Research › Search › Judgment

Allahabad High Court · body

2009 DIGILAW 2194 (ALL)

Sudhir Sharma v. State of U. P.

2009-05-08

VIJAY KUMAR VERMA

body2009
JUDGMENT: Vijay Kumar Verma, J. In this bail application, prayer for bail in Crime No. 346 of 2008 under section 364A IPC of P.S. Baradari, Bareilly has been made on behalf of the accused-applicant Sudhir Sharma. 2. An FIR was lodged on 08.03.2008 at 10.15 a.m. at P.S. Baradari, Bareilly by Smt. Renu Saxena w/o Anil Kumar Saxena, resident of 34 Renu Villa, Srinagar Colony, Jogi Nawada, Bareilly. A case under section 364 IPC was registered against unknown persons at crime no. 346 of 2008. The allegations made in the FIR, in brief, are that Mohit, aged about 13 years, son of the complainant was studying in class VIII in Budro School, Bareilly. He had gone to school on 08.03.2008 at about 9.00 a.m. on his scooty. At about 9.20 a.m., some person informed the complainant that her son Mohit has been abducted from near the university gate and is being carried in red coloured Tata Sumo vehicle towards satellite bus stand. The complainant informed her neighbours, out of whom somebody informed police control room on telephone no. 100. Further case of the prosecution is that on getting information, the vehicle by which abduction of Mohit was made was chased by the police and ultimately, the vehicle was stopped near Head Post Office, Bareilly in Cantt. area and applicant Sudhir Sharma along with two other companions was arrested. Accused persons are said to have fired on the police party with a view to commit the murder of police personnel. On personal search of the applicant, one country made pistol 315 bore with empty cartridge in barrel was recovered and from the pocket of his pant, two live cartridges 315 bore were also recovered. One SIM of the mobile of Mohit Saxena and two Syringe and needle also were recovered from the pocket of the applicant. The co-accused, who are said to have been arrested along with the applicant, were Azrul and Deepak, from whom some other articles are said to have been recovered. The abducted Mohit Saxena was also recovered from the vehicle bearing no. UP-25/ H-4503 Tata Sumo. 3. I have heard Sri Amit Kumar Srivastava, Advocate appearing for the applicant, AGA for the State and perused the entire record carefully. 4. The abducted Mohit Saxena was also recovered from the vehicle bearing no. UP-25/ H-4503 Tata Sumo. 3. I have heard Sri Amit Kumar Srivastava, Advocate appearing for the applicant, AGA for the State and perused the entire record carefully. 4. It was submitted by learned counsel for the applicant that applicant Sudhir Sharma is student of BDS in Ruhelkhand Dental College, Bareilly and due to tenancy dispute, he has been falsely implicated in this case by the complainant Smt. Renu Saxena, in whose house the applicant is residing as tenant. 5. Next submission made by learned counsel was that according to the FIR lodged by Smt. Renu Saxena, some person is said to have informed her about abduction of her son Mohit Saxena at 9.20 a.m., whereas according to the statement of abducted Mohit Saxena, his abduction also is said to have been made at 9.20 a.m., which makes the story of abduction doubtful, because if abduction of Mohit was made at 9.20 a.m. on 08.03.2008, then the story of giving information to the complainant by some perso personally at her house is falsified. 6. It was further submitted that abduction of Mohit Saxena is said to have been made from near Ruhel-khand University Gate, whereas the applicant and other accused are said to have been arrested near Head Post Office Bareilly, which is situated in Cantt. area on the road going to Budaun. The contention of the learned counsel was that the accused persons after abducting Mohit could easily flee away on Pilibhit or Lucknow Road and on this ground, the story of alleged police encounter and recovery of child from the applicant and other accused is extremely doubtful. 7. It was also submitted that no demand of ransom was made by the applicant and false story of abduction for ransom has been concocted. 8. Next submission made by learned counsel was that the vehicle from which the recovery of abducted Mohit is said to have been made was not seized by the police and driver of the vehicle was also not arrested and on this ground also the case of the prosecution regarding recovery of the abducted child becomes doubtful. 9. 8. Next submission made by learned counsel was that the vehicle from which the recovery of abducted Mohit is said to have been made was not seized by the police and driver of the vehicle was also not arrested and on this ground also the case of the prosecution regarding recovery of the abducted child becomes doubtful. 