- (1.) VINOD Prasad, J. This is a second bail application. The first bail application of the applicant being Criminal Miscellaneous Bail Application No. 10628 of 2005 was rejected by Hon'ble M. K. Mittal, J. on 23-8-2005. This second Bail Application was placed before his Lordship but vide order dated 17-8-2006 his Lordship has been pleased to release this second bail application and had directed that this bail application to be listed before the appropriate Bench in the next cause list, hence it has come up before me.
(2.) THE applicant seeks bail in crime No. 348 of 2004, under Sections 147, 148, 149, 323, 302, 504, 307/34 I. P. C. , police station Khair, District Aligarh. The allegations against the applicant are that on 5-11-2004 at 6. 30 a. m. the applicant alongwith co- accused Ravindra @ Rafta shot at Prem Pal Singh brother of the informant Man Singh after entering into the house of the informant. Prem Pal Singh had died subsequently because of inflicted injuries by the accused. The motive for the crime was a decade old enmity regarding a wall. The informant Man Singh covering a distance of twelve kilometers lodged a F. I. R. in respect this murder of Prem Pal Singh at the police station Khair, District Aligarh same day at 7. 25 a. m. The post-mortem report of the deceased Prem Pal Singh dated 5-11-2004 indicates that he had sustained fire-arm injuries and one abrasion. On the said fact the applicant applied for his bail before the Sessions Judge, which was rejected by Additional Session's Judge, Court No. 8, Aligarh on 29-1-2005. Consequently, the applicant filed his bail application in this Court being Criminal Miscellaneous Bail Application No. 10628 of 2005, Devendra Singh v. State of U. P. , which too was rejected by Hon'ble M. K. Mittal, J. on 23-8-2005 as has been stated above. Hence, this second bail application by the applicant. I have heard Sri Akhilesh Srivastava, learned Counsel for the applicant in support of this second bail application and the learned A. G. A. in opposition.
(3.) SRI Akhilesh SRIvastava, learned Counsel for the applicant contended that in this case the applicant is languishing in jail since 2004 more than one year and ten months and the trial is not proceedings at all. He alongwith this second bail application had filed the certified copy of the order sheet of the concerned Sessions Trial No. 302 of 2005, State v. Devendra Singh & Ors. , pending before Additional District and Session's Judge, Court No. 11, Aligarh. A perusal of the order sheet filed by the applicant indicates that the Sessions Trial is being conducted against the provision of Section 309 Cr. P. C. and the police is not executing the subpoena issued by the trial Judge. A perusal of the order sheet dated 24-6-2006 indicates that the Presiding Officer was on leave and hence 7-7-2006 was the next date fixed in the case. On 7-7- 2006, no prosecution witness was present nor the report of service of subpoena issued by the trial Court was filed by the prosecution. The said order sheet further indicates that S. S. P. Aligarh was also given a Fax message to intimate S. S. P. Pilibhit that witness S. I. C. B. Shukla be asked to be present in Court on 7- 7-2006. S. I. C. B. Shukla was not present on that day in the Court. Consequently, the trial Court was constraint to fix 11-7-2006 for appearance of the aforesaid witness who was the Investigation Officer of the crime. On the next date that is 11-7-2006, the Presiding Officer was on leave and hence 24-7-2006 was fixed in the case. On the said date 24-7- 2006 a report was submitted by A. D. G. C. that the aforesaid Investigating Officer C. B. Shukla had not join the co-operative cell and is on medical leave consequently, non-bailable warrant and notice under Section 350 I. P. C. be issued. On the said request it was observed by the trial Court that the applicant is in jail and in the absence of the aforesaid witness the trial could not be decided. D. G. P. Police U. P. Government was directed by the trial Court to get the presence of the aforesaid witness C. B. Shukla ensured before the trial Court on 5-8-2006. The Additional Sessions Judge also issued non-bailable warrant and notice under Section 350 Cr. P. C. to the aforesaid witness through S. H. O. (Station House Officer) P. S. Khair, District Aligarh. The next date fixed in the case was 5-8-2006. On the said date also the Investigating Officer C. B. Shukla was not present and the D. G. P. U. P. Police has also not been effective enforcing the presence of witness. The Court is left with no option but to order the suspension of the payment of salary by the police department to SRI C. B. Shukla till he appears and get his evidence recorded in this trial. Inform the D. G. P. Police for compliance. Issue fresh non-bailable-warrant of Inspector C. B. Shukla fixing 19-8-2006. He shall be relieved of the charge before the execution of non-bailable-warrant and notice under Section 350 Cr. P. C.;