# Rajiv Pratap Singh v. C.B.I. Opp. Party

- **Citation:** (2021) 1 ILRA 481
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-25
- **Case number:** Crl. Misc. Bail Appl. No. 8364 of 2017
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajiv-pratap-singh-v-c-b-i-opp-party-46775
- **Pages:** 12

## Headnote

A. Criminal Law - Indian Penal Code,1860Section 120-B ,302 - Arms Act, 1959-
Sections
25(1)(b)(a),26,27-applicationgrant of third bail-undertrial remained in
jail for more than 7 years-out of total 80
witnesses
only
16
witnesses
were
examined till date nor is there any
indication that they would be produced
before
trial
court
in
near
futureinvestigating
agency
has
already
completed investigation and chargesheet
filed-presence of accused may not be
necessary-applicant
is
liable
to
be
enlarged on bail-no apprehensions against
applicant of influencing witnesses and
tampering
with
evidence-role
of
the
accused is limited only to providing
information
of
whereabouts
of
the
deceased
and
of
supplying
the
weapons.(Para 1 to 30)

B. The basic rule of our criminal justice
system is 'bail, not jail'. The law presumes
an accused to be innocent till his guilt is
proved. As a presumably innocent person,
he is entitled to all the fundamental rights
including the right to liberty guaranteed
under Article 21 of the constitution. one
must not lose sight of the fact that any
imprisonment before conviction has a
substantial punitive content and it would
be improper to refuse bail for the purpose
of giving him a taste of imprisonment as a
lesson.(Para 27 to 29)

C. In deciding bail applications apart from
nature
of
accusation,
severity
of
punishment,
nature
of
supporting
evidence,
reasonable
apprehension
of
tampering with witnesses, an important
factor which should certainly be taken
into consideration by the court is the
delay in concluding the trial. Often it takes
several years, and if the accused is denied
bail but is ultimately acquitted, who will
restore so many years of his life spent in
custody.(Para 10 to 27)

The bail application is allowed. (E-5)

List of Cases Cited:

## Text

_Characters 0–39,988 of 40,949. This is a partial read: ask again with offset=39988 for what follows._

1 All. Rajiv Pratap Singh Vs. C.B.I.
481
prima facie has found case under Sections
302 and 307 I.P.C. read with Section 34
I.P.C. against the applicant and has rightly
framed the charge therein.

11. After having considered the
submissions advanced by learned counsel
for the parties and after perusing the
material available on record, I do not find
any good ground to interfere in the matter
in exercise of inherent power under Section
482 Cr.P.C. for quashing of the impugned
order.

12.

The
present
482
Cr.P.C.
application lacks merit. It is accordingly,
dismissed.
----------
(2021)01ILR A481
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.01.2021

BEFORE
THE HON'BLE MANISH MATHUR, J.

Crl. Misc. Bail Appl. No. 8364 of 2017

Rajiv Pratap Singh ...Applicant
Versus
C.B.I. ...Opp. Party

Counsel for the Applicant:
Navneet Kumar Srivastava, Harish Pandey,
Rajendra Kumar Dwivedi, Shantanu Mishra

Counsel for the Opp. Party:
Amarjeet Singh Rakhra, Ajai Kumar, Ajeet
Pratap Singh, Anurag Kumar Singh, Vivek
Kumar Rai

A. Criminal Law - Indian Penal Code,1860Section 120-B ,302 - Arms Act, 1959-
Sections
25(1)(b)(a),26,27-applicationgrant of third bail-undertrial remained in
jail for more than 7 years-out of total 80
witnesses
only
16
witnesses
were
examined till date nor is there any
indication that they would be produced
before
trial
court
in
near
futureinvestigating
agency
has
already
completed investigation and chargesheet
filed-presence of accused may not be
necessary-applicant
is
liable
to
be
enlarged on bail-no apprehensions against
applicant of influencing witnesses and
tampering
with
evidence-role
of
the
accused is limited only to providing
information
of
whereabouts
of
the
deceased
and
of
supplying
the
weapons.(Para 1 to 30)

B. The basic rule of our criminal justice
system is 'bail, not jail'. The law presumes
an accused to be innocent till his guilt is
proved. As a presumably innocent person,
he is entitled to all the fundamental rights
including the right to liberty guaranteed
under Article 21 of the constitution. one
must not lose sight of the fact that any
imprisonment before conviction has a
substantial punitive content and it would
be improper to refuse bail for the purpose
of giving him a taste of imprisonment as a
lesson.(Para 27 to 29)

