1. Heard Sri Prabhu Ranjan Tripathi, learned counsel for the applicant and learned AGA.
2. This is the fourth bail application moved by the applicant in Case Crime No.189 of 2015, under Sections 326, 354-A, 452 & 302 IPC, Police Station - Musafirkhana, District -Amethi. First bail application i.e. Bail No.11207 of 2015 was rejected on merits by Hon'ble Mahendra Dayal, J. (since retired) on 20.9.2016. While rejecting the first bail application, this Court had directed the learned trial court to expedite the final disposal of the trial and conclude the same as early as possible, preferably within a period of six months. When the trial could not be concluded within a period of six months, the applicant moved second bail application i.e. Bail No.3215 of 2017, which was disposed of by Hon'ble Mahendra Dayal, J. (since retired) on 20.4.2018, operative portion thereof is being reproduced hereunder:-
"Considering the aforesaid facts and without passing any order on merit, this bail application is disposed of directing the trial court to conduct the trial on day to day basis by ensuring the attendance of the prosecution witnesses and if necessary, letter be written to the higher police authorities to ensure the attendance of the prosecution witnesses. It is also directed that the trial court shall not grant any unnecessary adjournment to any of the parties. In case trial is not concluded within a period of six months from today, it will be open for the applicant to approach this Court again to renew is prayer again for bail."
3. By means of the aforesaid order dated 20.4.2018, the manner to conduct the trial was ordered and six months' period was given to conclude the trial in question. When the trial could not be concluded within a period of six months in compliance of the order dated 20.4.2018, the present applicant filed third bail application bearing Bail No.7594 of 2018.
4. After knowing the fact that the trial in question has not been concluded within time stipulated, Hon'ble Mahendra Dayal, J. (since retired) vide order dated 22.10.2018 directed to release the applicant on short term bail for a period of two months.
5. Learned counsel for the applicant has submitted that after release on short term bail for two months, the applicant surrendered before the court concerned in terms of order dated 22.10.2018. Learned counsel has, therefore, submitted that liberty of short term bail has not been misused by the present applicant. Learned counsel has also drawn attention of this Court towards the order dated 15.5.2019 passed by this Court whereby short term bail for one week has been granted to the present applicant to make necessary arrangements for the marriage of his sister as his father was suffering from serious illness including depression, therefore, he was not able to manage the marriage affairs of his sister. Learned counsel has submitted that the applicant has again not misused the liberty of short term bail and surrendered before the court concerned in terms of order dated 15.5.2019.
6. Sri Prabhu Ranjan Tripathi has submitted that the applicant has abide by the conditions of the orders being passed by this Court while rejecting his bail applications as no unnecessary adjournments have been sought from his side and the trial in question could not be concluded for the lapse on the part of the prosecution. He has also reiterated that the applicant has not misused the liberty of short term bails provided to him twice. He has also submitted that it is his father, who can do pairvi before the trial court but on account of his illness and depression for the last several years, proper pairvi and proper assistance to the counsel of trial court is not being given. While arguing this fourth bail application, Sri Prabhu Ranjan Tripathi has submitted that he is not arguing the present case on merit but he is invoking the discretion of this Court in given facts and circumstances of the issue as stated above to be released the applicant on bail so that he could defend his case properly before the learned trial court. He has also stated that all the witnesses of fact have already been examined, therefore, there is no chance for tampering the prosecution witnesses. The factum of his bonafide that the applicant never misused the liberty of short term bails provided to him twice may also be considered. Further, the present applicant is in judicial custody/jail since 7.4.2015 i.e. for about five years and nine months except for the period of two months and one week when he was released on short term bail. He has lastly submitted that the order and direction of this Court should be abide by the learned court below and the prosecution in its letter and spirit and such orders or direction may not be taken for granted. In the present case, this Court has not only issued direction to conclude the trial within stipulated time but also prescribed the manner to conduct the trial, but to no avail inasmuch as the trial in question is still pending for disposal.
