Court No. - 9
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 42190 of 2020 Applicant :- Rohit Kumar Opposite Party :- State of U.P.
Counsel for Applicant :- Jay Singh Yadav,Raj Kumar Sharma Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Manju Rani Chauhan,J.
1. Heard Mr. Jay Singh Yadav, learned counsel for the applicant and Mr. Rajneesh Pandey, learned counsel for the State and perused the entire material available on record.
2. This is the second bail application filed by the applicant. The first bail application filed by the present applicant has been rejected by this Bench by means of a detailed order dated 11th September, 2019 passed in Criminal Misc. Bail Application No. 22486 of 2019 (Rohit Kumar Vs. State of U.P.), a copy of which has been brought on record at page no. 16 onwards of the paper book.
3. The applicant-Rohit Kumar, has filed this second bail application with a prayer to enlarge him on bail in Sessions Trial No. 781 of 2016, arising out of Crime No. 242 of 2016 under Sections 498-A, 304-B I.P.C. and Section 3/4 D.P. Act, Police Station-Nawabganj, District-Bareilly, during the pendency of the trial.
4. In support of this second bail application, learned counsel for the applicant has reiterated the entire submissions made in the first bail application, which are not necessary to mention herein again by this Court.
5. Apart from the above, learned counsel for the applicant has heavily relied upon the statements of the prosecution witnesses i.e. P.W.-1 to P.W.-4, namely, informant Rajendra Prasad (father of the deceased), Monika Devi (mother of the deceased), Sumit Gangwar (brother of the deceased) and Sardar Singh (maternal uncle of the deceased). Referring to the statements of P.W.-1 to P.W.-4, learned counsel for the applicant submits that all the prosecution witnesses have not supported the prosecution case and they have been declared hostile. He, therefore, submits that on this ground alone, the applicant is liable to be enlarged on bail.
6. Learned counsel for the applicant next submits that the applicant is in jail since 26th June, 2016 and he has undergone more than five years and four months of incarceration. He therefore, prays that considering the period of detention as well as the status of the trial which is not likely to be concluded in near future, the applicant may be enlarged on bail.
7. Learned counsel for the applicant further submits that while rejecting the first bail application of the applicant vide order dated 24 th April, 2019, this Bench required the trial court to conclude the trial of the aforesaid case as expeditious as possible in terms of the judgment of the Apex Court in the case of Alakh Alok Srivastava Vs. Union of India & Another reported in AIR 2019 (SC) 2440 but as on date the trial of the aforesaid case has not been concluded. He therefore, submits that on that ground alone, the applicant is liable to be enlarged on bail.
8. Lastly, learned counsel for the applicant submits that the applicant has no criminal antecedents to his credit except the present one and there is no possibility of the applicant of fleeing away from the judicial process or tampering with the witnesses and in case, the applicant is enlarged on bail, the applicant shall not misuse the liberty of bail.
9. On the other hand, learned A.G.A. for the State has opposed the submissions made by the learned counsel for grant of bail to the applicant.
10. To the first contention raised on behalf of the applicant that since the four prosecution witnesses namely, P.W.-1 to P.W.-4 have not supported the prosecution case and they have been declared hostile, the applicant is liable to be enlarged on bail, learned counsel for the applicant submits that the same is liable to be rejected on the ground that the correctness or otherwise of the same cannot be examined at this stage. Only after all the statements of the witnesses, specially the examination- in-chief and cross-examination of the Investigating Officer, have been recorded and all documentary as well as oral evidences have been led before the trial court, the same can be examined. Learned A.G.A. for the State further submits that if the prosecution witnesses are declared hostile, then in that case also, their entire evidence cannot be excluded or rendered unworthy of consideration. In support of which, he has relied upon the judgment of the Apex Court in the case of Gura Singh v. State of Rajasthan reported in AIR 2001 SC 330, wherein the Apex Court has held as under:-
"It is a misconceived notion that merely because a witness is declared hostile his entire evidence should be excluded or rendered unworthy of consideration. In a criminal trial where a prosecution witness is cross-examined and contradicted with the leave of the Court by the party calling him for evidence, can not, as a matter of general rule, be treated as washed off the record altogether. It is for the Court of the fact to consider in each case whether as a result of such cross-examination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony. In appropriate cases the Court can rely upon the part of testimony of such witness if that part of the deposition is found to be creditworthy."
11. So far as the second submission made by the learned counsel for the applicant that considering the long detention period of applicant, he is liable to be released on bail, is concerned, learned A.G.A. contends that the same cannot be accepted by this Court, as there is good authority to hold that mere long detention in jail does not entitle an accused to be enlarged on bail pending trial.
