Allahabad High Court
Irshad vs State Of U.P. on 14 February, 2025
Author: Krishan Pahal
Bench: Krishan Pahal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:21751 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41892 of 2024 Applicant :- Irshad Opposite Party :- State of U.P. Counsel for Applicant :- Utkarsh Malviya Counsel for Opposite Party :- G.A. Hon'ble Krishan Pahal,J.
1. List has been revised.
2. Heard learned counsel for the applicant as well as Sri Ashutosh Srivastava, learned A.G.A. for the State and perused the material placed on record.
3. Applicant seeks bail in Case Crime No. 283 of 2018, U/S 302, 504 IPC, Police Station Anoop Shahar, District Bulandshahr, during the pendency of trial.
ARGUMENTS ON BEHALF OF THE APPLICANT:
4. This is the second bail application. The first one was rejected by this Court vide order dated 2.3.2023 and the following order was passed:-
"1. Heard Sri Utkarsh Malviya, learned counsel for the applicant as well as Sri Ram Mohit Yadav, learned A.G.A. for the State and perused the material placed on record. None is present on behalf of the informant even in the revised call.
2. Applicant seeks bail in Sessions Trial No.836 of 2018 arising out of Case Crime No. 283 of 2018, U/S 302 & 504 of IPC, Police Station Anoopshahar, District Bulandshahr, during the pendency of trial.
3. As per prosecution story, the applicant is stated to have given Rs.12,500/- to the husband of the informant for doing a business of fruits but the same was not returned to him. The applicant is stated to have reached the house of the deceased person for taking his money on 01.08.2018 at 03:30 PM. The deceased person is stated to have asked for some more time to repay his money back which is stated to have enraged the applicant and he assaulted the deceased person by knife causing his death thereby.
4. Learned counsel for the applicant has argued that the applicant has been falsely implicated in the present case. He has nothing to do with the said offence. Learned counsel has filed the statement of PW-2 along with supplementary affidavit dated 17.10.2022 indicating several contradictions in the statement with respect to recovery of weapon and the place of standing of witness etc. Learned counsel has also stated that the recovery of knife has been falsely foisted on the applicant and there are several inconsistencies in the statement of the witnesses and the FIR version. Learned counsel has also stated that only two witnesses have been examined to date and the trial is at a nascent stage and there is no likelihood of early conclusion of trial.
5. Several other submissions have been made on behalf of the applicant to demonstrate the falsity of the allegations made against him. The circumstances which, as per counsel, led to the false implication of the applicant have also been touched upon at length. It is further stated that there is no criminal history of the applicant. The applicant is languishing in jail since 01.08.2018. The fundamental rights of the applicant stands violated as provided under Article 21 of the Constitution of India. In case, the applicant is released on bail, he will not misuse the liberty of bail.
6. Per contra, learned A.G.A. has vehemently opposed the bail application on the ground that the counsel for the applicant has not filed the statement of PW-1 although it has been fairly admitted by the learned counsel for the applicant that the said statement is a contested one and is against the applicant. Learned AGA has further stated that the recovery of knife has been made from the possession of the applicant on the same day which was found blood-stained.
7. Considering the facts and circumstances of the case, submissions advanced by learned counsel for the parties, nature of offence, evidence on record, pending trial, complicity of accused, severity of punishment and considering the factum of statement of two witnesses of fact and also there is a recovery of knife from the applicant on the same day of offence, at this stage, without expressing any opinion on the merits of the case, this Court is not inclined to release the applicant on bail.
8. The bail application is, accordingly, rejected.
9. However, looking to the period of detention of the applicant, it is directed that the aforesaid case pending before the trial court be decided expeditiously, preferably within a period of one year or as early as possible in view of the principle as has been laid down in the recent judgements of the Apex Court in the cases of Vinod Kumar Vs. State of Punjab; 2015 (3) SCC 220 and Hussain and Another Vs. Union of India; (2017) 5 SCC 702, if there is no legal impediment.
10. It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial. "
5. Learned counsel has stated that by that stage, the statement of only two witnesses was recorded but subsequently, five more witnesses have been examined. The statement of P.W. 7 Inspector Akhilesh Kumar Gaur is yet to be completed and there are ample contradictions in the statements of the witnesses with their own previous statements. Learned counsel has also highlighted several inconsistencies in the statements of the witnesses.
6. Learned counsel has stated that the counsel for the applicant has never sought any adjournment in the trial Court. Rather, the delay, if any, can be attributed to the prosecution itself.
