously denied the aforesaid arguments that by dilatory tactics the trial is being delayed by the informant and has unfolded facts that it is a case based on circumstantial evidence and the various links in the chain of circumstances are so placed that the same require and necessitate collection and proof of electronic evidence and there are a number of accused and all of them are acting in collusion with each other and each has engaged his respective counsel and strenuous cross examination has been done with the prosecution witnesses not only by the counsel for the applicant but also by the respective counsels of the co-accused. Time and again, frivolous applications questioning authenticity of piece of testimony of prosecution witnesses, have been moved with the sole object of causing delay in the trial.
It has been further added that merely on account of delay in disposal of the trial, that by itself would not constitute a valid ground for bail and this is not the law of the land and it can never be treated to be the sole ground of bail. In all bail applications, merit of the case alone is to be considered and weighed while disposing of the bail prayer. The applicant is a big economist of the city belonging to a well off family. Fact is that in the background of the mysterious murder in question wherein the wife of the applicant was brutally killed at the direction of the applicant himself after conspiring with other co-accused, the prime motive and reason being that family members of the beloved of the applicant had settled her marriage somewhere else since the applicant was already married, due to this, deep conspiracy was hatched by the applicant in collusion with others to eliminate the deceased - wife of the applicant. In the bid to secure the end, several persons were hired and contracted and intriguing plan was made in order to shape the entire incident to be natural one but the same proved dramatic in the end. Fake sim cards were arranged by the applicant. C.C.T.V. footage also unfolds and speaks about the dramatic plan. The location and interaction of the applicant with his beloved on google map was found at the appropriate moment and subsequently to the commission of the crime on the spot and telephonic connection among the applicant and the co-accused, and the fact is strengthened and established by electronic record.
Learned counsel added that the electronic evidence / record collected in investigation cannot be said to have been manufactured but the same is genuine. Prior to this incident also, attempt was made to eliminate the deceased and the present contextual incident was the third one which attempt proved successful. In the beginning of the present case when the story was being shaped in a hotel while the deceased was with the applicant, the activity of the applicant looked suspicious in hotel, the deceased herself contacted her Bua (real sister of the father of the deceased) on cell phone and called her to the hotel. In the meanwhile, the applicant on the pretext of long drive took the deceased in his car and drove it to the deserted fringe of Kanpur Nagar where he stopped the car and in the meanwhile created a scene that few persons (capped) arrived on the spot with motorcycles and dashed the motorcycles with the car due to which he alighted from the car when the miscreants took away the car with his wife sitting inside the car.
At this point of time, the applicant instead of informing the police went back to his home and talked to his father and tried to mislead him about the incident. The father of the applicant ultimately dialled 100 number due to which the report was lodged in the mid night of the incident at 12:30 a.m. The various links in the chain of circumstances are so intricately connected with each other that these links are unerringly pointing towards the guilt of the applicant. This being the situation a number of witnesses are being examined. The conduct of the applicant has not been fair and the other accused are acting in concert with him and trying to delay disposal of the trial for which the prosecution cannot be blamed.
Considered the rival submissions, perused the material brought on record at this stage before this Court and the enormity of the offence.
Before disposal of this second bail application, it would be pertinent to observe that appreciation of evidence recorded by the trial court till date has not to be contemplated and considered on merit as such, appreciation of evidence at the stage of bail is quite different from appreciation of the evidence at the trial stage. No reflection can be made on the merit of the same as that would be prejudicial to the trial and would in turn cause prejudice to the trial Judge concerned.
Therefore, while disposing of this bail application, as per respective submissions of the learned counsel for the applicant as well as the State and the informant made before this Court, nothing is being reflected on the testimony recorded and the alleged circumstances of the case but considering the enormity of the accusation as alleged by the prosecution, no good ground is made out for bail.
Since the detention of the applicant is as per the procedure prescribed by law, it cannot be envisaged that the same is unfair or unconstitutional or in abuse of the process of law, at this stage.
Consequently, the instant bail application is rejected, at this stage.
However, the trial court is expected to proceed with the case and dispose of the trial at the earliest, keeping in view the mandate contained under Sections 278 Cr.P.C., 309 Cr.P.C. and 136 of the Indian Evidence Act, 1872.
It is made clear that the observations made in this order shall have no bearing on the merits of the case and it shall be confined to this bail application alone and the trial court shall not be prejudiced by it while disposing of the trial.
Order Date :- 31.7.2019 rkg