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2009 DIGILAW 2350 (ALL)

JAIDEV v. STATE OF U. P.

2009-05-28

VIJAY KUMAR VERMA

body2009
JUDGMENT VIJAY KUMAR VERMA, J.-In this 2nd bail application, prayer for bail has been made on behalf of applicant Jaidev, S/O Raja Ram, who is facing trial in the Court of Additional Sessions Judge Court No. 10, Bareilly, in S.T. No. 1210 of 2007, arising out of Case Crime No. 2278 of 2006, under section 364-A, IPC, P.S. Prem Nagar, District Bareilly. 2. The 1st Bail application bearing No. 19701 of 2007 was not decided on merit and the same was rejected being not pressed, vide order dated 18.3.2008. 3. I have heard arguments of Sri Rajesh Kumar Srivastava Advocate appearing for the applicant and AGA for the State and also perused the record. . 4. An FIR about kidnapping of Sahib, aged about 8 years, son of the complainant Mohd. Sha.riq Husain was lodged on 4.11.2006 by the complainant at P.S. Prem Nagar, where a case under section 364, IPC was registered against one unknown person at Crime No. 2278 of 2006. The allegation in the FIR was that son of complainant was enticed away on 29.10.2006 by some unknown person. Further case of prosecution is that kidnapped Sahib was recovered from the applicant on 5.11.2006. It is also alleged that a sum of Rs.3,00,000/- (three lac) was demanded as ransom for rescuing Sahib. 5. The main submission made by learned Counsel for the applicant was that the applicant is in jail since 5.11.2006, but his trial has not concluded and hence, on this ground, the applicant deserves bail, as due to delay in trial, fundamental right of speedy trial of the applicant envisaged under Article 21 of the Constitution is being infringed. 6. Next submission made by learned Counsel was that no such incident as alleged had occurred and the applicant has been falsely implicated in this case fabricating false story of kidnapping the son of the complainant. It was further submitted in this context that the applicant was servant in the house of complainant and due to dispute of wages, false story of kidnapping the son of the complainant and recovery from the applicant was concocted. 7. It was further submitted in this context that the applicant was servant in the house of complainant and due to dispute of wages, false story of kidnapping the son of the complainant and recovery from the applicant was concocted. 7. It was also submitted by learned Counsel that date of birth of the applicant is 12.7.1990 and he was juvenile on the date of alleged incident and hence, on his ground also, the applicant deserve bail trader section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (In short 'the Juvenile Justice Act'). For this submission, attention of the, Court was drawn towards Annexure-9, which is photostat copy of the transfer certificate of Jaidev, S/o Raja Ram, R/o Mohallah Hajiyapur, Old City, Bareilly. Attention of the, Court in this context was drawn towards Annexure-l0 also, which is the report of the Sahayak Nagar Siksha Adhikari Bareilly, according to which, the entry in the transfer certificate of Jaidev was found correct. 8. Bail application was opposed by learned AGA contending that the applicant had kidnapped minor son of complainant for ransom and in this heinous crime, he should not be admitted to bail. 9. Having given my thoughtful consideration to the rival submissions made by parties Counsel and after, going through the case diary and other papers on record, without expressing any opinion on merit, in this heinous crime of kidnapping for ransom, the applicant does not deserve bail on merit as there is sufficient prima facie evidence to show the complicity of the applicant in the incident of kidnapping the minor son of the complaint and his recovery from the applicant on 5.11.2006. 10. In my considered opinion, on the basis of the period of incarceration in jail also, the applicant cannot be released on bail. In this context, I would like to refer the decision of Hon'ble Apex Court in the case of Pramod Kumar Saxena v. Union of India and others 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. 11. 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. 11. So far as the matter of granting bail on the basis the applicant being juvenile is concerned, from the order passed by Court below on the bail application of the applicant, it is revealed that learned Trial Judge did not make any inquiry about the age of applicant and hence, this Court would not be justified to record any finding as to whether the applicant was juvenile or not on the date pf incident. The applicant may move fresh bail application before the Court below on the ground of being juvenile and if such bail application is moved before the Trial Court concerned, then the Court is bound to make inquiry regarding this matter and if after medical examination and on the basis of the evidence led in the inquiry, the applicant is found juvenile on the date of incident, then his bail application will be considered by the Trial Court in accordance with the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000. 12. The Trial Court concerned is directed to conclude the trial of the applicant within four months, if possible, making sincere efforts and avoiding unnecessary 'adjournments. 13. It is further provided that if no bail application is moved on behalf of the applicant on the ground of age but such plea is taken otherwise or at the stage of examination of the accused persons Under section 313, Cr.P,C., then also inquiry about the accused-applicant Jai Dev being Juvenile on the date of incident would be conducted by the Trial Judge and further action will be taken according to the result of inquiry. 14. With aforesaid observations/direction, the 2nd ball application of the applicant Jaidev is hereby rejected. 15. The Office is directed to send a copy of this order within a week to the Trial Court concerned for necessary action. Application Rejected.