Javed Gulam Nabi Shaikh v. State of Maharashtra and Another

2. Heard Sri Shashank Tripathi, learned counsel for the applicant and Shri Santosh Nigam, learned AGA for the State-respondent.

3. The instant third bail application has been filed seeking release of the applicant on bail in Case Crime No.45 of 2022, under Section 376 IPC, Sections 3/4 POCSO Act and Sections 3(2)5A S.C./S.T. Act, Police Station Shivrajpur, District Kanpur Nagar, during pendency of the trial in the court below.

4. Learned counsel for the applicant submits that this is the third bail application filed on behalf of the applicant and his first bail application has been dismissed by Co-ordinate Bench this Court vide order dated 22.09.2022 and his second bail application has been dismissed by this Bench vide order dated 30.11.2023 and he is pressing the instant third bail application on the ground that applicant is in jail in the present matter since 23.03.2022 i.e. for last almost three and half years and till date, out of nine prosecution witnesses of the charge-sheet, only four prosecution witnesses could be examined by the trial court.

5. He further submits that from the order-sheets of the case, which has been annexed alongwith supplementary affidavit filed in support of the instant third bail application, it reflects, since

04.03.2024 summons are being continuously issued to the prosecution witnesses but they are not appearing before the court concerned and therefore, without any fault of the applicant, trial of the case is being lingered on.

6. He further submits that considering the lack luster attitude of the prosecution witnesses, there is no hope of early disposal of the trial of the case.

7. He further submits that there is no evidence on record, which can suggest that applicant is responsible for delay in trial.

8. He further submits that right of speedy trial is a fundamental right of an accused and on its violation even in serious cases considering his long incarceration, he can be released on bail.

9. He further submits that applicant is having no criminal history to his credit.

10. Per contra, learned AGA opposed the prayer for bail and submits that this is the third bail application filed on behalf of the applicant and as per allegation, applicant committed rape upon a thirteen years old girl but could not dispute the fact that applicant is in jail in the present matter for last almost three and half years and till date, out of nine prosecution witnesses of the charge-sheet, only four prosecution witnesses could be examined by the trial court and for last one and half years, summons are being continuously issued to the prosecution witnesses but after P.W.-4, none of the prosecution witnesses could be appeared before the court concerned.

11. He further could not dispute the fact that there is no evidence on record, which can suggest that applicant is responsible for delay in trial.

12. He further could not dispute the fact that applicant is having no criminal history to his credit.

13. I have heard learned counsel for both the parties and perused the record of the case.

14. However, this is the third bail application filed on behalf of the applicant and his first two bail applications have already been dismissed by this Court after considering the fact that as per allegation, applicant committed rape upon a thirteen years old girl but it reflects, he is in jail in the present matter since 23.03.2022 i.e. for last almost three and half years and till date, out of nine prosecution witnesses of the charge-sheet, only four prosecution witnesses could be examined by the trial court.

15. Record further suggests that since the month of March, 2024 summons are being continuously issued to the prosecution witnesses but after P.W.-4, none of the prosecution witnesses could be appeared before the court concerned and from the record, it could not reflected that applicant caused any delay in trial, therefore, prima-facie, it appears, fundamental right of speedy trial of the applicant has been violated. The law is settled, if there is violation of fundamental right of speedy trial of an accused then even in serious cases considering his long incarceration, he should be released on bail. [See: Javed Gulam Nabi Shaikh Vs. State of Maharashtra and Another (2024) 9 SCC 813 and Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari Vs. State of Uttar Pradesh 2024 SCC OnLine SC 1755].

16. Further, victim of the case has already been examined by the trial court, therefore, there is no chance of any tampering with the prosecution evidence if applicant will be enlarged on bail.

17. Further, applicant is having no criminal history to his credit.

18. Further, law is settled, unless proven guilty an accused is deemed to be innocent and his bail application should not be dismissed for punitive purpose.

19. Therefore, considering the facts and circumstances of the case discussed above, in my view, applicant is entitled to be released on bail.

20. Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed.

21. Let the applicant- Deepu Katiyar @ Amit, be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:- (i) The applicant shall appear before the trial court on the dates fixed, unless his personal presence is exempted. (ii) The applicant shall not directly or indirectly, make 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 any police officer or tamper with the evidence. (iii) The applicant shall not indulge in any criminal and anti-social activity.

