Allahabad High Court
Mohan @ Mona Nishad vs State Of U.P. And Another on 4 October, 2023
Bench: Mayank Kumar Jain
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:190801
Court No. - 85
Case :- CRIMINAL APPEAL No. - 8833 of 2023
Appellant :- Mohan @ Mona Nishad
Respondent :- State of U.P. and Another
Counsel for Appellant :- Hari Nath Chaubey
Counsel for Respondent :- G.A.
Hon'ble Mayank Kumar Jain,J.
Compliance affidavit filed today by learned A.G.A is taken on record.
Learned A.G.A informed that service on opposite party no. 2 is sufficient as per record available with him. Despite service of notice upon the informant/opposite party no.2, no one has put in appearance on his behalf.
Heard learned counsel for the appellant, learned AGA for opposite party no.1 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 28.07.2023 whereby the IInd Additional District and Sessions Judge/Special Judge, SC/ST Act, Ramabai Nagar/Kanpur Dehat has rejected the IVth-bail application No. 2897 of 2023, arising out of case crime no. 781 of 2018, under Section 366, 376 of IPC, and under Section 3(2)5 of SC/ST Act, Police Station Bhoganipur, District Kanpur Dehat.
The prosecution case as per the F.I.R is that daughter of the informant was enticed away by appellant on 30.06.2018 at around 8:00 p.m.
Learned counsel for the appellant has submitted that appellant is innocent and has been falsely implicated in this case. He further submitted that as per the F.I.R the victim is major and she accompanied with the appellant at her own accord. It is also submitted that medical report of the victim does not corroborate with the prosecution version since no internal and external injury was found during her medical examination. It is further submitted that 6 prosecution witnesses have already been examined during the trial and there are contradictions in the statements of prosecution witness and version of the F.I.R. Applicant is languishing in jail since 07.07.2018 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. have supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the appellant and submitted that postmortem report mentioned that deceased died due to suffocation but could not dispute the aforesaid factual aspects of the matter.
I have heard learned counsel for the parties 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. The impugned rejection order suffers from infirmity and illegality and the same is liable to be set-aside and the appeal is liable to be allowed.
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, Mohan @ Mona Nishad 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) 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 :- 4.10.2023/PS
