Sabir Ali vs State of U.P.

Vijay Kumar Verma, J.—Sri Dharam Vir Singh, advocate, has filed memo of appearance on behalf of applicant. Earlier engaged counsel Sri Amit Mishra is not present to argue on the bail application. Hence Sri Dharma Vir Singh, advocate, is permitted to appear on behalf of applicant as counsel.

Heard Sri Dharam Vir Singh, advocate, appearing for the applicant ; Sri Himanshu Upadhyay, counsel for the complainant and A.G.A. for the State and also perused the record.

An F.I.R. was lodged by the complainant Radha Raman, s/o Santosh Kumar on 24.9.2008 at P. S. Kotwali Dehat, district Etah, where a case u/s 406, I.P.C. was registered against the applicant Sabir Ali and co-accused Sanjay and Vijay at Crime No. 546 of 2008. The allegations made in the F.I.R., in brief, are that the complainant had given his truck No. U. P. 82J/9301 on 12.9.2008 for repair in the workshop of Sabir Ali, which the accused persons have misappropriated.

It is submitted by the learned Counsel for the applicant that the complainant had sent an application to S.S.P., Etah on 16.9.2008, but no allegation was made against the applicant Sabir Ali in that application and hence, the applicant deserves to be enlarged on bail on this ground, because the applicant has been falsely roped in this case.

It is also submitted that the truck in question was never entrusted to the applicant and hence no offence is made out against him.

Last submission is that the applicant is in jail since 23.9.2008.

The bail application has been opposed by the learned A.G.A. and counsel for the complainant on the ground that the application (Annexure-1), which has been filed by the applicant in support of the bail application, is fabricated and actually the complainant had given another application to S.S.P., Etah, copy whereof has been filed as Annexure CA-1 to the counter-affidavit dated 17.11.2008. It was also submitted that the applicant and other co-accused persons have misappropriated the truck of the complainant for their personal gain. It was also submitted that there is long criminal history of the applicant and hence, licence should not be granted to him to commit further offence by admitting him to bail in this heinous crime.

I have carefully gone through all the papers filed by the parties. The applicant has not filed any proof to show that the application dated 16.9.2008 (Annexure-1 to the bail application) was actually given by the complainant to S.S.P., Etah. There is sufficient prima facie evidence to show the complicity of the applicant in the incident of misappropriation of the truck, which was entrusted to the applicant for repair at his workshop. Therefore, keeping in view overall facts and evidence available against the applicant, without expressing any opinion on merit, he does not deserve bail.

In my considered opinion, the applicant cannot be enlarged on bail on the basis of the period of detention in jail also. Reference in this regard may be made to the case of Pramod Kumar Saxena v. Union of India and others LXIII 2008 ACC 115: 2008 (3) ACR 3216 (SC), in which the Hon''ble Apex Court has held that mere long period of incarceration in jail would not be per se illegal. If the applicant has committed offence, he has to remain behind bars. Such detention in jail even as an under-trial prisoner would not be violative of Article 21 of the Constitution.

For the reasons mentioned hereinabove, the bail application of the applicant Sabir Ali is hereby rejected.

The trial court concerned is directed to conclude the trial of the applicant within six months making sincere efforts and avoiding unnecessary adjournments.

The office is directed to send a copy of this order within a week to the trial court concerned for necessary action.