Rajesh Singh Chauhan,J.
1. Heard Sri Vijay Kishor Mishra, learned counsel for the applicants, Sri Anurag Kumar Singh, learned counsel for the Central Bureau of Investigation (in short C.B.I.) and Sri Vivek Kumar Rai, learned counsel for the complainant/ informant.
2. This Court has passed the order dated 26.04.2022 as under:-
"Heard Mr. Vijay Kishor Mishra, learned counsel for the applicants, Mr. Anurag Kumar Singh, learned counsel appearing on behalf of the Central Bureau of Investigation and Mr. Vivek Kumar Rai, learned counsel for the informant/complainant/victim.
It has been contended that the present applicants are in jail since 7.4.2013 in Sessions Trial No.830 of 2013, R.C. No.1 (S)/2013/C.B.I./SC-1 New Delhi, under Sections 120 I.P.C. read with Section 302 I.P.C. & Section 25 (i)(b)(a)/26/27 Arms Act, Police Station C.B.I./SC-1 New Delhi.
It has been further contended that there are 81 prosecution witnesses, out of them identity of 11 material witnesses have not been disclosed. Therefore, those 11 witnesses have not been examined.
So far as the examination of other prosecution witnesses are concerned, till date 18 prosecution witnesses have been examined as per the information so given by learned trial court dated 20.04.2021. However, as per learned counsel for the applicants one more witness has been examined.
Learned counsel for the applicants has drawn attention of this court towards Annexure No.28 which is the bail order of coaccused Rajiv Pratap Singh @ Raju Singh, wherein this court in paras 3 and 6 has observed that the trial court has not taken appropriate steps as per Section 309 Cr.P.C. to conclude the trial.
Learned counsel for the applicants has further submitted that during investigation no statement under Section 164 Cr.P.C. has been recorded by the prosecution.
On being confronted on such averment, Mr. Anurag Kumar Singh, learned counsel for the Central Bureau of Investigation prays for and is granted a week's time to apprise the court as to whether the statement under Section 164 Cr.P.C. of any witness has been recorded or not.
Mr. Rai, learned counsel appearing on behalf of the complainant/informant has also submitted that despite the fact that the relevant material/fact witnesses on his side are ready to be examined, but till date they have not been examined.
Learned counsel for the applicants as well as learned counsel for the informant, both have said that while examining the prosecution witnesses the Central Bureau of Investigation adopts pick and chose policy.
Be that as it may, this is a case wherein the present applicants are in jail for more than 9 years and there is no possibility to conclude the trial in near future, therefore, the aforesaid aspect may be considered on the next date in the light of dictum of Hon'ble Apex Court in the cases of Union of India Vs. K.A. Najeeb; AIR 2021 SC 712 [LQ/SC/2021/58 ;] ">AIR 2021 SC 712 [LQ/SC/2021/58 ;] [LQ/SC/2021/58 ;] and Paras Ram Vishnoi Vs. The Director, Central Bureau of Investigation, passed in Criminal Appeal No.693 of 2021 [Arising out of SLP (Crl.) No.3610 of 2020].
Further, in a recent judgment of the Apex Court in Criminal Appeal No.308 of 2022, @ SLP (Crl.) No.4633 of 2021; Saudan Singh Vs. The State of Uttar Pradesh vide order dated 25.02.2022, it has been observed that if any accused person is in custody for more than eight or ten years and his/her appeal is pending consideration before learned appellate court, his/her bail application may be considered.
List this case on 9th May, 2022.
This case shall be taken up immediately after fresh cases.
In the meantime, Mr. Anurag Kumar Singh, learned counsel for the Central Bureau of Investigation may seek specific written instructions on the point as to whether the statement of witnesses have been recorded under Section 164 Cr.P.C. or not. He shall also seek written instructions on the point as to why material witnesses have not been called for examination when this court while granting the bail to co-accused Rajiv Pratap Singh @ Raju Singh has observed that learned trial court should adopt the procedure as prescribed under Section 309 Cr.P.C. conducting trial on day-to-day basis."
3. In compliance of the aforesaid order, Sri Anurag Kumar Singh, learned counsel for the C.B.I. has apprised the Court that during investigation the statement of two material witnesses have been recorded under Section 164 Cr.P.C., therefore, the submission of the learned counsel for the applicants that the statement of any person has not been recorded under Section 164 Cr.P.C., is absolutely incorrect.
