Farhan vs State Of U.P. & 6 Ors.
2021 Latest Caselaw 10536 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 12
 

 
Case :- CRIMINAL APPEAL No. - 514 of 2021
 

 
Appellant :- Farhan
 
Respondent :- State Of U.P. & 6 Ors.
 
Counsel for Appellant :- Balak Ram
 
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 criminal appeal has been filed under Section 14-A(2) of Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989 to set aside order dated 20.2.2021 passed by the court of learned Special Judge, S.C./S.T. (P.A.) Act, Ambedkar Nagar in Bail Application No. 06 of 2021, arising out of Case Crime No. 202 of 2020, under Sections 147, 148, 149, 302, 323, 325, 504, 506 I.P.C. and Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Police Station Ibrahimpur, District Ambedkar Nagar, whereby the trial court has rejected the bail application of appellant vide impugned order.

As per the prosecution case, on 8.9.2020 at about 6.00 p.m. the accused persons due to not giving side to their motorcycle, four named and twelve un-named persons belonging to village Badruddinpur came inside and attacked upon the village of respondent no.2 causing injuries to Raziya Bano, Afsar Raza, Raksha Ram Kannojia, Hasan Mohammad, Husain Mohammad and other villagers by lathi, danda and knives and have abused them.

Learned counsel for the applicant submits that the appellant is innocent and he has been falsely implicated in the present case. He further submits that initially the case was registered under Sections 147,148, 323, 324, 452, 504, 506 I.P.C however, after death of the injured Raksha Ram Kannojia, Section 325 and 302 I.P.C. were added. As per the postmortem report of the deceased Raksha Ram Kannojia, he died due to severe head injury (operated) and COVID 19 positive. Learned counsel further submits that all the six injured persons in their statement have assigned general role of assaults. No one has been assigned specific role. The injured Raksha Ram Kannojia has died due to COVID and not because of the antemortem head injury.

Learned counsel for the appellant further submits that co-accused Athar @ Baba, Mohd. Jafar @ Pappu and Abdul Zahir having identical role to that of appellant have already been granted bail by the co-ordinate Bench of this Court vide orders dated 3.8.2021 passed in Criminal Appeal Nos.7 of 2021, 55 of 2021 and 1167 of 2020 and the case of the appellant is not on worse footing than that of the afiresaud 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 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 appellant was on bail during the course of trial which was never misused by him. It has been pointed out that the appellant is in jail since 12.1.2021 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. have opposed the prayer for bail but could not dispute the aforesaid facts as argued by the learned counsel for the appellant/applicant.

Considering the facts and circumstance of the case, without commenting upon merits, this Court is of the view that the learned court below has failed to appreciate the material available on record. In view of above, the impugned order passed by the court below is liable to be set aside.

Accordingly, the appeal is allowed and the order dated order dated 20.2.2021 passed by the court of learned Special Judge, S.C./S.T. (P.A.) Act, Ambedkar Nagar in Bail Application No. 06 of 2021, arising out of Case Crime No. 202 of 2020, under Sections 147, 148, 149, 302, 323, 325, 504, 506 I.P.C. and Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Police Station Ibrahimpur, District Ambedkar Nagar, is hereby set aside.

Let the appellant- Farhan be released on bail in Case Crime No. 202 of 2020, under Sections 147, 148, 149, 302, 323, 325, 504, 506 I.P.C. and Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Police Station Ibrahimpur, District Ambedkar Nagar 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.

In view of the peculiar facts and circumstances of the case, the trial court is directed to expedite the trial of the aforesaid case 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 :- 18.8.2021

SP