Allowed

Banti @ Shiv Kumar v. State of U.P. and Another

Allahabad HC6 Nov 2023CRLA/10458/2023

Case brief

AI extract

What is this about?

The High Court set aside the bail rejection order passed by the Special Judge, SC/ST Act, Bijnor. Relying on the fundamental right to speedy trial and jail overcrowding under Article 21, without expressing an opinion on the merits, the Court granted bail.

What did the court decide?

Appellant released on bail by furnishing a personal bond and two reliable sureties on specific conditions.

Banti @ Shiv Kumar Vs State of U.P. and Another — Bail and Remand | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:213170

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Court No. - 85

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Case :- CRIMINAL APPEAL No. - 10458 of 2023

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Appellant :- Banti @ Shiv Kumar Respondent :- State of U.P. and Another Counsel for Appellant :- Virendra Singh Tomar,Rajiv Sisodia Counsel for Respondent :- G.A.

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Hon'ble Mayank Kumar Jain,J.

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Ms. Reema Gupta, learned AGA informed that service of notice upon opposite party no.2 is sufficient.

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List has been revised. Despite service of notice upon the opposite party no.2, no one appears on his behalf.

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Heard learned counsel for the appellant, learned AGA for opposite party no.1 and perused the material placed on record.

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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 25.09.2023 whereby the Special Judge, SC/ST Act, Bijnor has rejected the bail application of the appellant moved by him in Case Crime No. 522 of 2023, under Sections 302, 201 of IPC, and Section 3(2)5 of SC/ST Act, Police Station Nazibabad, District Bijnor.

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As per the FIR the case of the prosecution is that the son of the informant namely Himanshu went to Jungle while he was talking on his mobile phone on 31.07.2023. He disappeared and missing report was lodged by Vijay on 02.08.2023. It is also alleged that he is the witness of last seen together with Himanshu and the appellant before the dead body of the Himanshu is recovered. The informant had suspicion that appellant had committed the murder of Himanshu.

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Learned counsel for the appellant has submitted that appellant is innocent and has been falsely implicated in this case. The missing report lodged on 02.08.2023 while it is submitted that Vijay had seen the appellant in the company of the deceased on 31.07.2023 but there is no recital in the missing report that the deceased was seen in the company of the appellant. It is also submitted that a

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planted recovery of 'Darati' is shown on the pointing of the appellant which is not bloodstained. No recovery of sharp edge weapon was noted at the time of postmortem. It is also submitted that witness Vijay who is alleged to be eye witness of last seen together, has stated that it appeared to him that some animal had bite the deceased. In the postmortem report animal bite were also found on the large bone of skeleton of Himanshu. It is a case of malicious prosecution under the provisions of S.C./S.T. Act. Appellant is languishing in jail since 13.08.2023 having no criminal history. In case, the appellant is released on bail, he will not misuse the liberty of bail.

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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 submits that the allegations involved are very serious in nature but he could not point out any material to the contrary.

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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 25.09.2023 is, hereby, set aside.

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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.

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Let appellant, Banti @ Shiv Kumar 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:

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(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.

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

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(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.

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(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.

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

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

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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.

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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.

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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.

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The criminal appeal is allowed.

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Order Date :- 6.11.2023 Mohit

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Digitally signed by :- MOHIT KUMAR KUSHWAHA High Court of Judicature at Allahabad

Banti @ Shiv Kumar v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Banti @ Shiv Kumar v. State of U.P. and Another

Case brief

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What did the court decide?

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