Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(All) 1300

IN THE HIGH COURT OF ALLAHABAD
SUBHASH VIDYARTHI, J.
Mridula Anand – Appellant
Versus
State Of U.P. Thru. Prin. Secy. Home Civil Sectt. Lko – Respondents
Criminal Misc. Bail Application No.11128 of 2023
Decided on : 09-10-2023

Advocates:
Advocate Appeared:
For the Appellant : Vijay Dixit, Devam Shukla, Mukesh Kumar Tewari

Unwarranted delay caused by prosecution witnesses and unequal treatment of co-accused can be considered in granting bail.

Headnote:
Bail - Delay in Trial - Prosecution Witnesses - Release of Applicant
Fact of the Case:

The applicant sought release on bail citing unwarranted delay in trial due to non-cooperation of prosecution witnesses. The court noted that the applicant had been in custody while other co-accused were out on bail or interim bail.
Finding of the Court:

The court found that the conduct of prosecution witnesses had caused unwarranted delay in the trial, and considering the circumstances, granted bail to the applicant.
Issues: Delay in trial due to non-cooperation of prosecution witnesses, unequal treatment of co-accused, entitlement to bail.
Ratio Decidendi: The unwarranted delay caused by prosecution witnesses, coupled with unequal treatment of the applicant compared to co-accused, led the court to grant bail.
Final Decision: The bail application was allowed, and the applicant was ordered to be released on bail with certain conditions.

JUDGMENT :

1. Heard Sri Vijay Dixit, learned counsel for the applicant, Sri Jayant Singh Tomar, the learned A.G.A.-I for the State, Sri Ram Saran Awasthi, the learned counsel for the informant and perused the records.

2. This is the third application seeking release of the applicant on bail in Case Crime No. 16 of 2015, under Sections 147, 148, 149, 364, 302, 201, 216 IPC, Police Station Badosarai, District Barabanki.

3. Second application was rejected by means of an order dated 29.05.2023 after taking into note the fact that the statement of PW-1 was being recorded and it had not been concluded till that time.

4. This Court had also taken into consideration the fact that previously the applicant was granted short term bail for undergoing a surgical operation but she did not undergo any surgical operation, although the short term bail was extended from time to time.

5. The third application has been moved on the ground that the prosecution witnesses are not cooperating with expeditious disposal of the trial and each of the prosecution witnesses has appeared after repetitive issuance of bailable warrants and non bailable warrants.

6. A copy of the order sheet annexed with the affidavit indicates that on 18.01.2023 a bailable warrant was issued for enforcing appearance of PW-1 Shivam Srivastava.

7. The witness did not appear on 28.07.2023, 05.08.2023 and 11.08.2023 also. Ultimately his statement was recorded and a bailable warrant was issued for ensuring appearance of the witness Naman Srivastava on 17.08.2023.

8. On 17.08.2023, the witness again did not appear and again a bailable warrant was issued for enforcing his presence.

9. A supplementary affidavit filed with the application states that the witness Naman Srivastava did not appear on 22.08.2023 even after service of the bailable warrant. The prosecution sought adjournment stating that the witness could not appear because of accident of his father, upon which the case was adjourned and the witness was summoned for 30.08.2023 but he did not appear even on the adjourned date.

10. The second supplementary affidavit filed on behalf of the applicant states that the prosecution witness did not appear on 06.09.2023 and the prosecution did not move any adjournment application also. However, the Court issued fresh summons for appearance of the witness Naman Srivastava. On 16.09.2023, the trial court has recorded that the witness Naman Srivastava did not appear even after personal service of summons and, therefore, the Court issued a bailable warrant for ensuring his presence.The witness Naman Srivastava sought adjournment on 27.09.2023.

11. The witness Naman Srivastava appeared in the second half portion of 04.10.2023 and his examination-in-chief was recorded and cross examination was started, which was ordered to continue on the following day i.e. 05.10.2023 but the witness again did not appear on 05.10.2023 and the proceedings of the trial were adjourned to 12.10.2023.

12. The learned AGA-I and the learned counsel for the informant have vehemently opposed the bail application, but they could not dispute the aforesaid aspects of the matter.

13. Sri Vijay Dixit, the learned counsel for the applicant has submitted that even from the statements of prosecution witnesses recorded till date, the applicant's complicity in commission of offence could not be established.

14. Having considered the aforesaid facts and circumstances of the case and without entering into the merit of the case, I am of the view that the aforesaid conduct of the prosecution witnesses in causing unwarranted delay in disposal of the trial on its merit, coupled with the fact that all the other co-accused persons are out of custody either on bail or on interim bail and that the applicant is a woman and she alone is languishing in jail in the present case since 21.02.2019, I am of the view that the applicant is also entitled to be released on bail in the aforesaid case.

15. Accordingly, this bail application stands allowed.

16. Let

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