Atiullah Alias Fagu Vs State of U.P. Thru. Prin. Secy. Home Deptt. Lko and 2 Others

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HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW

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CRIMINAL APPEAL No. - 242 of 2025

Atiullah Alias Fagu

.....Appellant(s)

Versus

State Of U.P. Thru. Prin. Secy. Home Deptt. Lko And 2 Others .....Respondent(s) Counsel for Appellant(s) : Niyaj Ahmad, Akhand Pratap Pandey, Rohit Upadhyay, Sanjay Kumar Pandey Counsel for Respondent(s) : G.A., Amit Kumar Singh Court No. - 11

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HON'BLE SAURABH LAVANIA, J.

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Heard learned counsel for the appellant, learned AGA for the State and also Ms. Anamika Shukla, Advocate holding brief of Sri Amit Kumar Singh, learned counsel for the opposite party Nos.2 and 3.

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By means of instant appeal under Section 14-A (2) of Scheduled Castes and Scheduled Tribes Act, 1989 the applicant has challenged the impugned order dated 23.12.2024 passed by Special Judge, SC/ST Act, Ambedkar Nagar in Bail Application No. 2718 of 2024, arising out of Case Crime No. 228 of 2024 under sections- 87, 351 (2), 64 (2) of Bhartiya Nyaya Sanhita (B.N.S.), 2023, and Section 3 (2) (v-a), 3 (2)(v), 3 (1) (Da) of S.C.S.T. Act, relating to the Police Station-Bheeti, District-Ambedkar Nagar.

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Learned counsel for the applicant while pressing the present bail appeal has submitted that incarceration period is much higher in the present case as the revisionist is in incarceration since 13.08.2024 and in view of law laid down by Hon'ble Supreme Court in the case of Union of India Vs. K.A. Najeeb reported in AIR 2021 SCC 712 and Paras Ram Vishnoi. Vs. The Director General Bureau of Investigation, passed in Criminal Appeal No.693 of 2021 (Arising out of SLP (Crl.) 3610 of 2020), bail can be granted to those accused persons on the ground that there is no possibility to conclude the trial in near future and there is a long incarceration period of that accused. Relevant para-16 of the case of K.A. Najeeb (supra) is quoted 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

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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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In the case of Paras Ram Vishnoi (supra), the Apex Court has observed regarding point of incarceration period and delay in trial. The relevant part of the said judgment is quoted below:-

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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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Learned counsel for the applicant has further submitted that long period of detention is cause of action and he has submitted that second bail can be considered on this fresh ground. He has invited attention of this Court towards the judgment of Hon'ble Apex Court in the case of Gokarakonda Naga Saibaba. Vs. State of Maharashtra, (2018) 12 SCC 505. The relevant para-4 of the said judgment is quoted below:-

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"4. Having given our thoughtful consideration to the submissions advanced at the hands of the learned counsel for the rival parties, specially the undisputed position that the petitioner has never been accused of having misused the concession of bail, we are of the view, that the submission made by the learned counsel for the respondent is extremely unfair. Since all the material witnesses have been examined and cross-examined, the release of the petitioner on bail ought not to have been opposed, especially keeping in mind the medical condition of the petitioner."

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(Emphasis supplied)

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It is stated that, according to the FIR, the appellant enticed away the victim, an adult daughter of the informant, aged about 20 years, therefore, the FIR was lodged under Sections 137(2) and 87 of BNS, akin to Sections 363 and 366 IPC.

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Further stated that during the investigation, upon recovery, the victim's statement was recorded in terms of Section 180 BNSS (a copy of which is annexed as Annexure CA-3) and a perusal of the same would indicate that the appellant and the victim were known to each other and, at the appellant's request, the victim accompanied the appellant to Lucknow. From this statement, it can also be inferred that after being recovered, the victim was pressured to give a statement against the appellant.

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It is further stated that, in her statement under Section 183 of the BNSS before the

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Magistrate, the victim subsequently twisted the prosecution story. It is also submitted that no medical evidence is available with the prosecution.

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Thus, taking note of aforesaid facts and circumstances of the case, indulgence of this Court is required in the matter and the impugned order is liable to be set aside and the appeal is liable to be allowed.

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Learned A.G.A. and also Ms. Arnima Shukla, learned counsel appearing on behalf of opposite party Nos. 2 and 3 on vehemently opposed the prayer of the appellant, however, they could not dispute the above contentions made by the appellant's counsel.

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Considered the arguments advanced by the learned counsel for the appellantapplicant, learned A.G.A., and gone through the contents of the appeal, impugned order, F.I.R., medical report as well as other relevant documents including the statement(s) recorded.

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Upon due consideration of above facts and circumstances as also judgment(s), referred above and keeping in view the fact that the trial of the case is not likely to be concluded in near future, this Court is of the view that the appeal has substance and it is accordingly, allowed .

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The impugned order dated 23.12.2024 passed by Special Judge, SC/ST Act, Ambedkar Nagar in Bail Application No. 2718 of 2024, arising out of Case Crime No. 228 of 2024, under sections- 87, 351 (2), 64 (2) of Bhartiya Nyaya Sanhita (B.N.S.), 2023, and Section 3 (2) (v-a), 3 (2)(v), 3 (1) (Da) of S.C.S.T. Act, relating to the Police Station-Bheeti, District-Ambedkar Nagar, is hereby set aside.

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Let appellant - Atiullah Alias Fagu , be released on bail in the aforesaid case crime number on his furnishing personal bond of Rs. 25,000/- and two reliable sureties each of the like amount to the satisfaction of the court concerned subject to following additional conditions :-

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(i) The appellant will cooperate with the prosecution during trial.

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(ii) The appellant will not tamper with the evidence during trial.

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(iii) The appellant will not pressurize/intimidate the prosecution witness(es).

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(iv) The appellant shall not commit an offence.

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(v) 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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(vi) The appellant shall remain present before the trial court on each date fixed, either

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personally or through counsel.

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(vii) The appellant will not seek any adjournment on the dates fixed for evidence when the witnesses are present in court.

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(viii) The appellant shall remain present, in person, before the trial court on the dates fixed for recording of statement under Section 313 Cr.P.C.

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As this order relates to enlargement of the appellant on bail, it is clarified that observations made in this order shall have no bearing on the merits of the case and the trial court shall not be influenced by any observation made in this order.

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September 1, 2025 Vinay/-

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(Saurabh Lavania,J.)

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Digitally signed by :- VINAY KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Atiullah Alias Fagu v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko and 2 Others

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Atiullah Alias Fagu v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko and 2 Others

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