Babloo Alias Shamshad v. State of U.P. and Another

Court No. - 64 Case :- CRIMINAL APPEAL No. - 9232 of 2023 Appellant :- Babloo Alias Shamshad Respondent :- State of U.P. and Another Counsel for Appellant :- Sanjay Srivastava Counsel for Respondent :- G.A. Hon'ble Siddharth,J.

List has been revised. Heard learned counsel for the appellant; learned AGA for State 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, Babloo Alias Shamshad, to set aside the impugned order dated 02.05.2022, whereby the Special Judge, SC/ST Act, Kanpur Nagar has rejected the bail application of the appellant moved by her in Case Crime No. 63 of 2022, under Sections-376-D, 364, 302, 201, 34, 394 IPC and Section 3(2)(5) of SC/ST Act, Police Station-Panki, District-Kanpur Nagar. This is second criminal appeal of the applicant. First criminal appeal of the applicant was rejected by this Court on 8.5.2023. Learned counsel for the applicant has filed supplementary affidavit bringing on record the statement of the victim recorded before the trial court, wherein in her cross-examination, she has stated that she does not knows the applicant and has implicated him in this case on the direction of police. He has submitted that it is a case of false implication of the applicant. The appellant is languishing in jail since

26.2.2022.

¶6Learned AGA has opposed the prayer for bail, but does not dispute the claim of parity.

¶7It appears from the arguments advanced by the counsel for the parties and from perusal of material on record that the court below has not properly considered the case of the appellant. Hence, in view of above consideration, the order of rejection of bail passed by the court below dated 19.7.2023 is, hereby, set aside.

¶8Having considered the submissions of the parties noted above, finding force in the submissions made by the learned counsel for the appellant; keeping in view uncertainty regarding conclusion of trial; one sided investigation by police, ignoring the case of accused side; 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.

¶9Let appellant, Babloo Alias Shamshad, be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable 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.

¶10In 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.

¶11The 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.

¶12It 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.

¶13The criminal appeal is allowed. Order Date :- 13.12.2023 Ruchi Agrahari High Court of Judicature at Allahabad