Talib vs State Of U.P. And Another
2023 Latest Caselaw 15143 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Neutral Citation No. - 2023:AHC:105912
 
Court No. - 80
 

 
Case :- CRIMINAL APPEAL No. - 6011 of 2019
 

 
Appellant :- Talib
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- A.C.Srivastava,Mohd. Samiuzzaman Khan,Nasira Adil,Samir Srivastava
 
Counsel for Respondent :- G.A.,Akhilesh Chandra Shukla
 

 
Hon'ble Siddharth,J.

1.List revised. None appears on behalf of the opposite party no.2.

2.Heard Shri N.I. Jafari, learned Senior Advocate assisted by Mohd. Samiuzzaman Khan and Shri Nitin Srivastava, learned counsel for the appellant; learned AGA for opposite party no.1 and perused the material placed on record.

3.The present criminal appeal under Section 14-A(2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been filed by the appellant to set aside the impugned order dated 23.7.2019, whereby the Additional District and Sessions Judge/Special Judge, SC/ST Act, Ghaziabad has rejected the bail application of the appellant moved by him in Case Crime No. 3020 of 2018, under Sections 302,201,364A, 328, 411, 34, 392,120-B IPC and Section 3(2)(5) SC/ST Act, Police Station Sahibabad, District Ghaziabad.

4.There is allegation against the unknown accused in the First Information Report that elder brother of the informant, Naveen Kumar Das, left his house from Delhi at 12 noon on 4.10.2018 for going to Chatarpur but he did not reached. On 5.10.2018 his car alongwith dead body was found in burnt state in Sahibabad. Apprehension was expressed that alleged offence has been committed after hatching conspiracy.

5.Learned Senior counsel for the appellant has submitted that appellant was not named in the First Information Report.He has been arrested on the basis of the information received from informer and on the basis of statement of sister of the deceased, Smt. Diksha. Call details of mobile phone were collected which proved that deceased had talked to the appellant No incriminating recovery has been made from him except passport,I.D. card,Pan card,etc., and cash amount allegedly withdrawn from the bank account of the deceased.

6.Learned counsel for the appellant has submitted that he is pressing the bail application of the appellant on the ground of period of detention .The appellant is in jail since 10.10.2018 but till date only four prosecution witnesses have been examined before the trial court out of 18 prosecution witnesses named in the charge sheet.He has submitted that more than four and a half years have been passed and trial will take much time to conclude. This is first Implication of the appellant.

7.Learned A.G.A. has vehemently opposed the bail application and has submitted that informant is getting threat from the appellant side for entering into compromise. It has further been submitted trial is proceeding and will conclude soon.Keeping in view of seriousness of allegations on record, it is not a fit case for granting bail to the appellant

8.After considering the rival submissions and period of detention ,this court finds that allegations against the appellant are serious. Keeping in view of long detention and remote possibility of earlier conclusion of the trial.

9.Regarding long incarceration of under trials prisoners in jail due to delay in conclusion of trial, the Hon'ble Apex Court in re: Union of India vs. K.A. Najeeb reported in AIR 2021 Supreme Court 712 has held in Para 16 of the judgment being reproduced herein below as follows :-

"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, it was held that undertrials 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, 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, Courts would ordinarily be obligated to enlarge them on bail."

10.It appears from the arguments advanced by the counsel for the parties and from perusal of material on record that the court below has not properly considered the case of the appellant. Hence, in view of above consideration, the order of rejection of bail passed by the court below dated 23.7.2019 is, hereby, set aside.

11.Having considered the submissions of the parties noted above, finding force in the submissions made by the learned counsel for the appellant; keeping in view uncertainty regarding conclusion of trial; one sided investigation by police, ignoring the case of accused side; appellant being under-trial having fundamental right to speedy; larger mandate of the Article 21 of the Constitution of India, considering 5-6 times overcrowding in jails over and above their capacity by under trials and without expressing any opinion on the merits of the case, Court is of the opinion that the appellant is entitled to be enlarged on bail.

12.Let appellant, Talib be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:

(i)Appellant will report his presence at police station Murad Nagar District Ghaziabad in first week of every month till the conclusion of trial.

(ii)The appellant shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.

(iii) The appellant shall not pressurize/intimidate the prosecution witnesses.

(iv) The appellant 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 of Cr.P.C.

(v) The appellant 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 the trial court.

(vi) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel.

(vii) The appellant shall not indulge in any criminal activity or commission of any crime after being released on bail.

13.In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that absence of the appellant 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 in accordance with law.

14.The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously in accordance with law after the release of the appellant, if there is no other legal impediment.

15.It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.

16.The criminal appeal is allowed.

Order Date :- 15.5.2023

Atul kr. sri.