7. Sri Prabhu Ranjan Tripathi has drawn attention of this Court towards Annexure No.SA-3 to the supplementary affidavit dated 15.12.2020, which is the order sheet of the learned court below from 25.2.2020 to 5.12.2020. Certified copy of the order dated 19.12.2020 has been provided by Sri Tripathi during the course of argument. Sri Tripathi has referred the order dated 28.8.2020 of the learned court below whereby the learned trial court has allowed the application of the prosecution whereby medical papers of the deceased have to be filed fixing the next date as 8.9.2020, however, no proceedings could be done from 8.9.2020 till date inasmuch as those medical papers have not been filed before the learned trial court.
8. Sri Tripathi has, therefore, submitted that if those medical papers are filed before the learned trial court, such medical papers have to be proved and thereafter opportunity of cross-examination shall be given. After examination of such documents, the exercise of Section 313 Cr.P.C. shall be carried out. Therefore, for completing the aforesaid exercise, some reasonable time might be consumed and there would be no chance to conclude the trial shortly, particularly in view of the present circumstances of COVID-19. Therefore, the present applicant may be released on bail so that he could do needful for his defence before the trial court.
9. Sri Prabhu Ranjan Tripathi has referred the following case laws in support of his aforesaid submissions.
10. The Hon'ble Apex Court in re; Moti Ram and others v. State of Madhya Pradesh, (1978) 4 SCC 47, has observed in para-14 as under:-
"14. The consequences of pre-trial detention are grave. Defendants presumed innocent are subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job is he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family."
(emphasis supplied)
11. The Hon'ble Apex Court in re; Gudikanti Narasimhulu and others v. Public Prosecutor, High Court of Andhra Pradesh, (1978) 1 SCC 240, has observed in para-11 as under:-
"11. We must weigh the contrary factors to answer the test of reasonableness, subject to the need for securing the presence of the bail applicant. It makes sense to assume that a man on bail has a better chance to prepare or present his case than one remanded in custody. And if public justice is to be promoted, mechanical detention should be demoted. In the United States, which has a constitutional perspective close to ours, the function of bail is limited, 'community roots' of the applicant are stressed and, after the Vera Foundation's Manhattan Bail Project, monetary suretyship is losing ground. The considerable public expense in keeping in custody where no danger of disappearance or disturbance can arise, is not a negligible consideration. Equally important is the deplorable condition, verging on the inhuman, of our sub-jails, that the unrewarding cruelty and expensive custody of avoidable incarceration makes refusal of bail unreasonable and a policy favouring release justly sensible."
(emphasis supplied)
12. The Hon'ble Apex Court in re; Akhtari BI (Smt) v. State of M.P., (2001) 4 SCC 355, has observed that the speedy justice is a fundamental right. Some portion of para-5 is being reproduced herein below:-
"5. To have speedy justice is a fundamental right which flows from Article 21 of the Constitution. Prolonged delay in disposal of the trials and thereafter appeals in criminal cases, for no fault of the accused, confers a right upon him to apply for bail..." "...We feel that if an appeal is not disposed of within the aforesaid period of 5 years, for no fault of the convicts, such convicts may be released on bail on such conditions as may be deemed fit and proper by the Court."
(emphasis supplied)
13. The Hon'ble Apex Court in re; State of Kerala v. Raneef, (2011) 1 SCC 784, has observed that delay in trial is one of the important factors for consideration while granting bail. Relevant portion of para-15 is as under:-
"15. In deciding bail applications an important factor which should certainly be taken into consideration by the Court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail." (emphasis supplied)
14. The Hon'ble Apex Court in re; Sanjay Chandra v. CBI, Criminal Appeal No.2178 of 2011 (arising out of SLP (Crl.) No.5650 of 2011) and other connected matters, vide order dated 23.11.2011, has observed in paragraphs 16 & 22 as under:-
"16. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It is also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution.
