High Court
Case Details
Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 18777 of 2022 Applicant :- Yagya Prakash Gangwar Opposite Party :- State of U.P. Counsel for Applicant :- Atharva Dixit,Aushim Luthra,Sr. Advocate Counsel for Opposite Party :- G.A.,Devashish Mitra Hon'ble Rajeev Misra,J.
Legal Reasoning
Having heard submissions of learned counsel of both sides, considering nature of accusation, severity of punishment in case of conviction, nature of supporting evidence, prima facie satisfaction in support of the charge, reformative theory of punishment, larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh v. State of U.P. and another, (2018) 3 SCC 22, without expressing any view on the merits of the case, I find it to be a case of bail. Let the applicant- Mohd. Anas involved in Case Crime No. 05 of 2022, under Sections 376D, 506 IPC, Police Station Kunwargaon, District Budaun be released on bail, on his executing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned, with the following conditions: (1) The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, or otherwise during the investigation or trial; (2) 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. He 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; (3) 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.; and (4) 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, the trial court shall initiate proceedings against him, in accordance with law under Section 174-A of the Indian Penal Code. The identity, status and residential proof of sureties will be verified by the court concerned and in case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail and send the applicant to prison. It is clarified that the observations, if any, made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the ultimate merits of the case." Second bail application of applicant came up for orders on 14.7.2022 before His Lordship Hon'ble S.S. Shamshey, J. His Lordship was pleased to pass the following order dated 14.7.2022. The same reads as under:- "Put up this second bail application alongwith previous record before appropriate Bench having the jurisdiction of bail matters, as fresh, after obtaining nomination of Hon'ble the Chief Justice, as presently I am sitting in different jurisdiction." Subsequent to above order dated 14.7.022, Hon'ble the Chief Justice, vide order dated 2.8.2022 directed that matter be placed before regular Bench. Consequently, present application for bail came up before the regular Bench. This bail application was heard on 12.9.2022 and the Court passed the following order:- "Learned counsel for applicant and learned A.G.A. for the State are present. Call the status of trial from lower court concerned within 15 days. Put up this case as fresh on 28.9.2022 for disposal of second bail application." In compliance of above order dated 12.9.2022, the Additional Sessions Judge, Court No. 2, Bareilly has submitted his report dated 22.9.2022 stating therein that upto this stage, one prosecution witness of fact i.e. P.W. 1 Pratap Singh has been examined. Mr. Manish Tewari, the learned Senior counsel for applicant in support of present application for bail has submitted that subsequent to aforesaid F.I.R., applicant was taken into custody on 12.2.2021. As such, on date, applicant has undergone 1 year and 9 months of incarceration. The charge sheet was submitted on 17.3.2021. Thereafter, cognizance was taken upon same by concerned Magistrate. As offence complained of is triable by Court of Sessions, accordingly, concerned Magistrate committed the case to the Court of Sessions. As a result Sessions Trial No. 567 of 2021 (State Vs. Yagya Prakash), under Section 306 and 406 IPC, P.S. Bardari, District Bareilly came to be registered. However, in spite of the fact that sufficient period has rolled by (8 months have rolled by from 6.4.2022, when P.W. 1 Pratap Singh was examined), the trial has not concluded as yet. The delay in the conclusion of trial cannot be attributed to applicant. Right to speedy trial is a fundamental right of accused. As such, applicant is liable to be enlarged on bail. It is also contended that as per material on record and as well as the statement of P.W. 1 Pratap Singh who is the brother of deceased no offence as alleged is made out against applicant. According to the learned Senior counsel no offence under Section 306 IPC is made out against applicant, as per the material on record. To lend legal support to his submission he has relied upon the following judgement of this Court as well as Reference Court. (1) Sarvesh Vs. State of U.P., 2018 ADJ ONLINE 0163 (2) Amlendu Pal alias Jhantu Vs. State of West Bengal, (2010) 1 SCC, 707 (3) Geo Varghese Vs. State of Rajasthan and another, 2021 SCC OnLine 873 (4) State of West Bengal Vs. Indrajity Kundu and others, (2019) 10 SCC 188 (5) State of Karala and others Vs. Unnikrishnan Nair and others, (2015) 9 SCC, 639 With reference to the ratio laid down in aforementioned case and the material on record he vehemently submits that no offence as complained of is made out against applicant. It is lastly contended that applicant is in jail since 12.2.2021. As such, he has undergone 1 year and 10 months of incarceration. The trial is proceedings at a snail's place, inasmuch as the Sessions Trial was registered in the year 2021, but till date only one prosecution witness of fact has been examined. Even though applicant