Mohd. Haseeb vs State Of U.P. & 2 Others
2021 Latest Caselaw 10428 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 12
 

 
Case :- CRIMINAL APPEAL No. - 264 of 2020
 

 
Appellant :- Mohd. Haseeb
 
Respondent :- State Of U.P. & 2 Others
 
Counsel for Appellant :- Sushil Prakash Pandey,Arun Sinha,Atul Kumar Singh Gaur,Gulam Rabbani,Ram Chandra Singh
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Shamim Ahmed,J.

Heard Sri Arun Sinha, learned counsel for the appellant as well as learned A.G.A for the State and perused the record.

Inspite of several notices sent to the opposite party no. 2, no counter affidavit has been filed and it appears that he is not interested to contest the case.

This appeal has been filed for setting aside the order dated 30.01.2020 passed by learned Special Judge SC/ST Act/ Additional District & Sessions Judge, Barabanki in Second Bail Application No. 44 of 2020 (Mohd. Haseeb Vs. State of U.P.), arising out of Case Crime No. 389 of 2018, under Sections 304, 436 I.P.C. and 3/5 Explosive Substance Act and 3(1)(r), 3(1)(s), 3(2)(v) SC/ST Act, P.S. Ramsanehighat, District Barabanki.

Learned counsel for the appellant submits that as per the prosecution story narrated in the F.I.R. is that Mohd. Haseeb who is a license holder for making and selling of the crackers and for the same, the boundary has been fixed outside of the village but he put the gunpowder of the crackers in heavy quantity in his residence. On 25.12.2018 at about 4:00 p.m., due to negligence of some workers, explosion took place in the house of the appellant. In this explosion, two persons namely Suraj who belongs to Scheduled Caste and the second one Mohd. Uvaish were died due to accidental gunpowder explosion. There is no iota of evidence under Sections 304, 436 I.P.C. and 3/5 Explosive Substance Act and 3(1)(r), 3(1)(s), 3(2)(v) SC/ST Act. He further submits that Mohd. Uvaish was the nephew of the appellant and Suraj was the neighbor of the appellant who was having adjoining house with him. The F.I.R. was lodged against several persons. The other co-accused namely Jahid Ali who was also a license holder for manufacturing and selling of crackers and Haroon was also helping him in the same business who is a brother of the present applicant whereas appellant has no concern to the said incident and he has falsely been implicated in the present case due to the incident happened in his house where raw material was being kept. Learned counsel for the appellant further submits that the case was wrongly registered under Section 304 IPC whereas from the bare perusal of the FIR and the incident which happened there, the case under Section 304-A IPC must have been registered. He further submits that the provision of SC/ST Act will not be attracted in the present case. It was further argued by the learned counsel for the appellant that the appellant is innocent person and for his livelihood he carried out this business. As such appellant has no intention to harm any person. The entire prosecution story is baseless. It was merely an accident in which there is no fault of the appellant. The appellant is in jail since 4.1.2018. He further submits that the appellant has no criminal history except the present one.

Learned counsel for the appellant further submits that co-accused Jahil Ali and Haroon having identical role to that of appellant has already been granted bail by this Court vide order dated 23.7.2019 passed in Criminal Appeal No. 838 of 2019 and the case of the appellant is not on worse footing than that of the co-accused, therefore, on the ground of parity also the appellant is entitled for bail.

Several other submissions in order to demonstrate the falsity of the allegations made against the appellant has also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the appellant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required. Counsel has attempted to point out several other inherent infirmities in the evidence and also the elements of improbability contained therein and it has been argued that with such infirmities on record there is a reasonable prospect of the appeal being allowed after final hearing takes place. Submission is that the appellant was on bail during the course of trial which was never misused by him and there is no likelihood of the appeal to be heard at an early date or in near future in the wake of heavy pendency of cases in the court.

Learned counsel for the appellant has placed reliance of Hon'ble Apex Court judgment in the case of Kamal Vs. State of Haryana, 2004 (13) SCC 526 and the Hon'ble Apex Court was pleased to observe in paragraph no. 2 of the judgment as under :-

"2. This is a case in which the appellant has been convicted u/s 304-B of the India Penal Code and sentenced to imprisonment for 7 years. It appears that so far the appellant has undergone imprisonment for about 2 years and four months. The High Court declined to grant bail pending disposal of the appeal before it. We are of the view that the bail should have been granted by the High Court, especially having regard to the fact that the appellant has already served a substantial period of the sentence. In the circumstances, we direct that the bail be granted to the appellant on conditions as may be imposed by the District and Sessions Judge, Faridabad."