22. More recently, in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, this Court observed that "(j)ust as liberty is precious to an individual, so is the society's interest in maintenance of peace, law and order. Both are equally important." This Court further observed :
"116. Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case."
This Court has taken the view that when there is a delay in the trial, bail should be granted to the accused [See Babba v. State of Maharashtra, (2005) 11 SCC 569, Vivek Kumar v. State of U.P., (2000) 9 SCC 443, Mahesh Kumar Bhawsinghka v. State of Delhi, (2000) 9 SCC 383]."
(emphasis supplied)
15. Hon'ble Apex Court in re; Nikesh Tarachand Shah v. Union of India and another, (2018) 11 SCC 1, has observed in para-19 as under:-
"19. In Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565, the purpose of granting bail is set out with great felicity as follows: (SCC pp.586-88, paras 27-30) "27. It is not necessary to refer to decisions which deal with the right to ordinary bail because that right does not furnish an exact parallel to the right to anticipatory bail. It is, however, interesting that as long back as in 1924 it was held by the High Court of Calcutta in Nagendra Nath Chakravarti v. King-Emperor, AIR 1924 Cal 476, 479, 480, that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment. In two other cases which, significantly, are the "Meerut Conspiracy cases" observations are to be found regarding the right to bail which deserve a special mention. In K.N. Joglekar v. Emperor, AIR 1931 All 504, it was observed, while dealing with Section 498 which corresponds to the present Section 439 of the Code, that it conferred upon the Sessions Judge or the High Court wide powers to grant bail which were not handicapped by the restrictions in the preceding Section 497 which corresponds to the present Section 437. It was observed by the court that there was no hard and fast rule and no inflexible principle governing the exercise of the discretion conferred by Section 498 and that the only principle which was established was that the discretion should be exercised judiciously. In Emperor v. Hutchinson, AIR 1931 All 356, 358, it was said that it was very unwise to make an attempt to lay down any particular rules which will bind the High Court, having regard to the fact that the legislature itself left the discretion of the court unfettered. According to the High Court, the variety of cases that may arise from time to time cannot be safely classified and it is dangerous to make an attempt to classify the cases and to say that in particular classes a bail may be granted but not in other classes. It was observed that the principle to be deduced from the various sections in the Criminal Procedure Code was that grant of bail is the rule and refusal is the exception. An accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. As a presumably innocent person he is therefore entitled to freedom and every opportunity to look after his own case. A presumably innocent person must have his freedom to enable him to establish his innocence."
(emphasis supplied)
16. The Hon'ble Apex Court has recently in the case of Arnab Manoranjan Goswami v. The State of Maharashtra & Ors., Criminal Appeal No.742 of 2020 (Arising out of SLP (Crl) No.5598 of 2020, vide judgment and order dated 27.11.2020 has observed in para-63 as under:-
"63. More than four decades ago, in a celebrated judgment in State of Rajasthan, Jaipur vs Balchand, (1977) 4 SCC 308, Justice Krishna Iyer pithily reminded us that the basic rule of our criminal justice system is bail, not jail' [These words of Justice Krishna Iyer are not isolated silos in our jurisprudence, but have been consistently followed in judgments of this Court for decades. Some of these judgments are: State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC 21 and Sanjay Chandra vs CBI, (2012) 1 SCC 40]. The High Courts and Courts in the district judiciary of India must enforce this principle in practice, and not forego that duty, leaving this Court to intervene at all times. We must in particular also emphasise the role of the district judiciary, which provides the first point of interface to the citizen. Our district judiciary is wrongly referred to as the 'subordinate judiciary'. It may be subordinate in hierarchy but it is not subordinate in terms of its importance in the lives of citizens or in terms of the duty to render justice to them. High Courts get burdened when courts of first instance decline to grant anticipatory bail or bail in deserving cases. This continues in the Supreme Court as well, when High Courts do not grant bail or anticipatory bail in cases falling within the parameters of the law. The consequence for those who suffer incarceration are serious. Common citizens without the means or resources to move the High Courts or this Court languish as undertrials. Courts must be alive to the situation as it prevails on the ground - in the jails and police stations where human dignity has no protector. As judges, we would do well to remind ourselves that it is through the instrumentality of bail that our criminal justice system''s primordial interest in preserving the presumption of innocence finds its most eloquent expression. The remedy of bail is the "solemn expression of the humaneness of the justice system" [Arghya Sengupta and Ritvika Sharma, 'Saharashri and the Supremes', (The Wire, 23 June 2015) available at ]. Tasked as we are with the primary responsibility of preserving the liberty of all citizens, we cannot countenance an approach that has the consequence of applying this basic rule in an inverted form. We have given expression to our anguish in a case where a citizen has approached this court. We have done so in order to reiterate principles which must govern countless other faces whose voices should not go unheard."
