Allahabad High Court
Shamshad @ Baba ( Second Bail ) vs State Of U.P. & Anr. on 8 July, 2021
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 14
Case :- BAIL No. - 9152 of 2020
Applicant :- Shamshad @ Baba ( Second Bail )
Opposite Party :- State Of U.P. & Anr.
Counsel for Applicant :- Shishir Pradhan,Uday Kumar Singh
Counsel for Opposite Party :- G.A.
Hon'ble Alok Mathur,J.
1. Heard learned counsel for the applicant as well as learned Additional Government Advocate for the State of U.P. through video conferencing in view of COVID-19 pandemic.
2. This is second bail application filed by the applicant who is accused in Case Crime No. 249/2015, Under Section - 376 I.P.C. & Section - 3/4 POCSO ACt & Section - 3(2)(X) of SC/ST, P.A. Act, Police Station - Nasirabad, District Raebareli.
3. The first application was rejected by means of order dated 11.07.2016 where this Court has observed that the prosecutrix has made specific allegations against the applicant.
4. It has been submitted by learned counsel for applicant that in the present case the charges were framed on 01.08.2016 consequent to which P.W. 1 was examined on 03.02.2017 and P.W. 2 was examined on 04.08.2018 and no proceeding in the trial court have taken place since 2018. Specific averment have been made in para No. 12 of this application which has not been denied by the State in their counter affidavit.
5. It has further been submitted by learned counsel for applicant that applicant is incarcerated in judicial custody since 6 years and one month while the minimum and maximum sentence in the offence for which he is tried are 7 years and going to life imprisonment respectively. He further submitted that this Court while deciding Criminal Appeal No. 422 of 2019 preferred by the present applicant had directed the trial court to conclude the trial as expeditiously as possible, preferably within a period of six months from the date of next hearing. The said direction was given on 08.07.2019 and even after passing of the two years not much progress has been made during trial. As stated above, only two prosecution witnesses have been examined so far and no proceedings have been undertaken in the trial subsequent to 2018.
6. In support of his submissions, learned counsel for applicant has relied upon a judgment of Hon'ble the Apex Court in the case of Vivek Kumar Vs. State of U.P. reported in 2001 (1) HVD 138, where the Apex court was constrained to release the applicant therein on bail only on the ground that long period had passed in custody without commencement of the trial and there was no good reason to detain him in further custody.
7. Learned A.G.A. on the other hand opposes the bail application and submits that looking into the gravity and nather of the offence, the applicant is not entitled to be released on bail.
8. I have heard learned counsel for the parties and perused the record.
9. Without entering into the merits of the case, the fresh facts as stated by learned counsel for applicant that applicant has been spent in jail nearly 6 years and one month and no proceedings in the trial has taken place subsequent to 2018 despite the direction of this Court on 08.07.2019 where a direction was issued to the trial court to conclude the trial as expeditiously as possible, preferably within a period of six months from the date of next hearing and further looking into the directions of the Hon'ble the Apex Court in the case of Vivek Kumar (Supra) and also that there is no psssibility of early conclusion of the trial, I am of the considered opinion that the applicant deserves to be released on bail.
10. Let applicant/Shamshad @ Baba be released on bail in Case Crime No. 249/2015, Under Section - 376 I.P.C. & Section - 3/4 POCSO ACt & Section - 3(2)(X) of SC/ST, P.A. Act, Police Station - Nasirabad, District Raebareli on his furnishing a personal bond and two sureties of the like amount to the satisfaction of the Magistrate/Court concerned, subject to following conditions :-
(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.
11. In case of breach of any of the above conditions, the Court below shall be at liberty to cancel the bail and proceed against the applicant in accordance with law.
12. The application stands disposed of.
13. The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by him 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.
14. 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.
(Alok Mathur, J.)
Order Date :- 8.7.2021
Ravi/
