RAJESH UPADHYAY Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This third bail application under Section 439 of the Code of Criminal Procedure (hereinafter shall be referred to as "Cr.P.C") has been filed seeking regular bail by the applicant, who is in custody with effect from 15.7.2013 for the offences under Sections 307, 302 read with Section 34 of the Indian Penal Code (hereinafter shall be referred to as "I.P.C") and Sections 25 & 27 of the Arms Act pertains to Crime No.689/2013 registered at Police Station T.T.Nagar, District Bhopal. His first bail application (MCRC No.3806/2014) was dismissed as not pressed vide order dated 17.7.2014 and thereafter second bail application (MCRC No.18262/2016) was also dismissed as not pressed vide order dated 6.12.2016 with a direction to the Trial Court to conclude the trial as early as possible preferably within a period of nine months from the date of production of certified copy of this order otherwise the applicant would be at liberty to renew the prayer. It was also directed by this Court that the photocopy of the order dated 6.12.2016 be immediately sent by the Registry to the Trial Court.

(2.) It is contended by learned senior counsel that the copy of the order dated 6.12016 was sent by the Registry of this Court and the certified copy of the order has also been produced by the applicant on 27.1.2017, even then the trial is not concluded within the time so specified. However, as per the liberty granted, this third bail application (MCRC No.25749/2017) may be considered. The applicant is in custody since last more than 5 years and the pre-convict incarceration is not permissible, therefore, on the ground of delay in trial, the applicant deserves to be enlarged on bail.

(3.) Upon hearing the bail application vide order dated 2.1.2018, a report was called through the District and Sessions Judge, Bhopal asking that on which date the order passed in MCRC No.18262/2016 has been produced before the Trial Court; and on having knowledge of the order, why the trial has not been concluded within the time so specified. The said explanation was sought in consonance to the memo of the Registry dated 5.7.2017 within two weeks explaining further whether delay is attributable to the prosecution or to the defence.