- (1.) D. K. Trivedi, J. The present application is the second application for bail. The present application has been sent, by the under trial Bhagauti Singh from Jail. Bhagauti Singh applicant is involved in case Crime No. 722/19s8 under Sections 120-B/302, I. P. C. Police Station Hazratganj, Lucknow, R, C. No. 2 (5)/88 S1u (V), C. B. I. , New Delhi. The first bail application was rej ected by me on 30-4-1991. On receipt of this application from Jail, this Court directed the Office to hand over a copy of this application to Shri P. Dayal and Shri R. B. Kharey Special Counsel for C. B. I. Shri P. Dayal and Shri R. B. Kharey thereafter filed counter affidavit in this case.
(2.) I have heard the leraned counsel for the opposite parties, namely, Shri P. Dayal and Shri R. B. Kharey. The present bail application has been moved by the applicant Bhag auti Singh mainly on the ground that he is in Jail from August. 1988 and in view of the fact that Special Leave Petition in respect of discharge of Dr. Sanjay Singh and Amita Modi is pending before the Hon'ble Supreme Court of India, it is not expected that the trial would start in near future. The main grievance of the petitioner is that he is in Jail since August, 1988 but even his trial is not going to commence and, therefore, he prayed that he may be released on bail. On behalf of the opposite parties it is alleged that the prosecution is not responsible for this delay and, in fact, the prosecution, in good faith, filed a petition for special leave to appeal before the Hon'bla Supreme Court for setting aside the orders passed by the Trial Judge as well as the High Court. The main contention of the opposite counsel is that the systematic delay cannot be taken into account for considering the question of bail. In support of his contention, he relied upon the case of Abdul Rahman Antulay and others v. R. S. Nayak and another, (1992) 1 SCC 225 : 1992 JIC 218 (SC), in which Hon'ble Supreme Court while considering the question of speedy trial, took the following view : " (5) While determining whether undue delay has occurred (resulting in violation of Right to Speedy Trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused an i witnesses, the workload of the court concerned, pre vailing local conditions and so on-what is called, the systematic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one. " In the instant case it is not disputed that the petitioner is in Jail for more than four and a half years. It is also not disputed that the other co-accused persons who are much more influential persons have already been released on bail and thereafter discharged by the Court below. It is also not disputed that the trial is not expected to commence in near future. It is settled view of the criminal law that a person who has been challaned in a case remains innocent unless found guilty by the Trial Judge. The applicant, as pointed out above, is in Jail for more than four and a half years and there appeared no possibility of early commencement of the trial in near future. It cannot also be said after expiry of four and a half years that the accused will tamper the evidence specially when the other co accused persons are already out of the Jail. However, if any incident of tempering comes to light then the prosecution will be free to movs an application for cancellation of bail be fore the Trial Judge who will dispose of the same in accordance with law. The case law cited by the opposite parties, namely, Abdul Rahman Antulay (supra) is also of no help to the prosecution, because in the said case the petitioner was not in Jail and secondly the aforesaid principle was enunciated by the Hon'ble Supreme Court in a cases for quashing of the proceedings. It may also be pointed out here that the applicant is also not to be blamed for this delay and, therefore, the accused cannot be kept without trial.
(3.) IN these circumstances, in my opinion, the applicant is now entitled to be released on bail, Hence 1 direct that the applicant Bhagauti Singh shall be released on bail subject to his furnishing two sureties and a personal bond in the like amount to the satisfaction of the Special Magistrate for C. B. I. Cases. A copy of this order be sent to the applicant who is in Jail for infor mation within a week. Application granted. .;