Point of Law: Grant of Bail - Right of under trial enshrined under Article 21 of the Constitution of India may be considered and protected inasmuch as they should not be compelled to serve maximum punishing.

JUDGMENT :

RAJESH SINGH CHAUHAN, J.

1. Heard Sri Vijay Kishor Mishra, learned counsel for the applicants, Sri Anurag Kumar Singh, learned counsel for the Central Bureau of Investigation (in short C.B.I.) and Sri Vivek Kumar Rai, learned counsel for the complainant/informant.

2. This Court has passed the order dated 26.04.2022 as under:

“Heard Mr. Vijay Kishor Mishra, learned counsel for the applicants, Mr. Anurag Kumar Singh, learned counsel appearing on behalf of the Central Bureau of Investigation and Mr. Vivek Kumar Rai, learned counsel for the informant/complainant/victim.

It has been contended that the present applicants are in jail since 7.4.2013 in Sessions Trial No. 830 of 2013, R.C. No. 1 (S)/2013/CBI/SC-1 New Delhi, under Sections 120 I.P.C. read with Section 302 I.P.C. and Section 25 (i)(b)(a)/26/27 Arms Act, Police Station CBI/SC-1 New Delhi.

It has been further contended that there are 81 prosecution witnesses, out of them identity of 11 material witnesses have not been disclosed. Therefore, those 11 witnesses have not been examined.

So far as the examination of other prosecution witnesses are concerned, till date 18 prosecution witnesses have been examined as per the information so given by learned trial court dated 20.04.2021. However, as per learned counsel for the applicants one more witness has been examined.

Learned counsel for the applicants has drawn attention of this court towards Annexure No. 28 which is the bail order of co-accused Rajiv Pratap Singh @ Raju Singh, wherein this court in paras 3 and 6 has observed that the trial court has not taken appropriate steps as per Section 309 Cr.P.C. to conclude the trial.

Learned counsel for the applicants has further submitted that during investigation no statement under Section 164 Cr.P.C. has been recorded by the prosecution.

On being confronted on such averment, Mr. Anurag Kumar Singh, learned counsel for the Central Bureau of Investigation prays for and is granted a week's time to apprise the court as to whether the statement under Section 164 Cr.P.C. of any witness has been recorded or not.

Mr. Rai, learned counsel appearing on behalf of the complainant/informant has also submitted that despite the fact that the relevant material/fact witnesses on his side are ready to be examined, but till date they have not been examined.

Learned counsel for the applicants as well as learned counsel for the informant, both have said that while examining the prosecution witnesses the Central Bureau of Investigation adopts pick and chose policy.

Be that as it may, this is a case wherein the present applicants are in jail for more than 9 years and there is no possibility to conclude the trial in near future, therefore, the aforesaid aspect may be considered on the next date in the light of dictum of Hon'ble Apex Court in the cases of Union of India vs. K.A. Najeeb, AIR 2021 SC 712 and Paras Ram Vishnoi vs. The Director, Central Bureau of Investigation passed in Criminal Appeal No. 693 of 2021 and SLP (Crl.) No. 3610 of 2020.

Further, in a recent judgment of the Apex Court in Criminal Appeal No. 308 of 2022 and SLP (Crl.) No. 4633 of 2021; Saudan Singh vs. State of Uttar Pradesh vide order dated 25.02.2022, it has been observed that if any accused person is in custody for more than eight or ten years and his/her appeal is pending consideration before learned appellate court, his/her bail application may be considered.

List this case on 9th May, 2022.

This case shall be taken up immediately after fresh cases.

In the meantime, Mr. Anurag Kumar Singh, learned counsel for the Central Bureau of Investigation may seek specific written instructions on the point as to whether the statement of witnesses have been recorded under Section 164 Cr.P.C. or not. He shall also seek written instructions on the point as to why material witnesses have not been called for examination when this court while granting the bail to co-accused Rajiv Pratap Singh @ Raju Singh has observed that learned trial court should