Allahabad High Court
Arvind Kumar @ Bablu vs State Of U.P. on 6 April, 2022
Bench: Arvind Kumar Mishra-I, Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 9
Case :- CRIMINAL APPEAL No. - 1997 of 2010
Appellant :- Arvind Kumar @ Bablu
Respondent :- State of U.P.
Counsel for Appellant :- Firoz Ahmad Khan,Mohammad Mustafa Khan,Rajiv Mishra,Rishad Murtaza
Counsel for Respondent :- Govt. Advocate,Mohd. Mustafa Khan,Mukul Rakesh
Hon'ble Arvind Kumar Mishra-I,J.
Hon'ble Manish Mathur,J.
(Order on Bail Application)
We have heard learned counsel for appellant-applicant, learned A.G.A. appearing on behalf of State on the application for bail and perused the record of the appeal.
Fourth bail application has been filed pertaining to conviction recorded against the applicant in Sessions Trial No. 312 of 2005, Case Crime No.10 of 2005, under Sections 302, 323/34 IPC and Sessions Trial No. 313 of 2005, Case Crime No.11 of 2005, under Sections 3/25 Arms Act, Police Station Maheshganj, District Pratapgarh.
Learned counsel has claimed that insofar as the involvement of the applicant is concerned that it absolutely on the basis of enmity no one saw the occurrence, it occurred somewhere in the midnight of night intervening of 1/2-2-2005. It is stated by prosecution witness Vimala P.W.1 in her cross-examination that shot was fired from point black range on the stomach and there is only one gun shot injury but as per antimortem injury noted by doctor while conducting the postmortem examination report as well as the testimony of doctor no blackening, no tattooing in the nature which may show that the fire was shot from point black range is discernible. That being the case, the origin of the incident has been suppressed. The accused-applicant is in jail since 27.05.2010.
Next contended that insofar as the case of present appellant- Arvind Kumar @ Bablu is concerned, he was present at his home at the time when police arrived on the spot. This conduct of the appellant itself is vindicating of his innocence and the appellant has suffered incarceration for over 12 years seven months and seven days till date. However, it may be intimated that after the occurrence the appellant was sent to jail whereas after eight months of incarceration during trial he was admitted to bail and it can be said that during trial the appellant was on bail. He has no criminal antecedent. No possibility of absconding and he will cooperate in hearing and disposal of appeal.
Learned AGA appearing on behalf of State has vehemently opposed the bail application.
The appeal pertains to the year 2010 and as yet this Court is engaged with hearing of criminal appeal pertaining to the years 1980 on wards. There is no possibility of any hearing taking place in the near future.
Next contended that the appellant has suffered incarceration and, by now, has already suffered over 12 years of imprisonment therefore, in view of the mandate dated 25th February, 2022 of the Hon'ble Supreme Court in Crl. Appeal No.308/2022 arising out of SLP (Crl.) No.4633 of 2021 in Saudan Singh Vs. State of U.P., appellant is entitled to be released on bail, pending disposal of the appeal.
First bail application of the accused-applicant was rejected by the Bench comprising of Hon'ble Mr. Justice Abdul Mateen & Hon'ble Mr. Justice Virendra Kumar Dixit vide order dated 30.11.2011 passed in Application No.75744 of 2010.
Second bail application of the accused-applicant was rejected by the Bench comprising of Hon'ble Mr. Justice Ravindra Singh & Hon'ble Mr. Justice Ashwani Kumar Singh vide order dated 12.09.2014 passed in Application No.57814 of 2012.
Third bail application of the accused-applicant was rejected by the Bench comprising of Hon'ble Mr. Justice Ritu Raj Awasthi & Hon'ble Mr. Justice Mahendra Dayal vide order dated 14.08.2018 passed in Application No.69158 of 2016.
The short term bail application of the accused-applicant was also rejected by the Bench comprising of Hon'ble Mr. Justice Ritu Raj Awasthi & Hon'ble Mr. Justice Narendra Kumar Johari vide order dated 05.12.2018 passed in Application No.129950 of 2018.
The order of the Apex Court dated 25th February, 2022 passed in Saudan Singh's case (supra), has been placed before us. A perusal of the order would reveal that one of the directions issued by the Apex Court, which is relevant to this case is extracted herein below:
"We have put to learned AAG and the learned counsel for the High Court that a list should be prepared of all cases where the person has served out a sentence of 14 years, is not a repeat offender, and in any case if in these cases at one go bail can be granted and cases remitted for examination under the Uttar Pradesh Prisoners Release on Probation Rules, 1938. In all these cases, there is a high possibility that if these people are released, they may not be even interested in prosecuting their appeals.
The second category of cases can be one where the person has served out more than 10 years of sentence. In these cases also at one go bail can be granted unless there are any extenuating circumstances against him.
We are quite hopeful that the High Court will adopt the aforesaid practice and thus prevent the Supreme Court to be troubled with such matters."
Learned counsel for the appellant has further engaged attention of this Court to the order dated 22.03.2022 of Hon'ble Supreme Court in Crl. Appeal No.491/2022 arising out of SLP (Crl.) No.1451 of 2022 in Suleman Vs. State of U.P., wherein also the Hon'ble Supreme Court has reiterated the same view as has been taken in the case of Saudan Singh's case (supra).
Learned AGA has stated that the appeal itself may be heard but could not dispute that in connection with the present case, the appellant has suffered incarceration about 12 years.
In view of the above quoted observations in the order passed by the Apex Court, dated 25.02.2022, in Saudan Singh's case (supra) as well as the principles laid down in the order dated 25.03.2022 passed by Hon'ble Supreme Court in Suleman (supra) and there being no dispute that the appellant by now has served over 12 years of imprisonment in connection with the case, the appeal pertains to be year 2010, the older appeals are still pending consideration for final hearing and there is no possibility of early final hearing in the present appeal on its turn, hence we are of the view that the appellant is entitled to be released on bail.
Consequently, the prayer for bail is allowed.
Let the accused appellant/applicant Arvind Kumar @ Bablu convicted and sentenced by Additional Sessions Judge/Fast Track Court No.7, Pratapgarh, vide judgment and order dated 28.05.2010 in Sessions Trial No. 312 of 2005, Case Crime No.10 of 2005, under Sections 302, 323/34 IPC and Sessions Trial No. 313 of 2005, Case Crime No.11 of 2005, under Sections 3/25 Arms Act, Police Station Maheshganj, District Pratapgarh be released on bail in the above case on furnishing personal bond and two sureties each of the like amount to the satisfaction of the court concerned subject to furnishing the undertaking that he will co-operate in the hearing of the appeal.
Prayer to stay the realization of fine from the appellant is rejected.
On acceptance of their bail bonds, the lower court shall transmit photostat copies thereof to this Court for being kept on the record of this appeal.
Let this appeal be listed for 'final hearing' in due course.
Order Date :- 6.4.2022
Subodh/-
