Shameem Ahmad Second Bail vs State Of U.P. Thru Prin.Secy. Home ...
2022 Latest Caselaw 411 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 11
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 15085 of 2021
 

 
Applicant :- Shameem Ahmad Second Bail
 
Opposite Party :- State Of U.P. Thru Prin.Secy. Home Lucknow
 
Counsel for Applicant :- Jitendra Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajesh Singh Chauhan,J.

Heard Sri Jitendra Singh, learned counsel for the applicant and learned A.G.A. for the State.

It has been contended by the learned counsel for the applicant that the applicant is in jail since 21.10.2020 in Case Crime No. 209 of 2020 u/s 306, 511, 109, 506 IPC, P.S. Hussainganj, District Lucknow. It has been submitted that the applicant has been falsely implicated in this case as he has not committed any offence as alleged.

As per Sri Singh this is second bail application as first bail application has been rejected by Hon'ble Vikas Kunvar Srivastava, J. on 21.6.2021 vide Bail No. 452(B) of 2021 (Annexure no. 1).

Sri Jitendra Singh has submitted that pursuant to the order of Hon'ble Chief Justice if any particular court is not sitting at the place where the second bail application is to be considered, the regular court may pass appropriate order. As per Sri Singh the Hon'ble Judge concerned is not sitting at Lucknow as presently he is sitting at Allahabad, therefore, the aforesaid case is being listed before the appropriate Court w.e.f. 24.2.2022 on-wards.

Sri Singh has submitted that he is aware about the fact that no such arguments or grounds may be taken in the second bail application which were available to the applicant at the time of first bail application, therefore, he is not taking any ground which were available at the time of first bail application.

He has drawn attention of this Court towards para 32 of the order dated 21.6.2021 whereby the first bail application was rejected, which reads as under :

"32. Learned trial court below is also directed to expeditiously proceed with the trial and conclude the same within a reasonable period of one year from the date, certified copy of the order is placed before it. In deciding the case on merit, the trial court need not to be swayed away with any observation made by this Court in the order."

Sri Singh has submitted that while rejecting the first bail the Hon'ble Court was pleased to direct the trial court below to conclude the trial within one year. He has further submitted that, however, the aforesaid period of one year has not been completed and about ten months' period have passed. Further, all the fact witness have been examined and those fact witnesses have not supported the prosecution story showing the statement of both the fact witnesses i.e. P.W. and P.W. 2, therefore, on the basis of aforesaid facts the bail of present applicant may be considered. The same recital has been given in para 26 of the bail application to the effect that the main star witnesses i.e. P.W. 1 and P.W. 2 have been examined and there is no other fact witness left for examination.

Sri Singh has drawn attention of this Court towards para 9 and 19 f the counter affidavit of the State wherein this fact has not been disputed. Besides, he has submitted that the P.W.3 and P.W. 4 have also been examined as the statement of P.W. 3 and P.W. 4 have been enclosed with the supplementary affidavit filed on 11.1.2022.

In para 23 of the bail application he has categorically submitted about the criminal history of the present applicant and has stated that the criminal history of 11 cases against the applicant are the old cases and are petty in nature wherein the present applicant has been acquitted in most of the cases by the competent court of law and such fact has not been disputed vide para 16 of the counter affidavit. However, in para 16 of the counter affidavit only this much has been reiterated that the present applicant is having criminal history of 11 cases.

Sri Singh has also drawn attention of this Court towards Annexure no. 7 which is a bail order of co-accused Javed Khan passed by learned Sessions Court, Lucknow dated 31.10.1020 in Bail Application No. 5421 of 2020. Sri Singh has submitted that as per the entire prosecution story the aforesaid Javed Khan was landlord of the house wherein the victim was living with his family and pursuant to the threats being given by Sri Javed Khan for evicting from the house the extreme step to commit suicide has been taken by the victim.

Further attention has been drawn towards Annexure no. 8 which is a bail order of the co-accused namely Naushad Ahmad in Bail Application No. 1478 of 2021 dated 28.10.2021 whereby this Court has granted bail to such co-accused Naushad Ahmad to whom similar role has been assigned as to the applicant inasmuch to the applicant as well as Naushad Ahmad are said to be journalists.

Sri Singh has submitted that since after rejection of first bail application of the present applicant on 21.6.2021 the bail application of co-accused Naushad Ahmad has been granted by this Court on 28.10.2021, therefore, the aforesaid ground may also be considered to grant bail to the present applicant.

Sri Singh has drawn attention towards the statement of wife of victim (Annexure no. 4) wherein she has categorically stated that she had not made any complaint against the present applicant as well as against Naushad Ahmad, the journalist and their names have been implicated by the police itself. She has further stated that she being a Bengali was not well versed with Hindi language that is why she could not understand as to how the names of present applicant and Naushad Ahmad have been implicated. In her statement recorded before the learned Court and in her cross-examination she has stated at various places that in the commission of suicide by her husband there was no instigation of present applicant as well as Naushad Ahmad, another journalist. Almost similar statement has been given by P.W. 2, son of the victim.

