Mobin Ahmad vs State Of U.P. & Another
2021 Latest Caselaw 10430 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 12
 

 
Case :- CRIMINAL APPEAL No. - 1070 of 2020
 

 
Appellant :- Mobin Ahmad
 
Respondent :- State Of U.P. & Another
 
Counsel for Appellant :- Hari Bux Singh,Harendra Pratap Singh
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Shamim Ahmed,J.

Heard learned counsel for the appellant, learned A.G.A. for the State and perused the record.

This appeal has been filed against the order dated 29.9.2020 passed by Sepcial Judge, SC/ST Act, Lucknow in Second Bail Application No.4471 of 2020 arising out of Crime No.32/2020 under Sections 323, 308 and 304 IPC and Section 3(2)(v) SC/ST Police Station Nagram, District Lucknow, by which second bail application of the appellant has been rejected.

Learned counsel for the appellant submits that that the FIR was lodged on 18.2.2020 alleging therein that on 12.2.2020 at about 11 p.m. in the night when the brother of the complainant Lavkush (deceased) aged about 22 years was at his plot near Samesi Power Houseand, some unknown persons assaulted him due to which he got injured and was taken by the police vehicle to Government Hospital, Nagram and on getting information when the complainant reached the hospital, he came to know that his brother Lavkush has been referred to Civil Hospital, Lucknow and subsequently to Medical College, Lucknow where he is under treatment.

Learned counsel for the appellant further submits that the occurrence is said to have taken place on 12.2.2020 at 11 p.m. in the night whereas the FIR was registered on 18.2.2020 at 8.37 p.m. against unknown persons but there is no plausible explanation for delay of six days in lodging the FIR. The appellant is not named in the FIR, his name came into light for the first time in the statement of the complainant recorded under Section 161 CrPC. Initially the FIR was lodged under Section 323, 308 IPC but during the course of investigation the Investigating Officer added Section 304 IPC and Section 3 (2)v SC/ST Act. Learned counsel further submits that there is vast contradiction in the FIR version and the statement of the complainant which creates doubt regarding the prosecution case. On one hand, the FIR was lodged against some unknown persons with the allegation that they beaten his brother Lavkush due to which he got injured and was taken by the police vehicle to Government Hospital, Nagram and on information when the complainant reached the hospital, he came to know that his brother Lavkush has been referred to Civil Hospital, Lucknow and subsequently to Medical College, Lucknow where he is under treatment. On the other hand, the complainant has made a statement before the Investigating Officer that he came to know about the incident in the morning of 13.2.2020 by the persons who taken his brother to the hospital with the help of the police. Learned counsel for the appellant further submits that the alleged incident is said to have taken place in the dark of hours and actually nobody had seen the incident. He further submits that the complainant in his statement recorded under Section 161 CrPC has clearly stated that he was told by Pradeep and Sheru Quraishi about the incident in the morning of 13.2.2021 and despite this he lodged the FIR on 18.2.2020 against some unknown persons.

Several other submissions in order to demonstrate the falsity of the allegations made against the appellants have 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 appellants that they are ready to cooperate with the process of law and shall faithfully make themselves 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 trial/appeal being allowed after final hearing takes place. Submission is that the appellants were on bail during the course of trial which was never misused by them. It has been pointed out that the appellant is in jail since 6.3.2020 and there is no likelihood of the trial/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. has opposed the prayer for bail.

Considering the arguments advanced by learned counsel for the parties and after perusal of record, this Court finds that no case under Sections 323, 308, 304 IPC is made out against the appellant. The prosecution story is totally false and fabricated. No such incident took place as alleged in the FIR. There is no specific allegation against the appellant. If the complainant was told about the alleged incident by the witnesses on 12.2.2020 itself, why he has not disclosed the name of the alleged accused persons in the FIR which was lodged on 18.2.2020 and the same was got lodged against unknown persons.

In view of above facts and discussions, this Court finds 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 29.9.2020 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 trial/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 29.9.2020 passed by Sepcial Judge, SC/ST Act, Lucknow in Second Bail Application No.4471 of 2020 arising out of Crime No.32/2020 under Sections 323, 308 and 304 IPC and Section 3(2)(v) SC/ST Police Station Nagram, District Lucknow is hereby set aside and reversed.

Let the appellant- Mobin Ahmad be released on bail in Case Crime No.32/2020 under Sections 323, 308 and 304 IPC and Section 3(2)(v) SC/ST Police Station Nagram, District Lucknow on his executing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:

(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

SP