Court No. - 51
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35829 of 2017 Applicant :- Vikram Singh Opposite Party :- State Of U.P.
Counsel for Applicant :- Harsh Kumar Mishra,Rajiv Lochan Shukla Counsel for Opposite Party :- G.A.,Amit Mishra
Hon'ble Vipin Sinha,J.
Heard learned counsel for the applicant and learned A. G. A. for the State.
Applicant has moved the present second bail application seeking bail in Case Crime No. 74 of 2016, under Sections 302, 120B I.P.C., P.S. Civil Lines, District Allahabad. The first bail application of the applicant was rejected vide order of this Court dated 23.01.2017, passed in Crl. Misc. Bail Application No. 2552 of 2017.
I have perused the prosecution story as set up in the F.I.R. and also the first bail rejection order.
Learned counsel for the applicant has submitted that the first bail application of the applicant was rejected on the ground of long criminal history of 12 cases which was though explained in the affidavit filed in the first bail application, itself.
The second bail application has been filed with the contention that a writ petition was filed by the father of the deceased namely Vinod Kumar being Criminal Misc. Writ Petition No. 4313 of 2016 who happens to be informant in the present case. In the said writ petition, initially the authorities were restrained from filing the charge sheet subsequently the writ petition has been allowed by another Bench of this Court vide order dated 24.11.2017 by means of which the matter was transferred to C.B.I. Copy of order dated 24.11.2017 has been filed by means of supplementary affidavit dated 21.12.2017. Relevant part of order dated 24.11.2017 reads as under :-
"The investigation of the case in question is transferred from local police, Allahabad to Central Bureau of Investigation (CBI). The Director, Central Bureau of Investigation is directed to entrust the investigation of Case Crime No. 74 of 2016 to a C.B.I. Officer at the earliest and to ensure that all the relevant records including the case diary, post mortem and site plan etc. are provided by the Investigating Officer, who is presently investigating this case to the officer appointed by the C.B.I. for investigating the aforesaid case within a period of three weeks from today. The Director, Central Bureau of Investigation (CBI), New Delhi shall ensure that the investigation of the case in question is concluded expeditiously, and that such investigation should be free, fair, transparent and judicious. The same should not even be prima facie indicative of a biased mind and every effort should be made to bring guilty to law. The Court also hopes and trusts that the new investigating agency will carefully examine the various clues and leads provided by the complainants and investigate the matter from all its aspects and thereafter submit the police report as contemplated under Section 173(2) Cr.P.C."
Sri Rajiv Lochan Shukla, learned counsel for the applicant submits that even though the investigation of the case was transferred to C.B.I. vide order dated 24.11.2017 but till date the investigation has not been completed nor any police report is require to file. The Court has been further informed that it was under these circumstances that an application was filed before C.J.M., Allahabad with contention that in view of the fact that charge sheet has not yet been filed, the petitioner is entitled to the benefit of Section 167 Cr.P.C. This application was rejected vide order dated 26.07.2017, copy of which has been annexed on page 214 of the bail application, hence the present second bail application has been filed before this Court seeking benefit of Section 167 Cr.P.C.
At this stage, learned counsel for the applicant has placed reliance upon the judgment of Hon'ble Apex Court in the case of Rakesh Kumar Paul vs. State of Assam, 2018 (1) SCC (Cri) 401 and has submitted in view of Section 167 Cr.P.C., that the applicant is entitled for grant of bail in view of the fact that applicant is in jail since 10.02.2016 and till date no charge sheet has been filed nor investigation has been completed and in spite of orders of this Court for transferring the matter to C.B.I., the C.B.I. has also not done any investigation whatsoever and after a period of almost ten months, the C.B.I. has come up with the case that it proposes to file S.L.P. before Hon'ble Apex Court and they are not willing to take up the investigation. Reliance has been placed by learned counsel for the applicant on paragraph no. 37 of the aforesaid judgment, which reads as under :-
"(37) This Court had occasion to review the entire case law on the subject in Union of India v. Nirala Yadav, 2014 (9) SCC 457. In that decision, reference was made to Uday Mohanlal Acharya vs. State of Maharashtra, 2001 (5) SCC 453 and the conclusions arrived at in that decision. We are concerned with conclusion no. 3 which reads as follows :-
"(3) On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.""
It has also appreciated that right from November, 2017, the matter is being pending before this Court in the bail application, copy of which has also been served upon Head of C.B.I. at Lucknow but inspite of said fact that it was in the knowledge of the C.B.I. that the bail application is being pressed on the ground of Section 167 Cr.P.C., neither any counter affidavit has been filed before this Court nor any S.L.P. has been filed before Hon'ble Apex Court, nor any investigation has been taken up even till date, hence, on the aforesaid grounds, the applicant is entitled to bail.
At this stage, today when the case has been taken up, Sri Gyan Prakash, learned counsel appearing on behalf of C.B.I. has informed the Court that he has instructions on behalf of C.B.I. to inform the Court that the C.B.I. does not propose to take up the investigation and is trying to file S.L.P before Hon'ble Apex Court against the judgment and order dated 24.11.2017 by means of which the investigtion was transferred to the C.B.I. A copy of the communication dated 19.09.2018 under the signature of Sri S.K. Khare, SP & Head of Branch, C.B.I., S.C.B., Lucknow has been produced before this Court which is also taken on record.
The said communication shows that the C.B.I. has so far not registered this case or taken up investigation and it has been proposed to file S.L.P. in the matter before Hon'ble Apex Court against the order dated 24.11.2017, passed by this Court.
It may also be appreciated that C.B.I. has kept mum for a period of almost 10 months and they have not till date filed any review/recall application before this Court against the order dated 24.11.2017 nor approached the Hon'ble Apex Court. A perusal of order sheet shows that in respect of the repeated opportunities being given to the counsel for the C.B.I., neither any counter affidavit nor any response was filed. Reliance may also be placed on the orders dated 15.12.2017, 10.01.2018, 19.07.2018, 09.08.2018, 23.08.2018, 31.08.2018 and 13.09.2018.
In view of the aforesaid facts and circumstances and legal position as laid down by the Hon'ble Apex Court reliance upon which has been placed by the counsel for the applicant and also in view of the law as laid down by the Apex Court in the case of Dataram v. State of U.P.; 2018 (3) SCC 22, without expressing any opinion on the merits of the case, at this stage, prima facie, a case for bail has been made out. However, the said prima facie view of this Court will not in any manner adversely affect the case of the prosecution.
The prayer for bail is granted. The application is allowed.
Let the applicant Vikram Singh involved in the aforesaid case crime number be released on bail on his executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:
i) The applicant shall not tamper with the prosecution evidence.
ii) The applicant shall not threaten or harass the prosecution witnesses.
iii) The applicant shall appear on the date fixed by the trial court.
iv) The applicant shall not commit an offence similar to the offence of which the applicant is accused, or suspected of the commission, of which applicant is suspected.
v) The applicant shall not directly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade the applicant from disclosing such facts to the Court or to any police officer or tamper with the evidence.
In case of default of any of the conditions enumerated above, the learned counsel for the complainant is free to move an application for cancellation of bail before this Court.
Let a copy of the order be certified to the court concerned for necessary compliance.
Order Date :- 20.9.2018 sailesh