4. Sri Singh has further submitted that after order dated 26.04.2022 being passed one more witness has been examined. He has further submitted that examination of other fact/ relevant witnesses has been started and he is hopeful that the examination of other fact witnesses would be concluded at the earliest taking recourse of Section 309 Cr.P.C.
5. Sri Vivek Kumar Rai, learned counsel for the complainant/ informant has also submitted that unless and until all fact/ relevant witnesses are examined, the present applicants who are the main assailants may not be released on bail otherwise they shall influence the remaining witnesses. He has further submitted on the basis of instructions that the applicants have threatened from jail that as soon as they come out from jail they shall see as to who are giving statement against them. Therefore, on the basis of aforesaid facts the bail application of the present applicants may be rejected.
6. At this stage, both counsel for the C.B.I. and counsel for the private opposite party have been confronted on the point as to whether the present applicants are having any criminal history or they are having any prior criminal antecedent, Sri Rai has submitted that he has no information on that point. However, Sri Anurag Kumar Singh, learned counsel for the C.B.I. has submitted on the basis of information and instructions so received that both the applicants have got no prior criminal antecedent.
7. Sri Anurag Kumar Singh has however submitted that in some dates the delay to conclude the trial was on account of no proper co-operation from the side of the applicant, however, no such information has been shown on the basis of records. He has also submitted that when one relevant witness was being examined on 06.05.2022, after completion of his chiefexamination the defence was called upon for cross-examination of such witness, the defence cross-examined such witness on 06.05.2022 and sought further time to conclude the crossexamination on 07.05.2022 and such cross-examination was concluded on 07.05.2022.
8. On the aforesaid contention, I observe that if after completion of the chief-examination of such witnesses on 06.05.2022 the defence cross-examined such witnesses on 06.05.2022 partially and it was concluded on 07.05.2022 so it would not be any deliberate delay on the part of the defence.
9. Sri Anurag Kumar Singh, learned counsel for the C.B.I. as well as Sri Vivek Kumar Rai, learned counsel for the private opposite party have again vehemently opposed the plea for bail of the present applicants by reiterating that the present applicants are the main assailants and are key pin of the crime in question, therefore, they should not be released on bail as they shall tamper the evidences and shall also influence the material witnesses and shall delay the trial proceedings.
10. Heard learned counsel for the parties and perused the material available on record.
11. In the present case, as per learned counsel for the applicants, the applicants are in jail with effect from 07.04.2013 i.e. more than nine years period has passed since they are in jail in Sessions Trial No.830 of 2013, R.C. No.1 (S)/2013/C.B.I./SC-1 New Delhi, under Sections 120 I.P.C. read with Section 302 I.P.C. & Section 25 (i)(b)(a)/26/27 Arms Act, Police StationC.B.I./SC-1 New Delhi.
12. It would be also opt to indicate here that Annexure No.28 of the bail application is the bail order of co-accused, Rajiv Pratap Singh, dated 25.01.2022 passed in Bail Case No.8364 of 2017 (Rajiv Pratap Singh (Raju Singh) (Third Bail) to quote para-3 thereof, which reads as under:-
"3. The first bail application of applicant has already been rejected on merits vide order dated 23.07.2015. The second bail application was thereafter rejected vide order dated 09.08.2016 directing the trial court to finally dispose of the Sessions Trial expeditiously without granting any unnecessary adjournments and to conduct the trial in accordance with Section 309 Cr.P.C., on a day to day basis."
13. The perusal of para-3 reveals that this Court vide order dated 09.08.2016 directed the learned trial court to conclude the trial expeditiously without granting any unnecessary adjournment taking recourse of Section 309 Cr.P.C. conducting the trial on day-to-day basis. Undisputedly, despite the aforesaid specific direction being issued by this Court on 09.08.2016, about six years period have passed but what to say about the conclusion of trial even the trial has not been completed half the way as out of 81 witnesses only 21 witnesses have been examined by now.
14. Therefore, I am constraint to observe that the aforesaid careless and unwarranted approach of the learned trial court may not be appreciated whereby the specific direction of this Court dated 09.08.2016 has not been followed in its letter and spirit and such direction went in vein.
15. The Hon'ble Apex Court in catena of cases has observed that the right of under trial enshrined under Article 21 of the Constitution of India may be considered and protected inasmuch as they should not be compelled to serve maximum punishing waiting the outcome of trial. The Hon'ble Apex Court in the case of 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."
