- (1.) S. N. Sahay, J. This is the fifth bail application on behalf of the accused/ applicant Kalika Prasad Shukla, who is lacing trial in the Court of Judicial Magistrate, Faizabad in connection with Case Crime No. 274 of 1986, under Section 409/420, I. P. C. of P. S. Cant District Faizabad. The allegations against the accused are that the along with certain other persons had commit ted embezzlement in respect of several lakhs of rupees.
(2.) ACCORDING to the submissions made by the learned counsel for the parties in this matter, it appears that the first application was rejected on July 1, 1987. The order dated July 1, 1987 shows that the application was rejected with the remark that if the trial does not commence within six months as also when the trial is about to commence, whichever is earlier the applicant will be at liberty to apply for bail. The second bail application was rejected on October, 20, 1987. It was observed in the said order that there was no new point on merits in the case. The emphasis by the learned counsel for the applicant was that the applicant will be prejudiced in the matter of his defence, if he is continued to stay in Jail. The contention of the opposite party was that a huge amount is involved, so there is every chance of the applicant absconding. The application for bail was rejected with the direction that the trial court shall commence the recording of evidence as early as possible. The third bail application was rejected on December 15, 1988 again on the basis that no new ground has arisen. The learned Magistrate was, however, directed to ensure expeditious disposal of the case and the learned Sessions Judge was also directed to keep a watch over the expeditious disposal of the case. The learned counsel for the accused has stated that the fourth bail application was not pressed and hence it was rejected on October 29, 1991. In support of the present application for bail, it has been urged by the learned counsel for the accused that the first information report was lodged on May 14, 1986 and the period during which the of offence is alleged to have been committed by the accused is between 1981 to 1986. According to the learned counsel, the applicant has been in Jail for more than six years sinc. 3 the lodging of the first information report and trial has not been concluded so far, in spite of the directions to that effect given by this Court. It is said that only one witness has been examined and the examination of another witness is continuing. The learned counsel has strongly relied on that circums tances that the maximum punishment which can be inflicted by a Magistrate in a case of this kind on an accused person is ten years. His contention is that since the accused has already been in Jail for a long term of upwards of six years, he is entitled to be released on bail. It is also contended that during this period the accused was released on short term bail on five occasions on account of family problems and he have abused the bail and surrendered on the expiry of the period for which he was released. The learned counsel for the State has opposed the bail application on the ground that accused is faring trial on a serious charge of embezzlement of a huge amount and if the accused is released on bail, he may not be available for trial. He has also submitted that the accused has been out of Jail for a total period of seven and half months on account of short term bail granted to him and that period should be excluded from the period during which he has been in Jail. No counter affidavit has been filed but it is stated on behalf of the State that according to the instruc tions received by the learned counsel, no progress could be made in the trial of the case because of the frequent strike of lawyers of Faizabad. The law i well settled that the right to speedy trial is guaranteed to a person under Article 21 of the Constitution. This right is available to him not only in respest of the trial but he compasses all the stages, namely, the stage of investigation, inquiry, trial, appeal revision and retrial. This has been stated in the recent case of A. R Antulay v. R. S. Nayak, i1992) 1 SCC 225. It cannot be denied that the trial which has been commenced against the accused should b expeditiously concluded and more so when directions have been issued from time to time by this court since 1987. It has not been shown the delay in the trial has been caused by any act or omission on the part of the accused. He has already been in Jail f jr about six years and has been deprived of his personal liberty for a long term when the Maximum punish ment of seven years imprisonment only, and that too by a Chief Judicial Magistrate can be inflicted in the normal course under Section 29 Cr. P. C. It is a different matter that Magistrate may in his discretion decide to refer the case to higher Court under Section 323 or 325 Cr. P. C. in case he feels that on the evidence or record and in the circumstances of the case a more severe punishment should be inflicted on the accused. That is the discretion of the Magistrate and nothing can be said about exercise of that discretion at this stage.
(3.) IT is equally true that the charge against the accused is very serious and while granting or refusing bail one of the considerations which should weigh in the mind of the Court is that the accused shall not abscond and shall always be available for trial and receiving the judicial verdict. While it is true that in view of the nature of the allegations, the prospensity of human being will ordinarily to be run away, that cannot be said to be true in all cases. So what is necessary is that adequate safegard should be provided. Taking all the circumstances of the case as discussed above, I am of the opinion that the accused may be released on bail provided it is ensured by the trial court that he will no abuse the bail and will not abscond. In order to ensure the same the trial court which has already commenced hearing evidence will be in a better position to assess the situation in order to impose such terms and conditions as may be necessary in the circumstances of the case. It may be mentioned that while imposing such terms, the trial court shall have due regard to the legal position that the same should not be onerous or excessive.;