Allahabad High Court
Chunney Khan @ Firoz @ Firoz Alam vs The State Of U.P. on 29 May, 2020
Bench: Anil Kumar, Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?In Chamber Crl. Misc. Application No.71565 of 2019 ( Bail Application) In re; Case :- CRIMINAL APPEAL No. - 1067 of 2019 Appellant :- Chunney Khan @ Firoz @ Firoz Alam Respondent :- The State Of U.P. Counsel for Appellant :- Satyendra Nath Mishra,Ajay Veer Singh Counsel for Respondent :- G.A. Hon'ble Anil Kumar,J.
Hon'ble Manish Mathur,J.
Heard learned counsel for appellant, Sri S.P. Singh, learned A.G.A. on the bail application in pending appeal through Video Conferencing and perused the record.
This is the bail application preferred by the appellant/Chunney Khan @ Firoz @ Firoz Alam in this criminal appeal filed against the judgment and order dated 10.11.2015 passed by Additional Sessions Judge, Court no.6, Faizabad, in case The State Vs. Chunney Khan @ Firoz Khan and others, S.T. No.481 of 2011, Crime No. 540 of 2011, under Sections 302,201 I.P.C., Police Station Patranga, District Faizabad, convicting and sentencing the appellant to undergo imprisonment for life and a fine of Rs. 25000/- under Section 302 I.P.C., further convicting and sentencing the appellant to undergo rigorous imprisonment for one year under Section 201 I.P.C. and in default of payment of fine to undergo a further period of one year under section 302 I.P.C and six months additional rigorous imprisonment. Both the sentence shall run concurrently.
Learned counsel for the appellant at the very outset submits that he does not want to press the bail application of the accused appellant on merit but he pressed the same only on the ground that he is in jail since 11.09.2011, so taking into consideration the said facts, he may be granted bail.
Learned Additional Government Advocate has opposed the bail application of the accused appellant however, he does not dispute the fact that the accused- appellant is in jail since 11.09.2011.
We have given thoughtful consideration to the submissions made by learned counsel for rival parties and and gone through the record.
No doubt incarceration is not the sole ground for granting bail to the applicant-accused, however, under our Constitution, speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Article 21 as interpreted by Hon'ble Supreme Court in the case of Maneka Gandhi v. Union of India, AIR 1978 Supreme Court 597 wherein it has been held that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law and it is not enough to constitute compliance with the requirement of that Article that some semblance of a procedure should be prescribed by law, but that the procedure should be reasonable, fair and just.
Speedy trial is a fundamental right implicit in the broad sweep and content of Article 21 of the Constitution of India. The aforesaid Article confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law.
If a person is deprived of his liberty under a procedure which not reasonable, fair, or just, such deprivation would be violative of his fundamental right under Article 21 of the Constitution of India. It has also been emphasized by Hon'ble the Apex Court that the procedure so prescribed must ensure a speedy trial for determination of the guilt of such person. It is conceded that some amount of deprivation of personal liberty cannot be avoided, but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt.
Hon'ble Apex Court in the case of Dataram Singh Vs. State of Uttar Pradesh and Another-2018 (3) SCC 22, held as under :-
"2. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.
3. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. It the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hibing due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by parliament by inserting Section 436-A in the Code of Criminal Procedure, 1973.
4. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormour overcrfowding in prison, leading to social and other problems as noticed by this Court in Re-Inhuman Conditions in 1382 Prison (2017) 10 SCC 658 : (2018) 1 scc (Cri) 90.
5. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in Nikesh Tarachand Shah v. Union of India ? (2018) 11 SCC 1 : (2017) 13 Scale 609 going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565 : 1980 SCC (Cri) 465 in which it is observed that it was held way back in Nagendra nath Chakravarti- 1923 SCC OnLune Cal 318 : AIR 1924 Cal 476 that bail is not to be withheld as a punishment. Reference was also made to Emperor v. H.L. Hutchinson - 1931 SCC OnLine All 14 : AIR 1931 All 356 wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a centure old, going back to clonial days."
