Allahabad High Court
Deepu (Third Bail) vs State Of Up Thru Prin. Secy. Homeand ... on 4 May, 2022
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 11 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 198 of 2022 Applicant :- Deepu (Third Bail) Opposite Party :- State Of Up Thru Prin. Secy. Homeand Others Counsel for Applicant :- Ramakar Shukla Counsel for Opposite Party :- G.A. Hon'ble Rajesh Singh Chauhan,J.
Heard Sri Ramakar Shukla, learned counsel for the applicant and learned A.G.A. for the State.
Despite the couple of opportunities being given to the opposite party no. 2, after service of notice, none has put in appearance. Vide the earlier order dated 21.4.2022 the last opportunity was given to opposite party no. 2 to appear but none has appeared.
This is third bail application. First bail application was dismissed for want of prosecution on 13.5.2015 by Hon'ble Sudhir Kumar Saxena, J. (since retired) and the second bail application was rejected by Hon'ble Anant Kumar, J. (since retired) on 28.2.2019, wherein the Court has observed as under :
"However, at this stage, learned counsel for the applicant states that a direction may be given to the trial court for expeditious disposal of trial. Accordingly, trial court is directed to expedite the trial and make an endeavour to conclude the trial, within a period of six months."
Sri Shukla, learned counsel for the applicant has submitted that he is conscious about the fact that he may not raise any ground in the third bail application which could have been raised at the time of rejection of first and second bail application, therefore, he is pressing this bail application only on the point that (i) the period of incarceration of the present applicant i.e. 1.11.2014, about seven years and six months; (ii) there is no possibility of conclusion of trial in near future; (iii) as per the statutory prescription u/s 35 of the POCSO Act the trial in these cases should be concluded within a period of one year; (iv) despite the specific direction being issued by this Court on 28.2.2019 to conclude the trial within six months more than three years period have passed but neither the trial has been concluded nor there is any possibility of conclusion of trial in near future inasmuch as only fact witnesses have been examined, and (iv) after rejection of second bail application of the present applicant the co-accused Munna has been granted bail in his fourth bail application on 29.10.2021 in Bail No. 7440 of 2020, co-accused Sunny has been granted bail on 2.2.2022 in his third bail application bearing No. 14487 of 2021 and co-accused Deepu @ Sangam has been granted bail in his fourth bail application on 3.3.2022 in Bail Application No. 2076 of 2020.
Sri Shukla has submitted that, however, in these circumstances he is not explaining the complete details of the case but precisely he has submitted that the present applicant is in jail since 1.11.2014 in Case Crime No. 779 of 2014 u/s 323, 506, 376D IPC and section 5/7 Protection of Children from Sexual Offences Act, 2012, P.S. Gauriganj, District Amehti. It has been submitted that the applicant has been falsely implicated in this case as he has not committed any offence as alleged.
As per version of the F1.R., on 28.10.2014 complainant had gone out from his house for some work, It is alleged that at about 9.00 P.M. when prosecutrix was going for easing herself, accused persons, who were four in number, caught and forcibly took the prosecutrix. They took her to lonely place and raped her and threatened that if she raised any alarm, she will be killed. An F.I.R. was lodged on 29.10.2014. In her statement recorded under Sections 161 Cr.P.C., prosecutrix has supported prosecution version and has named all the four accused persons. She has stated that since her mouth was gagged, she could not raise any alarm and all the four accused persons one by one raped her. Her clothes were also torn. Almost similar statement given under Section 164 Cr.P.C. On 30.10.2014 she was medically examined and in the medical examination report, four injuries were found on different parts of the body, including her thigh, back knee etc. On the all aforesaid grounds taken by Sri Shukla in his third bail application the learned AGA has submitted that this is third bail application of the present applicant, therefore, the same may be rejected considering the gravity of the offence. However, on being confronted on the point as to why the compliance of the statutory prescription of law enshrined u/s 35 of the POCSO Act has not been followed, he has submitted that he can not explain such delay. On being further confronted on the point as to why the trial has not been concluded within time frame so fixed by this Court vide order dated 28.2.2019 he has again given the same reply as such fact is beyond his control. He has been further asked as to whether all fact witnesses have been examined, learned AGA submitted that all fact witnesses have been examined.
