While expressing its deepest anguish over the poor progress of the trial in a case, the Allahabad High Court has in an extremely laudable, learned, landmark and latest judgment titled Fayanath Yadav S/O Late Devdutt Yadav (Fourth Bail) v. State of U.P. Thru. Prin. Secy Home, Lko in Criminal Misc. Bail Application No. – 7404 of 2022 and cited in 2022 LiveLaw (AB) 362 that was pronounced finally on July 29, 2022 has granted bail to a dowry death accused who was in jail for about 11 years after it expressed its anguish over the poor progress of the trial in the case. The Court has very rightly vindicated the age old and time tested dictum that:
Justice delayed is justice denied. It must be mentioned here that the Single Judge Bench of Hon’ble Mr Justice Shamim Ahmed was essentially dealing with the fourth bail application of one Fayanath Yadav who was booked in a criminal case that was registered against him under Sections 498-A, 304-B IPC and Section 3/4 of the Dowry Prohibition Act. The Court rightly said that the trial must have been concluded by now and the trial court was having powers to take coercive method to conclude the trial and also armed with the provisions of Section 309 CrPC, therefore, the Court remarked that it was unable to comprehend as to how there was no good progress in the trial.

To start with, this brief, brilliant, bold and balanced judgment authored by a Single Judge Bench of Hon’ble Mr Justice Shamim Ahmed sets the ball rolling by first and foremost putting forth in para 1 that:
This case is taken up in the revised call.

After hearing the respective lawyers of applicants and State and perusing the record as stated in para 2, the Bench then notes in para 3 of this learned judgment that:
The applicant, Fayanath Yadav, has moved this fourth bail application seeking bail in Case Crime 381/2011, under Sections 498- A, 304B I.P.C. and Section 3/4 Dowry Prohibition Act, Police Station Kurebhar, District Sultanpur.

To say the least, the Bench then states in para 4 that:
This fourth bail application has been placed before this regular Bench in the light of Hon’ble The Chief Justice’s order dated 13.11.2018.

Needless to say, the Bench then discloses in para 5 that:
Learned counsel for the applicant has submitted that the applicant is innocent and has been falsely implicated in the present case. He further submits that the applicant has almost completed more than eleven years in incarceration, but till date the trial of this case has not been concluded.

While continuing in the same vein, the Bench then specifies in para 6 that, Learned counsel for the applicant further submits that the F.I.R. was lodged on 23.05.2011 and the applicant is named in the F.I.R. along with other co-accused persons and during investigation the complicity of four co-accused persons was not found, as such they were exonerated by the Investigating Officer. He further submits that there is no overt act assigned to the accused applicant and the allegation that the deceased was beaten in-front of villagers and was taken around the village is not supported by any independent witness of the village. The entire prosecution story developed in the F.I.R. is false and fabricated with the intention to falsely implicate the applicant and his relatives.

Be it noted, the Bench then observes in para 10 that:
Learned counsel for the applicant further submits that more than three years have been passed after the rejection of the third bail, but the trial of the present case till date has not been concluded and as per information received out of 18 prosecution witnesses only 06 prosecution witnesses have been examined till date. He further submits that there is a clear cut direction of this Court to expedite the trial of the case and the time prescribed by this Court i.e. six months have already been expired and more than 11 years have been passed from the date of detention of the applicant, but the trial of the present case has been yet been concluded and further submits that it will take much time for conclusion of trial. Therefore, in the light of the dictum of the Hon'ble Apex Court in re; Union of India vs. K.A. Najeeb reported in AIR 2021 Supreme Court 712 and Paras Ram Vishnoi vs. The Director, Central Bureau of Investigation passed in Criminal Appeal No.693 of 2021 (Arising out of SLP (Crl) No.3610 of 2020), wherein it has been held that if the accused person is in jail for substantially long period and there is no possibility to conclude the trial in near future, the bail application may be considered. Besides, learned counsel for the applicant has referred the dictum of the Hon’ble Apex Court in re; Gokarakonda Naga Saibaba v. State of Maharashtra, (2018) 12 SCC 505, wherein it has been held that if all fact/material witnesses have been examined, the bail application of the accused may be considered and they were entitled for bail. Para-16 of the case K.A. Najeeb (supra) is being reproduced here-in-below:-

This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India, it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail.

