Allahabad High Court Grants Bail To Murder Accused Incarcerated For 7 Yrs Without Production Of Any Evidence/ Witness Against Him

"Although the offence with which applicant has been charged is a serious one but it is also a relevant factor to consider that the said charge being based on the testimony of two witnesses, neither of the two have been produced by the CBI in the trial, which is pending since 2013. Even counter affidavit of the CBI is silent with regard to the time frame within which the said two witnesses are to be produced in the trial proceedings," observed the High Court while allowing third bail application of the accused.

A Single Bench of Justice Manish Mathur further observed,

"Prima facie, it appears that without the testimony of corroborating witnesses, evidence against the applicant is circumstantial at best and at present there cannot be any definitive conclusion that the offence with which the applicant is charged can be prima facie made out at this stage and would therefore be dependent upon evidence to be relied upon by CBI in future particularly by producing witnesses to support the same."

Background

The Applicant-accused was apprehended in connection to murder of one …He was accused of providing information with regard to whereabouts of the deceased, in pursuance of which the attack upon him was carried out.

The first bail plea of the Applicant herein was rejected on merits and the second bail plea was rejected with directions to the CBI court to conclude the trial expeditiously.

In the instant, third bail application, it was argued that only 16 of 80 prosecution witnesses had been examined. Of these, two proposed witnesses claimed to be against the Applicant were not produced and there was no indication in CBI's counter affidavit as to when they will appear.

It was urged that the applicant cannot be kept incarcerated for such a long time for no fault on his part.

State's submissions

The State Government opposed the bail plea, and submitted that bail cannot be granted merely on the ground of long detention or that the trial of the case had not progressed.

It referred to the Supreme Court's decision in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav & Anr., (2004) 7 SCC 528, where while setting aside an order of the High Court allowing fifth application for grant of bail, it was held:

"In the impugned order it is noticed that the High Court has given the period of incarceration already undergone by the accused and the unlikelihood of trial concluding in the near future as grounds sufficient to enlarge the accused on bail, in spite of the fact that the accused stands charged of offences punishable with life imprisonment or even death penalty.

In such cases, in our opinion, the mere fact that the accused has undergone certain period of incarceration (three years in this case) by itself would not entitle the accused to being enlarged on bail, nor the fact that the trial is not likely to be concluded in the near future either by itself or coupled with the period of incarceration would be sufficient for enlarging the appellant on bail when the gravity of the offence alleged is severe and there are allegations of tampering with the witnesses by the accused during the period he was on bail."

Similarly, in Chenna Boyanna Krishna Yadav v. State of Maharashtra & Anr., (2007) 1 SCC 242, it was held that where gravity of the offence alleged is severe, mere period of incarceration or the fact that the trial is not likely to be concluded in the near future either by itself or conjointly may not entitle the accused to be enlarged on bail. Nevertheless, both these factors may also be taken into consideration while deciding the question of grant of bail.

Findings

At the outset, the Bench noted that not even 1/4^th of witnesses in this case had been produced during the trial.

"15 witnesses have further been examined during the trial but as on date they do not constitute even 1/4th of the total 80 witnesses that are sought to be produced as prosecution witnesses by the CBI. The applicant has been in custody as an undertrial since 04.03.2013, i.e. more than seven and a half years.

The aforesaid factor clearly indicates the changed circumstances between rejection of the second bail application till today. Learned counsel for applicant therefore apprears to be quite correct in his submission that with just 16 witnesses having been examined out of a total of 80 witnesses to be produced by the CBI as prosecution witnesses, there is no hope of trial concluding even in far future, let alone the near future," the Court noted.

It further observed that even though the Supreme Court has held that bail should not be granted merely on the ground of delay in trial in case of grave offences (refer to precedents cited by State), it has not put an embargo upon consideration of long period of incarceration of an undertrial as a factor while considering subsequent bail applications.

"It is clearly seen that such a factor can be considered by the Court concerned while hearing subsequent bail applications but the said factor has to be seen along with other relevant factors," the Bench held.

Reliance was placed on Sanjay Chandra v. Central Bureau of Investigation, (2012) 1 SCC 40, where it was held as follows:

"Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.

When the undertrial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated. Every person, detained or arrested, is entitled to speedy trial…"

Other grounds taken into account by the High Court for allowing the bail plea are listed as follows:

• Although in the FIR, allegation against applicant is of firing upon the deceased but in the counter-affidavit filed by the CBI, the role of applicant has been limited to providing information of whereabouts of deceased to the actual killers;
• Aforesaid charges against the applicant have been sought to be proved by the CBI upon testimony of one Nitish Shukla and one other person, although the said other person remains unnamed. Neither of aforesaid two persons have been produced by the CBI as witness in the trial proceedings till date. The counter affidavit is also silent as to when the CBI intends to produce the said two persons as witnesses in the trial.
• In the counter affidavit, the CBI has doubted the veracity of the complaint itself.
• The CBI in its counter affidavit has stated that enlarging the applicant on bail could have an adverse effect on the trial since there is a likelihood that the applicant may try to influence the witnesses and tamper with evidence. However, except for a bland statement in the counter affidavit, there is not even a shred of prima facie evidence adduced by the CBI to support such claim.

"Upon a perusal of the material on record, it is apparent that without the production of relvant witnesses against the applicant even after seven long years, the charges levelled against the applicant at this stage, at best, are merely charges without any prima facie evidence being produced by the CBI. It is also relevant that apprehension against applicant of influencing witnesses and tampering with evidence is also not borne out by any evidence on record.

We cannot lose sight of the fact that the investigating agency has already completed investigation and charge sheet has already been filed before the trial court, therefore presence of accused in custody may not be necessary for further investigation," the Bench observed while allowing the bail plea.

Case Title: Rajiv Pratap Singh v. CBI

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