C. In deciding bail applications apart from
nature
of
accusation,
severity
of
punishment,
nature
of
supporting
evidence,
reasonable
apprehension
of
tampering with witnesses, an important
factor which should certainly be taken
into consideration by the court is the
delay in concluding the trial. Often it takes
several years, and if the accused is denied
bail but is ultimately acquitted, who will
restore so many years of his life spent in
custody.(Para 10 to 27)

The bail application is allowed. (E-5)

List of Cases Cited:

1. Kalyan Chandra Sarkar Vs Rajesh Ranjan @
Pappu Yadav & anr.(2004) 7 SCC 528

2. Chenna Boyanna Krishna Yadav Vs St. of
Mah. & anr.(2007) 1 SCC 242

3. St. of Raj.,Jaipur Vs Bal Chand (1977) AIR SC 2447
482 INDIAN LAW REPORTS ALLAHABAD SERIES
4. Kashmira Singh Vs St. of Punj.(1977) 4 SCC
291

5. Sanjay Chandra Vs CBI (2012) 1 SCC 40

6. Arnab Manoranjan Goswami Vs St. of Mah. &
ors.(CRLA 742 of 2020)

7. Ankita Kailash Khandelwal & ors. Vs St. of
Mah. & ors.(2020) 10 SCC 670

(Delivered by Hon'ble Manish Mathur, J.)

1. Heard Sri Arvind Varma, Senior
Advocate assisted by Mr. Rajendra Kumar
Dwivedi, Ms. Meha Rashmi, Sri Harish
Pandey and Sri Smrithi Sharma, learned
counsel appearing for applicant and Sri
Anurag Kumar Singh, learned counsel for
the Central Bureau of Investigationopposite party.

2. This is third bail application of
applicant Rajiv Pratap Singh (Raju Singh)
with regard to case crime no.RC 1 (S)
2013/CBI/SC-1 under Sections 120-B read
with Section 302 I.P.C. and Sections 25 (1)
(b) (a), 26 and 27 Arms Act, P.S. CBI/SC1/ New Delhi, District Pratapgarh.

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.

4. In pursuance to directions issued by
this Court earlier, the CBI Court, Lucknow
has
furnished
a
status
report dated
04.12.2020 with regard to sessions trial in
the present case. In the said report, it has
been indicated that there are a total of 80
prosecution witnesses out of which 16
witnesses have already deposed since start
of the trial from 2013. It has been stated
that trial could not proceed since March,
2020 due to COVID-19 pandemic. It has
subsequently recommenced in October,
2020 but the prosecution witnesses have
not appeared on three dates due to the
pandemic.

5. The allegations in brief as
mentioned in the first information report
no.18 of 2013 dated 02.03.2013 are that
when complainant Phool Chander Yadav
along with his brother Nanhe Yadav, his
wife and two daughers and brother-in-law
of Nanhe Yadav, who were on their way to
home, stopped their Bolero vehicle no.UP
70-W-1805 near the tea shop of Chokhe
Lal at Balipur Chauraha for taking tea,
Kamta Prasad Pal, his son Ajay Kumar Pal,
Ajit Kumar Singh and Rajiv Kumar Singh,
both sons of Hari Singh, all hailing from
Village Balipur, duly armed with weapons,
arrived at the scene of the incident in their
Bolero vehicle no.UP-64-7555 and fired
many rounds targetting Nanhe Yadav with
the intenion to kill him. Due to firing,
Nahhe Yadav fell on the ground. This
incident was also seen by Kallu son of
Mata, resident of Sheikhpur Ashik, Police
Station Kunda Kotwali besides many
others. Thereafter Nanhe Yadav was
brought to Kunada Hospital where the
doctor declared him brought dead.

6. Learned counsel for applicant has
submitted that although the first bail
application was rejected on merits but
while rejecting the second bail application,
this Court has specifically directed the CBI
court to conclude the trial expeditiously. It
is submitted that the applicant is in jail
since 04.03.2013 and although the trial is
1 All. Rajiv Pratap Singh Vs. C.B.I.
483
continuing since 2013, as yet only 16
witnesses have been examined in the past
more than seven years with 64 witnesses
remaining. It is further submitted that there
is no possibility of trial concluding
expeditiously as had been directed earlier.
It is further submitted that at the time of
rejection of the second bail application in
2016, only one prosecution witness had
been examined and examination of the
second prosecution witness was going on,
which weighed heavily upon this Court for
rejection of the second bail application. It is
further submitted that during the time
elapsed between the rejection of the second
bail application and as on date, it is
material factor that a new ground has
cropped up which requires to be considered
in this bail application.