(emphasis supplied)
17. The Hon'ble Apex Court in re; Gokarakonda Naga Saibaba v. State of Maharashtra, (2018) 12 SCC 505, has held in para-4 as under:-
"4. Having given our thoughtful consideration to the submissions advanced at the hands of the learned counsel for the rival parties, specially the undisputed position that the petitioner has never been accused of having misused the concession of bail, we are of the view, that the submission made by the learned counsel for the respondent is extremely unfair. Since all the material witnesses have been examined and cross-examined, the release of the petitioner on bail ought not to have been opposed, especially keeping in mind the medical condition of the petitioner."
(emphasis supplied)
18. Therefore, on the basis of aforesaid case laws, Sri Prabhu Ranjan Tripathi, learned counsel for the applicant has submitted that the present applicant may be enlarged on bail as substantial period i.e. about 5 years and 9 months, has passed since he is in jail. Despite the specific and categoric orders being passed by this Court while rejecting the bail applications of the applicant to conclude the trial within stipulated time and prescribing the manner to conduct the trial, the trial has yet not been concluded and there is no possibility of conclusion of the trial within short period of time. This is an undoubted fact that a person under judicial custody may not be able to prepare his defence properly and pre-trial detention is not approved by the Hon'ble Apex Court and this Court in various pronouncements. Besides, the applicant has cooperated the trial proceedings at his best and is still cooperating the trial proceedings. Since all the fact witnesses have been examined and the present applicant has not misused the liberty of short term bails, therefore, there may not be any likelihood of absconding the applicant. Therefore, the present applicant may be released on bail.
19. Learned AGA has opposed the bail application by submitting that this is the fourth bail application and this Court has already rejected three bail applications of the present applicant. However, on being confronted on the point of not following the directions of this Court by the prosecution for concluding the trial within stipulated time, learned AGA has nothing to say. On being further confronted on the point that since all the fact witnesses have been examined and the applicant has not misused the liberty of short term bails, learned AGA has submitted that to that extent, there is no opposition. However, learned AGA has submitted that the offence committed by the present application is so heinous, therefore, his release from jail may be dangerous for the complainant or for his family members.
20. Having heard learned counsel for the parties and having perused the material available on record and also the dictums of the Hon'ble Apex Court, I am of the view that the present applicant is entitled for bail on the conditions so prescribed herein below. However, besides the conditions so prescribed herein below, the applicant shall mark his attendance in Police Station - Musafirkhana, District - Amethi fortnightly in a month. The applicant shall cooperate with the trial proceedings and no undue adjournments shall be taken by him. Learned trial court is also directed to conclude the trial expeditiously, preferably within a period of three months by invoking the provisions of Section 309 Cr.P.C. No unnecessary adjournment shall be granted to the defence or the prosecution.
21. Accordingly, without entering into merits of the case, the bail application is allowed.
22. Let applicant - Ranjeet Kumar be released on bail in the aforesaid case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the 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.
23. This order shall be intimated to the learned trial court/ District Judge concerned by the office forthwith for its compliance.
[Rajesh Singh Chauhan,J.] Order Date :- 18.01.2021 RBS/-