Sabir Alias Akram and Another Vs State of U.P. Thru. Prin. Secy. Home, U.P. Lko.

Neutral Citation No. - 2024:AHC-LKO:36251

Court No. - 11

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 5547 of 2023 Applicant :- Sabir Alias Akram And Another Opposite Party :- State Of U.P. Thru. Prin. Secy. Home, U.P. Lko. Counsel for Applicant :- Mohd. Waris Farooqui,Sanjay Srivastava,Vipul Kumar Pandey

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Counsel for Opposite Party :- G.A.

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Hon'ble Rajesh Singh Chauhan,J.

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Heard Sri Prateek Tewari, learned Advocate, who has filed memo of appearance on behalf of both the applicants after taking no objection from earlier counsel, the same is taken on record. Sri Aniruddh Kumar Singh, learned AGA-I has argued on behalf of the State.

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As per learned counsel for the applicants, the present applicants are in jail since 22.02.2016 in Case Crime No.204 of 2015, under Sections 396 & 412 IPC, Police Station – Jankipuram, District – Lucknow.

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Learned counsel for the applicants has submitted that the present applicants have been falsely implicated in the case as they have not committed any offence as alleged. Attention has been drawn towards the impugned FIR wherein no one has been named, but during investigation, the present applicants have been arrested.

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At this stage, learned counsel for the applicants has drawn attention of this Court towards five bail orders granted by this Court to applicant no.1- Sabir alias Akram vide order dated 09.11.2017 passed Criminal Misc. Bail Application No.6507 of 2017, order dated 11.12.2017 passed Criminal Misc. Bail Application No.6505 of 2017, order dated 18.01.2020 passed Criminal Misc. Bail Application No.2896 of 2020, order dated 09.02.2022 passed Criminal Misc. Bail Application No.40801 of 2021 and order dated 18.05.2022 passed Criminal Misc. Bail Application No.13599 of 2022. Learned counsel for the applicants has stated that there is no criminal history of any kind whatsoever of applicant no.2- Amir alias Saddam inasmuch as the aforesaid cases are related with applicant no.1Sabir alias Akram. Learned counsel has further submitted that after arresting applicant no.1-Sabir alias Akram in the present case, all the aforesaid cases have been imposed against him subsequently.

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Learned counsel for the applicants has drawn attention of this Court towards Annexure No.2 of the bail application, which is the evidence of the brother of the deceased, namely, Santosh

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Verma dated 12.10.2022 wherein he has categorically deposed before the court that no incident of dacoity had taken place in his house. Learned counsel has further submitted that actually, dacoity had taken place in the same vicinity in three houses but no such incident had taken place in the house of the deceased and there might be possibility that someone else has murdered the brother of Santosh Verma but such murder has been linked with the incident of dacoity. He has further submitted that some of the witnesses while recording their statements before the police have categorically stated that they can identify the dacoits as they have seen those persons in the light but the Investigating Agency has not tried to get the identification parade done. This fact itself indicates that in the present case, the manner of investigation is so careless and negligent.

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On the direction of the Court, the trial court has submitted its report dated 29.04.2024 showing the current status of the trial, which is on record, which clearly indicates that evidence of PW-1 Satyadev Verma was recorded on 22.09.2022, evidence of PW-2 Santosh Verma was recorded on 12.10.2022, evidence of PW-3 Vijay Pal Rawat was recorded on 02.12.2022, evidence of PW-4 Devki Nandan was recorded on 02.12.2022, evidence of PW-5 Aman Bhatt was recorded on 23.01.2023. However, one witness Shambhu died during the course of the trial. To record the evidence of other relevant witness, namely, Rita Rawat, Dinesh Bhatt alias Devki Nandan Bhatt, notices were issued by the learned trial court but both the aforesaid witnesses did not turn up, then the learned trial court issued summons supplying the advance copy to the Commissioner of Police, Lucknow for ensuring their presence. Witness- Rita Rawat could not appear before the learned trial court apprising that presently she is not mentally perfect and another prosecution witness Dinesh Bhatt did not appear on or before 29.04.2024, however, the next date was fixed for 02.05.2024. In the light of the aforesaid report, which has been apprised to the learned counsel for the applicants, he has requested that since the trial in question has not been concluded, rather looking into the pace of the trial, the same may not likely be concluded in near future for the reason that there are some more prosecution witnesses; some of them are fact witnesses and some of them are formal witness as well as expert witnesses; thereafter, the required exercise under Section 313 Cr.P.C. would be carried out and thereafter, the defence witnesses may also be examined. After completing the aforesaid exercise, the trial would be listed for arguments, therefore, in the light of the aforesaid facts and circumstances, total period of incarceration of the present applicants in jail, which is about eight years and three months, may be considered as a ground to grant them bail.

