Vijay Kumar Jaiswal vs State of U.P.

Kalimullah Khan, J.—Heard Learned Counsel for the applicant, Learned Counsel for the complainant, learned A.G.A. for the State and perused the record. It is contended by Learned Counsel for the applicant that the latter is in jail since 23.7.2010, i.e., for more than 15 months. At present, he is lodged in jail under Sections 419, 420 and 471, I.P.C. under amended warrant of detention issued by learned Magistrate, vide his order dated 30.8.2011. The maximum punishment provided for these offences is up to seven years out of which offence under Sections 419 and 471, I.P.C. are bailable. His first bail application has been rejected on merits, vide order dated 24.1.2011, while he was detained in jail under Sections 419, 420, 467, 468 and 471, I.P.C. This is his second bail application read with supplementary-affidavit dated 10.10.2011. After having considered the police report, documents sent with it u/s 173, Cr. P.C., materials produced before him and providing opportunity of hearing to the parties, the Magistrate considered the charge against the applicant under Sections 467 and 468, I.P.C. groundless and, therefore, vide his speaking order dated 25.8.2011, passed u/s 239, Cr. P.C., he discharged the accused-applicant for reasons recorded. Shri Rakesh Srivastava ''Nyayik'' a stranger to the property in suit preferred Criminal Revision No. 3500 of 2011 before the High Court against the said discharge order dated 25.8.2011. High Court, vide its order dated 8.9.2011, took on the record the supplementary-affidavit, allowing four weeks'' time to file counter-affidavit to learned A.G.A. and opposite party Nos. 2 and 3 and rejoinder-affidavit within one week thereafter and stayed further proceedings in concerned Criminal Case No. 408 of 2011, State v. Vijay Kumar Jaiswal and others, under Sections 419, 420, 467, 468 and 471, I.P.C., Police Station Cantt. district Varanasi, pending in the Court of Judicial Magistrate-I, Varanasi, till next date of listing. About quarter to three months have elapsed, but the said revision has not been disposed of and subsequent to this revision accused has also preferred Criminal Revision No. 3566 of 2011, challenging the legality, correctness and propriety of the same order. He concluded that when the trial is stayed, applicant may be enlarged on bail under the special powers of the High Court u/s 439, Cr. P.C.

Per contra, learned private counsel for the complainant and learned A.G.A. have argued that the order dated 25.8.2011, passed by learned Magistrate, discharging the applicant under Sections 467 and 468, I.P.C. is sub-judice in Criminal Revision No. 3500 of 2011 before High Court and accused has also filed Criminal Revision No. 3566 of 2011 before the High Court challenging the legality, correctness and propriety of the same order dated 25.8.2011. Therefore, applicant does not deserve bail during pendency of revision and till the trial is concluded because the first bail application has been rejected on merit on 24.1.2011. They further argued that applicant has criminal history and the life of the revisionist, Shri Rakesh Srivastava may come in danger or he may be won over by the applicant in case he is released on bail.

However, they have not been able to show that any conviction to the credit of the applicant has been recorded so far. As regards apprehension of danger to the revisionist, he may seek protection from the appropriate authority.

It is admitted to the parties that accused-applicant has now at present been in custody under Sections 419, 420 and 471, I.P.C., which provides a maximum punishment of seven years out of which offences punishable under Sections 419 and 471, I.P.C. are bailable. It is also admitted that after framing the charge, date for prosecution evidence was fixed 16.9.2011. It is further admitted to the parties that further proceedings of the trial has been stayed by the High Court, vide its order dated 8.9.2011 and, therefore, trial has not been concluded within a period of 60 days from 16.9.2011, the first date fixed for taking evidence in the case and during the whole of this period, applicant was in jail. It is also admitted to the parties that applicant is being remanded to custody by the Magistrate u/s 309, Cr. P.C. Parties do admit that in Criminal Revision No. 3500 of 2011, filed by Rakesh Srivastava (Nyayik), the High Court has already stayed further proceeding of the trial. However, High Court has made it clear that disposal of bail application and other incidental matters including remand etc. are not affected by the said stay order dated 8.9.2011.

Undisputedly, accused is entitled to speedy justice and fair trial as enshrined in Article 21 of the Constitution of India. It is his constitutional right. It is High Court, which is invested with inherent powers to pass appropriate orders to secure ends of justice u/s 482, Cr. P.C. A Criminal Revision No. 3500 of 2011 has been filed u/s 397, Cr. P.C, which provides that the High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior criminal court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceeding of such inferior Court and may when calling for such record direct that the execution of any sentence or order be suspended, and if accused is in confinement, he be released on bail or on his own bond pending the examination of the record. Meaning thereby that the applicant deserved bail on the date when the High Court passed the stay order. Furthermore, admittedly, the trial has not concluded within a period of 60 days from the date fixed for taking evidence in the case and the applicant being in custody during the whole of the said period is entitled to be released on bail u/s 437 (6), Cr. P.C. unless for reasons to be recorded in writing, the Magistrate otherwise directs.

Now, the applicant is being remanded to custody in accordance with the provisions contained u/s 309, Cr. P.C. which deals with the powers of the Court to postpone or adjourn proceedings. Section 309 (1), Cr. P.C. provides that in every inquiry or trial the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded : Likewise, Section 309 (2), Cr. P.C. provides that if the Court after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody :

Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time :

Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing.

The aforesaid provision of Section 309, Cr. P.C. is not an idle formality rather it attaches with it a legal sanctity. There appears force in the submissions of Learned Counsel for the applicant that when further proceeding of the trial is stayed and neither any investigation is pending nor any inquiry is being conducted, after all, no useful purpose would be served out by keeping the accused applicant behind the bar ad infinitum u/s 309, Cr. P.C. specially in the present scenario of the case, where the maximum punishment provided for the offences for which he is charged is an imprisonment up to a maximum sentence of seven years.

Considering the submissions of Learned Counsel for the parties, facts and circumstances emerging out after the rejection of first bail application on 24.1.2011, letter and spirit, implication and mandates of the aforesaid legal and constitutional provisions, gravity and severity of the punishment of the offences in which he is detained for about 15 months at present under Sections 419, 420 and 471, I.P.C. providing maximum punishment up to seven years only, to my mind to meet the ends of justice, the applicant may be enlarged on bail. Let applicant, Vijay Kumar Jaiswal, involved in Case Crime No. 551 of 2010, under Sections 419, 420 and 471, I.P.C., Police Station Cantt., district Varanasi, be released on bail on his executing a personal bond and on furnishing two heavy sureties each in the like amount to the satisfaction of the Court concerned with the following conditions :

(1) The accused-applicant shall attend the Court in accordance with the conditions of the bond executed by him.

(2) He shall not commit any offence similar to the offence of which he is accused.

(3) He shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer.

(4) He will not tamper with the evidence.

(5) He shall report his good conduct and behaviour to the police station concerned on every tenth day of each English Calendar month failing which C.J.M. concerned is at liberty to initiate proceedings for cancellation of his bail according to the procedure established by law.

(6) He shall co-operate with the trial.

Accordingly, the IInd bail application stands disposed of.