Arijit Pasayat, J. - (1.) LEAVE granted.
(2.) CHALLENGE in this appeal is to the order passed by a learned single Judge of the Allahabad High Court, Lucknow Bench, granting bail to the respondent No. 2-Jitendra Pratap Singh (hereinafter referred to as the 'Accused'). A brief reference to the factual aspect would be necessary. On 14.5.2003 first information report (in short the 'FIR') was lodged by the appellant alleging murder of her younger brother-Ravish Kumar Pandey (hereinafter referred to as the 'Deceased'). At the relevant point of time the deceased was pursuing his studies in Era Medical College. In the F.I.R. name of respondent No. 2 was indicated to be the sole accused. One of the eye-witnesses was stated to be one Priyanka Tiwari. She appeared before the concerned Magistrate and her statement was recorded in terms of Section 164 of the Code of Criminal Procedure, 1973 (in short the 'Code'). In the statement she specifically stated that murder of the deceased was committed by respondent No. 2 in her presence. Charge-sheet was filed on 19.11.2004. Cognizance was taken by the concerned Magistrate. Thereafter, the investigation was transferred to C.B.C.I.D. The order of the State Government was challenged by the appellant by filing a Writ Petition No. 5874 (M/B) of 2004 before the High Court. By order dated 13.1.2005 the writ petition was allowed and the order transferring investigation to C.B.C.I.D. was quashed by the High Court. Application for bail was filed by respondent No. 2 before the High Court which was numbered as Criminal Misc. Case No. 869 (B) of 2005. The said bail application was rejected by order dated 15.3.2005 with the observation that if any fresh bail application is filed, the same shall be considered after the statements of the appellant and aforesaid Priyanka Tiwari are recorded by the trial court in the trial proceedings. On 20.6.2005, appellant's evidence was recorded and she categorically stated that in her presence murder was committed. On 25.8.2005, Priyanka Tiwari who was claimed to be an eye-witness was also examined and her evidence was recorded by the trial court. The cross-examination was concluded on 5.9.2005. In January, 2006, the respondent No. 2 filed the second bail application before the High Court which was numbered as Criminal Misc. Case No. 6282 (B) of 2005. The said bail application was rejected reiterating the earlier view that the application for bail can be considered after the evidence of Priyanka Tiwari as recorded or if she failed to appear for the purpose of recording her evidence. A certificate was issued by the Ministry of Health, Ukrain that the summer vacation of Priyanka Tiwari was between 3.7.2006 and 31.8.2006. This certificate was filed before the trial court. In May, 2006, respondent No. 2 filed the third bail application which was numbered as Criminal Misc. Case No. 2233(B) of 2006. The High Court by its impugned order dated 22.5.2006, has granted the bail. According to the appellant after commencement of summer vacation when Priyanka Tiwari came to India she knew about the Court's proceeding and appeared on 28.7.2006. But on the said date the respondent No. 2 was not represented. Therefore, the Court issued Non-Bailable Warrant (in short 'N.B.W.') and the matter was adjourned to 10.8.2006.
(3.) ON 10.8.2006, when the matter was taken up, learned counsel appearing for respondent No. 2 submitted before the Court that respondent No. 2 had been arrested in some other case and his absence may be exempted. The trial court rejected the application and adjourned the matter to 21.8.2006. On 21.8.2006, the respondent No. 2 again was not present. The Court had on the earlier occasion directed the learned counsel appearing for respondent No. 2 to indicate the details of the case where he was purportedly arrested but those details were not filed and the matter was further adjourned to 21.9.2006. On 21.9.2006, also respondent No. 2 did not appear.;