BAIL APPLICATION 693 of 2021 on 22 March 2015

Arguments

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 31249 of 2019

Applicant :- MustqeemOpposite Party :- State of U.P.Counsel for Applicant :- Sheshadri Trivedi,Ajay Kumar Pandey,Satish Trivedi (Senior Adv.)Counsel for Opposite Party :- G.A.,Hari Om Hon'ble Vivek Kumar Singh,J.

Heard Sri Satish Trivedi, learned Senior Counsel assisted by SriSheshadri Trivedi, learned counsel for the applicant and Sri HariOm Khare, learned counsel for the complainant and Sri SanjaySingh, learned A.G.A.-I appearing for the State.

This is the second bail application moved on behalf of the applicant.The first bail application moved on behalf of the applicant wasrejected vide order dated 17.11.2018.

It has been contended by the learned counsel for the applicant thatthe applicant has been falsely implicated in the present case due toulterior motive. It is next contended that the injured witnessesnamely Muzeeb has not supported the prosecution and has turnhostile, reference in this regard drawn to annexure-SA-1 to the thirdsupplementary affidavit dated 6.12.2021. It is next contended thatthe applicant has no motive to commit the offence in question. It isfurther submitted that the applicant is in jail since 22.3.2015 i.e.more than seven years.

Learned counsel for the applicant drawn the attention of this Courttowards the dictum of Hon'ble Apex Court rendered in re: Union ofIndia vs. K.A. Najeeb reported in AIR 2021 Supreme Court 712.Para 16 of the judgment is being reproduced herein below:- "This Court has clarified in numerous judgments that the libertyguaranteed by Part III of the Constitution would cover within its protectiveambit not only due procedure and fairness but also access to justice anda speedy trial. In Supreme Court Legal Aid Committee RepresentingUndertrial Prisoners v. Union of India, it was held that undertrials cannotindefinitely be detained pending trial. Ideally, no person ought to sufferadverse consequences of his acts unless the same is established beforea neutral arbiter. However, owing to the practicalities of real life where tosecure an effective trial and to ameliorate the risk to society in case apotential criminal is left at large pending trial, Courts are tasked withdeciding whether an individual ought to be released pending trial or not.Once it is obvious that a timely trial would not be possible and theaccused has suffered incarceration for a significant period of time, Courtswould ordinarily be obligated to enlarge them on bail." guaranteed by Part III of the Constitution would cover within its protectiveambit not only due procedure and fairness but also access to justice anda speedy trial. In Supreme Court Legal Aid Committee RepresentingUndertrial Prisoners v. Union of India, it was held that undertrials cannotindefinitely be detained pending trial. Ideally, no person ought to sufferadverse consequences of his acts unless the same is established beforea neutral arbiter. However, owing to the practicalities of real life where tosecure an effective trial and to ameliorate the risk to society in case apotential criminal is left at large pending trial, Courts are tasked withdeciding whether an individual ought to be released pending trial or not.Once it is obvious that a timely trial would not be possible and theaccused has suffered incarceration for a significant period of time, Courtswould ordinarily be obligated to enlarge them on bail."

The Apex Court in the case of Paras Ram Vishnoi vs. TheDirector, Central Bureau of Investigation passed in CriminalAppeal No. 693 of 2021 (Arising out of SLP (Crl) 3610 of 2020)has observed as under :

"On consideration of the matter, we are of the view that pending the trialwe cannot keep a person in custody for an indefinite period of time andtaking into consideration the period of custody and that the otherwe cannot keep a person in custody for an indefinite period of time andtaking into consideration the period of custody and that the other

accused are yet to lead defence evidence while the appellant hasalready stated he does not propose to lead any evidence, we are inclinedto grant bail to the appellant on terms and conditions to the satisfaction ofthe trial court."

In the aforesaid cases the Hon'ble Apex Court has held that if thereis no possibility to conclude the trial in near future and the accusedapplicant is in jail for a substantial long period then a period ofincarceration may be considered as a fresh ground.

Several other submissions in order to demonstrate the falsity of theallegations made against the applicant have also been placed forthbefore the Court. The circumstances which, according to thecounsel, led to the false implication of the accused has also beentouched upon at length. It has been assured on behalf of theapplicant that he is ready to cooperate with the process of law andshall faithfully make himself available before the court wheneverrequired. It has been pointed out that the applicant has no criminalhistory.

Learned counsel for the complainant as well as learned A.G.A.opposed the prayer for bail has vehemently opposed the prayer forbail.

Having heard the submissions of learned counsel of both sides,nature of accusation and the severity of punishment in case ofconviction and the nature of supporting evidence, prima faciesatisfaction of the Court in support of the charge, reformative theoryof punishment, and larger mandate of the Article 21 of theConstitution of India, the dictum of Apex Court in the case ofDataram Singh v. State of U.P. and another, reported in (2018) 2SCC 22and without expressing any opinion on the merit of thecase, I find it to be a case of bail.

Let the applicant Mustqeem involved in Case Crime No.505 of2014, under Sections 147, 148, 149, 302, 307, 504, 506, 336 I.P.C.,Police Station Kharkhauda, District Meerut be released on bail onhis furnishing a personal bond with two sureties each in the likeamount to the satisfaction of the court concerned with the followingconditions.

(i) The applicant shall file an undertaking to the effect that he shallnot seek any adjournment on the dates fixed for evidence when thewitnesses are present in court. In case of default of this condition, itshall be open for the trial court to treat it as abuse of liberty of bailand pass orders in accordance with law.

(ii) The applicant shall remain present before the trial court on eachdate fixed, either personally or through his counsel. In case of hisabsence, without sufficient cause, the trial court may proceedagainst him under Section 229-A of the Indian Penal Code.

(iii) In case, the applicant misuses the liberty of bail during trial andin order to secure his presence proclamation under Section 82Cr.P.C. is issued and the applicant fails to appear before the courton the date fixed in such proclamation, then, the trial court shallinitiate proceedings against him, in accordance with law, under

(iv) The applicant shall remain present, in person, before the trialcourt on the dates fixed for (i) opening of the case, (ii) framing ofcharge and (iii) recording of statement under Section 313 Cr.P.C. Ifin the opinion of the trial court absence of the applicant is deliberateor without sufficient cause, then it shall be open for the trial court totreat such default as abuse of liberty of bail and proceed againsthim in accordance with law.

In case of breach of any of the above conditions, the trial court willbe at liberty to cancel the bail.

It is clarified that the observations, if any, made in this order arestrictly confined to the disposal of this bail application and must notbe construed to have any reflection on the Order Date :- 4.8.2022Dev/-