# Ajay Kumar Pal & Anr v. The State

- **Citation:** (2022) 5 ILRA 196
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-09
- **Case number:** Criminal Misc. Bail Application No. 8991 of 2021
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajay-kumar-pal-anr-v-the-state-48485
- **Pages:** 7

## Headnote

Criminal Law- Code of Criminal Procedure,
1973- Section 439- Bail- Long period of
incarceration- 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-to-day 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.

Prolonged or indefinite incarceration of the
accused violates the Right to a fair and speedy
trial which is one of the fundamental rights
guaranteed under the Constitution of India and
therefore
the
bleak
possibility
of
early
conclusion of the trial may be one of the
considerations for enlarging the accused on bail.
( Para 22)

Bail Application allowed. (E-3)

Judgements/ Case law relied upon:-

## Text

196 INDIAN LAW REPORTS ALLAHABAD SERIES
Laboratory cannot shake the roots of the
prosecution case.

17. Considering the facts and
circumstances of the case, submissions
advanced by learned counsel for the parties,
nature of offence, evidence on record,
pending investigation and considering the
complicity
of
accused,
severity
of
punishment,
at
this
stage,
without
commenting any opinion on the merits of
the case, this Court is not inclined to
release the applicants on bail.

18. Both the bail applications are,
accordingly, rejected.

19. However, it is directed that the
court below may proceed with the trial and
reach
at
the
logical
conclusion
expeditiously,
if
there
is
no
legal
impediment, within a period of one year
from the date of production of a certified
copy of this order.

20. It is clarified that the observations
made herein are limited to the facts brought
in by the parties pertaining to the disposal
of
bail
application
and
the
said
observations shall have no bearing on the
merits of the case during trial.
----------
(2022)05ILR A196
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.05.2022

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Criminal Misc. Bail Application No. 8991 of 2021

Ajay Kumar Pal & Anr. ...Applicants
Versus
The State ...Opposite Party

Counsel for the Applicants:
Vijay Kishor Mishra, Sachchidanand, Sanjay
Parmar

Counsel for the Opposite Party:
Anurag Kumar Singh, Ajai Kumar, Vivek
Kumar Rai

Criminal Law- Code of Criminal Procedure,
1973- Section 439- Bail- Long period of
incarceration- 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-to-day 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.

Prolonged or indefinite incarceration of the
accused violates the Right to a fair and speedy
trial which is one of the fundamental rights
guaranteed under the Constitution of India and
therefore
the
bleak
possibility
of
early
conclusion of the trial may be one of the
considerations for enlarging the accused on bail.
( Para 22)

Bail Application allowed. (E-3)

Judgements/ Case law relied upon:-

1. U.O.I Vs K.A. Najeeb AIR 2021 Supreme
Court 712

2. Paras Ram Vishnoi Vs The Director, CBI
passed in Crl. Appeal No.693 of 2021 (Arising
out of SLP (Crl.) 3610 of 2020

3. In re:Ashim @ Asim Kumar Haranath
Bhattacharya @ Asim Harinath Bhattacharya @
Aseem Kumar Bhattacharya Vs N.I.A (2022) 1
SCC (Cri.) 442
5 All. Ajay Kumar Pal & Anr. Vs. The State
197
4. Crl. Appeal No.308 of 2022, @ SLP (Crl.)
No.4633 of 2021; Saudan Singh Vs The St. of
U.P vide order dated 25.02.2022
(Delivered by Hon'ble 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 co-accused 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 and Paras Ram Vishnoi
Vs. The Director, Central Bureau of
Investigation, passed in Criminal Appeal
198 INDIAN LAW REPORTS ALLAHABAD SERIES
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 coaccused 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
5 All. Ajay Kumar Pal & Anr. Vs. The State
199
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
cross-examination
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 Station-C.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
200 INDIAN LAW REPORTS ALLAHABAD SERIES
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. Para16 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
5 All. Ajay Kumar Pal & Anr. Vs. The State
201
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-to-day 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.
202 INDIAN LAW REPORTS ALLAHABAD SERIES

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.
----------
(2022)05ILR A202
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.05.2022

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Criminal Misc. Bail Application No. 11033 of
2018

Shiv Sagar @ Pankaj Mishra ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Arun Kumar Tripathi, A P Mishra

Counsel for the Opposite Party:
G.A., Ashok Kr. Sravastav

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 439 - Bail -
Indian Penal Code, 1860 - Sections 147,
148, 149, 302, 307, 404, 120-B & 34 - 'the
bail is a right and denial is an exception' -
does not mean that the bail should be
granted in every case - at the time of
considering the bail application of an
accused - necessary for the Judge to
consider whether the accused is a firsttime offender or has been accused of
other offences - if so, nature of such
offences and his or her general conduct.
(Para - 27)