The Allahabad High Court has granted bail to former MLC Brijesh Singh alias Arun Kumar Singh, accused of conspiracy to murder and murderous attack on former MLA Mukhtar Ansari.
A Single Bench of Justice Arvind Kumar Mishra passed this order while hearing a Criminal Misc Bail Application filed by Brijesh Kumar Singh alias Arun Kumar Singh.
This is the Second Criminal Miscellaneous Bail Application of the applicant- Brijesh Kumar Singh @ Arun Kumar Singh. The First Bail Application was rejected by the coordinate Bench of the Court on 18.11.2020.
Consequently, the applicant seeks second bail in Case under Sections 147, 148, 149, 302, 307, 427, 120-B IPC and Section 7 Criminal Law Amendment Act, Police Station Mohamdabad, District- Ghazipur.
Urge made on behalf of the applicant is to the ambit that the description contained in the First Information Report is indicative of fact that in the case, the FIR was lodged on 15.07.2001 around 6.35 P.M whereby accusation was made against the applicant and several others that the applicant and the other co- accused after hiding themselves in a truck suddenly opened fire on the informant side due to which one person on the accused/applicant side sustained injury and fell down.
In the assault caused by the accused-applicant, the informant, his bodyguard Ram Chandra Rai and informant’s younger brother Gaus Mohiuddin @ Tannu and Sarfraj Ansari @ Munni and driver of the informant Ramesh and the driver of the other vehicle Surendra, Sahid, Israil and Ayaz and several others sustained injuries. The FIR proceeds to say that the body-guard of the informant died while on way to hospital. This occurrence was seen by the informant along with various other persons. However, the miscreants after opening indiscriminate firing fled away from the scene of the occurrence (which took place on 15.07.2001 at 12.30 P.M.)
Counsel brought to the notice of the Court fact that at the time of consideration of first bail application it was observed by coordinate Bench of this Court that trial court may resort to all possible means to record statement of material witnesses for which it may adopt the alternative mode of recording evidence as has been stated in the body of that order (dated 18.11.2020) and should try to conclude the trial within the stipulated period of one year.
However, in spite of an order passed by the coordinate Bench of the Court, only one prosecution witness- say- Dr Om Prakash Singh has been examined by the trial court and his examination was completed on 01.11.2021. Obviously, upto this period after a 9 months period, no material witness was examined by the trial court, which is a pathetic situation working adversely to the accused.
Next contended that the criminal history of the applicant has been reasonably explained in the affidavit filed in support of the bail application to the import that applicant carries criminal history of nineteen cases including the present one, out of which the applicant has been acquitted or discharged in 15 cases and in rest of the three cases he is on bail, and the 19th case is the present one.
Counsel for the applicant said that the applicant is languishing in jail since 11.12.2009 whereas more than 12 years has already been elapsed, therefore, in view of principles laid down by the Supreme Court in Criminal Appeal No 308/2022 arising out of SLP (Crl) No 4633 of 2021 in Saudan Singh Vs State of UP in the order dated 25th February, 2022, the applicant is entitled to be released on bail as the possibility of concluding the trial is not within sight in the near future. He further claimed that fair and speedy trial is the fundamental right of the accused. The applicant promises that he will never indulge in tampering evidence.
Counsel for the applicant further said that one of the co- accused Anil has already been admitted to bail in the case, whose role on the point of occurrence is at par qua the applicant. Therefore, the applicant may be released on bail.
Upendra Upadhyay assisted by Ajay Srivastava, Mohd Farooq, Ajay Srivastava, counsel for the informant and Ratnendu Singh retorted to be aforesaid argument by submitting that the grounds urged in support of Second Bail Application by itself indicate that there is no material existing in favour of the applicant which may connote to his false implication in this case. The trial Judge did his best to expedite the proceeding of the trial but because of the circumstances beyond his control, the trial could not be concluded within the stipulated time as directed/observed in the order of the first bail application of the applicant dated 18.11.2020. No doubt, the period of incarceration has been considerably exceeding beyond 12 years but looking at the nature of the offence, the applicant does not deserve to be enlarged on bail. Applicant has criminal history of 41 cases.
The Court noted that, in the case, the applicant has been in jail since 11.12.2009 and the charge was framed in the year 2013. At the time of consideration of the first bail application which was rejected on 18.11.2020, the trial court was directed by the Court to conclude the trial after recording testimony of the material witnesses within one year. The order dated 18.11.2020 passed by the Court rejecting the first bail application was presented in the trial court on 20th November, 2020. In spite of it, the trial court could not record testimony of material witnesses within the stipulated period. Obviously, the applicant was detained in the case on 11.12.2009 and the charge was framed on 11.01.2013. It is beyond imagination as to how the evidence of the material prosecution witnesses could be recorded so far. Only one formal witness who is a doctor has been examined as Dr Om Prakash Singh by 01.11.2021 by the trial court.
The Court held that,
However, in the order dated 25th February, 2022 of the Supreme Court in Criminal Appeal No 308/2022 arising out of SLP (Crl) No 4633 of 2021 in Saudan Singh Vs State of U.P the mandate has been given by the Apex Court regarding consideration of bail applications and in those matters where the convict/accused who have suffered imprisonment for over 10 years or 12 years have been given priority for being admitted to bail on ground that the jails are over flood by the prisoners and no useful purpose would be served if the applicant is kept behind the bars when the possibility of the case being decided in the near future is bleak. Here a moot point arises whether the applicant should suffer for the laxity of the prosecution and that way, principles laid down in the case of Saudan Singh (supra) are squarely applicable in the case. Reasonable chance was given to the prosecution to speed up the trial but the prosecution could not get its material witnesses examined before the trial court despite time being granted while the first bail application was considered by the Coordinate Bench of the Court. If the proceedings of the trial court are going on in the manner like the present one, it is beyond comprehension as to when the proceeding of the trial shall be concluded?
In so far as the manner of causing injury on the informant side by the alleged act of all the three accused named in the FIR is concerned, one of the co- accused Anil has already been admitted to bail vide bail order passed by the coordinate Bench of the Court dated 01.05.2002, copy whereof has been annexed to the affidavit. However, the case of the applicant is distinguishable on the ground of criminal history of the applicant.
“Apart from that, speedy trial is a vested right and works in favour of the accused. If there is violation of speedy trial of an accused, it would not debar the accused from obtaining appropriate remedy. Even the principles laid down by the Apex Court in the case of Hussainara Khatoon and others vs Home Secretary, State of Bihar, 1979 AIR 1369, 1979 SCR (3) 532 are helpful to the applicant as the right of speedy trial is the fundamental right of an accused because denial of right of speedy trial erodes spirit and essence of Articles 14 and 21 of the Constitution of India.
Considering the attendant facts and circumstances of the case and severity of the accusation and keeping in mind the principles laid down in the case of Saudan Singh (supra) good ground is made out for bail”, the Court observed.
The Court ordered that,
Let the applicant- Brijesh Kumar Singh @ Arun Kumar Singh, involved in Case under Sections 147, 148, 149, 302, 307, 427, 120-B IPC and Section 7 Criminal Law Amendment Act, Police Station- Mohamdabad, District- Ghazipur, be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-
(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 81, 82 CrPC be issued and the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.