Golu Awasthi v. State of U.P. While rejecting the first bail application, this Court directed

1.Heard Sri Neeraj Singh, learned counsel for the applicant and Sri Anant Pratap Singh, learned Additional Government Advocate for the State.

2. This is the second bail application, as the first bail application has been rejected by this Court vide order dated 15.07.2024 passed by Hon'ble Shamim Ahmad, J in Criminal Misc. Bail Application No.4834 of 2024; Shiva Awasthi @ Golu Awasthi vs. State of U.P. While rejecting the first bail application, this Court directed the learned trial court to expedite the trial preferably within a period of six months, but about eight months period had passed but only one prosecution witness has been examined out of total 28 prosecution witnesses.

3. Learned counsel for the applicant has produced the certified copy of the questionnaire dated 11.02.2025, which shows that the PW-2 is being examined, the same is taken on record.

4. As per learned counsel for the applicant, the present applicant (Shiva Awasthi @ Golu Awasthi) is languishing in jail since 27.05.2020 in Case Crime No.134 of 2020, under Sections 302 & 201 I.P.C., Police Station-Ajgain, District-Unnao.

5. Learned counsel for the applicant has submitted that the present applicant has been falsely implicated in this case as he has not committed any offence as alleged in the prosecution story.

6. Learned counsel for the applicant has stated that he would not address this second bail application on those points which have been addressed to the Court at the time of arguments of the first bail application, but he will address this bail application on the ground that despite the specific order of this Court to expedite the trial within a period of six months, the trial has not been concluded till date. What is to say about the efforts of trial court to expedite the trial, even out of 28 prosecution witnesses, only one prosecution witness has been examined and examination of PW-2 is going on. Therefore, keeping in view the pace of trial and the total period of incarceration of the present applicant i.e. four years and ten months, he may be enlarged on bail. The present applicant is having no prior criminal history of any kind whatsoever. He has undertaken on behalf of the present applicant that the applicant shall not misuse the liberty of bail, if so granted by this Court, and shall abide by all terms and conditions of the bail order and shall cooperate in the trial proceedings properly.

7. On the other hand, learned Additional Government Advocate has opposed the prayer for bail of the present applicant by submitting that since the role of the present applicant was found in the commission of crime, therefore, he is not entitled for grant of bail, but he could not dispute the aforesaid factual contention of learned counsel for the applicant

8. The Apex Court in re: Union of India vs. K.A. Najeeb AIR 2021 Supreme Court 712 and Paras Ram Vishnoi vs. The Director, Central Bureau of Investigation passed in Criminal Appeal No.693 of 2021 (Arising out of SLP (Crl.) 3610 of 2020 granting bail to those accused persons on the ground that there is no possibility to conclude the trial in near future and there is a long incarceration of that accused, therefore, they were entitled for bail. Para-16 of the case K.A.Najeeb(supra) is being reproduced here-in-below:- "This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India, it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail."

9. Having heard learned counsel for the parties and having perused the material available on record and considering the fact that as per the charge-sheet, there are total 28 prosecution witnesses, out of them, only 01 witness has been examined and examination of PW-2 is going on; looking into the pace of trial that there is no likelihood to conclude the trial in near future inasmuch as 26 prosecution witnesses are yet to be examined, the period of long incarceration of the present applicant in jail i.e. four years and ten months, the undertaking that he shall not misuse the liberty of bail and shall abide by all terms and conditions of bail order and having regards to the dictum of Apex Court as discussed above, without expressing any opinion on merits of the issue, I am of the view that the present applicant may be enlarged on bail in this case.

10. Accordingly, the instant bail application is allowed.

11. Let the applicant (Shiva Awasthi @ Golu Awasthi) 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 IPC/269 of the B.N.S., 2023. (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./84 of B.N.S.S., 2023 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 IPC/208 of the B.N.S., 2023. (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./351 of B.N.S.S., 2023. 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. The present applicant shall not leave the country without prior permission of the Court. . Order Date :- 11.3.2025 Suresh/ [Rajesh Singh Chauhan,J.]