7. Learned counsel for applicant has
submitted that as per the charge sheet
submitted by the Central Bureau of
Investigation (hereinafter referred to as
CBI), the only role assigned to applicant is
of providing information with regard to
whereabouts of the deceased, in pursuance
of which the attack upon him was carried
out. It is submitted that the aforesaid charge
upon applicant is sought to be substantiated
only on the testimony of the sole witness,
Nitish Shukla, the alleged driver of the
vehicle of applicant. Learned counsel
submits that despite the long time having
elapsed in the trial and 16 witnesses having
been examined, the CBI has failed to
produce the said Nitish Shukla for
recording of his testimony till date. It is
submitted that the CBI has also not
indicated as to when they propose to
produce Nitish Shukla for recording of his
statement. As such, it is submitted that the
applicant cannot be kept incarcerated for
such a long time for no fault on his part.

8. Mr. Anurag Kumar Singh, learned
counsel for CBI has opposed the bail
application with the submission that once
applicant's bail had already been rejected
on merits and also on the ground of delay
in conclusion of trial, the present bail
application is also liable to be rejected
since no new ground has been indicated or
submitted, which is pre-requisite for
considering the third bail application.
Learned counsel has referred to numerous
judgments of Hon'ble the Supreme Court
indicating the law under which a third bail
application can be entertained. It has been
further submitted that bail cannot be
granted merely on the ground of long
detention or that the trial of the case had
not progressed. Learned counsel further
submitted that the offence indicated against
the applicant are quite serious in nature and
there
is
reasonable
apprehension
of
witnesses being influenced and evidence
being tampered with. Since some of the
important
witnesses
had
expressed
apprehension
of
threat
to
life
and
accordingly application was filed in the
Court of Special Judicial Magistrate, CBI
Cases, Lucknow not to disclose the identity
of certain important witnesses which was
allowed by the court vide order dated
12.07.2013.

9. Upon consideration of material on
record and submissions advanced by
learned counsel for parties, it is apparent
that conditions for entertaining the third
bail application are quite stringent.

10. Hon'ble the Supreme Court in
Kalyan Chandra Sarkar v. Rajesh
Ranjan @ Pappu Yadav and another
reported in (2004) 7 SCC 528 in
paragraphs 11, 12 and 20 of the report has
held as follows:-
484 INDIAN LAW REPORTS ALLAHABAD SERIES

"11. The law in regard to grant or
refusal of bail is very well settled. The
court granting bail should exercise its
discretion in a judicious manner and not as
a matter of course. Though at the stage of
granting bail a detailed examination of
evidence and elaborate documentation of
the merit of the case need not be
undertaken, there is a need to indicate in
such orders reasons for prima facie
concluding why bail was being granted
particularly where the accused is charged
of having committed a serious offence. Any
order devoid of such reasons would suffer
from non-application of mind. It is also
necessary for the court granting bail to
consider among other circumstances, the
following factors also before granting bail;
they are:

(a) The nature of accusation and the
severity of punishment in case of conviction
and the nature of supporting evidence.

(b)
Reasonable
apprehension
of
tampering with the witness or apprehension
of threat to the complainant.

(c) Prima facie satisfaction of the
court in support of the charge. (See Ram
Govind
Upadhyay v. Sudarshan
Singh [(2002) 3 SCC 598 : 2002 SCC (Cri)
688] and Puran v.Rambilas [(2001) 6 SCC
338 : 2001 SCC (Cri) 1124] .)"

"12. In regard to cases where earlier
bail applications have been rejected there
is a further onus on the court to consider
the subsequent application for grant of bail
by noticing the grounds on which earlier
bail applications have been rejected and
after such consideration if the court is of
the opinion that bail has to be granted then
the said court will have to give specific
reasons why in spite of such earlier
rejection the subsequent application for
bail should be granted. (See Ram Govind
Upadhyay [(2002) 3 SCC 598 : 2002 SCC
(Cri) 688] .)"

"20. Before concluding, we must note
that though an accused has a right to make
successive applications for grant of bail the
court entertaining such subsequent bail
applications has a duty to consider the
reasons and grounds on which the earlier
bail applications were rejected. In such
cases, the court also has a duty to record
what are the fresh grounds which persuade
it to take a view different from the one
taken in the earlier applications. In the
impugned order we do not see any such
fresh ground recorded by the High Court
while granting bail. It also failed to take
into consideration that at least on four
occasions order refusing bail has been
affirmed by this Court and subsequently
when the High Court did grant bail, this
Court by its order dated 26-7-2000
cancelled the said bail by a reasoned
order. From the impugned order, we do not
notice any indication of the fact that the
High Court took note of the grounds which
persuaded this Court to cancel the bail.
Such approach of the High Court, in our
opinion, is violative of the principle of
binding nature of judgments of the superior
court rendered in a lis between the same
parties, and in effect tends to ignore and
thereby render ineffective the principles
enunciated therein which have a binding
character."

