BHOLU Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Ms. Manju Gupta, learned counsel for the appellant and Ms. Roohi Siddiqui, learned Additional Government Advocate for the State on the second bail application moved on behalf of the appellant. Ms. Manju Gupta, learned counsel for the accused-appellant submits that in the present case an F.I.R. dated 2.9.2008 was lodged against Sohan Lal, Kallu, Bholu and two unknown persons. During investigation, police had submitted charge-sheet against Vijay Kumar Gupta and Mohit Mishra however has not submitted charge-sheet against Sohan Lal and Kallu . She also submits that during trial Mohit Misra alias Golu was declared juvenile and on the same set of evidence, appellant has been convicted whereas co-accused/Vishal Gupta alias Chhotey has been acquitted

(2.) Learned counsel for the appellant while pressing the second bail application of the appellant/ Bholu submits that the accused appellant is in jail for last about nine years , so taking into consideration the said facts as well as the law laid down by Hon'ble the Apex Court in the cases of Kaushal Singh Vs. State of U.P. passed in S.LP. [Crl.] No. 2356 of 2010, Pujari Yadav and others Vs. State of U.P. passed in S.L.P. [Crl] No. 7040 of 2016, Bhajan Lal Vs. State of U.P. reported in [2016] 3 JIC 918 ( All), Smt Akhtari Bai Vs. State of M.P reported in 2001 [2] JIC 163 SC, Takht Singh and others Vs. State of M.P. reported in [2001]10 Supreme Court Cases 463, Kamal Vs. State of Haryana reported in 2004(13) SCC 52 and also in the case of Fazal Vs. State of U.P. reported in (2012) 3 SCC ( Cri) 270 wherein Hon'ble the Apex Court has held that if the applicant is in jail for a long time and when there is no likelihood that appeal may be listed for hearing the appeal in near future, the bail may be granted on the ground of period of incarceration. Accordingly it is submitted by learned counsel for the appellant that in the present case accused appellant is in jail for the last about nine years and this appeal is not likely to be heard in near future due to pendency of heavy docket and taking into consideration Article 21 of the Constitution of India as well as the law laid down by Hon'ble the Supreme Court in th case of Hussain and another Vs. Union of India , 2017 (1) JIC 939 (SC) the appellant is entitled for bail . Ms. Roohi Siddiqui, learned A.G.A. while opposing the prayer bail of the accused appellant submits that period of incarceration in jail cannot be a ground to grant the bail of the accused-appellant , the same shall be considered on merit looking into the nature of offence which has been committed by the accused appellant. She further submits that on the basis of material on record, trial court came to the conclusion that accused appellant has committed two murders and one murder which has been committed by the accused appellant is brutal one. This Court after considering the findings recorded by the court rejected the first bail application of the appellant vide order dated 21.11.2017, the relevant portion of the order is quoted below:

(3.) Having gone through the record, we find that accused-appellant continued to drink wine and thereafter committed brutal murder of the deceased. Considering the facts and circumstances of the case and also the finding recorded by the trial court, we do not find any good ground to release the applicant on bail. Accordingly, bail application of applicant-Bholu is rejected."