1.Heard Sri Neeraj Singh, learned counsel for the applicant and Sri Anant Pratap Singh, learned Additional Government Advocate for the State.

2. This is the second bail application, as the first bail application has been rejected by this Court vide order dated 15.07.2024 passed by Hon'ble Shamim Ahmad, J in Criminal Misc. Bail Application No.4834 of 2024; Shiva Awasthi @ Golu Awasthi vs. State of U.P. While rejecting the first bail application, this Court directed the learned trial court to expedite the trial preferably within a period of six months, but about eight months period had passed but only one prosecution witness has been examined out of total 28 prosecution witnesses.

3. Learned counsel for the applicant has produced the certified copy of the questionnaire dated 11.02.2025, which shows that the PW-2 is being examined, the same is taken on record.

4. As per learned counsel for the applicant, the present applicant (Shiva Awasthi @ Golu Awasthi) is languishing in jail since 27.05.2020 in Case Crime No.134 of 2020, under Sections 302 & 201 I.P.C., Police Station-Ajgain, District-Unnao.

5. Learned counsel for the applicant has submitted that the present applicant has been falsely implicated in this case as he has not committed any offence as alleged in the prosecution story.

6. Learned counsel for the applicant has stated that he would not address this second bail application on those points which have been addressed to the Court at the time of arguments of the first bail application, but he will address this bail application on the ground that despite the specific order of this Court to expedite the trial within a period of six months, the trial has not been concluded till date. What is to say about the efforts of trial court to expedite the trial, even out of 28 prosecution witnesses, only one prosecution witness has been examined and examination of PW-2 is going on. Therefore, keeping in view the pace of trial and the total period of incarceration of the present applicant i.e. four years and ten months, he may be enlarged on bail. The present applicant is having no prior criminal history of any kind whatsoever. He has undertaken on behalf of the present applicant that the applicant shall not misuse the liberty of bail, if so granted by this Court, and shall abide by all terms and conditions of the bail order and shall cooperate in the trial proceedings properly.

7. On the other hand, learned Additional Government Advocate has opposed the prayer for bail of the present applicant by submitting that since the role of the present applicant was found in the commission of crime, therefore, he is not entitled for grant of bail, but he could not dispute the aforesaid factual contention of learned counsel for the applicant

8. The Apex Court in re: Union of India vs. K.A. Najeeb AIR 2021 Supreme Court 712 and Paras Ram Vishnoi vs. The Director, Central Bureau of Investigation passed in Criminal Appeal No.693 of 2021 (Arising out of SLP (Crl.) 3610 of 2020 granting bail to those accused persons on the ground that there is no possibility to conclude the trial in near future and there is a long incarceration of that accused, therefore, they were entitled for bail. Para-16 of the case K.A.Najeeb(supra) is being reproduced here-in-below:- "This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India, it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail."

9. Having heard learned counsel for the parties and having perused the material available on record and considering the fact that as per the charge-sheet, there are total 28 prosecution witnesses, out of them, only 01 witness has been examined and examination of PW-2 is going on; looking into the pace of trial that there is no likelihood to conclude the trial in near future inasmuch as 26 prosecution witnesses are yet to be examined, the period of long incarceration of the present applicant in jail i.e. four years and ten months, the undertaking that he shall not misuse the liberty of bail and shall abide by all terms and conditions of bail order and having regards to the dictum of Apex Court as discussed above, without expressing any opinion on merits of the issue, I am of the view that the present applicant may be enlarged on bail in this case.

10. Accordingly, the instant bail application is allowed.

11. Let the applicant (Shiva Awasthi @ Golu Awasthi) 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 IPC/269 of the B.N.S., 2023. (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./84 of B.N.S.S., 2023 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 IPC/208 of the B.N.S., 2023. (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./351 of B.N.S.S., 2023. 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. The present applicant shall not leave the country without prior permission of the Court. . Order Date :- 11.3.2025 Suresh/ [Rajesh Singh Chauhan,J.]