In the case of Nikesh Tarachand Shah vs. Union of India and Another 2018 (11) SCC 1, Honble the Apex Court held as under :-
15. The provision for bail goes back to Magna Carta itself. Clause 39, which was, at that time, written in Latin, is translated as follows :
"No free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land."
It is well known that Magna Carta, which was wrung out of King John by the barons on the 15th of June, 2015, was annulled by Pope Innocent III in August of that very year. King John died one year later, leaving the throne to his 9 year old son, Henry III. It is in the reign of this pious King and his son, Edward I, that Magna Carta was recognized by kingly authority. In fact, by the statutes of Westminister of 1275, Kind Edward I repeated the injunction contained in clause 39 of Magna Carta. However, when it came to the reign of the stuarts, whoo believed that they were kings on earth as a matter of divine right, a struggle ensued between Pariament and King Charles I. This led to another great milestone in the history of England called the Petition of Right of 1628. Moved by the hostility of the Duke of Buckingham, the House of Commons denied King Charles I the means to conduct military operations abroad. The King was unwilling to give up his military ambition and resorted to the expedient of a forced loan to finance it. A number of those subject to the among them were those who became famous as "the Five Knights". Each of them sought a writ of habeas corpus to secure his release. One of the Knights, Sir Thomas Darnel, gave up the fight, but the other four fought on. The King's Bench, headed by the Chief Justice, made an order sending the knights back to prison. The Chief Justice's order was, in fact, a provisional refusal of bail. Parliament being displeased with this, invoked Magna Carta and the statutes of Westminster, and thus it came about that the Petition of Right was presented and adopted by the Lords and a reluctant King. Charles I reluctantly accepted this Petition of Right stating, "let right be done as is desired by the petition". Among other things, the Petition had prayed that no free man should be imprisoned or detained, except by authority of law.
16. In Bushell's case, decided in 1670, Chief Justice Sir John Vaughan was able to state that:
"the writ of habeas corps is now the most usual remedy by which a man is restored again to his liberty, if he have been against law deprived of it."
Despite this statement of the law, one Jenkes was arrested and imprisoned for inciting persons to riot in a speech, asking that King Charles Ii be petitioned to call a new Parliament. Jenkes went from pillar to post in order to be admitted to bail. The Lord Chief Justice sent him to the Lord Chancellor, who, in turn, sent him to the Lord Treasurer, who sent him to the King himself, who, "immediately commanded that the laws should have their due course." (See Jenke's case, How. St. Tr. 1189 at 1207, 1208 (1676)). It is cases like these that led to the next great milestone of English history, namely the Habeas Corpus Act of 1679. This Act recited that many of the King's subject have been long detained in prison in cases where, by law, they should have been set free on bail. The Act provided for a habeas corpus procedure which plugged legal loopholes and even made the King's Bench Judges subject to penalties for non-compliance.
17. The next great milestone in English history is the Billof Rights of 1689, which was accepted by the only Dutch monarch that England ever had, King William III, who reigned jointly with his wife Queen Mary II. It is in this document that the expression "excessive bail ought not to be required ??."first appears in Chapter 2, clause 10.
18. What is important to learn from this history is that clause 39 of Magna Carta was subsequently extended to pre-trial imprisonment, so that persons could be enlarged on bail to secure their attendance for the ensuing trial. It may only be added that one century after the Bill of Rights, the US Constitution borrowed the language of the Bill of Rights when the principle of habeas corpus found its way into Article 1 Section 9 of the US Constitution, followed by the Eighth Amendment to the Constitution which expressly states that, "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted' We may only add that the Eights Amendment has been read into Article 21 by a Division Bench of this Court in Rajesh Kumar V. State through Government of NCT of Delhi (2011) 13 SCC 706, at paragraphs 60 and 61.