is a named and charge sheeted accused, but he has the right to speedy trial. There is nothing on record to conclude that applicant is responsible for the delay in conclusion of the trial. The charge sheet having been submitted, the evidence sought to be relied upon by prosecution stands crystallized. As such custodial arrest of applicant during the course of trial is not absolutely necessary. On the cumulative strength of above, learned Senior counsel strongly urged that applicant is liable to be enlarged on bail. Per contra, the learned A.G.A. has opposed the present application for bail. Learned A.G.A. submits that present application for bail is a repeat application for bail. As such, Court will consider the grounds which have emerged subsequent to the order dated 4.8.2021. The valid submission urged by learned Senior counsel that as per the material on record, no offence under Section 306 IPC is made out against applicant is liable to ignored. According to learned A.G.A. the issue as to whether no offence under Section 306 IPC is made out against applicant as per the deposition of P.W. 1 is to be decided by the Trial Court. Even though this Court is a superior Court but dictates of prudence require that this Court should not evaluate the evidence which has emerged during the course of trial particularly when the trial is pending as any observation made by this Court may affect the prosecution or defence. Learned A.G.A. has then invited the attention of Court to the statement of daughter of deceased. He thus contends that in view of the clinching facts that have emerged in the statement of the daughter of the deceased and there being nothing to doubt the genuineness of the same or false implication of applicant in the crime in question, applicant does not deserve any sympathy of this Court. The period of incarceration undergone by applicant is no ground to enlarge the applicant on bail. As offence under Section 306 IPC is punishable with 10 years of imprisonment, applicant has not even undergone 2 years of incarceration. It is thus submitted by learned A.G.A. that that since no new or good ground has been made out by applicant for enlarging the applicant on bail, as such, the application is liable to be rejected. Mr. Devashish Mitra, the learned counsel for first informant has also opposed the present application for bail. Upon instruction he submits that the trial is at advance stage. He, therefore, contends that in stead of enlarging the applicant on bail, interest of justice shall be served in case a direction is issued to Court below to decide the Sessions Trial itself within a time bound period. Having heard the learned counsel for applicant, the learned A.G.A. for state, upon perusal of material brought on record, nature of offence, evidence, complicity of the accused and accusation made, this Court does not find any new or good ground to enlarge the applicant on bail. As a result, present application for bail fails and is liable to be rejected. It is, accordingly, rejected. However, Court below is directed to proceed with the trial expeditiously without granting any unnecessary adjournment and by fixing short dates. Order Date :- 15.12.2022 HSM Digitally signed by HARI SHANKER MISHRA Date: 2022.12.19 19:20:59 IST Reason: Location: High Court of Judicature at Allahabad
Arguments
Heard Mr. Manish Tewari, the learned Senior counsel assisted by Mr. Atharva Dixit and Mr. Aushim Luthra, the learned counsel for applicant, the learned A.G.A. for State and Mr. Devashish Mitra, the learned counsel for first informant. This is a repeat application for bail filed by applicant Yagya Prakash Gangwar seeking his enlargement on bail in Case Crime No. 106 of 2021, under Sections 306 and 406 IPC, P.S. Bardari, District Bareilly, during the pendency of trial. Perused the record. The first bail application of applicant Yagya Prakash Gangwar, was rejected by His Lordship Hon'ble S.S. Shamseri, J, vide His Lordship's order dated 4.8.2021. For ready reference, the same is reproduced herein under:- "Heard learned counsel for the applicant, learned AGA for the State and perused the record. The submission of learned counsel for the applicant is that the applicant has been falsely implicated in the present case due to ulterior motive. He is innocent and has no criminal antecedent. It is further submitted that the victim is about 28 years old, the applicant is not named in first information report; there are general allegations and a concocted and false story has been set up by the prosecution whereas the applicant did not commit any offence as alleged. It is also contended that as per medical report no injury is seen on the person of the victim; there is material contradiction in the contents of first information report, statements recorded under Sections 161 and 164 Cr.P.C. as also medical evidence, which shows that a false and concocted story has been set up against the applicant. Learned counsel for the applicant has drawn the attention of the Court to the bail order of co-accused - Junaid Qureshi dated 19.5.2022 passed in Criminal Misc. Bail Application No. 17308 of 2022. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required. The applicant is languishing in jail since 14.1.2022. He undertakes that he will not misuse the liberty, if granted, therefore, he may be released on bail. Learned counsel appearing for the opposite party vehemently opposed the prayer.