16. The Apex Court in the case in re: Paras Ram Vishnoi (supra) has observed 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."
17. Recently the Hon'ble Apex Court in the case in re:Ashim alias Asim Kumar Haranath Bhattacharya alias Asim Harinath Bhattacharya alias Aseem Kumar Bhattacharya vs. National Investigation Agency reported in (2022) 1 SCC (Cri.) 442 has observed in paras-9, 10 & 11 as under:-
"9. We have to balance the nature of crime in reference to which the appellant is facing a trial. At the same time, the period of incarceration which has been suffered and the likely period within which the trial can be expected to be completed, as is informed to this Court that the statement of PW1/defacto complainant has still not been completed and there are 298 prosecution witnesses in the calendar of witness although the respondent has stated in its counter-affidavit that it may examine only 100 to 105 witnesses but indeed may take its own time to conclude the trial. This fact certainly cannot be ignored that the appellant is in custody since 6-7-2012 and has completed nine-and-half years of incarceration as an undertrial prisoner.
10. This Court has consistently observed in its numerous judgments that the liberty guaranteed in 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 is imperative and the undertrials cannot indefinitely be detained pending trial. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the Courts would ordinarily be obligated to enlarge him on bail.
11. Deprivation of personal liberty without ensuring speedy trial is not consistent with Article 21 of the Constitution of India. While deprivation of personal liberty for some period may not be avoidable, period of deprivation pending trial/appeal cannot be unduly long. At the same time, timely delivery of justice is part of human rights and denial of speedy justice is a threat to public confidence in the administration of justice."
18. In para-12 of the judgment of Hon'ble Apex Court in re: Ashim (supra), the dictum of the case of K.A. Najeeb (supra) has been considered.
19. The Hon'ble Apex Court in the case in re: Saudan Singh (supra) has held that if any accused person is in custody for more than eight or ten years and his/her appeal is pending consideration before learned appellate court, his/her bail application may be considered.
20. Further, on the submission of Sri Anurag Kumar Singh and Sri Vivek Kumar Rai, learned counsel for the complainant/ informant to the effect that if the present applicants are released on bail, they shall influence the witnesses by giving threats for the dire consequences and shall delay the trial proceedings, it is needless to say that this is solemn duty and responsibility of the prosecution to protect and produce its witnesses before the trial court. Their security is solemn duty and responsibility of the police agencies/ prosecution. However, I direct the police agency/ prosecution to protect all the witnesses, particularly the prime and relevant witnesses, providing them the required security, if the need be, and to produce them before the learned trial court safely so that they could be examined without any fear or apprehension.
21. It is always open for the prosecution or counsel for the complainant/ informant to file the application for cancellation of bail if any fact emerges to the effect that the applicants after being released from jail are affecting the trial or influencing the relevant witnesses or threatening them or assaulting them in any manner whatsoever.
22. In the present case, more than nine years and one month's period have passed since the present applicants are in jail and despite the specific direction being issued by this Court on 09.08.2016 to conclude the trial expeditiously by fixing day-today dates taking recourse of Section 309 Cr.P.C. even the trial has not been completed half the way inasmuch as out of 81 prosecution witnesses, only 21 prosecution witnesses have been examined by now, therefore, the aforesaid fact may convince the Court to consider the present bail application for releasing the applicants on bail.
23. Accordingly, the bail application is allowed.
24. Let the applicants-Ajay Kumar Pal and Vijay Kumar Pal, be released on bail in the aforesaid case crime number on their furnishing personal bond of Rs.1,00,000/- each and two sureties of Rs.50,000/- each by both the applicants to the satisfaction of the court concerned with the following conditions:-
(i) The applicants shall file an undertaking to the effect that they 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 applicants shall remain present before the trial court on each date fixed, either personally or through their counsel. In case of their absence, without sufficient cause, the trial court may proceed against them under Section 229-A of the Indian Penal Code.
(iii) In case, the applicants misuse the liberty of bail during trial and in order to secure their presence proclamation under Section 82 Cr.P.C. is issued and the applicants fail to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against them, in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) The applicants 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 applicants 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 them in accordance with law.
(v) The present applicants shall not leave the country without prior permission of the Court.
25. Before parting with, it is expected that the trial shall be concluded with expedition in terms of Section 309 Cr.P.C. Further, the learned trial court may take all coercive measures, as per law, if either of the parties does not co-operate in the trial properly.
