Kallu alias Guru Dayal vs State of U.P.

Vijay Kumar Verma, J.—By means of this second bail application u/s 439 of the Code of Criminal Procedure, prayer for bail has been made on behalf of the applicant Kallu alias Guru Dayal in Case Crime No. 382 of 2007, under Sections 364A and 368, I.P.C., P.S. Bakewar, District Etawah.

The first bail application of the applicant bearing No. 21094 of 2008 was rejected on merit by Hon''ble S. S. Chauhan, J., vide order dated 11.12.2008.

An F.I.R. regarding kidnapping of Dilip Kumar was lodged by his father Surendra Kumar on 29.11.2007 at P.S. Bakewar, District Etawah, whereupon a case under Sections 364A and 368, I.P.C., was registered at Case Crime No. 382 of 2007 against unknown persons. The allegation against the applicant is that he and other co-accused persons kidnapped the son of complainant and demanded the ransom of rupees ten lacs for releasing him.

I have heard lengthy arguments of Shri J. S. Audichya, advocate, appearing for the applicant and learned A.G.A. for the State.

The main submission made by learned Counsel in support of the second bail application is that bail of the applicant in Case Crime No. 576 of 2007 has been granted by Sessions Judge/Special Judge (D.A.A.) Court No. 3, Firozabad, vide order dated 18.3.2008, passed in Bail Application No. 80 of 2008, in which the arrest of the applicant in police encounter on 24.12.2007 has been held doubtful and hence in present case also, the applicant deserves to be released on bail, because he has not been named in the F.I.R. and recovery of kidnapee Dilip Kumar from the applicant in police encounter on 24.12.2007 becomes doubtful. The contention of the learned Counsel was that in view of the finding recorded by Special Judge (D.A.A.), Firozabad, in the order dated 18.3.2008, entire case of the prosecution becomes false and hence the applicant deserves bail on the ground of parity of that order.

It was also submitted by learned Counsel that no ransom was exchanged and false story of demanding ransom has been concocted.

It was further submitted by learned Counsel for the applicant that one kidnapee Aakash is also alleged to have been recovered in the police encounter on 24.12.2007, but he has not supported the case of prosecution in his statement recorded as P.W. 1 in Special S. T. No. 73 of 2008 and hence on this ground also the applicant deserves to be released on bail, because the story of police encounter on 24.12.2007 and arrest of the applicant in that encounter becomes doubtful on the basis of the statement of another kidnapee Aakash also.

The bail application was opposed by learned A.G.A. contending that order dated 18.3.2008 passed by the Special Judge (D.A.A.), Firozabad is not binding on this Court and hence on the basis of that order, the applicant should not be released on bail in the second bail application.

It was also submitted by A.G.A. that order dated 18.3.2008 was available to the applicant at the time of disposal of his first bail application on 11.12.2008 and hence this ground cannot be taken now in this second bail application.

I have carefully gone through the entire case diary and other material on record. There is sufficient prima facie evidence to show the complicity of the applicant Kallu alias Guru Dayal in the incident of kidnapping of the son of the complainant. The statement of kidnapee Dilip Kumar was recorded during investigation on 26.1.2008. From the statement of kidnapee, the complicity of the applicant and other accused persons in the incident of kidnapping is prima facie established. There is sufficient evidence in the case diary to show that kadnapee Dilip Kumar was recovered from the possession of applicant and other co-accused persons in police encounter on 24.12.2007. In this context, statement of S.I. Ajay Pal Singh and other witnesses are relevant, which have been recorded during investigation. There is evidence of witnesses Rajendra Singh and Amar Singh against the applicant in the form of their statements recorded during investigation on 30.11.2007 and 1.12.2007 to show the complicity of the applicant in the incident of kidnapping of Dilip Kumar. Therefore, on the basis of the order dated 18.3.2008 passed by Special Judge (D.A.A.), Firozabad, on the bail application in Case Crime No. 576 of 2007, the applicant cannot be released on bail in present case of Crime No. 382 of 2007, in which there is sufficient evidence in the case diary to show his complicity in the incident of kidnapping.

Moreover, the plea of granting bail on the basis of the order dated 18.3.2008 could have been taken by the applicant in first bail application and since that ground was not taken in the first bail application, hence the said plea cannot be raised now in this second bail application. Reference in this context may be made to the case of Satya Pal v. State of U. P. XXXVII 1998 ACC 287: 1998 (2) ACR 1264, in which the Division Bench of this Court has held that second bail application on the grounds which were available at the time of dismissal of the first bail application is not legally maintainable.

It is true that one Aakash is also alleged to have been recovered in the police encounter on 24.12.2007 and it is also true that he has not supported the case of the prosecution about that police encounter and his recovery, but on the basis of the statement of that witness also, the applicant in present case cannot be released on bail, because kidnapee Dilip Kumar and other persons have to be examined in trial court.

In my considered opinion, on the basis of long incarceration in jail also, the applicant cannot be released on bail. In the context, reference may be made to the case of Pramod Kumar Saxena v. Union of India and others LXIII 2008 ACC 115: 2008 (3) ACR 3216 (SC), in which the Hon''ble Apex Court has held that mere long period of incarceration in jail would not be per se illegal. If the accused has committed offence, he has to remain behind bars. Such detention in jail even as an under-trial prisoner would not be violative of Article 21 of the Constitution.

Consequently, the second bail application of the applicant Kallu alias Guru Dayal is hereby rejected.

The trial court concerned is directed to conclude the trial of the applicant and other accused persons within a period of six months making sincere efforts and applying the provisions of Section 309, Cr. P.C.

S.S.P., Etawah is also directed to depute special messenger to procure the attendance of the witnesses after obtaining their summons from the trial court concerned and it must be ensured that witnesses in the sessions trial arising out of Case Crime No. 382 of 2007 of P. S. Bakewar, district Etawah are produced without causing any delay.

The office is directed to send a copy of this order within a week to the trial court concerned and S.S.P., Etawah for necessary action.