Sarvajeet Singh v. State of U.P.

List has been revised. Counter affidavit filed by learned A.G.A. is taken on record. Heard Sri Mayank Mohan Dutt Mishra and Sri Sudhanshu Pandey, learned counsel for the applicant as well as Sri Sunil Kumar, learned A.G.A. for the State and perused the record.

Applicant seeks bail in Session Trial No.480 of 2017 (State vs. Sarvajeet Singh), pending in the court of Sessions Judge/E.C. Act,

Gorakhpur, arising out of Case Crime No.156 of 2017, under Sections 302, 307 I.P.C., Police Station- Jhangaha, District- Gorakhpur, during the pendency of trial.

This is the second bail application on behalf of the applicant. The first bail application was rejected by the Co-ordinate Bench of this Court vide order dated 3.12.2020 passed in Criminal Misc. Bail Application No.33241 of 2020.

Learned counsel for the applicant has stated that the trial is not moving ahead and is at a standstill. There is no likelihood of conclusion of trial in near future. The applicant is incarcerated since 23.5.2017, i.e. for a period of more than seven years and nine months. The fundamental right of the applicant enshrined under Article 21 of the Constitution of India stands violated as he has been incarcerated for a substantial period of time 2 for no fault of his. The applicant is ready to cooperate with trial. In case, the applicant is released on bail, he will not misuse the liberty of bail.

Per contra, the bail application has been opposed on the ground that applicant is the main accused person as it was he who had fired at the deceased person causing his death.

This Court had called the status of trial from the trial court concerned and the report of Additional Sessions Judge/Special Judge (E.C. Act), Gorakhpur dated 10.12.2024 is on record. Perusal of the said report reveals as under: (i) The final report (charge-sheet) was filed in the instant case on

16.8.2017 and after framing the charge on 25.1.2018, prosecution evidence was recorded. (ii) Three witnesses of fact, namely, PW-1 Ram Bilas Yadav (informant), PW-2 Farchina Devi (injured) and PW-3 Kamlesh, were examined in court on 5.2.2018, 5.6.2018 and 6.12.2018, respectively, and after that the prosecution moved an application U/s 319 Cr.P.C. for summoning the other accused persons who were exonerated by the police during investigation, the same was allowed by the trial court vide order dated 23.7.2019 as such summoned other five accused persons, namely, Surya Nath Singh, Pinkal Singh, Varudhan Singh, Arjun Singh and Meena Singh U/s 147, 148, 149, 302, 307, 323, 504, 506 I.P.C. (iii) The aforesaid accused persons challenged the said summoning order before the Supreme Court by filing SLP No.9360 of 2019. Supreme Court was pleased to order for staying the proceedings of the trial court vide its order dated 25.10.2019. (iv) The trial court issued non-bailable warrants against the said five accused persons summoned U/s 319 Cr.P.C. vide its order dated 8.12.2023, as such, the said order of the trial court was also placed before the Supreme Court and the same was again stayed. 3 (v) The Supreme Court was pleased to dispose of the said SLP vide its order dated 21.2.2024, as such, again the trial court issued non-bailable warrants against the said 05 accused persons vide order dated 21.3.2024. In the meantime, the court was informed that one of the accused persons, namely, Arjun Singh had expired, as such, his death report was sent for verification. (vi) One of the five accused persons summoned, Surya Nath Singh surrendered before the court on 13.9.2024 and his bail application was disposed of on 18.9.2024, but his bail application was allowed by this Court vide order dated 12.11.2024. CONCLUSION:

Allowing the bail of the accused in Javed Gulam Nabi Shaikh Vs. State of Maharashtra and Another1, the Supreme Court has observed as follows: “7. Having heard the learned counsel appearing for the parties and having gone through the materials on record, we are inclined to exercise our discretion in favour of the appellant herein keeping in mind the following aspects: (i) The appellant is in jail as an under-trial prisoner past four years; (ii) Till this date, the trial court has not been able to even proceed to frame charge; and (iii) As pointed out by the counsel appearing for the State as well as NIA, the prosecution intends to examine not less than eighty witnesses.

8. Having regard to the aforesaid, we wonder by what period of time, the trial will ultimately conclude. Howsoever serious a crime may be, an accused has a right to speedy trial as enshrined under the Constitution of India.

9. Over a period of time, the trial courts and the High Courts have forgotten a very well settled principle of law that bail is not to be withheld as a punishment.

In the aforesaid context, we may remind the trial courts and the High Courts of what came to be observed by this Court in 1 2024 INSC 645 4 Gudikanti Narasimhulu & Ors. v. Public Prosecutor, High Court,2. We quote: "What is often forgotten, and therefore warrants reminder, is the object to keep a person in judicial custody pending trial or disposal of an appeal. Lord Russel, C.J., said [R v. Rose, (1898) 18 Cox]: "I observe that in this case bail was refused for the prisoner. It cannot be too strongly impressed on the, magistracy of the country that bail is not to be withheld as a punishment, but that the requirements as to bail are merely to secure the attendance of the prisoner at trial. "

The same principle has been reiterated by this Court in Gurbaksh Singh Sibba v. State of Punjab,3 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.

Long back, in Hussainara Khatoon v. Home Secy., State of Bihar4, this court had declared that the right to speedy trial of offenders facing criminal charges is "implicit in the broad sweep and content of Article 21 as interpreted by this Court". Remarking that a valid procedure under Article 21 is one which contains a procedure that is "reasonable, fair and just" it was held that: "Now obviously procedure prescribed by law for depriving a person of liberty cannot be "reasonable, fair or just" unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as "reasonable, fair or just" and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. The question which would, however, arise is as to what would be the consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long delayed trial in violation of his fundamental right under Article 21."

The aforesaid observations have resonated, time and again, in several judgments, such as Kadra Pahadiya & Ors. v. State of 2 3 4