22. In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the bail of the applicant.

23. It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial. Order Date :- 11.8.2025 Zafar MOHAMMAD ZAFAR ANSARI High Court of Judicature at Allahabad

2. Heard Sri Shashank Tripathi, learned counsel for the applicant and Shri Santosh Nigam, learned AGA for the State-respondent.

3. The instant third bail application has been filed seeking release of the applicant on bail in Case Crime No.45 of 2022, under Section 376 IPC, Sections 3/4 POCSO Act and Sections 3(2)5A S.C./S.T. Act, Police Station Shivrajpur, District Kanpur Nagar, during pendency of the trial in the court below.

4. Learned counsel for the applicant submits that this is the third bail application filed on behalf of the applicant and his first bail application has been dismissed by Co-ordinate Bench this Court vide order dated 22.09.2022 and his second bail application has been dismissed by this Bench vide order dated 30.11.2023 and he is pressing the instant third bail application on the ground that applicant is in jail in the present matter since 23.03.2022 i.e. for last almost three and half years and till date, out of nine prosecution witnesses of the charge-sheet, only four prosecution witnesses could be examined by the trial court.

5. He further submits that from the order-sheets of the case, which has been annexed alongwith supplementary affidavit filed in support of the instant third bail application, it reflects, since

04.03.2024 summons are being continuously issued to the prosecution witnesses but they are not appearing before the court concerned and therefore, without any fault of the applicant, trial of the case is being lingered on.

6. He further submits that considering the lack luster attitude of the prosecution witnesses, there is no hope of early disposal of the trial of the case.

7. He further submits that there is no evidence on record, which can suggest that applicant is responsible for delay in trial.

8. He further submits that right of speedy trial is a fundamental right of an accused and on its violation even in serious cases considering his long incarceration, he can be released on bail.

9. He further submits that applicant is having no criminal history to his credit.

10. Per contra, learned AGA opposed the prayer for bail and submits that this is the third bail application filed on behalf of the applicant and as per allegation, applicant committed rape upon a thirteen years old girl but could not dispute the fact that applicant is in jail in the present matter for last almost three and half years and till date, out of nine prosecution witnesses of the charge-sheet, only four prosecution witnesses could be examined by the trial court and for last one and half years, summons are being continuously issued to the prosecution witnesses but after P.W.-4, none of the prosecution witnesses could be appeared before the court concerned.

11. He further could not dispute the fact that there is no evidence on record, which can suggest that applicant is responsible for delay in trial.

12. He further could not dispute the fact that applicant is having no criminal history to his credit.

13. I have heard learned counsel for both the parties and perused the record of the case.

14. However, this is the third bail application filed on behalf of the applicant and his first two bail applications have already been dismissed by this Court after considering the fact that as per allegation, applicant committed rape upon a thirteen years old girl but it reflects, he is in jail in the present matter since 23.03.2022 i.e. for last almost three and half years and till date, out of nine prosecution witnesses of the charge-sheet, only four prosecution witnesses could be examined by the trial court.

15. Record further suggests that since the month of March, 2024 summons are being continuously issued to the prosecution witnesses but after P.W.-4, none of the prosecution witnesses could be appeared before the court concerned and from the record, it could not reflected that applicant caused any delay in trial, therefore, prima-facie, it appears, fundamental right of speedy trial of the applicant has been violated. The law is settled, if there is violation of fundamental right of speedy trial of an accused then even in serious cases considering his long incarceration, he should be released on bail. [See: Javed Gulam Nabi Shaikh Vs. State of Maharashtra and Another (2024) 9 SCC 813 and Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari Vs. State of Uttar Pradesh 2024 SCC OnLine SC 1755].

16. Further, victim of the case has already been examined by the trial court, therefore, there is no chance of any tampering with the prosecution evidence if applicant will be enlarged on bail.

17. Further, applicant is having no criminal history to his credit.

18. Further, law is settled, unless proven guilty an accused is deemed to be innocent and his bail application should not be dismissed for punitive purpose.

19. Therefore, considering the facts and circumstances of the case discussed above, in my view, applicant is entitled to be released on bail.

20. Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed.

21. Let the applicant- Deepu Katiyar @ Amit, be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:- (i) The applicant shall appear before the trial court on the dates fixed, unless his personal presence is exempted. (ii) The applicant shall not directly or indirectly, make 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 any police officer or tamper with the evidence. (iii) The applicant shall not indulge in any criminal and anti-social activity.

22. In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the bail of the applicant.

23. It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial. Order Date :- 11.8.2025 Zafar MOHAMMAD ZAFAR ANSARI High Court of Judicature at Allahabad