11. With regard to granting of bail
only on the ground of unlikelihood of trial
concluding in near future, it has been held
as follows in the same judgment:-

"14. We have already noticed from
the arguments of learned counsel for
the appellant that the present accused
had earlier made seven applications for
grant of bail which were rejected by the
High Court and some such rejections
have been affirmed by this Court also.
1 All. Rajiv Pratap Singh Vs. C.B.I.
485
It is seen from the records that when the
fifth application for grant of bail was
allowed by the High Court, the same
was challenged before this Court and
this Court accepted the said challenge
by allowing the appeal filed by the
Union of India and another and
cancelled the bail granted by the High
Court as per the order of this Court
made in Criminal Appeal No. 745 of
2001
dated
25-7-2001
[Rajesh
Ranjan v. State of Bihar, (2000) 9 SCC
222] . While cancelling the said bail
this Court specifically held that the fact
that the present accused was in custody
for more than one year (at that time)
and the further fact that while rejecting
an earlier application, the High Court
had given liberty to renew the bail
application in future, were not grounds
envisaged under Section 437(1)(i) of the
Code. This Court also in specific terms
held that the condition laid down under
Section 437(1)(i) is sine qua non for
granting bail even under Section 439 of
the Code. In the impugned order it is
noticed that the High Court has given
the period of incarceration already
undergone by the accused and the
unlikelihood of trial concluding in the
near future as grounds sufficient to
enlarge the accused on bail, in spite of
the fact that the accused stands charged
of
offences
punishable
with
life
imprisonment or even death penalty. In
such cases, in our opinion, the mere
fact that the accused has undergone
certain period of incarceration (three
years in this case) by itself would not
entitle the accused to being enlarged on
bail, nor the fact that the trial is not
likely to be concluded in the near future
either by itself or coupled with the
period
of
incarceration
would
be
sufficient for enlarging the appellant on
bail when the gravity of the offence
alleged
is
severe
and
there
are
allegations
of
tampering
with
the
witnesses by the accused during the
period he was on bail."

12. Similarly, in Chenna Boyanna
Krishna Yadav v. State of Maharashtra
& another reported in (2007) 1 SCC 242,
it has been held as follows:-

"16........It is true that when the gravity
of the offence alleged is severe, mere
period of incarceration or the fact that the
trial is not likely to be concluded in the
near future either by itself or conjointly
may not entitle the accused to be enlarged
on bail. Nevertheless, both these factors
may also be taken into consideration while
deciding the question of grant of bail."

13. Learned counsel for the applicant
has placed reliance on judgment rendered
by Hon'ble the Supreme Court in State of
Rajasthan, Jaipur v. Bal Chand reported
in AIR 1977 Supreme Court 2447 in
which the following has been held:-

"2. The basic rule may perhaps be
tersely put as bail, not jail, except where
there are circumstances suggestive of
fleeing from justice or thwarting the
course of justice or creating other
troubles in the shape of repeating
offences or intimidating witnesses and the
like,
by
the
petitioner
who
seeks
enlargement on bail from the court. We
do not intend to be exhaustive but only
illustrative.

3. It is true that the gravity of the
offence involved is likely to induce the
petitioner to avoid the course of justice
and must weigh with us when considering
the
question
of
jail. So also
the
heinousness of the crime.........."
486 INDIAN LAW REPORTS ALLAHABAD SERIES

14. He has also placed reliance on the
judgment of Hon'ble the Supreme Court in
Kashmira Singh v. State of Punjab
reported in (1977) 4 SCC 291 in which
the following has been held in paragraph 2
of the report:-

