High Court · 2025

4. FIR of the present case was lodged on 26.6.2024 against the applicant and five others and according to the FIR on 18.6.2024 brother of the informant had gone to shop but did not return and when he started searching him then he came to know that when his brother was under intoxication then co-accused Saddam and Sakib made assault upon him and when he managed to escape then on the way co-accused Bhanu, applicant and co-accused Naseem and his brother made assault upon him and during treatment in the Hospital he died.

5. Learned counsel for the applicant submits that admittedly informant of the case is not eye witness. He next submits that incident is said to have taken place on 18.6.2024 but FIR of the present case was lodged on 26.6.2024,i.e., after eight days.

6. He further submits that before lodgement of the FIR of the present case informant on 21.6.2024 moved an application that his brother was murdered by his wife and four others but when on the basis of application dated 21.6.2024 no FIR was lodged then after five days he changed his earlier version and on the basis of false allegation he lodged FIR of the present case implicating the applicant and five new accused persons and this fact clearly suggests that FIR is based on false and frivolous facts.

7. He further submits that however, as per prosecution the incident has been witnessed by one witness,namely, Smt. Asma but from her statement recorded during investigation which has been annexed at page 51 of the paper book, it reflects that she only disclosed the name of co-accused Saddam.

8. He further submits that however, from the record it also reflects that during investigation Investigating Officer also procured a CCTV Footage but in the CCTV Footage none of accused persons could be identified including applicant.

9. He further submits that except bald and verbal allegation levelled in the FIR there is no other cogent evidence against the applicant on record.

10. He further submits that however, bail applications of co- accused Saddam and Sakib have been dismissed by Coordinate Bench of this Court vide orders dated 5.11.2024 and 20.9.2024 passed in Criminal Misc.Bail Application Nos.39954 of 2024 and 30820 of 2024 respectively but after rejection their bail applications, bail application of co-accused Bhanu alias Wahid has been allowed by the same Bench vide order dated 26.9.2024 passed in Criminal Misc.Bail Application No. 31184 of 2024 and the case of applicant is exactly at par with co-accused Bhanu alias Wahid.

11. He further submits that as far as case of co-accused Saddam is concerned the case of applicant is distinguishable from him as eye witness Smt. Asma specifically disclosed his name.

12. He further submits, even law is settled that there can be no parity of bail rejection order.

13. He further submits that applicant is not having any previous criminal history and in the present matter he is in jail since

27.6.2024, i.e., for last more than eight months.

14. Per contra, learned AGA as well as learned counsel for the informant opposed the prayer for bail and submitted that bail applications of co-accused Saddam and Sakib have already been dismissed by Coordinate Bench of this Court and the case of applicant is exactly at par with co-accused Sakib. However, they fairly conceded that the case of applicant is distinguishable from co-accused Saddam considering the statement of eye witness Asma.

15. Both the learned counsels, however, could not dispute the fact that subsequent to the bail rejection order of co-accused Sakib, co- accused Bhanu alias Wahid has been released on bail by same Bench and the case of applicant is exactly at par with co-accused Bhanu alias Wahid as far as facts of the case are concerned.

16. They also could not dispute the fact that except the statement of eye witness Smt. Asma, there is no eye witness account and she in her statement recorded during investigation did not disclose the name of the applicant.

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

18. However, as per allegation applicant along with five others made assault upon the brother of the informant due to which he died but it reflects that informant of the case was not eye witness and the FIR of the present case was lodged after about eight days.

19. Record further suggests that before lodgement of the FIR of the present case informant on 21.6.2024 filed an application with regard to the death of his brother and in that application he made allegation against his wife and four others but after five days he developed new story and lodged FIR of the present case implicating applicant and others. Considering these facts the argument advanced by the learned counsel for the applicant that FIR of the present case appears to be based on false and frivolous fact cannot be ruled out at this stage.

20. Further, however, from the record it reflects that one Smt. Asma was an eye witness but from her statement recorded during investigation it reflects that she disclosed the name of only co- accused Saddam.

21. Further, however, during investigation it reflects that CCTV Footage of the incident was also procured by Investigating Officer but from the details of CCTV Footage, which was produced by learned AGA during the court of argument, it reflects that none of the accused persons including applicant could be identified through it.

22. Further, however, bail applications of co-accused Saddam and Sakib have been dismissed by Coordinate Bench of this Court and the case of applicant as far as facts of the case are concerned is similar to co-accused Sakib but after rejection of his bail application it reflects that the same Bench allowed the bail application of co-accused Bhanu alias Wahid and the case of applicant is at par with him. Further, this Court finds merit in the argument advanced by the learned counsel for the applicant that there can be no parity of bail rejection order.

23. Further, admittedly, the case of applicant is distinguishable from the case of co-accused Saddam.

24. Further, applicant is not having any previous criminal history and in the present matter he is in jail since 27.6.2024. i.e., for the last more than eight months.

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

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

27. Let the applicant-Afzal 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.

28. 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.

