Alkesh v. State of U. P.). While rejecting the first bail application of the

1. Heard Mohd. Rais, learned counsel for the applicant and Sri Arun Verma, learned A.G.A. for the State.

2. This is the second bail application filed by the applicant under Section 483 of B.N.S.S.

3. Learned counsel for the applicant has submitted that the first bail application of the applicant has been rejected by Hon'ble Mohd. Faiz Alam Khan, J. on 07.04.2022 in Criminal Misc. Bail Application No. 10928 of 2020 (Alkesh Vs. State of U. P.). While rejecting the first bail application of the applicant, this Court directed the learned Trial Court to conclude the trial with expedition, preferably within a period of 08 months but till date the trial has not been concluded.

4. Learned counsel for the applicant has submitted that all fact and relevant witnesses have been examined. To be more precise, PW-I to PW-9 have been examined. Only formal witnesses are to be examined as details thereof has been given by the learned Trial Court vide its report dated 02.10.2024 which has been filed pursuant to the direction of this Court.

5. As per learned counsel for the applicant, the present applicant is in jail since 09.06.2020, in Case Crime No. 0130 of 2020, under Sections 498-A, 323, 504, 302 IPC & Section 3/4 Dowry Prohibition Act, Police Station- Thakurganj, District- Lucknow.

6. Learned counsel for the applicant has submitted that the present bail application is being pressed mainly on two grounds; firstly, despite the specific order passed by this Court to conclude the trial within the time frame, the trial has not concluded till date and keeping in view the progress of the trial, the trial is not likely to be concluded in near future; secondly, the period of incarceration of the applicant may be considered in the light of the fact that all the fact/ relevant witnesses have been examined.

7. Learned counsel for the applicant has also stated that while recording the evidence before the learned Trial Court, the complainant has not supported the prosecution version properly. The statements of relevant witnesses have been enclosed with the supplementary affidavit filed today. There is no prior criminal history of any kind whatsoever against the applicant.

8. Learned counsel has further stated that the applicant undertakes that he shall co-operate in the trial proceedings and shall not misuse the liberty of bail, if so granted by this Court. Further, the applicant shall abide by all terms and conditions of the bail order, therefore, the applicant may be enlarged on bail.

9. Learned A.G.A. has, however, opposed the prayer for bail by submitting that the present applicant is involved in commission of the crime as alleged in the FIR since he is not entitled for bail.

10. However, on being confronted on the point that since all the witnesses have been examined and there is no likelihood to conclude the trial in near future, therefore, as to why the total period of incarceration of the present applicant in jail may not be considered, learned A.G.A. has submitted that this is discretion of this Court to pass any appropriate order protecting the interest of the prosecution of the trial.

11. Learned counsel for the applicant has further submitted that since there is no possibility to conclude the trial in near future, therefore, in view of the dictum of Hon'ble 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 reported in 2021 SCC OnLine SC 3606 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 15 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."

12. The Apex Court in the case of Paras Ram Vishnoi (supra) in para 4 has observed as under: "4. On consideration of the matter, we are of the view that pending the trial we cannot keep a person in custody for an indefinite period of time and taking into consideration the period of custody and that the other accused are yet to lead defence evidence while the appellant has already stated he does not propose to lead any evidence, we are inclined to grant bail to the appellant on terms and conditions to the satisfaction of the trial court."

13. Learned counsel for the applicant has further drawn attention of this Court towards the dictum of Apex Court rendered in re: Gokarakonda Naga Saibaba vs. State of Maharashtra reported in (2018) 12 SCC 505 wherein the Apex Court has observed that if the material and fact witnesses have been examined, the bail of the accused persons may be considered.

14. Therefore, without entering into merits of the issue, considering the fact that the present applicant is in jail for about 04 years; the fact that all the fact/ material witnesses have been examined; while rejecting the first bail application, this Court directed the learned trial court to expedite the trial but the trial proceedings could not be expedited, therefore, it may be considered as a new ground to consider this second bail application; besides, there is no likelihood to conclude the trial shortly, therefore, considering the aforesaid dictums of Apex Court, I am of the opinion that the present applicant may be released on bail.