Further, the Bench then states in para 11 that:
The Apex Court in the case of Paras Ram Vishnoi (supra) has observed as under:-

On consideration of the matter, we are of the view that pending the trial we cannot keep a person in custody for an indefinite period of time and taking into consideration the period of custody and that the other accused are yet to lead defence evidence while the appellant has already stated he does not propose to lead any evidence, we are inclined to grant bail to the appellant on terms and conditions to the satisfaction of the trial court.

It would be instructive to note that the Bench then explicitly states in para 12 that:
Learned counsel for the applicant has also placed reliance on the latest order of the Supreme Court dated 25th February, 2022 in Criminal Appeal No.308/2022 (Saudan Singh vs. State of UP) arising out of SLP (Crl) No.4633 of 2021. The relevant part of the order is reproduced herein below:-

We have put to learned AAG and the learned counsel for the High Court that a list should be prepared of all cases where the person has served out a sentence of 14 years, is not a repeat offender, and in any case if in these cases at one go bail can be granted and cases remitted for examination under the Uttar Pradesh Prisoners Release on Probation Rules, 1938. In all these cases, there is a high possibility that if these people are released, they may not be even interested in prosecuting their appeals.

The second category of cases can be one where the person has served out more than 10 years of sentence. In these cases also at one go bail can be granted unless there are any extenuating circumstances against him.

We are quite hopeful that the High Court will adopt the aforesaid practice and thus prevent the Supreme Court to be troubled with such matters.

Similar view has also been reiterated by Hon’ble the Apex Court in Brijesh Kumar @ Ramu v. State of U.P., Criminal Appeal No. 540 of 2022 in its judgment dated 01.04.2022 and in Vipul Vs. State of U.P., Special Leave to Appeal (Crl) No (s). 3114 of 2022 in its judgment dated 08.04.2022 and in Suleman Vs. State of U.P., Criminal Appeal No. 491/2022 in its judgment dated 09.05.2022.

While citing a very relevant case law, the Bench then enunciates in para 13 that:
Learned counsel for the applicant has also placed reliance of Hon’ble Apex Court judgment in the case of Kamal Vs. State of Haryana, 2004 (13) SCC 526 and submitted that the Hon’ble Apex Court was pleased to observe in paragraph no. 2 of the judgment as under :-

2. This is a case in which the appellant has been convicted u/s 304-B of the India Penal Code and sentenced to imprisonment for 7 years. It appears that so far the appellant has undergone imprisonment for about 2 years and four months. The High Court declined to grant bail pending disposal of the appeal before it. We are of the view that the bail should have been granted by the High Court, especially having regard to the fact that the appellant has already served a substantial period of the sentence. In the circumstances, we direct that the bail be granted to the appellant on conditions as may be imposed by the District and Sessions Judge, Faridabad.

While citing yet another relevant case law, the Bench then mentions in para 14 that:
Learned counsel for the applicant has also placed reliance of Hon'ble Apex Court judgment in the case of Takht Singh Vs. State of Madhya Pradesh, 2001 (10) SCC 463, and submitted that the Hon’ble Apex Court was pleased to observe in paragraph no. 2 of the judgment as under:-

2. The appellants have been convicted under Section 302/149, Indian Penal Code by the learned Sessions Judge and have been sentenced to imprisonment for life. Against the said conviction and sentence their appeal to the High Court is pending. Before the High Court application for suspension of sentence and bail was filed but the High Court rejected that prayer indicating therein that the applicants can renew their prayer for bail after one year. After the expiry of one year the second application was filed but the same has been rejected by the impugned order. It is submitted that the appellants are already in jail for over 3 years and 3 months. There is no possibility of early hearing of the appeal in the High Court. In the aforesaid circumstances the applicants be released on bail to the satisfaction of the learned Chief Judicial Magistrate, Sehore. The appeal is disposed of accordingly.

