Sunday, May 22, 2022

Allahabad High Court grants conditional bail to an undertrial who is in jail for 11 years

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The Allahabad High Court has granted conditional bail to an undertrial prisoner who has been in jail for more than 11 years.

A Single Bench of Justice Saurabh Shyam Shamshery passed this order while hearing a Criminal Misc Bail Application filed by Akhilesh.

The Applicant-Akhilesh, has approached the High Court by way of filing the Criminal Misc Bail Application under Section 439 Cr.P.C after rejection of his Bail Application vide order dated 27.07.2021, passed by Additional Sessions Judge, Jalaun at Orai, in Session Trial Case Crime under Sections 147, 148, 149, 307, 304 IPC, Police Station Kotwali Orai, District Jalaun.

It is a case where an undertrial (Applicant-Akhilesh) is confined to jail for last 11 years, 5 months and 9 days, as on 09.04.2022, that while he was in jail, in another case, though he was not named in the FIR but later on his name was added on the basis of statement of witnesses recorded during investigation, that applicant allegedly alongwith other named accused, which includes jail officers also, involved in an offence where two accused persons died within the premises of jail.

The relevant facts are that despite various orders passed by High Court and Supreme Court to provide legal assistance to the undertrials for the purpose of filing bail application and for other remedy, however, no assistance was reached to the applicant, who filed his first bail application in the year 2021, i.e, after about more than 10 years, which was rejected by the Trial Court.

Certain relevant facts and factors were not taken note by the Trial Court, which are that out of 13 named accused, nine have already been granted bail either by Trial Court or by the Court. The latest being the case of co-accused, Ram Narayan, who has been granted bail by the Court order dated 15.12.2021 passed in Criminal Misc Bail Application though some of the accused were granted bail in the year 2012 also.

The High Court has called a report from the Jailer concerned, whether any endeavour was taken to convey the applicant about his rights and the schemes and directions passed by the Court and Apex Court in this regard. However, the report submitted by the Jail Superintendent dated 09.04.2022 is silent in this regard, except the fact that the applicant is in jail for more than 11 years.

The Court noted that there is another factor which is relevant for consideration of this bail application. It has been informed that testimony of 5-6 witnesses have already been recorded. However, it has been informed by K.P Pathak, A.G.A that the proposed prosecution witnesses are 63 including formal witnesses. Despite the direction of the Court no order sheet has been filed by the Trial Court. The applicant and other co-accused have been facing trial since 2012 and after a decade it has not reached its logical conclusion, despite the direction of the Court to expedite the trial.

It is also submitted by counsel for the applicant that the applicant was convicted in a criminal case and appeal thereof is pending, however, till date application for suspension of sentence is not considered in appeal.

“Case, such in hand, is also a glaring example where the role of the Lawyers fraternity comes into light being torch bearer of the society. Young lawyers are advised to come forward and take up the cases of such persons who have not been able to come up before this Court due to lack of knowledge of legal provisions as well as due to their adverse pecuniary position. State Authorities are also directed to look into the matter and pass positive direction to Jail Authorities to not only convey undertrial prisoners or the convicted persons about their legal rights but also come forward and help the accused persons, such as the applicant in the case. Justice delayed is justice denied as well as right to free legal aid and speedy trial are rights provided under Article 21 of the Constitution. Overcrowding in jail is also a matter of concern”, the Court said.

In view of above observations and considering that applicant is in jail for more than 11 years and six months, a case of bail is made out, the Court observed.

The Court ordered that,

Let the applicant-Akhilesh be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the Court concerned with the following conditions which are being imposed in the interest of justice:-

(i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.

(ii) The applicant will abide by the orders of Court, will attend the Court on every date and will not delay the disposal of trial in any manner whatsoever.

(iii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date 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.

(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C., may be issued and if applicant fails to appear before the Court on the date fixed in such proclamation, then, the Trial Court shall initiate proceedings against him, in accordance with law, under section 174-A I.P.C.

(v) The applicant shall remain present, in person, before the Trial Court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under Section 313 Cr.P.C. If in the opinion of the Trial Court absence of the applicant 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 him in accordance with law and the Trial Court may proceed against him under Section 229-A IPC.

(vi) The Trial Court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.

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