"2. The appellant contends in this
application that pending the hearing of the
appeal he should be released on bail. Now,
the practice in this Court as also in many of
the High Courts has been not to release on
bail a person who has been sentenced to
life imprisonment for an offence under
Section 302 of the Penal Code, 1860. The
question is whether this practice should be
departed from and
if so, in what
circumstances. It is obvious that no
practice howsoever sanctified by usage and
hallowed by time can be allowed to prevail
if it operates to cause injustice. Every
practice of the Court must find its ultimate
justification in the interest of justice. The
practice not to release on bail a person
who
has
been
sentenced
to
life
imprisonment was evolved in the High
Courts and in this Court on the basis that
once a person has been found guilty and
sentenced to life imprisonment, he should
not be let loose, so long as his conviction
and sentence are not set aside, but the
underlying postulate of this practice was
that the appeal of such person would be
disposed of within a measurable distance of
time, so that if he is ultimately found to be
innocent, he would not have to remain in
jail for an unduly long period. The
rationale of this practice can have no
application where the Court is not in a
position to dispose of the appeal for five or
six years. It would indeed be a travesty of
justice to keep a person in jail for a period
of five or six years for an offence which is
ultimately
found
not
to
have
been
committed by him. Can the Court ever
compensate him for his incarceration
which is found to be unjustified? Would it
be just at all for the Court to tell a person:
"We have admitted your appeal because we
think you have a prima facie case, but
unfortunately we have no time to hear your
appeal for quite a few years and, therefore,
until we hear your appeal, you must remain
in jail, even though you may be innocent?"
What
confidence
would
such
administration of justice inspire in the mind
of the public? It may quite conceivably
happen, and it has in fact happened in a
few cases in this Court, that a person may
serve out his full term of imprisonment
before his appeal is taken up for hearing.
Would a Judge not be overwhelmed with a
feeling of contrition while acquitting such a
person after hearing the appeal? Would it
not be an affront to his sense of justice? Of
what avail would the acquittal be to such a
person who has already served out his term
of imprisonment or at any rate a major part
of it? It is, therefore, absolutely essential
that the practice which this Court has been
following in the past must be reconsidered
and so long as this Court is not in a
position to hear the appeal of an accused
within a reasonable period of time, the
Court should ordinarily, unless there are
cogent grounds for acting otherwise,
release the accused on bail in cases where
special leave has been granted to the
accused to appeal against his conviction
and sentence."

15. Upon applicability of the
aforesaid judgments in the present case, it
is apparent that the present bail application,
being the third bail application, is to be
seen not only with regard to gravity of
offence and other like factors but also on
the ground of any change in the fact
situation which requires the earlier view
taken by this Court to be interfered with.
1 All. Rajiv Pratap Singh Vs. C.B.I.
487

16. Upon perusal of aforesaid
judgments, it is clear that Hon'ble the
Supreme Court has not put an embargo
upon consideration of long period of
incarceration of an undertrial as a factor
while
considering
subsequent
bail
applications. It is clearly seen that such a
factor can be considered by the Court
concerned while hearing subsequent bail
applications but the said factor has to be
seen along with other relevant factors as
indicated in the judgments hereinabove.

17. Although in the first information
report, allegation of applicant also having
fired upon the deceased has been made but
in the counter affidavit dated 17.12.2017
filed by the CBI , the role of applicant has
been limited to providing information of
whereabouts of deceased to the actual
killers as has been indicated in the charge
sheet filed against applicant and of
supplying weapon used.

18. It is very relevant that in
paragraph 25 of the counter affidavit, the
CBI has doubted the veracity of the
complaint itself. The said paragraph of
counter affidavit is as follows:-

"25. That in reply to the averments
made in para nos. 5 and 6 of the affidavit,
it is submitted that in this case the FIR was
registered on the written complaint of
Phool Chander Yadav, brother of deceased
Nanhe Yadav. However, it came to light
that the complaint on the basis of which
FIR was registered was written by Pawan
Kumar Yadav, brother of deceased Nanhe
Yadav in his own writing. He has also
signed the said complaint as Phool
Chander Yadav. At the time of writing the
complaint, Phool Chander Yadav was not
present where the complaint was being
written in the early morning of 03.03.2013
after the dead body of Nanhe Yadav was
taken to Pratapgarh for post mortem. This
clearly establishes that a concocted version
was mentioned in the complaint which was
signed by Pawan Yadav posing as Phool
Chander Yadav. The FIR was lodged on
03.03.2013 and not on 02.03.2013 as has
been shown in the document. "

19. The CBI in its counter affidavit
has assigned the role of firing upon the
deceased to Ajai Kumar Pal and Vijai
Kumar Pal with no role of firing being
assigned to applicant whose role as per the
charge sheet is limited to providing
information of whereabouts of the deceased
and of supplying the weapons which were
used in the actual killings.

20. Aforesaid charges against the
applicant have been sought to be proved by
the CBI upon testimony of one Nitish
Shukla and one other person as indicated in
paragraph 28 of the counter affidavit,
although the said other person remains
unnamed. It is relevant that as per the
report submitted by the CBI Court, neither
of aforesaid two persons have been
produced by the CBI as witness in the trial
proceedings till date. The counter affidavit
is also silent as to when the CBI intends to
produce the said two persons as witnesses
in the trial.