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Learned counsel for the applicants has relied upon the judgments of the Apex Court in re; Union of India vs. K.A. Najeeb, 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 the Apex Court has held that if there is no possibility to conclude the trial in near future and the accused applicant is in jail for a substantial period then the period of incarceration may be considered as a fresh ground. Further, the Apex Court in re; S audan Singh v. The State of Uttar Pradesh, Criminal Appeal No.308 of 2022, (SLP (Crl.) No.4633 of 2021) dated 25.02.2022 , has held that period of long detention of the accused may be considered even if the issue is pending consideration before the appellate court. Therefore, learned counsel for the applicants has submitted that considering the period of incarceration of the present applicants i.e. about eight years and three months, they may be enlarged on bail. He has further submitted that the applicants undertake that they shall co-operate in the trial proceedings and shall not misuse the liberty of bail, if so granted by this Court. Further, the applicants shall abide by all terms and conditions of the bail order.

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Learned AGA has, however, opposed the aforesaid bail application by submitting that applicant no.1- Sabir alias Akram is having criminal history of five cases and even if he has been granted bail by this Court, it may not absolve him from the fact that he is having no criminal antecedents. Sri Aniruddh Kumar Singh, learned AGA, has fairly submitted that the accusedapplicants are having right of speedy trial under Article 21 of the Constitution of India and in the present case, the trial has not been concluded in the last more than eight years, therefore, any appropriate order may be passed by this Court.

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Without entering into merits of the issue; considering the arguments of learned counsel for the parties; the fact that real brother of the deceased has deposed before the trial court that no incident of dacoity took place in his house but dacoity had taken place in the same vicinity in three houses; there might be possibility that someone else has murdered the deceased; no identification parade was conducted by the police whereas some of the eye witnesses have stated that they could identify the dacoits; till date, some fact/ material witnesses have been examined and still some prosecution witnesses are to be examined, thereafter the defence witnesses would be examined, therefore, there is no possibility of the trial to be concluded in near future; in view of the dictum of the Apex Court in re; K.A. Najeeb (supra), Paras Ram Vishnoi (supra) and Saudan Singh (supra); considering the period of incarceration of the

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present applicants i.e. about eight years and three months and undertaking of the applicants that they shall cooperate in the trial proceedings and shall not misuse the liberty of bail, I find it appropriate to release the applicants on bail.

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10. Accordingly, the bail application is allowed .

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Let applicants- Sabir alias Akram and Amir alias Saddam be released on bail in the aforesaid case crime number on both of them furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-

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(i) The applicants shall file an undertaking to the effect that they 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.

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(ii) The applicants shall remain present before the trial court on each date fixed, either personally or through their counsel. In case of their absence, without sufficient cause, the trial court may proceed against them under Section 229-A of the Indian Penal Code.

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(iii) In case, the applicants misuse the liberty of bail during trial and in order to secure their presence proclamation under Section 82 Cr.P.C. is issued and the applicants fail to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against them, in accordance with law, under Section 174-A of the Indian Penal Code.

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(iv) The applicants 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 absence of the applicants 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 them in accordance with law.

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(v) The applicants shall not leave India without previous permission of the court.

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Order Date :- 10.5.2024 /RBS/-

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[Rajesh Singh Chauhan,J.]

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Digitally signed by :- RAM BIR SINGH High Court of Judicature at Allahabad, Lucknow Bench

Sabir Alias Akram and Another v. State of U.P. Thru. Prin. Secy. Home, U.P. Lko.

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Sabir Alias Akram and Another v. State of U.P. Thru. Prin. Secy. Home, U.P. Lko.

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