So far as the conclusion of trial in near future is concerned, learned AGA has submitted that further direction may be issued to expedite the trial but at this stage it cannot be said that the trial cannot be concluded in near future with promptness. Lastly, on the point that the aforesaid three co-accused persons have been granted bail after rejection of second bail application of the present applicant, learned AGA has submitted that the same being the matter of record, he has nothing to say.
Sri Shukla, learned counsel for the applicant has further submitted that the present applicant is cooperating with the trial proceedings as there is no complaint on his side that the trial is being prolonged, therefore, considering the aforesaid grounds the present applicant may be released on bail.
The learned counsel for the applicant has given an undertaking on behalf of applicant that the applicant shall not misuse the liberty of bail and shall cooperate with the trial proceedings and shall abide by all terms and conditions of bail, if granted.
Learned A.G.A. again opposed the prayer for bail but could not dispute the aforesaid facts as argued by the learned counsel for the applicant.
Heard learned counsel for the parties and perused the material available on record.
The main points raised by Sri Shukla are that since there is no possibility to conclude the trial in near future, therefore, the period of long incarceration of the present applicant in jail i.e. seven years and six months may be considered in view of the dictum of Apex Court in re: Union of India vs. K.A. Najeeb reported in AIR 2021 Supreme Court 712 and in the case of 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). Notably, despite the specific statutory prescription u/s 35 of POCSO Act to conclude the trial within one year the trial has not been concluded in more than several years. Most particularly, despite the direction issued by this Court on 28.2.2019 to conclude the trial within six months, more than three years period have passed but trial has not been concluded. Further, there is no dispute between the parties that fact witnesses have been examined.
I have recently decided second bail application of one Nirmala bearing Criminal Misc. Bail Application No. 12363 of 2021 on 27.4.2022 considering the decision of Division Bench of this Court in re: Nanha s/o Nabhan Kha vs. State of U.P., reported in 1993 CriLJ 938, wherein the question was considered as to whether any accused may be entitled for bail in his / her subsequent bail application, if after rejection of his / her bail, the other co-accused person (s) have been granted bail. The Division Bench considering various decisions of the Hon'ble Apex Court held that if after rejection of bail application of any accused person, the co-accused person (s) has / have been granted bail, the said ground may be considered to grant bail to such accused person.
The Apex Court in re: Union of India vs. K.A. Najeeb (supra) wherein it has been held as under :
"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."
In the case of Paras Ram Vishnoi vs. The Director, Central Bureau of Investigation (supra) the Apex Court has held as under :
"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."
Besides, the dictum of the Hon'ble Apex Court in re; Gokarakonda Naga Saibaba v. State of Maharashtra, (2018) 12 SCC 505, wherein it has been held that if all fact/ material witnesses have been examined, the bail application of the accused may be considered.
Para 7,8 and 9 in re: Nirmala (supra) Criminal Misc. Bail Application No. 12363 of 2021 reads as under :
"7. Sri Gupta has drawn attention of this Court towards the decision of Division Bench of this Court in re; Nanha S/O Nabhan Kha vs. State of U.P., reported in 1993 CriLJ 938, wherein the question was considered as to whether any accused may be entitled for bail in his/her subsequent bail application, if after rejection of his/her bail, the other co-accused persons have been granted bail. In para-1 of the judgment, the aforesaid question has been indicated, which reads as under:-
1. In the third bail application moved by the petitioner for bail in case Crime No. 53 of 1989 under Section 302, IPC of P.S. Ganj, district Rampur Hon'ble N.L. Ganguli, J. has referred the following question to a larger Bench for an authoritative pronouncement:--
"Whether an accused is entitled to be released on bail on the ground of parity by moving a second or third bail application in a circumstance that at a later date a co-accused of the same criminal case with a similar role was granted bail by the another Hon'ble Judge before whom without disclosing the fact that the bail application of another co- accused with similar role had already been rejected, by another Bench, bail was granted."