15. Accordingly, the second bail application is allowed.

16. Let the applicant- Alkesh 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 of the Indian Penal Code. (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. 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 of the Indian Penal Code. (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. 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. (v) The applicant shall not leave India without previous permission of the court. (Rajesh Singh Chauhan,J.) Order Date :- 29.1.2025 (Manoj K.) MANOJ KUMAR High Court of Judicature at Allahabad, Lucknow Bench

1. Heard Mohd. Rais, learned counsel for the applicant and Sri Arun Verma, learned A.G.A. for the State.

2. This is the second bail application filed by the applicant under Section 483 of B.N.S.S.

3. Learned counsel for the applicant has submitted that the first bail application of the applicant has been rejected by Hon'ble Mohd. Faiz Alam Khan, J. on 07.04.2022 in Criminal Misc. Bail Application No. 10928 of 2020 (Alkesh Vs. State of U. P.). While rejecting the first bail application of the applicant, this Court directed the learned Trial Court to conclude the trial with expedition, preferably within a period of 08 months but till date the trial has not been concluded.

4. Learned counsel for the applicant has submitted that all fact and relevant witnesses have been examined. To be more precise, PW-I to PW-9 have been examined. Only formal witnesses are to be examined as details thereof has been given by the learned Trial Court vide its report dated 02.10.2024 which has been filed pursuant to the direction of this Court.

5. As per learned counsel for the applicant, the present applicant is in jail since 09.06.2020, in Case Crime No. 0130 of 2020, under Sections 498-A, 323, 504, 302 IPC & Section 3/4 Dowry Prohibition Act, Police Station- Thakurganj, District- Lucknow.

6. Learned counsel for the applicant has submitted that the present bail application is being pressed mainly on two grounds; firstly, despite the specific order passed by this Court to conclude the trial within the time frame, the trial has not concluded till date and keeping in view the progress of the trial, the trial is not likely to be concluded in near future; secondly, the period of incarceration of the applicant may be considered in the light of the fact that all the fact/ relevant witnesses have been examined.

7. Learned counsel for the applicant has also stated that while recording the evidence before the learned Trial Court, the complainant has not supported the prosecution version properly. The statements of relevant witnesses have been enclosed with the supplementary affidavit filed today. There is no prior criminal history of any kind whatsoever against the applicant.

8. Learned counsel has further stated that the applicant undertakes that he shall co-operate in the trial proceedings and shall not misuse the liberty of bail, if so granted by this Court. Further, the applicant shall abide by all terms and conditions of the bail order, therefore, the applicant may be enlarged on bail.

9. Learned A.G.A. has, however, opposed the prayer for bail by submitting that the present applicant is involved in commission of the crime as alleged in the FIR since he is not entitled for bail.

10. However, on being confronted on the point that since all the witnesses have been examined and there is no likelihood to conclude the trial in near future, therefore, as to why the total period of incarceration of the present applicant in jail may not be considered, learned A.G.A. has submitted that this is discretion of this Court to pass any appropriate order protecting the interest of the prosecution of the trial.

11. Learned counsel for the applicant has further submitted that since there is no possibility to conclude the trial in near future, therefore, in view of the dictum of Hon'ble 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 reported in 2021 SCC OnLine SC 3606 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 15 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."

12. The Apex Court in the case of Paras Ram Vishnoi (supra) in para 4 has observed as under: "4. On consideration of the matter, we are of the view that pending the trial we cannot keep a person in custody for an indefinite period of time and taking into consideration the period of custody and that the other accused are yet to lead defence evidence while the appellant has already stated he does not propose to lead any evidence, we are inclined to grant bail to the appellant on terms and conditions to the satisfaction of the trial court."

13. Learned counsel for the applicant has further drawn attention of this Court towards the dictum of Apex Court rendered in re: Gokarakonda Naga Saibaba vs. State of Maharashtra reported in (2018) 12 SCC 505 wherein the Apex Court has observed that if the material and fact witnesses have been examined, the bail of the accused persons may be considered.

14. Therefore, without entering into merits of the issue, considering the fact that the present applicant is in jail for about 04 years; the fact that all the fact/ material witnesses have been examined; while rejecting the first bail application, this Court directed the learned trial court to expedite the trial but the trial proceedings could not be expedited, therefore, it may be considered as a new ground to consider this second bail application; besides, there is no likelihood to conclude the trial shortly, therefore, considering the aforesaid dictums of Apex Court, I am of the opinion that the present applicant may be released on bail.

15. Accordingly, the second bail application is allowed.

16. Let the applicant- Alkesh 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 of the Indian Penal Code. (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. 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 of the Indian Penal Code. (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. 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. (v) The applicant shall not leave India without previous permission of the court. (Rajesh Singh Chauhan,J.) Order Date :- 29.1.2025 (Manoj K.) MANOJ KUMAR High Court of Judicature at Allahabad, Lucknow Bench