Allahabad High Court
Akram vs State Of U.P. on 3 October, 2023
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:189428 Reserved on 27.9.2023 Delivered on 03.10.2023 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41882 of 2023 Applicant :- Akram Opposite Party :- State of U.P. Counsel for Applicant :- Araf Khan,Sajid Razi Counsel for Opposite Party :- G.A. Hon'ble Siddharth,J.
1. Heard Sri Araf Khan, learned counsel for the applicant as well as the 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, Akram, with a prayer to release him on bail in Case Crime No. 29 of 2023, under Sections 304, 325, 323, 504 IPC, Police Station Hasayan, District- Hathras, during pendency of trial.
3. There is allegation in the FIR that on 25.02.2023 at about 10:00 hours, brother of the informant, Imran, Salman, the applicant, Akram, and Shavana, w/o Imran had beaten his father by lathi and danda because his brother, Imran, had married with co-accused, Shavana, as his second wife. Dispute took place between his father and the accused, wherein they had beaten him. His father died while being taken to the hospital. Since his brother Zeeshan, his uncle, Liyakat, and his mother Rabiya, intervened, they also suffered injuries.
4. Learned counsel for the applicant has submitted that applicant does not belongs to the family of the informant and he had no concern with his brother, Imran and his wife, Shavana. He has been falsely implicated in this case because of being friend of co-accused, Imran. Co-accused, Shavana and Salman, have already been enlarged on bail by co-ordinate Bench of this Court vide Criminal Misc. Bail Application Nos.34210 of 2023 and 35351 of 2023 respectively. He has submitted that the motive of committing the alleged offence was assigned to co-accused, Shavana and co-accused, Salman was implicated like the applicant in this case having similar role. They have been enlarged on bail. The applicant is languishing in jail since 12.5.2023.
5. Per contra learned A.G.A. has opposed the prayer for bail of the applicant and has submitted that the applicant is a previous convict and has been granted bail by this Court in Criminal Appeal No.1168 of 2010 and therefore, it is clear that he has misused the liberty of bail granted by this Court and got implicated in this case again. Hence the applicant does not deserves to be enlarged on bail.
6. Learned counsel for the applicant has controverted the above arguments made by learned AGA and has relied upon the paragraph Nos. 9, 10, 11 & 13 of the judgement of this Court in the case of Satish Sachan Vs. State of U.P., Criminal Misc. Bail Application No.53 of 2021, which are as follows:-
"9. Section 437 of Crimial Procedure Code provides as follows: -
"437. When bail may be taken in case of non-bailable offence.-- (1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but--
(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years or more but not less than seven years:
Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:
Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason:
10. It becomes manifest on a bare reading of Section 437, that this provision does not apply to applications seeking bail under Section 439 of the Code filed before the High Court and it even does not apply to the bail applications filed before the Session Court.
11. Moreover, even the Courts to which the provisions of Section 437 apply, are not absolutely barred from granting bail to a person if he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years or more but not less than seven years, as the Second Proviso appended to sub-section (1) of Section 437 provides that a person referred to in clause (ii) may be released on bail if the Court is satisfied that it is just and proper so to do for any other special reason.
13. Section 439 of the Code contains a reference to Section 437 thereof only to the extent that if the offence is of the nature specified in sub-section (3) of Section 437, while granting bail to the accused, the High Court or Court of Session may impose any condition which it considers necessary for the purposes mentioned in that sub-section. Section 439 of the Criminal Procedure Code conferring special powers of High Courts and Session Courts, is a provision of a special character whereas Section 437 contains a general provision regarding grant of bail in non-bailable offences. It is a well-established rule of interpretation, that a special provision will take precedence over and override a general provision of law. Therefore, the provision contained in Section 439 of the Code will take precedence over Section 437 of the Code and the bar contained in Section 437 (1) (ii) of the Code will not limit the special powers of the High Court under Section 439 of the Code. I, therefore, reject the submission of counsel for the respondent based on Section 437 of the Code.
7. In support of his submission, learned counsel for the applicant has further relied upon paragraph no.30 of the judgement of Apex Court in the case Sanjay Chandra Vs. Central Bureau of Investigation, (2012) 1 Supreme Court Cases 40, wherein also the Apex Court has held that Section 439(1) Cr.P.C. of the new Code confers special powers on the High Court or the Court of Session in respect of bail. Unlike under Section 437(1) Cr.P.C. there is no bar imposed under Section 439(1), Cr.P.C. against granting of bail to an accused of an offence punishable with death or imprisonment for life. Well accepted parameters for grant of bail should be kept in mind.
8. 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 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; larger mandate of the Article 21 of the Constitution of India, considering the dictum of Apex Court in the case of Satendra Kumar Antil Vs. C.B.I. & Another, passed in S.L.P.(Crl.) No. 5191 of 2021, judgement dated 11.7.2022 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.
9. In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.
10. Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
Order Date :- 03.10.2023 Ruchi Agrahari