Sri Singh has submitted that considering the fact that P.W. 1 and P.W. 2 have not made any complaint against Naushad Ahmad, this Court granted him bail on 28.10.2021, therefore, on that score the present case is on the similar footing as the case of Naushad Ahmad.

He has drawn attention of this Court towards para 4 of the of the dictum of Hon'ble Apex Court in re: Gokarakonda Naga Saibaba v. State of Maharashtra, (2018) 12 SCC 505, has held in para-4 as under:-

"4. Having given our thoughtful consideration to the submissions advanced at the hands of the learned counsel for the rival parties, specially the undisputed position that the petitioner has never been accused of having misused the concession of bail, we are of the view, that the submission made by the learned counsel for the respondent is extremely unfair. Since all the material witnesses have been examined and cross-examined, the release of the petitioner on bail ought not to have been opposed, especially keeping in mind the medical condition of the petitioner."

(emphasis supplied)

Sri Singh has also submitted that there are total 19 prosecution witnesses, out of them four prosecution witnesses i.e. P.W. 1 to P.W. 4 have been examined, more particularly the main star / fact witnesses i.e. P.W. 1 and P.W. 2 have been examined, therefore, the present bail application may be considered.

He has further drawn attention towards para 19 of the bail application wherein he has indicated that the present applicant is having a small daughter of 8 years and his wife Ms. Nighat Parveen has died due to Covid-19 on 15.4.2021, her death certificate has been enclosed as Annexure no. 6. As per para 20 the mother of the present applicant is 80 years old and she is suffering from age related ailments and she is unable to look after his 8 years old daughter. Therefore, the aforesaid pathetic condition of the present applicant relating to his family may be considered.

It has been submitted that charge-sheet has been filed in this case and there is no possibility of absconding or tampering of evidence or witnesses by the applicant. The learned counsel for the applicant has given an undertaking on behalf of applicant that the applicant shall not misuse the liberty of bail and shall cooperate with the trial proceedings and shall abide by all terms and conditions of bail, if granted.

Learned AGA opposed the prayer for bail by submitting that still the time period so granted by the Court to conclude the trial is not complete and the present applicant is having criminal history of 11 cases so his bail may not be granted.

On being confronted on the point that since all fact witnesses and other prosecution witnesses i.e. P.W. 3 and P.W. 4 have been examined and there is no likelihood that the trial would be concluded in near future even if the remaining period which is left has per rejection order is given, learned AGA has submitted that since that is matter of record, therefore, he has nothing to say.

At the very outset I would like to mention the final order passed by this Court in Criminal Misc. Bail Application No. 6869 of 2019 (Anokhi Lal vs. State of U.P.) wherein the relevant fact has been considered to the effect that if there is no possibility of conclusion of trial in near future the bail application of the accused may be considered. In the aforesaid judgment two judgments of Hon'ble Apex Court i.e. Union of India vs. K.A. Najeeb, AIR 2021 Supreme Court 712 and in re: Paras Ram Vishnoi vs. The Director, Central Bureau of Investigation passed in Criminal Appeal No. 693 of 2021 (Arising out of SLP (Crl) 3610 of 2020 have been considered. Besides, in re: Gokarakonda Naga Saibaba v. State of Maharashtra, (2018) 12 SCC 505, the Apex Court has observed that if the fact witnesses have been examined the bail application of the accused may be considered. Besides, after the rejection of first bail application of the applicant on 21.6.2021 the co-accused namely, Naushad Ahmad who has been assigned similar role has been granted bail by this Court on 28.10.2021. While granting bail to Naushad Ahmad this Court has considered the statement of P.W. 1 and P.W. 2, the fact witnesses who have not supported the prosecution case. I have also perused the statement of P.W. 1, the wife of victim (deceased), P.W. 2, the son of deceased who has not supported the prosecution story.

Out of 19 prosecution witnesses only four prosecution witnesses have been examined, therefore, if the two months period which is left in terms of rejection order is provided to the learned trial court even then the trial may not likely to be concluded in terms of such order dated 21.6.2021 whereby the first bail application of the present applicant was rejected. Therefore, the request to consider the second bail applicant on the aforesaid grounds is being considered.

In nutshell, all star / fact witnesses have been examined; trial is not likely to be concluded in near future; after the rejection of first bail application dated 21.6.2021 the bail application of the co-accused Naushad Ahmad who has been assigned identical role in the incident has been granted bail by this Court on 28.10.2021 and the compelling circumstances of the family as indicated in para 19 and 20 of the bail application wherein it has been stated that the wife of the present applicant died on account of Covid-19 when the present applicant was in jail leaving 8 years old daughter and his 80 years old mother, suffering from age related problems, the applicant is entitled to be released on bail.

Let the applicant Shameem Ahmad, involved in aforesaid case crime be released on bail on his furnishing a personal bond 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 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.

(v) The applicant shall not leave the country without permission of the Court concerned.

Before parting with it is expected that the trial shall be concluded with expedition. Further, the learned trial court may take all coercive measures as per law if either of the parties do not co-operate in the trial properly. The learned trial court shall fix short dates to ensure that trial is concluded at the earliest.

.

(Rajesh Singh Chauhan, J.)

Order Date :- 4.4.2022

Om