7. Learned counsel has stated that the statement of the doctor, who has been examined as P.W.3 categorically negates the story set up by the prosecution. Rather, it states that the offence could not be committed in the way it is narrated in the FIR.
8. There is no criminal history of the applicant. The applicant is languishing in jail since 1.8.2018, as such, the period of incarceration comes out to be 6 years and 6 months and there is no likelihood of conclusion of trial in the near future. The fundamental rights of the applicant stand violated as enshrined in Article 21 of the Constitution of India. In case, the applicant is released on bail, he will not misuse the liberty of bail.
9. Several other submissions have been made on behalf of the applicant to demonstrate the falsity of the allegations made against him. The circumstances which, as per counsel, led to the false implication of the applicant have also been touched upon at length.
ARGUMENTS ON BEHALF OF INFORMANT/STATE:
10. The bail application has been opposed on the ground that the force used by the accused is but evident from the fact that the recovery of knife has been made from the possession of the applicant at the time of his arrest and it was found in two parts, as it was already broken, which indicates that the force to the maximum power was used by the applicant.
CONCLUSION:
11. This Court was pleased to call for a report from the trial Judge regarding the status of trial and the report dated 4.2.2025 is on record, which indicates that to date, the statements of six witnesses is complete and the statement of P.W. 7, Inspector Akhilesh Kumar Gaur is going on. His examination-in-chief was partly recorded on 13.9.2024 but could not be concluded due to non-production of the case property on that date. The summons have been issued to the said witness P.W. 7 on ten occasions and he has not turned up. It is stated that twice the witness P.W. 7 was present before the Court but his examination-in-chief could not be completed due to the non-availability of the case property.
12. The said status report of the Additional District and Session Judge, Court No. 2, Bulandshahr, categorically indicates that the trial is moving at a snail's pace.
13. The Supreme Court in the case of Union of India vs. K.A. Najeeb, AIR 2021 SC 712, has observed as under:-
"We are conscious of the fact that the charges levelled against the respondent are grave and a serious threat to societal harmony. Had it been a case at the threshold, we would have outrightly turned down the respondent's prayer. However, keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with no other option except to grant bail."
14. In light of the judgement of the Supreme Court passed in Niranjan Singh and another vs. Prabhakar Rajaram Kharote and others AIR 1980 SC 785 this Court has avoided detailed examination of the evidence and elaborate documentation of the merits of the case as no party should have the impression that his case has been prejudiced. A prima facie satisfaction of case is needed but it is not the same as an exhaustive exploration of the merits in the order itself.
15. The well-known principle of "Presumption of Innocence Unless Proven Guilty," gives rise to the concept of bail as a rule and imprisonment as an exception.
16. A person's right to life and liberty, guaranteed by Article 21 of the Indian Constitution, cannot be taken away simply because the person is accused of committing an offence until the guilt is established beyond a reasonable doubt. Article 21 of the Indian Constitution states that no one's life or personal liberty may be taken away unless the procedure established by law is followed, and the procedure must be just and reasonable. The said principle has been recapitulated by the Supreme Court in Satender Kumar Antil Vs. Central Bureau of Investigation and Ors., 2022 INSC 690.
17. Reiterating the aforesaid view the Supreme Court in the case of Manish Sisodia Vs. Directorate of Enforcement 2024 INSC 595 has again emphasized that the very well-settled principle of law that bail is not to be withheld as a punishment is not to be forgotten. It is high time that the Courts should recognize the principle that ?bail is a rule and jail is an exception?.
18. Learned AGA could not bring forth any exceptional circumstances which would warrant denial of bail to the applicant.
19. It is settled principle of law that the object of bail is to secure the attendance of the accused at the trial. No material particulars or circumstances suggestive of the applicant fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like have been shown by learned AGA.
20. Considering the facts and circumstances of the case, submissions made by learned counsel for the parties, the evidence on record, the fact that the trial is at a standstill due to non-availability of case property and the statement of P.W. 7 Inspector Akhilesh Kumar Gaur is yet to be completed, this Court is left with no other option but to let the applicant be released on bail. The bail application is allowed.
21. Let the applicant- Irshad involved in aforementioned case crime number be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions.
(i) The applicant shall not tamper with evidence.
(ii) The applicant shall remain present, in person, before the Trial Court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under Section 313 Cr.P.C./351 B.N.S.S. 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.
22. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
23. It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.
Order Date :- 14.2.2025 Shalini (Justice Krishan Pahal)