12. Learned A.G.A. has also referred to the judgment of the Apex Court rendered in the case of Rajesh Ranjan Yadav vs. CBI through its Director reported in 2007 (1) SCC 70, wherein the Apex Court has held as under:
" None of the decisions cited can be said to have laid down any absolute and unconditional rule about when bail should be granted by the Court and when it should not. It all depends on the facts and circumstances of each case and it cannot be said there is any absolute rule that the mere fact that the accused has undergone a long period of incarceration by itself would entitle him to be enlarged on bail".
13. Further, the Apex Court in the case of Pramod Kumar Saxena vs. Union of India and others reported in 2008 (63) ACC 115, has held that "mere long period of incarceration in jail would not be per se illegal. If the accused has committed an offence, he has to remain behind bars. Such detention in jail even as an under trial prisoner would not be violative of Article 21 of the Constitution."
14. Learned counsel for the complainant has also placed reliance upon a Division Bench judgment of the High Court Lucknow Bench at Lucknow in the case of Anees Miya vs. State of U.P. passed in Criminal Appeal No.3495 of 2009, wherein the Division Bench has turned down the plea of long incarceration in jail. In the case of Anees Miya (supra), the appellant was in jail since 17.07.2007 and at the time of final disposal of the aforesaid case by the Division Bench of this Court vide order dated 25.04.2018, about 11 years period had lapsed but this Court, referring the various dictums of Apex Court, has held that mere long detention in jail does not entitle a convict of bail pending appeal.
15. In the case of Anees Miya (supra), the Division Bench of this Court has held that "however, the fact remains that the Hon'ble Supreme Court in a number of cases has taken a consistent view that ignoring the facts and circumstances of the case mere long period of incarceration in jail by itself will not make out a case for grant of any indulgence.
16. To the scope of the second bail application as well as to the plea of the period of long incarceration, learned counsel for the complainant has also referred the judgment of the Apex Court dated 18th January, 2005 passed in the case of Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav & Anr. (Appeal (Crl.) 1129 of 2004), whereby the Apex Court has held that the second bail application can only be entertained if there are fresh grounds or events which have been emerged after disposal of the first bail application. The Apex Court has also turned down the plea of the period of long incarceration in jail by observing that "this Court held since the above factors go to the root of the right of the accused to seek bail, non consideration of the same and grant of bail solely on the ground of long incarceration vitiated the order of the High Court granting bail."
17. Further, the Apex Court in the case of State of Madhya Pradesh vs. Kajad, vide judgment dated 06.09.2001 in Appeal (Crl.) 907 of 2001 has held as under:-
"It has further to be noted that the factum of the rejection of his earlier bail application bearing Misc. Case No.2052 of 2000 on 05.06.2000 has not been denied by the respondent. It is true that successive bail applications are permissible under the changed circumstances. But without the change in the circumstances the second application would be deemed to be seeking review of the earlier judgment which is not permissible under criminal law as has been held by this Court in Hari Singh Mann v.
Harbhajan Singh Wajwa & Anr (2001 (1) SCC 169] and various other judgments."
18. To the submission made by the learned counsel for the applicant that this Bench, while rejecting the first bail application of the applicant has required the trial court to conclude the trial expeditiously but same has not been concluded as on date, learned counsel for the A.G.A. submits that the same cannot be accepted on the ground that though this Court passed the order dated 11st September, 2019 directing the trial court to conclude the trial expeditiously and two years and one month have elapsed from the date of the said order, but it is also a fact that due to the deadly epidemic like Corona (Covid-19), which has caused worldwide outcry and dread, every courts including trial court have not been able to run properly from March 2020 till date. Simultaneously, this should be seen as to how much work load is there in the lower courts including the trial court and that if the trial is not concluded even after the order is passed by the High Court, it is not only harmful for the applicant but also for prosecution.
19. In view of the aforesaid authority of law, learned A.G.A. states that mere long incarceration of the applicant cannot be a ground to enlarge him on bail in such offence like Sections 498-A, 304-B I.P.C. and Section 3/4 D.P. Act. The applicant, if enlarged on bail at this stage, will threaten the witnesses and tamper with the evidence and will also commit the same crime. He, therefore, submits that the present second bail application is liable to be rejected.
20. Having considered the submissions made by the learned counsel for the applicant, the learned A.G.A. for the State, upon perusal of the evidence brought on record, order 11th September, 2019 rejecting the first bail application of the applicant, authority of law mentioned herein above, the nature of the offence levelled against the applicant i.e. Sections 498-A, 304-B I.P.C. and Section 3/4 D.P. Act, which is so serious in nature for public at large, as well as considering the fact that no other new ground has been raised on behalf of the applicant, I do not find any good reason to exercise my discretion in favour of the accused-applicant.
21. Thus, this second bail application stands rejected.
22. However, it is provided that the trial court may conclude the trial of the aforesaid case within a period of one year from the date of production of a copy of this order before the court concerned, if there is no other legal impediment in accordance with law.
(Manju Rani Chauhan, J.) Order Date :- 26.10.2021 Sushil/-