The Allahabad High Court has recently granted bail to a murder accused who had been imprisoned for more than seven-and-a-half years, without production of any material witness or evidence against him.
A single-judge bench of Justice Manish Mathur passed this order while hearing a Bail Application filed by Rajiv Pratap Singh. The third bail application of Rajiv Pratap 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/ SC-1/ New Delhi, District Pratapgarh.
The first bail application of the applicant herein was rejected on merits and the second bail plea was rejected with directions to the CBI court to conclude the trial expeditiously.
In pursuance to directions issued by this Court earlier, the CBI Court, Lucknow has furnished a status report on December 4, 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 the start of the trial from 2013.
In the instant, third bail application, it was argued that only 16 of 80 prosecution witnesses had been examined. Of these, two proposed witnesses claimed to be against the applicant were not produced and there was no indication in CBI’s counter-affidavit as to when they will appear.
As such, it is submitted the applicant cannot be kept incarcerated for such a long time for no fault on his part.
The State Government opposed the bail application, and submitted that bail cannot be granted merely on the ground of long detention or that the trial of the case had not progressed.
It referred to the Supreme Court‘s decision in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav & Anr., (2004) 7 SCC 528, where while setting aside an order of the High Court allowing fifth application for grant of bail, it was held:
“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.”
“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,”
-observed the High Court while allowing third bail application of the accused.
“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,”
-the Court said.
The Court noted that not even 1/4th of witnesses in this case had been produced during the trial.
It is also a relevant fact that subsequent to an order on August 9, 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 March 4, 2013, i.e. more than seven and a half years.
The Court stated that the aforesaid factor clearly indicates the changed circumstances between rejection of the second bail application till today. Counsel for applicant therefore appears 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.
The High Court for allowing the bail Application are listed as follows:
Although in the FIR, allegation against applicant is of firing upon the deceased but in the counter affidavit filed by the CBI, the role of applicant has been limited to providing information of whereabouts of deceased to the actual killers.
Aforesaid charges against the applicant have been sought to be proved by the CBI upon testimony of one Nitish Shukla and one other person, although the said other person remains unnamed. 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.
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,” the Court observed while allowing the bail Application.
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.
The applicant, Rajiv Pratap 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:‐
1‐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.
2‐ He shall surrender his passport, if any (if not already surrendered), and in case, he is not a holder of the same, he shall swear to an affidavit of the said fact, to be produced before the trial Court. If he has already surrendered it before the learned Special Judge, CBI, that fact should also be supported by an affidavit.
3‐ It will be open to CBI to make an appropriate application for modification/recalling the order passed by this Court if, for any reason, the applicant violates any of the conditions imposed by this Court.