Shri Kant Tripathi - (1.) THIS is the third bail application moved by the applicant Vaibhav Maheshwari. THIS First Bail Application No. 13234 of 2004 and the Second Bail Application No. 22596 of 2005 were rejected on merit by Hon'ble M. K. Mittal, J., who has since retired.
(2.) HEARD Mr. D. S. Mishra, the learned counsel appearing for the applicant and Sri Rajesh Pathik, the learned counsel for the complainant and the learned A.G.A. for the State and perused the record. Shri D. S. Mishra, the learned counsel submitted that the third bail application has been moved only on the sole ground of delay in the disposal of the sessions trial. According to the learned counsel, the applicant is in jail from 15.4.2004 and more than five years have elapsed but the trial has yet not concluded. The applicant cannot be kept in jail for an indefinite period at the mercy of the prosecution. It may not be out of context to mention that the second bail application was also pressed on the ground of delay in the disposal of the trial but the same was not accepted. It may also be mentioned that the trial was earlier pending in the district Moradabad but one of the accused Pradeep filed an application before this Court for transfer of the trial to J. P. Nagar as the trial in the Sessions Division, Moradabad was being held without jurisdiciton. This Court transferred the sessions trial from the district Moradabad to District J. P. Nagar vide the order dated 7.11.2005 and also directed for a de novo trial. It is also relevant to mention that certain witnesses had been examined in the concerned Sessions Court of Moradabad but the proceedings done in the Sessions Court, Moradabad were found without jurisdiction and due to that a de novo trial was directed to be held while passing the order for transfer of the sessions trial to J. P. Nagar. After the transfer order was passed, an application for deleting the de novo trial from the transfer order was moved but the same was rejected on 12.1.2006. Against that order a special leave petition was filed in the Supreme Court and the proceedings of the sessions trial were stayed in the special leave petition, which was ultimately decided on 12.2.2007 by the Hon'ble Apex Court. In view of these factual aspects of the matter, the delay up to 12.2.2007 stands explained. According to the progress report submitted by the concerned Sessions Judge and the copies of the order sheet filed with the supplementary - affidavit, the prosecution evidence concluded on 17.9.2008, accused persons were examined under Section 313, Cr. P.C. on 24.9.2008 and the defence evidence concluded on 13.10.2008. The trial remained pending for arguments from 16.10.2008 and ultimately arguments concluded on 19.2.2009 and the matter was fixed on 5.3.2009 for judgment but the judgment could not be delivered due to the reason that the applicant and the co-accused Nirpendra moved an application under Section 311, Cr. P.C. on 26.2.2009 prior to the judgment for summoning certain witnesses. If the applicant and the co-accused Nirpendra had not moved any application under Section 311, Cr. P.C., the concerned Additional Sessions Judge would have decided the case in the month of March, 2009, because the arguments had concluded on 19.2.2009.
(3.) THE learned counsel appearing for the applicant, however, submitted that the learned trial court has adopted dilatory tactics in disposing of the application under Section 311, Cr. P.C. It may be mentioned in this regard that the application under Section 311, Cr. P.C. was moved on 26.2.2009 and the trial court directed that the same be put up for disposal on the date already fixed but no proceeding was done on the next date, i.e., 5.3.2009 due to lawyers' strike, consequently, 19.3.2009 was fixed for disposal of the application, which was disposed of on that date. THE trial court rejected the application stating that the application was not filed by any authorised advocate, but however, the applicant and co-accused Nirpendra were permitted to file a fresh application, and accordingly, they moved the second application under Section 311, Cr. P.C. on 28.3.2009, which was directed to be put up on 9.4.2009, being the next date already fixed in the case. THE learned trial court instead of disposing of the application on 9.4.2009, obtained objection of the prosecution and fixed 20.4.2009 for disposal. None appeared for the applicant and the co-accused for pressing the application on 20.4.2009, consequently, 27.5.2009 was fixed, and on that date, the application was partly heard, and 9.6.2009 was fixed for further hearing, but also on 9.6.2009, none appeared for the applicant and the co-accused Nirpendra, to press the application. THE Presiding Officer, then fixed 23.6.2009 for hearing on the application. It is, therefore, clear that the applicant and the co-accused persons avoided hearing on the application moved under Section 311, Cr. P.C. on 20.4.2009 and 9.6.2009. In view of these factual aspects of the matter it cannot be contended that the learned Presiding Officer was in any way responsible for delaying the trial. The learned counsel further submitted that this Court, while disposing of the bail application of the co-accused Nirpendra, had directed the Court concerned to dispose of the same expeditiously within a period of six months from the date of the receipt of the certified copy of the order. The learned counsel further submitted that the trial court was directed to hold the trial, keeping in view the provisions of Section 309, Cr. P.C. which provides that the trial must be held from day to day basis. In my opinion, this Court had not fixed any outer limit for disposal of the trial. It had merely directed the trial court to make endeavour to dispose of the case expeditiously within six months. That direction was given on 1.2.2005 but the proceedings remained stayed up to 11.5.2007 under the stay order granted by the Apex Court. In view of this peculiar situation of the case, the trial court cannot be blamed for flouting the order dated 1.2.2005 of this Court. It may also be mentioned that after vacation of the stay order, the trial court not only framed necessary charges against the accused persons but also recorded the statements of the prosecution witnesses, the accused and even heard arguments and fixed the case for judgment but the same could not be delivered due to the application moved by the applicant and the co-accused Nirpendra under Section 311, Cr. P.C. As such the applicant cannot be permitted to take any advantage of the bail order dated 1.2.2005, passed on the bail application of the co-accused Nirpendra.;