8. While replying the aforesaid question, the Devision Bench of this Court in re; Nanha (supra) has observed in paragraphs 53 & 58 as under:-
"53. There are large number of cases of this Court in which the question of parity in the matters of bail has been considered earlier and the weight of judicial authority is in favour of the principle of parity being followed. In the case of Hadi v. State, 1986 Allahabad Criminal Cases 390 Hon'ble Parmeshwari Dayal, J. bailed out the accused on the ground that co-accused had been bailed out earlier. In another case of Sanwal Das Gupta v. State of U.P., 1986 Allahabad Criminal Cases 79, D.N. Jha, J. observed that where bail was granted to a co-accused then even the Magistrate can admit co-accused to maintain parity. In the case of Ram Roop Vs. State of U.P. 1987 Criminal Rulings 30, this Court observed that a co-accused having similar role having been granted bail another co-accused should also be granted bail. In the case of Ali Hussain v. State of U.P., 1990 U.P. Criminal Rulings 93, Hon'ble S.K. Dhaon, J. placed reliance on the Supreme Court's case of Kallu (supra) and granted bail on the ground of parity. In a unreported decision of this Court in Criminal Misc. Bail Application No. 1360 of 1987 Rai Munna v. State of U.P. Hon'ble G.P. Mathur, J. granted bail on the ground of parity though the Hon'ble Judge clearly observed that he was still of the opinion that the applicant was not entitled to bail on merits, but, however, as his case was not distinguishable from the case of co-accused the bail was granted on the ground of parity. In his judgment in Sobha Ram's case (supra) Hon'ble V.N. Mehrotra, J. has considered some more unreported decisions of this Court in which bail has been granted on the ground of parity. I respectfully agree with the view of Hon'ble V.N. Mehrotra, J.
58. The word 'parity' means the state or condition being equal or on a level; equality; equality of rank or status (See Shorter Oxford English Dictionary 1936 Ed.). In other words it means being placed at the same footing. All the accused of a case always do not stand on the same footing. While considering bail of different accused the court has to find out whether they stand on the same footing or not. Even if role assigned to various accused is same yet they may stand on different footing. The case of Cap. Jagjeet Singh (supra) is an illustration wherein the Supreme Court distinguished the case of Capt. Jagjeet Singh on the ground that he was in touch with foreign agency and leaking out secrets. The Supreme Court in the case of Gur Charan Singh v. Delhi Administration, AIR 1978 SC 179 : (1978 Cri LJ 129) laid down that the considerations for grant of bail are inter alia the position and status of the accused with reference to the victim and the witnesses; likelihood of the accused; fleeing from justice; of repeating offence; of jeopardising his own life, being faced with grim prospect of possible conviction in the case; of tampering with witnesses; and the like. These are additional factors which are to be judged in the case of individual accused and it may make the cases of different accused distinguishable from each accused. At the same time if there is no real distinction between the individual case of accused the principle of parity comes into play and if bail is granted to one accused it should also be granted to the other accused whose case stands on identical footing."
9. The aforesaid question was replied in favour of the accused in para-61 of the case in re; Nanha (supra), which reads as under:-
"61. My answer to the points referred to is that if on examination of a given case it transpires that the case of the applicant before court is identical, similar to the accused, on facts and circumstances who has been bailed out, then the desirability of consistency will require that such an accused should also be released on bail. (Exceptional cases as discussed above apart). As regards the second part of the question, answer is that it is not at all necessary for an accused to state in his bail application that the bail application of a co-accused has been rejected previously."
In view of the above, considering the dictum of Apex Court in re: Union of India vs. K.A. Najeeb (supra), Paras Ram Vishnoi vs. The Director, Central Bureau of Investigation (supra) and Gokarakonda Naga Saibaba (supra), and further considering the decision of this Court dated 27.4.2022 in re: Nirmala (supra) to the effect that the co-accused Munna has been granted bail in his fourth bail application on 29.10.2021 in Bail No. 7440 of 2020, co-accused Sunny has been granted bail on 2.2.2022 in his third bail application bearing No. 14487 of 2021 and co-accused Deepu @ Sangam has been granted bail in his fourth bail application on 3.3.2022 in Bail Application No. 2076 of 2020 after rejection of second bail application of the present applicant on 28.2.2019, therefore, on such ground the applicant is entitled to be released on bail in this case.
Therefore, without entering into the merits of the case, the present bail application is allowed.
Let the applicant Deepu, involved in aforesaid case crime be released on bail 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 which are being imposed in the interest of justice:-
(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 the country without permission of the Court concerned.
Before parting with it is expected that the trial shall be concluded with expedition. Further, the learned trial court may take all coercive measures as per law if either of the parties do not co-operate in the trial properly. The learned trial court shall fix short dates to ensure that trial is concluded at the earliest.
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(Rajesh Singh Chauhan, J.) Order Date :- 4.5.2022/Om