Sri Mohsin Iqbal vs State Of U.P.
2022 Latest Caselaw 19104 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 71
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 48975 of 2019
 
Applicant :- Sri Mohsin Iqbal
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Rizwan Ahamad,Naseem Ahmad,Salman Ahmad
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Manish Mathur,J.

1. Supplementary affidavit filed today in Court by learned counsel for applicant is taken on record.

1A. Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State and perused the record.

2. Second bail application has been filed with regard to Case Crime No.207 of 2016, under Sections 147,148, 149, 307, 302 IPC, registered at Police Station Civil Lines, District Aligarh; with first bail application having been rejected vide order dated 01.11.2018 by Hon'ble Justice Vipin Sinha. Since his Lordship has demitted office and therefore this bail application has been listed before this Court as per roster.

3. As per contents of FIR, the incident is said to have taken place on 23.04.2016 at about 11.30 P.M. when the applicant alongwith co-accused is said to have opened fire upon brother of informant who being grievously injured subsequently passed away.

4. Learned counsel for applicant submits that the first bail application has been rejected primarily on the ground that prompt FIR was lodged indicating specific role to the applicant as per eye witness account. It is submitted that at the time of rejection of first bail application, the deposition of prosecution witnesses had not yet taken place but subsequently three prosecution witnesses have been examined who are the witness of fact and while first informant as P.W 1 has been declared hostile, P.W.2 and P.W3 who were allegedly eye witnesses have not supported the prosecution version so far as it relates to applicant. Certified copies of deposition of P.W 1, P.W.2 and P.W. 3 have been brought on record by means of supplementary affidavit. It is submitted that the applicant is in custody since 23.09.2017 and as yet only three prosecution witnesses have been examined with a total of 24 prosecution witnesses as per charge-sheet. As such, it is submitted that there is no hope of any early conclusion of trial.

5. Learned Additional Government Advocate appearing on behalf of State has opposed the bail application with the submission that the first bail application have been rejected on merit primarily on the basis of eye witness account as indicated therein. However he does not dispute the fact situation.

6. In Union of India v. K. A. Najeeb reported in (2021) 3 Supreme Court Cases 713 Hon'ble the Supreme Court has considered the aspect of liberty guaranteed by Part III of the Constitution and elucidates that it could cover within its protected ambit not only due procedure and fairness but also access to justice and speedy trial. It has been held that ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. It has also been held that once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for significant period of time, the courts would ordinarily be obligated to enlarge them on bail. The relevant portion of judgment is as follows:-

"15. This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India (1994) 6 SCC 731, it was held that under trials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, the Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the Courts would ordinarily be obligated to enlarge them on bail."

"17. It is thus clear to us that the presence of statutory restrictions like Section 43-D (5) of the UAPA per se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, the Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D (5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial."

"18. Adverting to the case at hand, we are conscious of the fact that the charges levelled against the Respondent are grave and a serious threat to societal harmony. Had it been a case at the threshold, we would have outrightly turned down the Respondent's prayer. However, keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with no other option except to grant bail. An attempt has been made to strike a balance between the Appellant's right to lead evidence of its choice and establish the charges beyond any doubt and simultaneously the Respondent's rights guaranteed under Part III of our Constitution have been well protected."

7. Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, reported in (2012) 1 SCC 40 has specifically held that bail is to be a norm and an under-trial is not required to be in jail for ever pending trial. Relevant paragraphs of the judgment are as under :-

"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty."

"27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."

8. Considering the submissions advanced by learned counsel for parties and upon perusal of material available on record, it appears that from a perusal of FIR that specific role of firing has been allocated to the applicant in the FIR, which was the primary cause of rejection of first bail application. However subsequently as per certified copies of deposition of the first informant as P.W1 and alleged eye witnesses as P.W. 2 and P.W.3, none of them have supported the prosecution version so far as it relates to the applicant and in fact the role of firing has been attributed to one Zaid Altmash. It is submitted that applicant is in custody since 23.09.2017 with only three prosecution witnesses having been examined as yet while there are 24 prosecution witnesses as per charge-sheet. As such, there does not appear to be any hope of early conclusion of trial.

9. Looking to the nature of allegations levelled against the applicant and submission made in the bail application, without expressing any opinion on the merits of case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, particularly since no reasonable apprehension of tampering with the witnesses has been alleged, prima facie, this Court finds, the applicant is entitled to be released on bail in this case.

10. Accordingly bail application is allowed.

11. Let applicant, Sri Mohsin Iqbal, involved in the 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.

Order Date :- 29.11.2022

Subodh/-