Allahabad High Court
Fakhrey Alam (Third Bail Application) vs State Of U.P. on 3 November, 2020
Author: Rajnish Kumar
Bench: Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 8 Case :- BAIL No. - 12269 of 2019 Applicant :- Fakhrey Alam (Third Bail Application) Opposite Party :- State of U.P. Counsel for Applicant :- Mohit Mishra,Anoj Kumar Counsel for Opposite Party :- G.A. Hon'ble Rajnish Kumar,J.
1. Heard, Shri Mohit Mishra, learned counsel for the applicant and Shri G.D. Bhatt, learned A.G.A. for the State.
2. This is the 3rd bail application moved by the applicant- Fakhrey Alam in Case Crime No.4 of 2017 under Section 420, 467, 471, 120-B I.P.C, under Section 3/25/30 of the Arms Act and Section 18 of Unlawful Activities (prevention) Act, 1967, Police Station- ATS, District- Lucknow.
3. The first bail application was dismissed as withdrawn by the applicant vide order dated 27.07.2018 passed in Bail No.6187 of 2018. The second Bail Application No.9986 of 2018 was rejected by a detailed order after considering the arguments and the case dairy summoned by the Court by means of the order dated 05.04.2019. However, a direction was issued to the trial court for expeditious disposal of the trial without granting unnecessary adjournment to the parties within six months from the date of order. It was further provided that in case the case is not concluded within six months the applicant may renew his prayer for bail before the appropriate court.
4. Submission of learned counsel for the applicant is that the second bail application was rejected by means of the order dated 05.04.2019 without assigning any reasons and this Court had directed to conclude the trial within six months. Since the trial has not been concluded within the said period therefore the applicant has approached to this Court and is entitled for bail. The order passed on second bail application was communicated by the office of this Court to the trial court vide endorsement dated 23.04.2019.
5. He further submitted that the applicant was arrested on 08.03.2017 and charge-sheet was filed on 05.10.2017 that is after more than 180 days. Therefore, it was in violation of Section 43D (2) of Unlawful Activities (prevention) Act, 1967 read with Section 167 (2) of Criminal Procedure Code. Therefore also the applicant is entitled for bail.
6. Lastly, he submitted that the applicant is also entitled for parity with co-accused Raghvendra Singh, who has been enlarged on bail by means of the order dated 11.08.2018 in Bail No.10203 of 2017.
7. On the basis of above, learned counsel for the applicant submitted that he is entitled for bail and this application may be allowed.
8. Learned A.G.A. appearing for the State submitted that the second bail application moved by the applicant was considered on merit and after considering the grounds and the records and the case diary the bail application was rejected by means of a detailed order dated 05.04.2019. However, a direction was issued to conclude the trial expeditiously within six months but the applicant never submitted the order passed by this Court before the concerned court, therefore he is not entitled for bail on this ground.
9. So far as the other grounds argued by the learned counsel for the applicant regarding delay in filing of charge-sheet and parity of co-accused Raghvendra Singh are concerned, learned A.G.A. submitted that those grounds have already been taken and considered by this Court while rejecting the second bail application therefore those grounds can not be considered and the applicant is not entitled for bail on the said grounds also.
10. Learned A.G.A. submitted that in view of above and looking to the magnitude of the offence committed by the applicant, he is not entitled for bail and the application is liable to be rejected.
11. I have considered the submissions of learned counsel for the parties and perused the record.
12. The first submission of learned counsel for the applicant is that while rejecting the second bail application by means of the order dated 05.04.2019, the trial court was directed to conclude the trial within a period of six months from the date of order but it has not been concluded within the aforesaid period. As admitted by the learned counsel for the applicant the said order was never communicated by the applicant to the trial court. However his submission is that since the order was communicated by the concerned section of this Court therefore he was not required to communicate the order separately. I have perused the communication sent by the office which was sent to the Sessions Judge, Lucknow vide endorsement no.2101 dated 23.04.2019 while the trial is pending in the court of Special Judge, SC/ST, Act, Lucknow.
