Ashok Yadav vs State of U.P.

Naheed Ara Moonis, J.—Heard K.N. Tripathi, Senior Advocate, Sri G.S. Chaturvedi, Senior Advocate assisted by Sri Sushil Shukla learned Counsel for the applicant, Sri Ravi Kiran Jain Senior Advocate assisted by Sri Swetash Agarwal learned Counsel for the complainant and learned AGA and have taken through the record.

The first bail application filed on behalf of the applicant was rejected by this Bench vide order dated 26.11.2010. Now the second bail application has been filed on behalf of the applicant Ashok Yadav in Case Crime No. 149 of 2008 under Sections 420/406/506 IPC Police Station sector 39 NOIDA District Gautam Budha Nagar.

In a short conspectus the genesis of the prosecution case is that a first information report was lodged by Raj Kishore Verma on 13.3.2008 with regard to cheating and fraud played by the applicant whereby the complainant was duped to the tune of Rs. 5.00 crores. The details of the case can be gathered from the earlier order and need not be repeated.

Learned Counsel for the applicant had advanced arguments touching the merits of the case which had been raised earlier. The ground now taken for granting the bail is the provisions contained in Sub-section (6) of Section 437 Code of Criminal Procedure which runs as follows:

437(6) If in any case, triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.

It is submitted by the learned Counsel for the applicant that the applicant has been continuously in jail since 8.3.2010 and after submission of the charge sheet, the Court below had fixed for taking prosecution evidence on 5.1.2011 and since then up till now i.e. 6.3.2011, sixty drays had passed away but the trial of the applicant has not been concluded. Therefore, in view of the provisions of Section 437(6) Code of Criminal Procedure the applicant is entitled to be released on bail. In this regard an application was moved before the Additional Chief Judicial Magistrate (Ist) but the Additional Chief Judicial Magistrate (Ist) had rejected the bail application of the applicant illegally. The order passed by the Additional Chief Judicial Magistrate was challenged before the Court of Sessions Gautam Budh Nagar stating that the applicant had statutory right to be enlarged on bail in case the trial is not concluded within sixty days from the first date of recording of evidence fixed by the trial Court but the Sessions Judge illegally rejected the application of the applicant ignoring the provisions of law enshrined in Section 437(6) Code of Criminal Procedure.

Learned Counsel for the applicant has drawn attention of this Court with regard to the provisions of Section 437(6) Code of Criminal Procedure and stressed that the applicant is participating in the trial and had never sought any adjournment. The applicant was appearing on each and every date and the complainant was seeking adjournments to protract the trial and the trial Court has not granted bail to the applicant without any fault on the part of the applicant. In support of his contention, the learned Counsel has placed reliance upon the judgment of the Hon''ble Apex Court in Chandraswami v. Central Bureau of Investigation, 1996 (6) SCC 751

Learned Counsel for the applicant has placed reliance upon a judgment of this Court in the Case of Ram Gopal Pathak v. State (LX) 2008 A.C.C. 862 wherein considering the scope of Section 437(6) Code of Criminal Procedure it was observed that in case more than sixty days have elapsed after the commencement of trial, the offence is triable by a Magistrate, the applicant remained continuously in custody for more than sixty days, the applicant would be entitled for bail in view of the provisions contained in Section 437(6) Code of Criminal Procedure.

Another submission of learned Counsel for the applicant is that witnesses of fact have already been examined. The vital evidence has already been recorded, there is no chance of tampering with the evidence or intimidating the witnesses. The applicant is languishing in jail since long time therefore, the liberty of the applicant cannot be abridged indefinitely. It would amount to physical restraint of a person by incarceration at pre-trial stage. There is imminent danger of loss of life of the accused who is suffering from such a chronic disease of which there is no medical facility inside the jail.

Learned Counsel for the complainant strongly opposed the bail prayer of the applicant and contended that the first bail application of the applicant was rejected by this Court after elaborate discussions on merit. During investigation, the applicant had not co-operated with the investigation. The applicant remained absconding for a long period on account of which proceedings u/s 82/83 Code of Criminal Procedure were initiated against him. In the second bail application no new ground has been canvassed by the applicant except laying assertion on Section 437(6) Code of Criminal Procedure. The said provision is not at all mandatory rather it is discretionary. No Court can be forced to grant bail invoking the provisions of Section 437(6) Code of Criminal Procedure such power is exercised by the Court looking in entirety the facts and circumstances of the case as well as the consequence of granting the bail. The applicant had approached the Court below by invoking the jurisdiction u/s 437(6) Code of Criminal Procedure. The trial Court as well as Sessions Court had rightly rejected the bail of the applicant taking into accounts that the bail application was already rejected on merits by the Hon''ble High Court therefore, the Court below had not committed any error in rejecting the application of the applicant. The trial has commenced and in case the applicant is released on bail, he will try to abscond or protract the trial by adopting unfair or foul means.

The applicant is wanted in as many as eight criminal cases. The complainant was also threatened to his life at the instance of the applicant. The complainant had filed an application before this Court praying for providing security for the protection of his life and property. The applicant had exerted his influence while he was confined in jail by availing the facilities of M.M.G District Hospital Ghaziabad for more than four months without any serious ailment. No benefit can be extended to the applicant to be released on bail on the ground of Section 437(6) Code of Criminal Procedure.

Learned AGA has also vehemently opposed the bail prayer of the applicant and submitted that the applicant cannot get the benefit of Section 437(6) Code of Criminal Procedure. The applicant is involved in a serious offence of fraud and cheating. The applicant is wanted in a number of cases. The trial has already commenced and some witnesses of fact has also been examined. There is great likelihood that in case the applicant is released on bail, he will misuse the liberty of bail by intimidating and threatening the witnesses which can again culminate into gruesome incident and the progress of the trial would be badly shaken.

