Vaibhav Maheshwari vs State of U.P.

Shri Kant Tripathi, J.—This is the third bail application moved by the applicant Vaibhav Maheshwari. The first bail application No. 13234 of 2004 and the second bail application No. 22596 of 2005 were rejected on merit by Hon''ble M.K. Mittal, J., who has since retired.

Heard Mr. D.S. Mishra, the learned Counsel appearing for the applicant and Sri Rajesh Pathik, the learned Counsel for the complainant and the learned AGA for the State and perused the record.

Shri D.S. Mishra, the learned Counsel submitted that the third bail application has been moved only on the sole ground of delay in the disposal of the sessions trial. According to the learned Counsel, the applicant is in jail from 15.4.2004 and more than five years have elapsed but the trial has yet not concluded. The applicant can not be kept in jail for an indefinite period at the mercy of the prosecution. It may not be out of context to mention that the second bail application was also pressed on the ground of delay in the disposal of the trial but the same was not accepted. It may also be mentioned that the trial was earlier pending in the district Moradabad but one of the accused Pradeep filed an application before this Court for transfer of the trial to J.P. Nagar as the trial in the sessions division Moradabad was being held without jurisdiction. This Court transferred the sessions trial from the district Moradabad to district J.P. Nagar vide the order dated 7.11.2005 and also directed for a denovo trial. It is also relevant to mention that certain witnesses had been examined in the concerned Sessions Court of Moradabad but the proceedings done in the sessions court Moradabad were found without jurisdiction and due to that a denovo trial was directed to be held while passing the order for transfer of the sessions trial to J.P. Nagar. After the transfer order was passed, an application for deleting the denovo trial from the transfer order was moved but the same was rejected on 12.1.2006. Against that order a SLP was filed in the Supreme Court and the proceedings of the sessions trial were stayed in the special leave petition, which was ultimately decided on 12.2.2007 by the Hon''ble Apex Court. In view of these factual aspects of the matter, the delay up to 12.2.2007 stands explained.

According to the progress report submitted by the concerned Sessions Judge and the copies of the order sheet filed with the supplementary affidavit, the prosecution evidence concluded on 17.9.2008, accused persons were examined u/s 313 Cr.P.C. on 24.9.2008 and the defence evidence concluded on 13.10.2008. The trial remained pending for arguments from 16.10.2008 and ultimately arguments concluded on 19.2.2009 and the matter was fixed on 5.3.2009 for judgment but the judgment could not be delivered due to the reason that the applicant and the co-accused Nirpendra moved an application u/s 311 Cr.P.C. on 26.2.2009 prior to the judgment for summoning certain witnesses. If the applicant and the co-accused Nirpendra had not moved any application u/s 311 Cr.P.C., the concerned Additional Sessions Judge would have decided the case in the month of March 2009, because the arguments had concluded on 19.2.2009.

The learned Counsel appearing for the applicant, however, submitted that the learned trial court has adopted dilatory tactics in disposing of the application u/s 311 Cr.P.C. It may be mentioned in this regard that the application u/s 311 Cr.P.C. was moved on 26.2.2009 and the trial court directed that the same be put up for disposal on the date already fixed but no proceeding was done on the next date i.e. 5.3.2009 due to lawyers'' strike, consequently, 19.3.2009 was fixed for disposal of the application, which was disposed of on that date. The trial court rejected the application stating that the application was not filed by any authorised advocate, but however, the applicant and co-accused Nirpendra were permitted to file a fresh application, and accordingly, they moved the second application u/s 311 Cr.P.C. on 28.3.2009, which was directed to be put up on 9.4.2009, being the next date already fixed in the case. The learned trial court instead of disposing of the application on 9.4.2009, obtained objection of the prosecution and fixed 20.4.2009 for disposal. None appeared for the applicant and the co-accused for pressing the application on 20.4.2009, consequently, 27.5.2009 was fixed, and on that date, the application was partly heard, and 9.6.2009 was fixed for further hearing, but also on 9.6.2009, none appeared for the applicant and the co-accused Nirpendra, to press the application. The Presiding Officer, then fixed 23.6.2009 for hearing on the application. It is, therefore, clear that the applicant and the co-accused persons avoided hearing on the application moved u/s 311 Cr.P.C. on 20.4.2009 and 9.6.2009. In view of these factual aspects of the matter it can not be contended that the learned Presiding Officer was in any way responsible for delaying the trial.