Learned counsel for the applicant further submits that ratio of law applicable in aforesaid cases is also applicable in the case of the applicant, therefore, the applicant be enlarged on bail by this Court sympathetically.

Most significantly, what forms the cornerstone of this notable judgment is then encapsulated in para 17 wherein it is propounded that:
After perusing the record in the light of the submissions made at the Bar and after taking an overall view of all the facts and circumstances of this case, at the very outset, this Court anguish towards the poor progress of trial, the trial must have been concluded by now and the learned trial court is having powers to take coercive method to conclude the trial and also armed with the provisions of Section 309 Cr.P.C., therefore, this Court is unable to comprehend as to how there is no good progress in the trial, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also the absence of any convincing material to indicate the possibility of tampering with the evidence, and considering that applicant is in jail since 01.06.2011 and has completed more than 11 years in incarceration and the trial has not yet been concluded and out of 18 witnesses only 06 witnesses have been examined as per the counter affidavit filed by the State as well as considering the larger mandate of the Article 21 of the Constitution of India and the law laid down by the Hon’ble Apex Court in the cases of Saudan Singh’s case (supra) and Suleman (supra), K.A. Najeeb (supra), Paras Ram Vishnoi (supra), Gokarakonda Naga Saibaba (supra), Kamal (supra), Takht Singh (supra) and Dataram Singh vs. State of U.P. and another, reported in (2018) 3 SCC 22, this Court is of the view that the applicant may be enlarged on bail.

As a corollary, the Bench then held in para 18 that:
The prayer for bail is granted. The application is allowed.

Furthermore, the Bench then stipulates in para 19 that:
Let the applicant, Fayanath Yadav, involved in Case Crime 381/2011, under Sections 498-A, 304B I.P.C. and Section 3/4 Dowry Prohibition Act, Police Station Kurebhar, District Sultanpur, be enlarged on bail on his executing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned on the following conditions :-

(i) The applicant will not make any attempt to tamper with the prosecution evidence in any manner whatsoever.

(ii) The applicant will personally appear on each and every date fixed in the court below and his personal presence shall not be exempted unless the court itself deems it fit to do so in the interest of justice.

(iii) The applicant shall cooperate in the trial sincerely without seeking any adjournment.

(iv) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

(v) In case, the applicant misuses the liberty of bail and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

(vi) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.

(vii) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad or certified copy issued from the Registry of the High Court, Allahabad.

(viii) The concerned Court/ Authority/ Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

In addition, the Bench then also stipulates in para 20 that:
It may be observed that in the event of any breach of the aforesaid conditions, the court below shall be at liberty to proceed for the cancellation of applicant’s bail.

For the sake of clarity, the Bench then clarifies in para 21 that:
It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merit of the case.

Finally, the Bench then concludes by directing in para 22 that:
Being a peculiar case, the trial court is directed to conclude the trial of this case preferably, within a period of four months from today without granting any unnecessary adjournment to either parties except there is any legal impediment or order of higher Court.

In a nutshell, the Allahabad High Court has very rightly granted bail to the dowry death accused who had been languishing in jail for over 11 years. Hon’ble Mr Justice Shamim Ahmed has very rightly expressed the court’s resentment over such a prolonged delay and its deepest anguish over the trial court’s poor progress which cannot be justified under any circumstances! It is high time and a fixed time frame must be fixed for all Judges to solve cases so that inordinate delay is avoided at all cost and if they fail to do so then they too must not be allowed to get away and must be strictly held accountable!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh