Allowed

Mohd. Ibrahim Second Bail Application v. State of U.P.

Allahabad HC29 Jul 2022/22/2020

Case brief

AI extract

What is this about?

This judgment grants bail to Mohd. Ibrahim in a murder case. The High Court held that after nearly four years of custody and slow trial progress with limited witnesses examined, the applicant deserves bail under constitutional guarantees of speedy trial, imposing specific reporting conditions.

What did the court decide?

The applicant was enlarged on bail on executing a personal bond and two sureties on the conditions of appearing in court and cooperating in the trial.

Mohd. Ibrahim Second Bail Application Vs State of U.P. — Bail and Remand | Allahabad HC (2022)

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Court No. - 13

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 22 of 2020

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Applicant :- Mohd. Ibrahim Second Bail Application Opposite Party :- State of U.P. Counsel for Applicant :- Suresh Chandra Srivastava,Uma Kant Gupta

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Counsel for Opposite Party :- G.A.,Arshad Ahsan Siddiqui

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Hon'ble Shamim Ahmed,J.

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This case is taken up in the revised call.

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Heard Shri Uma Kant Gupta, learned counsel for the applicant, Shri Ashutosh Vajpayee, Advocate holding brief for Shri Arshad Ahsan Siddiqui, learned Counsel for the informant and Shri Shiv Ram Tiwari, learned A.G.A. for the State and perused the record.

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The applicant, Mohd. Ibrahim, has moved this second bail application seeking bail in Case Crime No.100 of 2018 (Sessions Trial No. 227 of 2018), under Sections 302, 323, 504 I.P.C. at Police Station - Kheeron, District - Raebareli.

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The first bail application was rejected by Hon’ble Mr. Justice Anant Kumar vide order dated 24.04.2019 passed in BAIL No. 10810 of 2018. This second bail application has been placed before this regular Bench in the light of Hon'ble The Chief Justice's order dated 20.10.2021, as, the instant bail application has been released by Hon’ble Mr. Justice Anant Kumar.

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While rejecting the first bail application on 24.04.2019, a coordinate Bench of this Court was pleased to observe as under:

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“ Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

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The present bail application has been filed by the applicant in Case Crime No.100/2018, under Sections 302, 308, 147, 148, 323, 504 I.P.C., Police Station - Kheeron, District - Raebareli.

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As per version of the F.I.R., due to some land dispute on 3.4.2018, the accused persons, who were five in number were making some construction, to which the nephew of the complainant Kalim had restrained them and stated that when the matter is pending in the court, without obtaining order from the court, construction can not be made. Then all the accused persons cordoned him and inflicted injuries with iron rod, Dand & Fawra. The other accused persons had also beaten the other family members of the complainant.

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It is stated by learned counsel for the applicant that initially this case was registered under Section 147, 148, 323, 504, 308 I.P.C. and after death of injured Kalim, this case was converted under Section 302 I.P.C. It is further stated that in this case co-accused Irfan, Mohd. Imran and Nadeem have already been granted bail and on the ground of

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parity, the applicant is also entitled for bail.

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Opposing the bail learned A.G.A. as well as learned counsel for the complainant has stated that it is not a case of parity. In this case statement of complainant Rajjab Ali, injured Rabia and Hakikul Nisha were recorded, all the witnesses have stated that at the relevant time the applicant was having Fawra in his hand and inflicted Fawra blow on the head of the deceased and the said Fawra has been recovered on the pointing out of the present applicant.

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A reference has been made to the postmortem report which shows that the deceased was having injuries on the head at occiput and back of head and on back of right shoulder. Injury No.1 is the stitched wound, which may be caused by Fawra.

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Merely because the role of inflicting injury has not been assigned to the present applicant in the F.I.R., further statement of the complainant and witnesses cannot be belied. The applicant is the main accused. There is no parity to the other accused persons.

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Accordingly, the bail application is rejected . ”

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The contention of learned Counsel for the applicant is that as per the allegations in the F.I.R. dated 03.04.2018 are that five people got assembled with lathi, danda, rod and spade and all the accused-applicants have assaulted the deceased and other family members, however when the witnesses came on the spot for the rescue they were also beaten. Initially, the F.I.R. was registered under Section 147, 148, 323, 308 I.P.C. but later on when injured, Kaleem, succumbed to injuries and died, the case was registered under Section 302 IPC. It is also submitted by him that as per the postmortem report, the deceased was having three injuries on his body of which one is on the top of the head, the other on the backside of the head and the third is on the shoulder.

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Learned Counsel for the applicant further argued that during the course of investigation, the statement of eye witnesses, Rabiya and Hakikunissa, was recorded wherein they have stated that the applicant inflicted injuries upon the deceased with spade and Imran inflicted injuries with iron rod and other by lathi and danda. It is further submitted that the injuries sustained by other injured were simple in nature. In the F.I.R., no specific role has been assigned to the applicant and only the eye witnesses, mainly, Rabiya and Hakikunissa have assigned this role to the applicant of hitting the deceased with spade and Imran by iron rod.

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Learned Counsel for the applicant further added to his submission that as per the injury report it does not suggest that the deceased was assaulted by iron rod, spade or lathi and danda. The person against whom the witnesses have stated that Mohd. Imran has hit the deceased by rod has already been granted bail by this Court vide order 05.12.2018 in BAIL No. 9013 of 2018, as well as, another co-accused, Mohd. Ifran, was also granted bail vide order dated 30.07.2018 in BAIL No. 6222

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of 2018 and the third person namely Mohd. Ansaar @ Ansaar was granted bail vide order dated 22.05.2019 in BAIL No. 5167 of 2019.

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Learned Counsel for the applicant further submits that the witnesses namely, Rabiya and Hakikunissa, only with the intention to falsely implicate the applicant has assigned the role of beating the deceased by spade whereas in the F.I.R., the informant has not assigned any specific role to the applicant nor he has stated that the applicant has hit the deceased by spade. A general allegation has been leveled against all the co-accused and they have already been granted bail by co-ordinate Bench of this Court. It was also submitted that as to who hit the deceased is a question which is to be decided at the time of trial, therefore, the case of the applicant is not on the worst footing than that of the other co-accused who have been assigned a similar role and have already been granted bail from High Court, hence, the applicant's bail application may also be considered by this Court sympathetically and he should also be released on bail.

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Several other submissions regarding legality and illegality of the allegations made in the F.I.R. 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 applicant 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. The applicant undertakes that in case he is released on bail he will not misuse the liberty of bail and will cooperate in trial. It has also been pointed out that the applicant is not having any criminal history and he is in jail since 05.04.2018 and that in the wake of heavy pendency of cases in the courts, there is no likelihood of any early conclusion of trial.

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Apart from the above argument, learned Counsel for the applicant also submits that the applicant is aged about 73 years and is suffering from various diseases and was not able to walk properly in jail. It was further submitted that the applicant is detained in jail since 05.04.2018 and has already undergone a substantial period of more than four years in jail but till date the trial of the case has not been concluded and out of 12 prosecution witnesses only 4 witnesses have been examined. Learned counsel for the applicant also submits that more than three years period have passed from the order dated 24.04.2019 when the first bail application of the applicant got rejected.

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Learned counsel for the applicant further contends that he has filed two supplementary affidavits which is on record and it has been mentioned that only four prosecution witnesses namely PW-1, PW-2, PW-3 and PW-4 have been examined out of 18 prosecution witnesses. He further submits that it will take further long time for conclusion of the trial. Therefore, in the light of the dictum of the Hon'ble Apex Court in re; Union of India vs. K.A. Najeeb reported in AIR 2021 Supreme Court 712 and Paras Ram Vishnoi vs. The Director, Central Bureau of Investigation passed in Criminal Appeal No.693 of 2021 (Arising out of SLP (Crl) No.3610 of 2020) , wherein it has been held that if the accused person is in jail for substantially long period and there is no possibility to conclude the trial in near future, the bail application may be considered. Besides, learned counsel for the applicant has referred the dictum of the Hon'ble Apex Court in re; Gokarakonda Naga Saibaba v. State of Maharashtra, (2018) 12 SCC 505 , wherein it has been held that if all fact / material witnesses have been examined, the bail application of the accused may be considered and they were entitled for bail. Paragraph -16 of the case K.A.Najeeb (supra) is being reproduced here-in-below:-

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" This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India, it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail."

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The Apex Court in the case of Paras Ram Vishnoi (supra) has observed as under:-

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" On consideration of the matter, we are of the view that pending the trial we cannot keep a person in custody for an indefinite period of time and taking into consideration the period of custody and that the other accused are yet to lead defence evidence while the appellant has already stated he does not propose to lead any evidence, we are inclined to grant bail to the appellant on terms and conditions to the satisfaction of the trial court. "

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In support of her contention, learned counsel for the applicant has placed reliance of Hon'ble Apex Court judgment in the case of Kamal Vs. State of Haryana, 2004 (13) SCC 526 and submitted that the Hon'ble Apex Court was pleased to observe in paragraph no. 2 of the judgment as under :-

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"2. This is a case in which the appellant has been convicted u/s 304-B of the India Penal Code and sentenced to imprisonment for 7 years. It appears that so far the appellant has undergone imprisonment for about 2 years and four months. The High Court declined to grant bail pending disposal of the appeal before it. We are of the view that the bail should have been granted by the High Court, especially having regard to the fact that the appellant has already served a substantial period of the sentence. In the circumstances,

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we direct that the bail be granted to the appellant on conditions as may be imposed by the District and Sessions Judge, Faridabad."

