Allahabad High Court
Dev @ Mahtab vs State Of U.P Through Its Principal ... on 7 February, 2025
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:17818
Reserved On:-06.02.2025
Delivered On:-07.02.2025
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45658 of 2024
Applicant :- Dev @ Mahtab
Opposite Party :- State Of U.P Through Its Principal Secretary (Home)
Counsel for Applicant :- Avnish Kumar Srivastava
Counsel for Opposite Party :- G.A.
Hon'ble Siddharth,J.
1. Heard Sri Avnish Kumar Srivastava, learned counsel for the applicant; Sri Adesh Kumar, learned counsel for the informant; learned AGA for the State and perused the material placed on record.
2. The instant bail application has been filed on behalf of the applicant, Dev @ Mahtab, with a prayer to release him on bail in Case Crime No. 955 of 2018 under Sections 147, 148, 149, 352, 324, 307, 302/34, 504, 506, 34 of IPC, Police Station, Sardhana, District- Meerut, during pendency of trial.
3. This is the second bail application of the applicant, the first bail application of the applicant was allowed by coordinate Bench of this Court on 08.07.2021. The order dated 08.07.2021 passed by this Court in the above noted bail application was challenged by the informant before the Apex Court and the same was set aside by the Apex Court vide order dated 06.05.2022. Thereafter, the application was moved on behalf of the applicant praying for permission to apply afresh for grant of bail before the court below which was dismissed as withdrawn before the Apex Court with liberty to move court for appropriate relief by the order dated 01.04.2024.
4. Accordingly, this second bail application has been moved by the applicant after rejection of his prayer for grant of bail by the trial court vide order dated 06.09.2024.
5. Learned counsel for the applicant has submitted that the bail was earlier granted to applicant on the ground that there are cross cases registered against each other and it is not clear which party was the aggressor. This question of fact is to be seen during trial. The applicant was not charge-sheeted, but was later summoned under section 319 Cr.P.C. by the trial court. Co-accused, Meharban, Jumma and four others were enlarged on bail by coordinate benches of this Court. On 08.04.2022 another co-accused, Shadab @ Bhura, has been enlarged on bail by this Court vide Criminal Misc. Bail Application No. 36555 of 2021. As yet examination-in-chief of even single witness has not been concluded. The applicant has been falsely implicated in this case. He has no criminal history to his credit and is languishing in jail since 13.05.2022. The trial in the aforesaid case is not likely to be concluded in near future.
6. Learned A.G.A. and learned counsel for informant have vehemently opposed the prayer for bail of the applicant and have submitted that bail granted to the applicant earlier has already been cancelled by the Apex Court and, therefore, he does not deserves to be enlarged on bail. In case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.
7. After hearing the rival contentions, this Court finds that the applicant is not charge-sheeted accused. He has been summoned during trial. Keeping in view the fact that the statement of P.W.-1 has yet not been fully recorded; applicant being under trial cannot be kept in jail indefinitely when the prosecution is unable to get the trial concluded expeditiously, the applicant deserves to be enlarged on bail.
8. 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."
9. Having considered the submissions of the parties noted above, finding force in the submissions made by the learned counsel for the applicant, keeping in view the uncertainty regarding conclusion of trial; one sided investigation by police, ignoring the case of accused side; applicant being under-trial having fundamental right to speedy trial; larger mandate of the Article 21 of the Constitution of India, considering the paragraph no.53 of Apex Court in the case of Manish Sisodia Vs. Directorate of Enforcement passed in Criminal Appeal No. .../2024 and 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, let the applicant involved in the aforesaid 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 that :-
(i) The applicant shall not tamper with the evidence or threaten the witnesses.
(ii) 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.
(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code.
(iv) In case the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fail 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.
(v) 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.
10. In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.
11. Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
Order Date :- 7.2.2025
Abhishek