21. It is a relevant fact that at the time
of rejection of first bail on 23.07.2015, the
trial proceedings were at a nascent stage
with only one prosecution witness having
been examined. Even at the time of
rejection of the second bail application on
09.08.2016, the fact situation had not
changed with only one prosecution witness
having been examined and deposition of
the second prosecution witness being
underway. It was in these circumstances
that the second bail application was
488 INDIAN LAW REPORTS ALLAHABAD SERIES
rejected since no new good ground had
been put forth by applicant. However, in
view of the right of applicant to a speedy
trial, direction had been issued to expedite
the final decision of the Sessions Trial
without
granting
any
unnecessary
adjournment and to conduct the trial in
accordance with Section 309 Cr.P.C. on
day to day basis.

22. It is also a rlevant fact that
subsequent to order dated 09.08.2016, 15
witnesses have further been examined
during the trial but as on date they do not
constitute even 1/4th of the total 80
witnesses that are sought to be produced as
prosecution witnesses by the CBI. The
applicant has been in custody as an
undertrial since 04.03.2013, i.e. more than
seven and a half years.

23. The aforesaid factor clearly
indicates
the
changed
circumstances
between rejection of the second bail
application till today. Learned counsel for
applicant therefore apprears to be quite
correct in his submission that with just 16
witnesses having been examined out of a
total of 80 witnesses to be produced by the
CBI as prosecution witnesses, there is no
hope of trial concluding even in far future,
let alone the near future.

24. Although the offence with which
applicant has been charged is a serious one
but it is also a relevant factor to consider
that the said charge being based on the
testimony of two witnesses, neither of the
two have been produced by the CBI in the
trial, which is pending since 2013. Even
counter affidavit of the CBI is silent with
regard to the time frame within which the
said two witnesses are to be produced in
the trial proceedings. Prima facie, it
appears that without the testimony of
corroborating witnesses, evidence against
the applicant is circumstantial at best and at
present there cannot be any definitive
conclusion that the offence with which the
applicant is charged can be prima facie
made out at this stage and would therefore
be dependent upon evidence to be relied
upon by CBI in future particularly by
producing witnesses to support the same.

25. The CBI in its counter affidavit
has stated that enlarging the applicant on
bail could have an adverse effect on the
trial since there is a likelihood that the
applicant may try to influence the witnesses
and tamper with evidence. However, except
for a bland statement in the counter
affidavit, there is not even a shred of prima
facie evidence adduced by the CBI to
support such claim. The only factor
indicated in counter affidavit is that upon
such apprehension, an application was filed
before the trial court not to disclose the
identity of certain important witnesses,
which was allowed by the Court vide order
dated 12.07.2013. However, it has not been
indicated as to whether the application was
filed by the witnesses or by CBI itself. As
such,
the
apprehension
of
applicant
tampering with evidence and influencing
witnesses remains merely a bland statement
at best, which has already been denied by
the applicant in his reply.

26. The aforesaid factors clearly
indicate the circumstances which have
changed in the past more than four years
since the date of rejection of the second
bail appliation, particularly with regard to
factor as to whether an undertrial can be
indefinitely incarcerated during pendency
of trial proceedings particularly in the
present circumstances where not even 1/4th
of the witnesses have been produced during
the trial. Of particular importance is the
1 All. Rajiv Pratap Singh Vs. C.B.I.
489
factor that even after producing 16
witnesses, the CBI has not produced the
two important witnesses against applicant
till date nor is there any indication that they
would be produced before the trial court in
near future.

27. Hon'ble the Supreme Court in
Sanjay Chandra v. Central Bureau of
Investigation reported in (2012) 1 SCC
40 has held as follows:-

"21. In bail applications, generally, it
has been laid down from the earliest times
that the object of bail is to secure the
appearance of the accused person at his
trial by reasonable amount of bail. The
object of bail is neither punitive nor
preventative. Deprivation of liberty must be
considered a punishment, unless it is
required to ensure that an accused person
will stand his trial when called upon. The
courts owe more than verbal respect to the
principle that punishment begins after
conviction, and that every man is deemed
to be innocent until duly tried and duly
found guilty."

"22. From the earliest times, it was
appreciated that detention in custody
pending completion of trial could be a
cause of great hardship. From time to time,
necessity demands that some unconvicted
persons should be held in custody pending
trial to secure their attendance at the trial
but in such cases, "necessity" is the
operative test. In this country, it would be
quite contrary to the concept of personal
liberty enshrined in the Constitution that
any person should be punished in respect of
any matter, upon which, he has not been
convicted or that in any circumstances, he
should be deprived of his liberty upon only
the belief that he will tamper with the
witnesses if left at liberty, save in the most
extraordinary circumstances."