I have heard the arguments advanced across the bar.

The first question for consideration is that the first bail application of the applicant was rejected on merit whether the second bail application on the grounds which were available at the time of dismissal of first bail application is maintainable? The trial has commenced and the witnesses of fact have been examined any comment or opinion on merits regarding their statement would prejudice the trial. This Court is conscious of the fact that those grounds which were advanced at the time of the hearing of the first bail application cannot be considered again. The Full Bench decision of this Court in the case of Satyapal v. State of U.P. (XXXVII) 1981 A.C.C. 287 and the observation made by the Apex Court in Kalyan Chandra Sarkar v. Rakesh alias Pappu Yadav (LI) 2007 A.C.C. 727 that second bail application on the same grounds which were canvassed at the time of moving of first bail application would not be maintainable. The second or subsequent bail application can be filed on fresh grounds or in the changed circumstances of law.

In the matter of Katyan Chandra Sarkar etc. v. Rajesh Ranjan @ Pappu Yadav and Anr. (LI) 2005 A.C.C. 727 following observations made by Hon''ble Apex Court in para 19 and 20 of the report are worth mentioning:

The principle of res judica and such analogous principles although are not applicable in a criminal proceedings, still the Courts are bound by the doctrine of judicial discipline having regard to the hierarchical system prevailing in our country. The findings of a higher Court or a co-ordinate Bench must receive serious consideration at the hands of the Court entertaining a bail application at a larger stage when the same had been rejected earlier. In such an event, the Courts must give due weight to the grounds which weighed with the former or higher Court in rejecting the bail application. Ordinarily, the issues which had been canvassed earlier would not be permitted to be re-agitated on the same grounds, as the same would lead to a speculation and uncertainty in the administration of justice and may lead to forum hunting.

The decisions given by a superior forum, undoubtedly, is binding on the subordinate for a on the same issue even in bail matters unless of course, there is a material change in the fact situation calling, for a different view being taken. Therefore, even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application. Therefore, we are not in agreement with the argument of learned Counsel for the accused that in view the guaranty conferred on a person under Article 21 of the Constitution of India, it is open to the aggrieved person to make successive bail applications even on a ground already rejected by Courts earlier including the Apex Court of the Court.

So far as the grant of bail u/s 437(6) Code of Criminal Procedure is concerned, it is not mandatory or obligatory on the part of the Magistrate that on the completion of the period of sixty days from the first date fixed for taking the evidence and in case the period of sixty days are over, the applicant must be released on bail. The exercise of powers u/s 437(6) Code of Criminal Procedure cannot be done in a blind and mechanical manner ignoring the gravity of the offence. The trial Court had not committed any illegality or vulnerability in exercise of its power u/s 437(6) Code of Criminal Procedure by rejecting the bail of the applicant as the applicant is involved in a serious offence and the reasons given by the trial Court as well as Court of Sessions are well merited that after considering the case on merit, this Court had already rejected the bail application of the applicant therefore, no case for release u/s 437(6) Code of Criminal Procedure is made out. The learned Counsel for the applicant has referred to various cases in which bail were granted which were wholly under different circumstances. In Chandraswami v. Central Bureau of Investigation, 1996 (6) SCC 751 the bail was granted by the Apex Court on different set of facts and circumstances which does not have any connectivity with the present set of facts and also in Ram Gopal Pathak v. State of U.P. (LX) 2008 A.C.C.862, bail was granted to the applicant by another Bench in which on analytical examination the entire facts and circumstances of that case were altogether found distinct from the present set of facts and circumstances. In that case the first bail application was rejected by the Judicial Magistrate on 14.4.2007 on the ground that the offence appeared to be grave in nature. After framing of charge, the statement of the complainant was recorded but his cross examination deferred for several dates. After expiry of sixty days, the bail application was filed u/s 437(6) Code of Criminal Procedure the applicant was in jail since the submission of the charge sheet and the applicant was in custody which exceeded beyond the period of sixty days after the first date of evidence and the offence was triable by a Magistrate. The application was rejected. Second bail application was filed before the Sessions Judge which was also rejected against which the bail application was filed before this Court and the applicant was granted bail by giving the benefit of Section 437(6) Code of Criminal Procedure on the ground that both the Court had not given any specific reason. The facts of each and every case are quite distinct and where the offence is of a serious nature, the question of grant of bail has to be considered keeping in view the nature and the seriousness of the offence, character of the evidence and amongst other larger interest of the public. This does not mean or may have the impression that the case against the applicant has been pre-judged. Keeping in view the nature and gravity of the offence the long incarceration in jail would not be per se illegal. If the accused has committed offence he has to remain behind the bars. Such detention in jail as under trial prisoner would not be violative of Article 21 of the Constitution of India as has been held by the Apex Court in Pramod Kumar Saxena v. Union of India (LXIII) 2008 A.C.C. 115. This Court refrains itself from making any further observation as it would prejudice the trial. In the above conspectus this Court is not inclined to release the applicant on bail. The second bail application for the reasons aforementioned is hereby rejected.

However, looking to the facts and circumstances of the case in its entirety, it is directed that the trial Court will make its earnest endeavour to conclude the trial expeditiously if possible within six months in accordance with law without being influenced by the order of this Court. S.S.P. concern is directed to provide special messenger for procuring the attendance of the witnesses after obtaining their summons from the Court concern and the witnesses be produced in the trial without any delay. The office is directed to communicate the order to the Court concerned as well as S.S.P. concern forthwith.