Isamuddin Alias Munna v. State of U.P. Thru. Prin. Secy. Home Civil Sectt. Lko and Another

Court No. - 15 Case :- CRIMINAL APPEAL No. - 3093 of 2023 Appellant :- Isamuddin Alias Munna Respondent :- State Of U.P. Thru. Prin. Secy. Home Civil Sectt. Lko And Another Counsel for Appellant :- Afaq Zaki Khan Counsel for Respondent :- G.A. Hon'ble Shamim Ahmed,J.

¶1Heard Sri Afaq Zaki Khan, the learned counsel for the appellant as well as Sri Ashok Kumar Srivastava, the learned A.G.A. for the State and perused the entire record.

¶2The present criminal appeal under Section 14-A (2) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has been preferred against the impugned order dated 16.10.2023 passed by the Court of Special Judge S.C./S.T. Act Barabanki in Second Bail Application No.4532/2023( Isamuddin Alias Munna Vs. State of U.P.), arising out of Case Crime No. 72/2023, under Section 376 and 506 I.P.C. and Section 3(2) (v) S.C./S.T. Act, Police Station Kothi, District Barabanki, whereby the second bail application of the appellant has been rejected.

¶3Learned counsel for the appellant submits that earlier the appellant had filed Criminal Appeal No. 853 of 2023: Islamuddin @ Munna against the order dated 13.03.2023 passed by the court of learned Special Judge (S.C./S.T. Act), Barabanki in Bail Application No. 754 of 2023, Case Crime No. 72 of 2023, under Sections 376, 506 I.P.C. and Section 3(2) (v) S.C./S.T. Act, Police Station Kothi, District Barabanki, which was rejected by this Court order dated 21.08.2023. Thereafter, the appellant moved second bail application before the court below, which was also rejected by the impugned order dated

16.10.2023.

¶4Learned counsel for the appellant submits that the appellant is innocent and has falsely been implicated in the instant case and he has not committed any offence as claimed by the prosecution. The informant has reiterated the version of F.I.R. in her statement recorded under Section 161 Cr.P.C., she has improved the version of prosecution in her statement recorded under Section 164 Cr.P.C.

¶5Learned counsel for the appellant further submits that the statement of the PW-1 complainant/vicitm was recorded before the court below on 18.07.2023. She has admitted that on 15.02.2023 she has not gone out of her house but the appellant has neither committed any wrong act with her nor he has abused her with caste languages and he ever came to her house and even she herself had never gone to the house of the appellant and she even did not recognize the appellant. She further stated that she has not received any compensation from the Government. She has also admitted this fact that there is no dispute between her husband and appellant regarding any monetary transactions. She has also stated that it is wrong to say that there is any dispute between her husband and the appellant. She further admitted this fact that she had given her statement under Section 164 Cr.P.C. under the pressure of police. Thus, P.W.1 who is the victim has not supported the prosecution case, therefore, the appellant is entitled to be released on bail by this Court sympathetically. A copy of the statement of the victim recorded before the court below has been filed as Annexure-6 to the affidavit filed in support of the bail application.

¶6Learned counsel for the appellant further submits that accused/appellant is languishing in jail since 17.02.2023, who has no previous criminal history, and in case the appellant is enlarged on bail, he shall not misuse the liberty of bail and he shall also fully cooperate with the trial. He has further submitted that there is no possibility of the appellant to intimidate or pressurize the witnesses or any other persons acquainted with the facts of the present case.

¶7Several other submissions in order to demonstrate the falsity of the allegations made against the appellant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the appellant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been pointed out that the accused is not having any criminal history and he is in jail since 17.02.2023 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.

¶8For the aforesaid reasons, learned counsel for the appellant submits that the instant criminal appeal deserves to be allowed and the order dated 16.10.2023 passed by the Court of Special Judge S.C./S.T. Act Barabanki in Second Bail Application No.4532/2023( Isamuddin Alias Munna Vs. State of U.P.), arising out of Case Crime No. 72/2023, under Section 376 and 506 I.P.C. and Sectin 3(2) (v) S.C./S.T. Act, Police Station Kothi, District Barabanki deserves to be set aside and consequently, the accused/appellant deserves to be enlarged on bail during pendency of the trial.

¶9Per contra, learned A.G.A. has vehemently opposed the prayer by submitting that there is active participation of accused/appellant in the crime. Therefore, the accused/ appellant is not entitled to be enlarged on bail and the instant criminal appeal deserves to be dismissed. However, he has been unable to dispute the other factual submissions advanced by the learned counsel for the accused/appellant.

¶10After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, unlikelihood of early conclusion of trial and also in absence of any convincing material to indicate the possibility of tampering with the evidence and considering the fact that victim has not supported the prosecution case in her testimony recorded before the court below on 18.07.2023 and further considering the fact that appellant is in jail since 17.02.2023 and has by now done a substantial period of detention and further considering the larger mandate of the Article 21 of the Constitution of India and the law laid down by the Hon'ble Apex Court in the case of Dataram Singh Vs. State of UP and another, reported in (2018) 3 SCC 22, this Court is of the view that the learned court below has failed to appreciate the material available on record, the impugned order passed by the trial court are liable to be set aside.

¶11Accordingly, the appeal is allowed. Consequently, the order dated 16.10.2023 passed by the Court of Special Judge S.C./S.T. Act Barabanki in Second Bail Application No.4532/2023( Isamuddin Alias Munna Vs. State of U.P.), arising out of Case Crime No. 72/2023, under Section 376 and 506 I.P.C. and Section 3(2) (v) S.C./S.T. Act, Police Station Kothi, District Barabanki is hereby reversed and set aside.

¶12Let the appellant, Islamuddin alias "Munna", be enlarged on bail in Case Crime No. 72/2023, under Section 376 and 506 I.P.C. and Section 3(2) (v) S.C./S.T. Act, Police Station Kothi, District Barabanki with the following conditions:-

(i) The appellant shall furnish a personal bond with two sureties each of like amount to the satisfaction of the court concerned.

(ii) The appellant shall appear and strictly comply following terms of bond executed under section 437 sub section 3 of Chapter-33 of Cr.P.C.:-

(a) The appellant shall attend in accordance with the conditions of the bond executed under this Chapter.

(b) The appellant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

(c) 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.

(iii) The appellant shall cooperate with investigation /trial.

(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 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.

(v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(vi) In case, the appellant misuses the liberty of bail during trial, in order to secure his presence, proclamation under section 82 Cr.P.C. is issued and the appellant fails 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.

(vii) The appellant shall remain present, 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 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 against him in accordance with law.

¶13It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the prayer for bail and must not be construed to have any reflection on the ultimate merit of the case.

¶14The trial court is also directed to expedite the trial of the aforesaid case, within a period of six months from today, by following the provisions of Section 309 Cr.P.C., strictly without granting any unnecessary adjournments to the parties, in case there is no other legal impediment. Order Date :- 23.11.2023 Arvind High Court of Judicature at Allahabad, Lucknow Bench