"23. Apart from the question of
prevention being the object of refusal of
bail, one must not lose sight of the fact that
any imprisonment before conviction has a
substantial punitive content and it would be
improper for any court to refuse bail as a
mark of disapproval of former conduct
whether the accused has been convicted for
it or not or to refuse bail to an unconvicted
person for the purpose of giving him a taste
of imprisonment as a lesson."

Hon'ble the Supreme Court in the said
decision has further held as under:-

"40. The grant or refusal to grant bail
lies within the discretion of the court. The
grant or denial is regulated, to a large
extent, by the facts and circumstances of
each particular case. But at the same time,
right to bail is not to be denied merely
because of the sentiments of the community
against the accused. The primary purposes
of bail in a criminal case are to relieve the
accused of imprisonment, to relieve the
State of the burden of keeping him, pending
the trial, and at the same time, to keep the
accused constructively in the custody of the
court, whether before or after conviction,
to assure that he will submit to the
jurisdiction of the court and be in
attendance thereon whenever his presence
is required."

42. When the undertrial prisoners are
detained in jail custody to an indefinite
period, Article 21 of the Constitution is
violated.
Every
person,
detained
or
arrested, is entitled to speedy trial, the
question is: whether the same is possible in
the present case.

"43. There are seventeen accused
persons. Statements of witnesses run to
several hundred pages and the documents
on which reliance is placed by the
prosecution, are voluminous. The trial may
490 INDIAN LAW REPORTS ALLAHABAD SERIES
take considerable time and it looks to us
that the appellants, who are in jail, have to
remain in jail longer than the period of
detention, had they been convicted. It is not
in the interest of justice that the accused
should be in jail for an indefinite period.
No doubt, the offence alleged against the
appellants is a serious one in terms of
alleged huge loss to the State exchequer,
that, by itself, should not deter us from
enlarging the appellants on bail when there
is no serious contention of the respondent
that the accused, if released on bail, would
interfere with the trial or tamper with
evidence. We do not see any good reason to
detain the accused in custody, that too,
after the completion of the investigation
and filing of the charge-sheet."

"44. This Court, in State of Kerala v.
Raneef [(2011) 1 SCC 784 : (2011) 1 SCC
(Cri) 409] has stated: (SCC p. 789, para
15)

"15. In deciding bail applications an
important factor which should certainly be
taken into consideration by the court is the
delay in concluding the trial. Often this
takes several years, and if the accused is
denied bail but is ultimately acquitted, who
will restore so many years of his life spent
in
custody?
Is
Article
21
of
the
Constitution, which is the most basic of all
the fundamental rights in our Constitution,
not violated in such a case? Of course this
is not the only factor, but it is certainly one
of the important factors in deciding
whether to grant bail. In the present case
the respondent has already spent 66 days in
custody (as stated in Para 2 of his counteraffidavit), and we see no reason why he
should
be
denied
bail.
A
doctor
incarcerated for a long period may end up
like Dr. Manette in Charles Dickens's novel
A Tale of Two Cities, who forgot his
profession and even his name in the
Bastille."

"46. We are conscious of the fact that
the accused are charged with economic
offences of huge magnitude. We are also
conscious of the fact that the offences
alleged, if proved, may jeopardise the
economy of the country. At the same time,
we cannot lose sight of the fact that the
investigating agency has already completed
investigation and the charge-sheet is
already filed before the Special Judge, CBI,
New Delhi. Therefore, their presence in the
custody may not be necessary for further
investigation. We are of the view that the
appellants are entitled to the grant of bail
pending trial on stringent conditions in
order to ally the apprehension expressed by
CBI."

28. Recently, Hon'ble the Supreme
Court in Criminal Appeal No.742 of 2020
(Arnab Manoranjan Goswami v. State of
Maharashtra and others) has held as
follows:-