29. 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 :- 11.3.2025 SKM SHRAVANA KUMAR MISHRA High Court of Judicature at Allahabad

4. FIR of the present case was lodged on 26.6.2024 against the applicant and five others and according to the FIR on 18.6.2024 brother of the informant had gone to shop but did not return and when he started searching him then he came to know that when his brother was under intoxication then co-accused Saddam and Sakib made assault upon him and when he managed to escape then on the way co-accused Bhanu, applicant and co-accused Naseem and his brother made assault upon him and during treatment in the Hospital he died.

5. Learned counsel for the applicant submits that admittedly informant of the case is not eye witness. He next submits that incident is said to have taken place on 18.6.2024 but FIR of the present case was lodged on 26.6.2024,i.e., after eight days.

6. He further submits that before lodgement of the FIR of the present case informant on 21.6.2024 moved an application that his brother was murdered by his wife and four others but when on the basis of application dated 21.6.2024 no FIR was lodged then after five days he changed his earlier version and on the basis of false allegation he lodged FIR of the present case implicating the applicant and five new accused persons and this fact clearly suggests that FIR is based on false and frivolous facts.

7. He further submits that however, as per prosecution the incident has been witnessed by one witness,namely, Smt. Asma but from her statement recorded during investigation which has been annexed at page 51 of the paper book, it reflects that she only disclosed the name of co-accused Saddam.

8. He further submits that however, from the record it also reflects that during investigation Investigating Officer also procured a CCTV Footage but in the CCTV Footage none of accused persons could be identified including applicant.

9. He further submits that except bald and verbal allegation levelled in the FIR there is no other cogent evidence against the applicant on record.

10. He further submits that however, bail applications of co- accused Saddam and Sakib have been dismissed by Coordinate Bench of this Court vide orders dated 5.11.2024 and 20.9.2024 passed in Criminal Misc.Bail Application Nos.39954 of 2024 and 30820 of 2024 respectively but after rejection their bail applications, bail application of co-accused Bhanu alias Wahid has been allowed by the same Bench vide order dated 26.9.2024 passed in Criminal Misc.Bail Application No. 31184 of 2024 and the case of applicant is exactly at par with co-accused Bhanu alias Wahid.

11. He further submits that as far as case of co-accused Saddam is concerned the case of applicant is distinguishable from him as eye witness Smt. Asma specifically disclosed his name.

12. He further submits, even law is settled that there can be no parity of bail rejection order.

13. He further submits that applicant is not having any previous criminal history and in the present matter he is in jail since

27.6.2024, i.e., for last more than eight months.

14. Per contra, learned AGA as well as learned counsel for the informant opposed the prayer for bail and submitted that bail applications of co-accused Saddam and Sakib have already been dismissed by Coordinate Bench of this Court and the case of applicant is exactly at par with co-accused Sakib. However, they fairly conceded that the case of applicant is distinguishable from co-accused Saddam considering the statement of eye witness Asma.

15. Both the learned counsels, however, could not dispute the fact that subsequent to the bail rejection order of co-accused Sakib, co- accused Bhanu alias Wahid has been released on bail by same Bench and the case of applicant is exactly at par with co-accused Bhanu alias Wahid as far as facts of the case are concerned.

16. They also could not dispute the fact that except the statement of eye witness Smt. Asma, there is no eye witness account and she in her statement recorded during investigation did not disclose the name of the applicant.

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

18. However, as per allegation applicant along with five others made assault upon the brother of the informant due to which he died but it reflects that informant of the case was not eye witness and the FIR of the present case was lodged after about eight days.

19. Record further suggests that before lodgement of the FIR of the present case informant on 21.6.2024 filed an application with regard to the death of his brother and in that application he made allegation against his wife and four others but after five days he developed new story and lodged FIR of the present case implicating applicant and others. Considering these facts the argument advanced by the learned counsel for the applicant that FIR of the present case appears to be based on false and frivolous fact cannot be ruled out at this stage.

20. Further, however, from the record it reflects that one Smt. Asma was an eye witness but from her statement recorded during investigation it reflects that she disclosed the name of only co- accused Saddam.

21. Further, however, during investigation it reflects that CCTV Footage of the incident was also procured by Investigating Officer but from the details of CCTV Footage, which was produced by learned AGA during the court of argument, it reflects that none of the accused persons including applicant could be identified through it.

22. Further, however, bail applications of co-accused Saddam and Sakib have been dismissed by Coordinate Bench of this Court and the case of applicant as far as facts of the case are concerned is similar to co-accused Sakib but after rejection of his bail application it reflects that the same Bench allowed the bail application of co-accused Bhanu alias Wahid and the case of applicant is at par with him. Further, this Court finds merit in the argument advanced by the learned counsel for the applicant that there can be no parity of bail rejection order.

23. Further, admittedly, the case of applicant is distinguishable from the case of co-accused Saddam.

24. Further, applicant is not having any previous criminal history and in the present matter he is in jail since 27.6.2024. i.e., for the last more than eight months.

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

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

27. Let the applicant-Afzal 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.

28. 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.

29. 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 :- 11.3.2025 SKM SHRAVANA KUMAR MISHRA High Court of Judicature at Allahabad