The learned Counsel further submitted that this Court, while disposing of the bail application of the co-accused Nirpendra, had directed the court concerned to dispose of the same expeditiously within a period of six months from the date of the receipt of the certified copy of the order. The learned Counsel further submitted that the trial court was directed to hold the trial, keeping in view the provisions of Section 309 Cr.P.C., which provides that the trial must be held from day to day basis. In my opinion, this Court had not fixed any outer limit for disposal of the trial. It had merely directed the trial court to make endeavour to dispose of the case expeditiously within six months. That direction was given on 1.2.2005 but the proceedings remained stayed up to 11.5.2007 under the stay order granted by the Apex Court. In view of this peculiar situation of the case, the trial court can not be blamed for flouting the order dated 1.2.2005 of this Court. It may also be mentioned that after vacation of the stay order, the trial court not only framed necessary charges against the accused persons but also recorded the statements of the prosecution witnesses, the accused and even heard arguments and fixed the case for judgment but the same could not be delivered due to the application moved by the applicant and the co-accused Nirpendra u/s 311 Cr.P.C. As such the applicant can not be permitted to take any advantage of the bail order dated 1.2.2005 passed on the bail application of the co-accused Nirpendra.

It is true that speedy trial is a fundamental right implicit in the spectrum of Article 21 of the Constitution and is one of the facets of the fundamental right to life and liberty enshrined in Article 21 of the Constitution. This principle was propounded in the case of Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, and several other cases. In Hussainara''s case, it was held that speedy trial is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21 of the Constitution. This principle has been propounded in several other cases including the cases of Kartar Singh v. State of Punjab (1994) 3 SCC (Cri.)899 , Surinder Singh @ Shingara Singh Vs. State of Punjab, and Moti Lal Saraf v. State of J & K and Anr. (2007) 1 SCC (Cri) 180.

It is also well settled that the right of speedy trial is no doubt an integral and essential part of the fundamental right to life and liberty enshrined in Article 21 of the Constitution of India but only on account of the delay in the disposal of the trial, release of the accused on bail in a heinous crime in the commission of which, he played the main role, is not proper unless there is overwhelming material to show that the delay is inordinate and unreasonable and occurred due to the laches and slackness attributable exclusively on the part of the prosecution. There may be variety of reasons for delay in the disposal of cases and some of the reasons may be due to heavy dockets, lack of proper infrastructure and other facilities in courts, dilatory tactics adopted by the complainant and the accused and the slackness of the prosecution.

In the case of Rajesh Ranjan Yadav @ Pappu Yadav Vs. CBI through its Director, the Supreme Court has held that Article 21 of the Constitution is of great importance because it enshrines the fundamental right to individual liberty, but at the same time a balance has to be struck between the right to individual liberty and the interest of society. No right can be absolute, and reasonable restrictions can be placed on them. While it is true that one of the considerations in deciding whether to grant bail to an accused or not is whether he has been in jail for a long time, the court has also to take into consideration other facts and circumstances, such as the interest of the society. In the case of Rajesh Ranjan Yadav (supra) the prosecution witnesses had been examined and the case was pending for defence evidence. The Supreme Court expressed the view that it would be wholly inappropriate to grant bail when not only the investigation is over but even the trial is partly over, and the allegations against the appellant were serious. The case of Rajesh Ranjan Yadav (supra) was a case of bail on the ground of delay but the Supreme Court refused the bail on the ground of gravity of the crime, larger interest of the society and the prosecution witnesses had already been examined.

In the present case, the evidence of the parties has already concluded and the trial reached up to the stage of the judgment but the same could not be delivered on account of an application moved by the applicant and the co-accused Nirpendra u/s 311 Cr.P.C. In view of the peculiar facts and circumstances of this case, it is not proper to enlarge the applicant on bail, specially when he happens to be the main accused and serious nature of allegations have been made against him.

The learned Counsel appearing for the applicant laid much stress on the fact that there is no apprehension of tampering with the witnesses because all the prosecution witnesses have already been examined and bail should be granted to the applicant. It is now well settled that bail may be refused in a case where it is shown that there is reasonable apprehension of tampering with the prosecution evidence, but there may be cases where there is no such allegation or apprehension, even then, the bail is ordinarily refused if the nature of accusation is serious and the accused had the main complicity in the commission of the crime. I, therefore, do not consider it proper to enlarge the applicant on bail, particularly when a very serious nature of accusation has been made against the applicant and he happens to be one of the main accused.

Keeping in view the facts and circumstances of the case and the submissions of the learned Counsel appearing for the applicant, nature of accusation and evidence, I do not consider it proper to enlarge the applicant on bail. The third bail application is, therefore, rejected.

The trial court is, however, directed to conclude the trial expeditiously and if impracticable, by holding the trial on day to day basis in terms of Section 309 Cr.P.C.