Allahabad High Court
Azaharuddin @ Raj Akela vs State Of U.P. And Another on 3 October, 2023
Bench: Mayank Kumar Jain
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:188728
Court No. - 85
Case :- CRIMINAL APPEAL No. - 5728 of 2023
Appellant :- Azaharuddin @ Raj Akela
Respondent :- State of U.P. and Another
Counsel for Appellant :- Adeel Ahmad Khan
Counsel for Respondent :- G.A.,Sunil Kumar Mishra
Hon'ble Mayank Kumar Jain,J.
Heard learned counsel for the appellant, learned AGA for opposite party no.1, learned counsel for the informant and perused the material placed on record.
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 11.04.2023 whereby the Special Judge, SC/ST Act, Kushinagar has rejected the bail application of the appellant moved by him in Case Crime No. 384 of 2020, under Sections 363, 342, 376 of IPC, and Section 3(2)(D), 3(2)(Dh), 3(2)V of SC/ST Act, Police Station Khadda, District Kushinagar.
Learned counsel for the appellant has submitted that appellant is innocent and has been falsely implicated in this case. It is submitted that earlier appellant was granted bail by this Court vide order dated 18.03.2021 passed in Criminal Appeal Defective No.1174/2020. The appellant remained absent on 03.03.2023 and N.B.W. was issued against him and on 04.03.2023 appellant was arrested. It is submitted that appellant could not appear before the Court for the reason that at one occasion his counsel did not inform him about the date fixed and at one occasion he was suffering from viral fever and at one occasion the lawyers were absenting from judicial work. It is submitted that absence of the appellant is not deliberate. It is also submitted that pursuant to the order dated 11.07.2023 passed by this Court the statement of the victim has been recorded which is filed through supplementary affidavit today. It is further submitted that the statement of informant and victim have already been examined and there is no possibility of tempering the evidence by the appellant. It is a case of malicious prosecution under the provisions of S.C./S.T. Act. Applicant is languishing in jail since 04.03.2023 having no criminal history. In case, the appellant is released on bail, he will not misuse the liberty of bail.
Per contra, learned A.G.A. assisted by learned counsel for the informant has supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the appellant and argued that on 27.02.2023 appellant extended threat to the informant and an application was moved before the trial Court.
I have heard and perused the record.
In Union of India Vs. K.A. Najeeb (2021) 3 SCC 713, the Hon'ble Apex Court has observed that:-
"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 v. Union of India SCC para-15 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, 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, Courts would ordinarily be obligated to enlarge them on bail."
It appears from the arguments advanced by the counsel for the parties and from perusal of material on record that the trial court has not properly considered the case of the appellant. Hence, in view of above consideration, the order of rejection of bail passed by the trial court dated 11.04.2023 is, hereby, set aside.
Having considered the submissions of the parties noted above, finding force in the submissions made by the learned counsel for the appellant; 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.
Let appellant, Azaharuddin @ Raj Akela be released on bail in the aforesaid case crime number on his furnishing a personal bond and two local reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:
(i) 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.
(ii) The appellant shall not pressurize/intimidate the prosecution witnesses.
(iii) 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.
(iv) 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.
(v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel.
(vi) The appellant shall not indulge in any criminal activity or commission of any crime after being released on bail.
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.
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.
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.
The criminal appeal is allowed.
Order Date :- 3.10.2023
Mohit
