Allowed

Mahtab Alam v. State of U.P. and Another

Allahabad HC3 Apr 2023CRLA/5954/2019

Case brief

AI extract

What is this about?

In an appeal against a bail rejection under the SC/ST Act, the Court set aside the lower court's order. Noting the first informant was not an eye-witness, witnesses had turned hostile, and co-accused were on bail, the Court applied principles from Dataram and allowed the plea for bail.

What did the court decide?

Appellant released on bail on personal bonds with two sureties, subject to conditions including attendance at trial and no interference with evidence.

Mahtab Alam Vs State of U.P. and Another — Pension and Retirement Benefits | Allahabad HC (2023)

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Court No. - 50

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Case :- CRIMINAL APPEAL No. - 5954 of 2019

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Appellant :- Mahtab Alam Respondent :- State of U.P. and Another Counsel for Appellant :- Ganesh Shanker Srivastava,Babu Lal Ram,Gyanendra Kumar,Imran Ullah,Shibli Naseem,Vineet Vikram Counsel for Respondent :- G.A.

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Hon'ble Ram Manohar Narayan Mishra,J.

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Supplementary affidavit filed by learned counsel for the appellant is taken on record.

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Heard learned counsel for the appellant, learned A.G.A. for the State, Shri Deepak Kapoor and perused the material on record.

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As per counter affidavit filed by State respondent, notice has been served to first informant but none appeared from his side to contest the present criminal appeal

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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 - Mahtab Alam to set aside the impugned order dated 02.09.2019, whereby the Special Judge (SC/ST Act), Jaunpur has rejected the bail application No. 170 of 2019 of the appellant moved by him in Case Crime No. 245 of 2019, under Sections 302, 404, IPC and Section 3(2)(v) SC/ST Act, Police Station Shahganj, District Jaunpur.

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Brief facts of the case are that the first information report dated 24.6.2019 which are lodged by the son of the deceased against the appellant and two other named persons stating that on 23.6.2019 at about 9:30 p.m., the appellant and other co-accused persons, who used to come in the house of the first informant, celebrated the party in absence of the first informant and other family members. On the day of incident after celebrating a party, some altercation had taken place and the accused person strangulated the neck of his father and took up Rs.40,000/- along with some ornaments, clothes, household things from the house. The witnesses namely Girish Chandra, Yashwant Yadav, Moharram Ali and Chandan had seen the appellant and other co-accused persons running away from the place of incident.

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After lodging of the first information report, inquest of the body of

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deceased was conducted on 24.6.2019 at about 00:15 hours. Postmortem of the deceased was conducted on 24.6.2019 at about 2:45 p.m. As per post-mortem report, cause of death is due to asphyxia, as a result of ante-mortem strangulation. After recording the statements of the first informant and other prosecution witnesses, charge sheet had been submitted against the appellant and other two named accused persons on 27.7.2019.

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Learned counsel for the appellant submits that the appellant is innocent and has been falsely implicated in the present case due to ulterior motive. It is further submitted that named witnesses namely Girish Chand Yadav and Jaswant Singh declared hostile by the prosecution in their examination which was recorded as PW-1 and PW-2 before the trial court. He further submitted that coaccused Bullet Gautam @ Rajesh Kumar and Rohit Seth have been enlarged on bail by orders of co-ordinate bench of this Court in Criminal Misc. Bail Application No. 47844 of 2019 and Criminal Appeal No. 2890 of 2020, respectively. It is further submitted that the appellant is languishing in jail since 03.07.2019.

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Per contra , learned A.G.A.. Shri Deepak Kapoor,vehemently opposed the bail application and submitted that trial is still in progress and some witnesses are yet to be examined. However, he did not dispute the fact that P.W.1 who is complainant is not an eye-witness. P.W.-2 Girish Chand Yadav and P.W.3 Jaswant Singh Yadav whose statement have been filed along with supplementary affidavit have not supported the prosecution version and they were declared hostile by prosecution.

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After considering the facts of present case and keeping in view the fact that

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(a) The first informant is not an eye-witness of the incident;

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(b) other witnesses who are said to have seen the the appellant and other co-accused persons running away from the house of deceased after the incident have not supported prosecution version, during cross-examination.

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(c) remaining two co-accused persons -Bullet Gautam @ Rajesh Kumar and Rohit Seth have been enlarged on bail by orders of coordinate bench of this Court dated 05.09.2022 and 15.12.2022.

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(d) long incarceration of the appellant since 03.07.2019

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(e) and larger mandate of law in Dataram Vs. State of U.P. (2018)

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3 SCC 22; the nature of accusation, the nature of evidence in support thereof, the severity of punishment conviction will entail, the circumstances which are peculiar to the accused, his role and involvement in the offence and criminal history of single case which has been duly explained by the appellant through supplementary affidavit and other relevant factors, without expressing any opinion on the merits of case, in my considered opinion, a case of bail is made out.

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Hence, the present criminal appeal is allowed and impugned order dated 02.09.2019 is set aside.

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Let appellant- Mahtab Alam be released on bail on their furnishing personal bonds with two sureties each in the like amount to the satisfaction of the Court concerned with following conditions:-

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(i) That the appellant shall cooperate in the expeditious disposal of the trial and shall regularly attend the court unless inevitable.

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(ii) That 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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(iii) That after his release, the appellant shall not involve in any criminal activity.

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(iv) The identity, status and residential proof of sureties will be verified by court concerned before the release of the appellant on bail.

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It is made clear that in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of the appellant.

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It is also 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.

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On acceptance of bail bonds and personal bonds, the lower court shall transmit Photostat copies thereof to this Court for being kept on the record.

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Order Date :- 3.4.2023/Nitika

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Digitally signed by :- NITIKA SRIVASTAVA High Court of Judicature at Allahabad

Mahtab Alam v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Mahtab Alam v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

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