13. This Court by means of the order dated 01.06.2020 had called a report from the concerned trial court. The trial court i.e. Special Judge, SC/ST Act, Lucknow had sent a report dated 09.06.2020 indicating therein that the order passed by this Court on the second bail application of the applicant was not communicated to it either on behalf of the accused or prosecution. Therefore, the court was not having the knowledge of directions issued by this Court and it came to know about the order only when the information was sought by the office of the district judge regarding present status of trial in pursuance of order of High Court. It was further stated in the said report that the applicant had filed an application for discharge dated 03.01.2019, a copy of which was served on the learned Government counsel on 31.01.2019 but the applicant was not advancing his arguments on the said application and getting the case adjourned any how while partial argument has already been advanced by the learned Government counsel. It has further been indicated that the court was closed on account of pandemic of Covid-19 from March-2020 and due to Corana very limited and very urgent works were being discharged. Therefore the court would try to dispose of the case expeditiously.
14. Thereafter on the request of learned counsel for the applicant a report was called from the concerned section of this court regarding communication of the order dated 05.04.2019 and after receipt of the report that the order was communicated through endorsement no.2101 dated 23.04.2019, to the Sessions Judge, Lucknow. For clarifying the position of communication to the concerned trial court, an order was being passed on 13.10.2020 for calling a report but learned counsel for the applicant insisted not to call the report and decide the application after hearing him, therefore this court had not called the report and it is recorded in the order dated 13.10.2020. Therefore, it could not be verified as to whether the order dated 05.04.2019 was communicated to the concerned trial court or not. The order dated 13.10.2020 is extracted below:-
"In deference to the order dated 01.06.2020 passed by this court a report dated 09.06.2020 was submitted by the concerned court indicating therein that the order passed by this court on the second bail application of the applicant was not communicated to it, therefore, the court was not having the knowledge of the direction issued by this court.
The Office report dated 24.07.2020 has been submitted by the concerned Section of this court stating that in compliance of the order passed by this court on 23.07.2020 on the Second Bail Application No.9986 of 2018 was communicated to the Sessions Judge, Lucknow sent by the Dispatch Section vide Endorsement No.2101 dated 23.04.2020.
In view of above let a report be called through District and Sessions Judge, Lucknow within a period of two weeks as to whether the order was communicated to the concerned court, if yes, how the aforesaid report was submitted. The present status of the trial shall also be communicated.
At this stage Shri Mohit Mishra, learned counsel for the applicant submitted that the report may not be called from the concerned court and the Bail Application may be heard and decided and insisted for arguments for disposal of bail application. Therefore the report is not required to be called.
Since Learned Additional Government Advocate has not connected through Video Conferencing, therefore, on the request of learned counsel for the applicant list /put up on 15th of October 2020."
15. Once an order was passed in favour of the applicant for disposal of the trial within time bound manner, it was incumbent upon him to submit the order before the concerned court and apprise the court about the direction issued by this Court even if the direction was to conclude from the date of order and also assist the court in disposal of the trial expeditiously. But nothing has been brought on record or submitted to indicate that any such action was taken by the applicant. Therefore, if the direction passed by this Court was not brought to knowledge of the trial court it could not have complied the same and it's violation can not be attributed. Rather as per report of the trial court, the trial is being lingered on behalf of the applicant. The applicant has also not controverted the report of the trial court regarding not arguing on application for discharge and adjournment. Therefore, this Court is of the view that the applicant is not entitled to renew his prayer for bail as per liberty granted by the order dated 05.04.2019 and bail on this ground.
16. So far as the second and third grounds regarding delay in filing of charge-sheet and parity with co-accused Raghvendra Singh are concerned, those grounds were raised by the learned counsel for the applicant in the second bail application and considered by this Court and it is recorded in the order dated 05.04.2019 that the court considered the arguments of the learned counsel for the parties and voluminous case dairy summoned by the Court and keeping in view the material available on record with regard to the allegations made against the applicant, the court was of the considered view that the applicant is not entitled for bail as court did not find any good ground to release the accused-applicant on bail. Therefore, once those grounds were considered in second bail application this court is of the view that those grounds can not be considered in this third bail application in the facts and circumstances of the case and this Court is not sitting in appeal against the said order. No other ground was pressed or argued before this Court.
17. In view of above, this Court is of the considered view that this application is misconceived and lacks merit and this Court does not find any good ground to release the accused-applicant on bail.
18. This third bail application of the accused-applicant is rejected.
.............................................................(Rajnish Kumar,J.) Order Date :- 3.11.2020 Haseen U.