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Learned counsel for the applicant has also placed reliance of Hon'ble Apex Court judgment in the case of Takht Singh Vs. State of Madhya Pradesh, 2001 (10) SCC 463 , and submitted that the Hon'ble Apex Court was pleased to observe in paragraph no. 2 of the judgment as under:-

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"2. The appellants have been convicted under Section 302/149, Indian Penal Code by the learned Sessions Judge and have been sentenced to imprisonment for life. Against the said conviction and sentence their appeal to the High Court is pending. Before the High Court application for suspension of sentence and bail was filed but the High Court rejected that prayer indicating therein that the applicants can renew their prayer for bail after one year. After the expiry of one year the second application was filed but the same has been rejected by the impugned order. It is submitted that the appellants are already in jail for over 3 years and 3 months. There is no possibility of early hearing of the appeal in the High Court. In the aforesaid circumstances the applicants be released on bail to the satisfaction of the learned Chief Judicial Magistrate, Sehore. The appeal is disposed of accordingly."

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Learned counsel for the applicant further submits that ratio of law applicable in aforesaid cases is also applicable in the case of the applicant, therefore, the applicant be enlarged on bail by this Court sympathetically.

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Learned A.G.A. opposed the prayer for bail by submitting that the applicant is involved in heinous crime. On being confronted on the point about the progress of trial and period of incarceration of the present applicant, learned Additional Government Advocate has submitted that this is being a matter of record, therefore, he has nothing to say.

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After 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, at the very outset, this Court anguish towards the poor progress of trial, the trial must have been concluded by now and the learned trial court is having powers to take coercive method to conclude the trial and also armed with the provisions of Section 309 Cr.P.C., therefore, this Court is unable to comprehend as to how there is no good progress in the trial, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also the absence of any convincing material to indicate the possibility of tampering with the evidence, as also, considering that applicant is in jail since 05.04.2018 and the trial has not yet been concluded and out of 18 witnesses only four witnesses have been examined as well as 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 cases of Dataram Singh vs. State of U.P. and another, reported in (2018) 3 SCC 22 , Union of India vs. K.A. Najeeb reported in AIR 2021 Supreme Court 712 and Paras Ram Vishnoi vs. The

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Director, Central Bureau of Investigation passed in Criminal Appeal No.693 of 2021 (Arising out of SLP (Crl) No.3610 of 2020) , Gokarakonda Naga Saibaba v. State of Maharashtra, (2018) 12 SCC 505, Kamal Vs. State of Haryana, 2004 (13) SCC 526 and Takht Singh Vs. State of Madhya Pradesh, 2001 (10) SCC 463, this Court is of the view that the applicant may be enlarged on bail.

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The prayer for bail is granted. The application is allowed.

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Let the applicant, Mohd. Ibrahim , involved in Case Crime No.100 of 2018 (Sessions Trial No. 227 of 2018), under Sections 302, 323, 504 I.P.C. at Police Station - Kheeron, District - Raebareli, be enlarged on bail on his executing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned on the following conditions :-

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(i) The applicant will not make any attempt to tamper with the prosecution evidence in any manner whatsoever.

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(ii) The applicant will personally appear on each and every date fixed in the court below and his personal presence shall not be exempted unless the court itself deems it fit to do so in the interest of justice.

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(iii) The applicant shall cooperate in the trial sincerely without seeking any adjournment.

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

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(v) In case, the applicant misuses the liberty of bail and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant 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.

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(vi) The applicant 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 Cr.P.C. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.

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(vii) The party shall file computer generated copy of such order

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downloaded from the official website of High Court Allahabad or certified copy issued from the Registry of the High Court, Allahabad.

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(viii) The concerned Court/ Authority/ Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

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It may be observed that in the event of any breach of the aforesaid conditions, the court below shall be at liberty to proceed for the cancellation of applicant's bail.

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

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Being a peculiar case, the trial court is directed to conclude the trial of this case preferably, within a period of six months from today without granting any unnecessary adjournment to either parties except there is any legal impediment or order of higher Court.

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Order Date :- 29.7.2022 Lokesh Kumar

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Digitally signed by LOKESH KUMAR Date: 2022.08.02 02:19:48 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Mohd. Ibrahim Second Bail Application v. State of U.P.

Case brief

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Mohd. Ibrahim Second Bail Application v. State of U.P.

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