19. In Gurbaksh Singh Sibbia V. State of Punjab, (1980) 2 SCC 565-588, the purpose of granting bail is set out with great felicity as follows :-
27. It is not necessary to refer to decisions which deal with the right to ordinary bail because that right does not furnish an exact parallel to the right to anticipatory bail. It is, however, interesting that as long back as in 1924 it was held by the High Court of Calcutta in Nagendra Nath Chakravarti [AIR 1924 Cal 476, 479, 480 : 1924 Cri LJ 732] that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment. In two other cases which, significantly, are the "Meerut Conspiracy cases' observations are to be found regarding the right to bail which deserve a special mention. In K.N. Joglekar v. Emperor [AIR 1931 All 504 : 1932 Cri LJ 94] it was observed, while dealing with Section 498 which corresponds to the present Section 439 of the Code, that it conferred upon the Sessions Judge or the High Court wide powers to grant bail which were not handicapped by the restrictions in the preceding Section 497 which corresponds to the present Section 437. It was observed by the court that there was no hard and fast rule and no inflexible principle governing the exercise of the discretion conferred by Section 498 and that the only principle which was established was that the discretion should be exercised judiciously. In Emperor v. H.L. Hutchinson [AIR 1931 All 356, 358 : 1931 Cri LJ 1271] it was said that it was very unwise to make an attempt to lay down any particular rules which will bind the High Court, having regard to the fact that the legislature itself left the discretion of the court unfettered. According to the High Court, the variety of cases that may arise from time to time cannot be safely classified and it is dangerous to make an attempt to classify the cases and to say that in particular classes a bail may be granted but not in other classes. It was observed that the principle to be deduced from the various sections in the Code of Criminal Procedure was that grant of bail is the rule and refusal is the exception. An accused person who enjoys freedom in a much better position to look after his case and to properly defent himself than if he were in custody. As a presumably innocent person he is therefore entitled to freedom and every opportunity to look after his own case. A presumably innocent person must have his freedom to enable him to establish his innocence.
28. Coming nearer home, it was observed by Krishna Iyer J., in Gaudikanti Narasimhulu v. State [(1978) 1 SCC 240 : 1978 scc (Cri) 115] that : (SCC p.242, para 1) '1...... the issue of bails is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. ?. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law. The last four words of Article 21 are the life of that human right."
29. In Gurcharan Singh v. State (UT of Delhi) [(1978) 1 SCC 118 : 1978 SCC (Cri) 41] it was observed by Goswami, J., who spoke for the court, that : (SCC p.129, para 29) "29.... There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail."
30. In AMERICAN JURISPRUDENCE (2nd, Volume 8, p.806, para 39), it is stated :
"where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case. Since the object of the detention or imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a recognizance or bond would effect that end."
It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail."
Further it is not disputed rather admitted the position that appellant-accused/ Mulayam is in jail since 25.09.2013 and also the fact that due to pendency of the heavy docket the appeals which were filed in the year 1982/83 are not to be heard and disposed of on merits in the near future, we find sufficient ground for allowing the bail application has been made out.
Without commenting anything on merits of the case, we are of the considered opinion that accused-appellant/Chunney Khan @ Firoz @ Firoz Alam is entitled to be released on bail.
Let the accused-appellant/Chunney Khan @ Firoz @ Firoz Alam convicted in the aforesaid seasons trial be released on bail during the pendency of appeal subject to his furnishing 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 party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
(ii) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court of Allahabad and shall make a declaration of such verification in writing.
(iii) Difficulty arising in arranging of sureties because of lockdown has already been dealt with by a Division Bench of this Court in Public Interest Litigation (PIL) No.564 of 2020. Directions issued therein shall be applicable in the present case which are as follows:-
"Looking to impediments in arranging sureties because of lockdown, while invoking powers under Article 226 and 227 of the Constitution of India, we deem it appropriate to order that all the accused-applicants whose bail applications came to be allowed on or after 15th March, 2020 but have not been released due to non-availability of sureties as a consequence to lockdown may be released on executing personal bond as ordered by the Court or to the satisfaction of the jail authorities where such accused is imprisoned, provided the accused-applicants undertakes to furnish required sureties within a period of one month from the date of his/her actual release."
Order Date :- 29.5.2020 dk/