Bhole vs State Of U.P.
2022 Latest Caselaw 4548 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 48
 

 
Case :- CRIMINAL APPEAL No. - 3847 of 2009
 

 
Appellant :- Bhole
 
Respondent :- State of U.P.
 
Counsel for Appellant :- S. Rashid
 
Counsel for Respondent :- Govt. Advocate,Amit Kumar Srivastava
 

 
Hon'ble Mahesh Chandra Tripathi,J.

Hon'ble Subhash Chandra Sharma,J.

(Order on Criminal Misc. 2nd Bail Application No.1 of 2022 on behalf of the appellant- Bhole)

Heard Sri Dharmendra Dhar Dubey, learned counsel on behalf of the appellant. Sri Amit Kumar Srivastava, learned counsel for the complainant and learned A.G.A. appears for State.

This instant bail application has been moved on behalf of accused appellant- Bhole who has been convicted and sentenced in S.T. No.185 of 2007 (State of U.P. vs. Rajpal and others) under Section 147, 148, 149, 307, 302 I.P.C. and 7 Criminal Law Amendments Act, connected Session Trial No. 409 of 2007 (State Vs. Bholar) in under Section 25 of Arms Act, Police Station Cantt, District Bareilly to release him on bail in the present criminal appeal.

Learned counsel for the applicant submits that the appellant has been falsely implicated in the present case. He is languishing in jail since 11.05.2006 and by now, he has already undergone more than 16 years of sentence as per the custody certificate dated 21.05.2022 issued by Jail Superintendent, District Jail, Budaun. It is submitted by learned counsel for the applicant that first bail application of the applicant was rejected vide order dated 19.02.2013 by co-ordinate Bench of this Court. He also placed reliance on the order dted 26.05.2016 passed in Criminal Appeal No. 5380 of 2010 wherein other co-accused were enlarged on bail. So far as the applicant is concerned even though initially he was implicated in Case Crime No. 648 of 2008 under Section 307, 504, 506 I.P.C, P.S Cantt, District Bareilly but during investigation final report has been submitted as the appellant is already in jail. And lastly, he placed reliance on Criminal Appeal 3775 of 2009, the other co-accused Gajendra Pal @ Pinki has been released on bail on 20.05.2022 on the ground of long incarceration and similary other co-accused Jitendra @ Tirra has also accorded bail vide order dated 20.05.2022 passed in Criminal Appeal No. 3606 of 2009. There is no likelihood of the appeal being heard in near future. In similar circumstances, the Apex Court has released the convicted appellant on bail by order dated 14.5.2018 passed in Special Leave to Appeal (Crl) No. 1319 of 2018 (Madan Singh Vs. State of Madhya Pradesh). The said order of the supreme court reads as under:

"1. We have heard the learned counsels for the parties.

2. Leave granted.

3. Aggrieved by the refusal of the High Court to suspend the sentence against the accused appellant this appeal has been filed.

4. The accused who has been convicted under section 302/34 I.P.C. and sentenced to undergo rigorous imprisonment for life has undergone actual custody for a period of over seven years. The hearing of the appeal pending before the High Court is likely to take some time unless specifically expedited. We are not inclined to pass any such order.

5. Taking into account the period of custody suffered and the time within which the appeal is likely to be disposed of we are of the view that the accused appellant should be released on bail. We order accordingly. Consequently, the appellant is ordered to be released on bail to the satisfaction of the learned Additional Sessions Judge, Susner, District Shajapur, M.P. in connection with Sessions Trial No. 200/2010.

6. The learned Additional Sessions Judge, Susner, District Shajapu, M.P. is free to impose appropriate condition(s) as he deems fit.

7. Consequently, the order of the High Court is set aside and the present appeal is disposed of in the above terms."

Similar view has also been expressed by Hon'ble Apex Court while passing the order dated 01.10.2021 passed in Petition for Special Leave to Appeal (Crl.) No.5845/2021 (Pintu vs. State of U.P.). The said order of the supreme court reads as under:

"Taking into consideration the fact the the petitioner is reported to be in jail for more than 9 years and 9 months, his Criminal Appeal, pending adjudication before the High Court of Judicature at Allahabad, is not likely to be taken up for final disposal very soon, which fact could not be controverted by learned Additional Advocate General appearing for the State, we are inclined to grant bail to him.

The petitioner is, therefore, directed to be released on bail, subject to such terms and conditions which the concerned Trial Court shall deem fit and appropriate to impose upon him. The Special Leave Petition is disposed of in the afore stated terms."

Similarly in Criminal Appeal No.308/2022 (Saudan Singh vs. State of UP) arising out of SLP (Crl) No.4633 of 2021 by order dated 25.02.2022, the Apex Court has released the applicant on bail. The relevant part of the order is reproduced 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"

Similar view has also been reiterated by Hon'ble the Apex Court in (Brijesh Kumar @ Ramu vs. State of U.P.) Criminal Appeal no.540/2022 in its judgment dated 01.04.2022 and in Vipul v. The State of U.P., Special Leave to Appeal (Crl) No(s). 3114 of 2022 in its judgment dated 08.04.2022 and in Suleman v. State of U.P., Criminal Appeal No.491/2022 in its judgment dated 09.05.2022.

Learned A.G.A. opposed the prayer of bail but could not dispute the incarceration of the applicant.

In view of the aforesaid judgements/orders and there being no dispute that the appellant have by now more than 16 years of incarceration in connection with the case and without expressing any opinion on the merits and without prejudice to the right of the applicant to pursue this appeal or pray for remission as per law, we are of the view that the applicant is entitled to be released on bail.

Let the accused appellant- Bhole S/o Tejpal 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 concerned Chief Judicial Magistrate concerned, subject to furnishing undertaking that he will co-operate in the hearing of the appeal and deposit half of the fine imposed on him at the time of submission of surety bonds.

On acceptance of his 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 showing the name of Sri Dharmendra Dhar Dubey as counsel for the applicant.

Office to transmit this order to the concerned Jail Superintendent, through the C.J.M. concerned for compliance. Copy of this order shall also be provided to learned A.G.A. free of cost for ensuring necessary compliance.

Order Date :- 30.5.2022

PS