"63. More than four decades ago, in a
celebrated judgment in State of Rajasthan,
Jaipur v. Balchand [(1977) 4 SCC 308],
Justice Krishna Iyer pithily reminded us
that the basic rule of our criminal justice
system is ''bail, not jail''. The High Courts
and Courts in the district judiciary of India
must enforce this principle in practice, and
not forego that duty, leaving this Court to
intervene at all times. We must in
particular also emphasise the role of the
district judiciary, which provides the first
point of interface to the citizen. Our district
judiciary is wrongly referred to as the
''subordinate
judiciary'.
It
may
be
subordinate in hierarchy but it is not
subordinate in terms of its importance in
the lives of citizens or in terms of the duty
to render justice to them. High Courts get
burdened when courts of first instance
decline to grant anticipatory bail or bail in
1 All. Rajiv Pratap Singh Vs. C.B.I.
491
deserving cases. This continues in the
Supreme Court as well, when High Courts
do not grant bail or anticipatory bail in
cases falling within the parameters of the
law. The consequence for those who suffer
incarceration are serious. Common citizens
without the means or resources to move the
High Courts or this Court languish as
undertrials. Courts must be alive to the
situation as it prevails on the ground - in
the jails and police stations where human
dignity has no protector. As judges, we
would do well to remind ourselves that it is
through the instrumentality of bail that our
criminal
justice
system's
primordial
interest in preserving the presumption of
innocence
finds
its
most
eloquent
expression. The remedy of bail is the
"solemn expression of the humaneness of
the justice system". Tasked as we are with
the primary responsibility of preserving the
liberty
of
all
citizens,
we
cannot
countenance an approach that has the
consequence of applying this basic rule in
an inverted form. We have given expression
to our anguish in a case where a citizen has
approached this court. We have done so in
order to reiterate principles which must
govern countless other faces whose voices
should not go unheard."

"65.............................Every court in
our country would do well to remember
Lord Denning's powerful invocation in the
first Hamlyn Lecture, titled ''Freedom
under the Law':

"Whenever one of the judges takes
seat, there is one application which by long
tradition has priority over all others. The
counsel has but to say, ''My Lord, I have an
application which concerns the liberty of
the subject', and forthwith the judge will
put all other matters aside and hear it. ..."

It is our earnest hope that our courts
will exhibit acute awareness to the need to
expand the footprint of liberty and use our
approach as a decision-making yardstick
for future cases involving the grant of bail."

29. Hon'ble the Supreme Court in
Ankita Kailash Khandelwal and others
v. State of Maharashtra and others
reported in (2020) 10 SCC 670 has held
as follows :-

"23.1. In Sumit Mehta v. State (NCT of
Delhi) [Sumit Mehta v. State (NCT of
Delhi), (2013) 15 SCC 570 : (2014) 6 SCC
(Cri) 560] , it was observed: (SCC pp. 57576, paras 11-15)"

"11. While exercising power under
Section 438 of the Code, the court is dutybound to strike a balance between the
individual's right to personal freedom and
the right of investigation of the police. For
the same, while granting relief under
Section 438(1), appropriate conditions can
be imposed under Section 438(2) so as to
ensure an uninterrupted investigation. The
object of putting such conditions should be
to avoid the possibility of the person
hampering the investigation. Thus, any
condition, which has no reference to the
fairness or propriety of the investigation or
trial,
cannot
be
countenanced
as
permissible
under
the
law.
So,
the
discretion of the court while imposing
conditions must be exercised with utmost
restraint."

"12. The law presumes an accused to
be innocent till his guilt is proved. As a
presumably innocent person, he is entitled
to all the fundamental rights including the
right to liberty guaranteed under Article 21
of the Constitution."

30.

Keeping
the
aforesaid
enunciations by Hon'ble the Supreme Court
in mind and upon a perusal of the material
on record, it is apparent that without the
production of relvant witnesses against the
492 INDIAN LAW REPORTS ALLAHABAD SERIES
applicant even after seven long years, the
charges levelled against the applicant at
this stage, at best, are merely charges
without any prima facie evidence being
produced by the CBI It is also relevant that
apprehension
against
applicant
of
influencing witnesses and tampering with
evidence is also not borne out by any
evidence on record. Even with regard to
such apprehensions, Hon'ble the Supreme
Court
in
Ankita
Kailash
Khandelwal(supra) has already held that
adequate safeguards can be put in place
while granting bail to an undertrial. As has
been held in Sanjay Chandra(supra), we
cannot lose sight of the fact that the
investigating agency has already completed
investigation and charge sheet has already
been filed before the trial court, therefore
presence of accused in custody may not be
necessary for further investigation. It is also
not the case of CBI that the applicant is
required to be in custody for any other
investigational purposes.

31. In view of aforesaid, this Court is
of the considered opinion that the applicant
is liable to be enlarged on bail pending
trial.

32. Accordingly the third bail
application is allowed.

33. Let applicant Rajiv Pratap Singh
(Raju Singh), involved in the 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 subject to the following
conditions:-

(a) The applicant shall not directly or
indirectly make any inducement, threat or
promise to any person acquainted with the
facts of the case so as to dissuade him to
disclose such facts to the Court or to any
other authority.

(b) He shall remain present before the
court on the dates fixed for hearing of the
case. If he wants to remain absent, then he
shall take prior permission of the court and
in case of unavoidable circumstances for
remaining absent, he shall immediately
give intimation to the appropriate court and
also to the Superintendent, CBI and request
that he may be permitted to be present
through the counsel.