Learned counsel for the appellant has placed further reliance of Hon'ble Apex Court judgment in the case of Takht Singh Vs. State of Madhya Pradesh, 2001 (10) SCC 463, and the Hon'ble Apex Court was pleased to observe in paragraph no. 2 of the judgment as under:-

"2. The appellants have been convicted under Section 302/149, Indian Penal Code by the learned Sessions Judge and have been sentenced to imprisonment for life. Against the said conviction and sentence their appeal to the High Court is pending. Before the High Court application for suspension of sentence and bail was filed but the High Court rejected that prayer indicating therein that the applicants can renew their prayer for bail after one year. After the expiry of one year the second application was filed but the same has been rejected by the impugned order. It is submitted that the appellants are already in jail for over 3 years and 3 months. There is no possibility of early hearing of the appeal in the High Court. In the aforesaid circumstances the applicants be released on bail to the satisfaction of the learned Chief Judicial Magistrate, Sehore. The appeal is disposed of accordingly."

Learned A.G.A. opposed the prayer for bail and submits that if the appellant is released on bail, he will misuse the liberty of bail.

I have considered the arguments advanced by the learned counsel for the parties and gone through the record.

In view of above facts and discussions, I find that the court below has not considered the case in the correct perspective and committed error by rejecting the bail application of the appellant-applicant vide impugned order dated 30.01.2020 and the same is liable to be set aside.

After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, and the observation given by the Hon'ble Apex Court in the case of Kamal Vs. State of Haryana (supra) and Takht Singh Vs. State of Madhya Pradesh (supra) and mandate of Article 21 of the Constitution of India and law laid down in the case of Dataram Singh vs. State of UP and another, (2018) 2 SCC 22, the unlikelihood of early hearing and conclusion of appeal, this Court is of the view that the appellant may be enlarged on bail and the order of the court below may be set aside and reversed.

Accordingly, the appeal stands allowed. The impugned judgment and order dated 30.01.2020 passed by learned Special Judge SC/ST Act/ Additional District & Sessions Judge, Barabanki in Second Bail Application No. 44 of 2020 (Mohd. Haseeb Vs. State of U.P.), arising out of Case Crime No. 389 of 2018, under Sections 304, 436 I.P.C. and 3/5 Explosive Substance Act and 3(1)(r), 3(1)(s), 3(2)(v) SC/ST Act, P.S. Ramsanehighat, District Barabanki is hereby set aside and reversed.

Let appellant Mohd. Haseeb be released on bail in the aforesaid case crime number on furnishing a personal bond in the sum of Rs. 50,000/- (Fifty Thousand) and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-

(i) The appellant will co-operate with the trial and remain present personally on each and every date fixed for framing of charge, recording of evidence as well as recording of statement under Section 313 Cr.P.C. or through counsel on other dates and in case of absence without sufficient cause, it will be deemed that he is abusing the liberty of bail enabling the court concerned to take necessary action in accordance with the provisions of Section 82 Cr.P.C. or Sections 174A and 229A I.P.C.

(ii) The appellant will not make any attempt to tamper with the prosecution evidence in any manner whatsoever.

(iii) The appellant will personally appear on each and every date fixed in the court below and his personal presence shall not be exempted unless the court itself deems it fit to do so in the interest of justice.

(iv) The appellant shall cooperate in the trial sincerely without seeking any adjournment.

(v) The appellant shall not indulge in any criminal activity or commission of any crime after being released on bail.

On acceptance of bail bond and personal bond, the lower court concerned shall transmit the photostat copies thereof to this Court for being kept on the record.

The trial court is directed to expedite the trial of the aforesaid case and conclude the same expeditiously without granting any unnecessary adjournment to either of the parties.

The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by it alongwith a self attested identity proof of the said person(s) (preferably Aadhar Card) mentioning the mobile number(s) to which the said Aadhar Card is linked, before the concerned Court/Authority/Official.

The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

Order Date :- 17.8.2021

SA