Mahfooz v. State of U.P. and Another

Court No. - 85 Case :- CRIMINAL APPEAL No. - 10257 of 2023 Appellant :- Mahfooz Respondent :- State of U.P. and Another Counsel for Appellant :- Amar Jeet Upadhyay,Mohd Javed Akhter Counsel for Respondent :- G.A. Hon'ble Mayank Kumar Jain,J. List has been revised. Despite service of notice upon the opposite party no.2, no one appears on his behalf. Heard learned counsel for the appellant, learned AGA for opposite party no.1 and perused the material placed on record. The present criminal appeal under Section 14-A(2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been filed by the appellant to set aside the impugned order dated

26.09.2023 whereby the Special Judge, SC/ST Act, Fatehpur has rejected the bail application of the appellant moved by him in Case Crime No. 20 of 2020, under Sections 406, 420, 352, 504, 506 of IPC, and Section 3(1)Da, 3(1)Dha, 3(2)5Ka of SC/ST Act, Police Station Sultanpur, District Fatehpur. There is an allegation against the appellant in the FIR that he has taken Rs.80,000/- from the informant on the pretext to send his son Jaikaran to foreign country Qatar. The son of the informant was provided tourist visa and when he landed at Qatar he came to know that appellant has provided him a tourist visa. Anyhow he returned to India on 04.01.2017 and repeatedly asked to return his money. On 10.06.2019 he was abused with caste related words and threatened. Learned counsel for the appellant has submitted that appellant is innocent and has been falsely implicated in this case. The copy of the visa is annexed with the appeal in which in the category of visa type description is noted as 'work-business visa'. The appellant has one criminal history which is duly explained in para 4 of the supplementary affidavit. It is also submitted that the application under Section 156(3) Cr.P.C. is lodged after three years of the incident. It is a case of malicious prosecution under the provisions of S.C./S.T. Act. Appellant is languishing in jail since 26.09.2023 having no criminal history. In case, the appellant is released on bail, he will not misuse the liberty of bail. Per contra, learned A.G.A. has supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the appellant and argued that appellant had knowledge of the pendency of the proceedings and he remained absconding and he surrendered on 07.10.2023 pursuant to process issued by the court concerned. It appears from the arguments advanced by the counsel for the parties and from perusal of material on record that the trial court has not properly considered the case of the appellant. Hence, in view of above consideration, the order of rejection of bail passed by the trial court dated 26.09.2023 is, hereby, set aside. Having considered the submissions of the parties noted above, finding force in the submissions made by the learned counsel for the appellant; appellant being under-trial having fundamental right to speedy; larger mandate of the Article 21 of the Constitution of India, 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, Court is of the opinion that the appellant is entitled to be enlarged on bail. Let appellant, Mahfooz be released on bail in the aforesaid case crime number on his furnishing a personal bond and two heavy local sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:

(i) The appellant shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.

(ii) The appellant shall not pressurize/intimidate the prosecution witnesses.

(iii) The appellant 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 of Cr.P.C.

(iv) The appellant 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 the trial court.

(v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel.

(vi) The appellant shall not indulge in any criminal activity or commission of any crime after being released on bail.

(vii) The appellant, after releasing from the jail shall positively appear before the court concerned on every first day of month and the court concerned shall record his presence. If first day of a month is holiday, therefore, he shall make himself present on the next working day, failing which, the bail granted to the appellant shall automatically be cancelled. Learned court concerned shall submit the report if any default is made by the appellant. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that absence of the appellant 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 in accordance with law. The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously in accordance with law after the release of the appellant, if there is no other legal impediment. It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order. The criminal appeal is allowed. Order Date :- 23.11.2023 Mohit High Court of Judicature at Allahabad