9. It was further submitted by the learned counsel that on the basis of alleged firing on the police party and recovery of forged driving licence from co-accused, a case under section 307, 420, 467, 468, 471 IPC was registered at crime no. 168 of 2008 at P.S. Kotwali, Bareilly against the applicant and other accused persons and since the applicant has been granted bail in that case by Special Judge (Anti Corruption Act), Bareilly vide order dated 26.03.2008 passed in Bail Application no. 741 of 2008, hence the applicant is entitled for bail in present case also, as the story of police encounter has been disbelieved by the learned Special Judge while passing aforesaid bail order. 10. Lastly it was submitted by learned counsel that the applicant is in jail since 08.03.2008 and hence, on the basis of long incarceration in jail also, the applicant deserves bail now, because due to delay in trial, his fundamental right of speedy trial envisaged under Article 21 of the Constitution is being violated. 11. Learned AGA opposed the bail application and contended that abducted Mohit Saxena was recovered at about 11.00 a.m. on the day of abduction from the applicant and his companions and SIM of the Mobile of Mohit Saxena was also recovered from the applicant along with illicit arms and ammunitions and hence, in this heinous crime of abduction for ransom, applicant should not be granted bail. 12. Having given my thoughtful consideration to the rival submissions made by the parties' counsel and after carefully going through the entire case diary and other papers on record, in my considered opinion, the applicant does not deserve bail in this heinous crime. The applicant was tenant in the house of the complainant, whose son was abducted by him and his companions on 08.03.2008 at about 9.20 a.m. at the time when he had gone to his school. The applicant was tenant in the house of the complainant, whose son was abducted by him and his companions on 08.03.2008 at about 9.20 a.m. at the time when he had gone to his school. There is sufficient prima facie evidence in the case diary to show that the applicant and his companions Azrul and Deepak were arrested in police encounter when they were fleeing away after abducting Mohit saxena from near the gate of Ruhelkhand University, Bareilly and at the time of their arrest, the abducted child was also recovered from the Tata Sumo vehicle by which he (Mohit) was being carried after abduction. The applicant was well known to abducted Mohit Saxena. From the statement of Mohit Saxena and other witnesses recorded during investigation, the complicity of the applicant in the incident of abduction and recovery of abducted Mohit is prima facie established. Therefore, in this heinous crime of abduction for ransom, the applicant can not be admitted to bail. 13. It is true that bail of the applicant in the case of police encounter of crime no. 168 of 2008 of P.S. Kotwali, Bareilly has been granted by Special Judge (Anti Corruption Act), Bareilly vide order dated 26.03.2008 (Annexure-3), but on the basis of that bail order, the applicant can not be granted bail in present case, because the story of recovery of abducted Mohit Saxena in police encounter has not been disbelieved in that bail order. The bail in the case of police encounter has been granted mainly on the ground that no injury was caused to any police personnel and forgery about driving licence was committed by co-accused Azrul Ansari. The matter of abduction of crime no. 346 of 2008 and recovery of abducted child was not considered in aforesaid bail order. Therefore, the bail order dated 06.03.2008 passed in crime no. 168 of 2008 of P.S. Kotwali, Bareilly is not of any assistance to the applicant in present case. 14. On the basis of long incarceration in jail also the applicant can not be admitted to bail in this heinous crime. In this context reference may be made to the case of Pramod Kumar Saxena vs. Union of India and others 2008 (63) ACC 115, in which the Hon'ble Apex Court has held that mere long period of incarceration in jail would not be per-se illegal. In this context reference may be made to the case of Pramod Kumar Saxena vs. Union of India and others 2008 (63) ACC 115, 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. 15. For the reasons mentioned herein-above, the bail application of the applicant Sudhir Sharma is hereby rejected. 16. The trial court is directed to conclude the trial of the applicant as early as possible making sincere efforts and avoiding unnecessary adjournments. 17. Office is directed to send a copy of this order within a week to the trial court concerned for necessary action.