High Court
Case Details
Court No. - 90 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 37247 of 2022 Applicant :- Hafeez Opposite Party :- State of U.P. Counsel for Applicant :- Ashok Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Rajiv Gupta,J.
Legal Reasoning
Learned counsel for applicant has filed the certified copies of the statements of the P.W.2, Rajendra Singh and P.W.4, Shahrukh who are formal witnesses, is taken on record. Heard learned counsel for applicant, the learned AGA for the State and perused the record. Applicant- Hafeez seeks bail in Case Crime No. 383 of 2019, under Section 302, 201 IPC, P.S. Civil Lines, District- Aligarh. Learned counsel for the applicant has submitted that after rejection of first bail application of the applicant, the statements of P.W. 1 and P.W.2 who are witnesses of fact has been recorded and on perusal of statement of P.W.1, it is evident that he is not an eye witness of the incident and only on the basis of hearsay has lodged F.I.R. Thereafter the statement of P.W.3 who is an injured witness has been recorded, however, she in her statement recorded during course of trial has not supported the prosecution story at all and has been declared hostile. She in her statement has categorically stated that on the date and time of incident she had gone to attend the call of nature and two unknown persons came from her back and made her sniff some intoxicating substance, consequent to which she became unconscious. On regaining consciousness, she found injuries on her neck. She has categorically denied to be an eye witness of the present incident. On her attention being drawn to her statement shown to be recorded under section 161 Cr.P.C. she has categorically denied to have given any such statement to the police. On her attention being drawn to her statement shown to be recorded under section 164 Cr.P.C. she has stated that she had given such statement at the behest of the police. The applicant is in jail since 12.7.2019 and under the changed circumstances where the star witness Nisha has also not supported the prosecution story during course of trial, prima facie a case for bail is made out. Per contra, learned AGA has opposed the prayer for bail, but could not dispute the aforesaid facts. Having considered the rival submissions made by learned counsel for both the parties and on perusal of the record, it is evident that P.W.1 is not an eye witness of the incident
Decision
and star witness, P.W.3 has not supported the prosecution story at all during trial and as such have been declared hostile. She has categorically stated that on the date of incident she had gone to answer the call of nature, where two persons came from behind and made her sniff some intoxicating substance, consequent to which she became unconscious. On regaining consciousness she found injuries on her neck. Furthermore, she has categorically stated that she is not an eye witness of the incident of killing Amir. On her attention being drawn to her statement shown to be recorded under section 161 Cr.P.C. she has categorically stated that she has not given any such statement to the police. On her attention being drawn to her statement recorded under section 164 Cr.P.C. she categorically stated that she had given such statement at the behest of the police. He has been continuously cooperating in the precess of trial and is in jail since 12.7.2019 and has no criminal history to his credit.There is no chance of applicant fleeing away from the judicial process or tampering the evidence. In view of the above, I am of the view that the applicant has made out a case for bail. Let applicant- Hafeez be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned subject to the following conditions :- (1). The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law. (2). The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufÏcient cause, the trial court may proceed against him under Section 229- A IPC. (3). In case, the applicant misuses the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A IPC. (4). The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court, absence of the applicant is deliberate or without sufÏcient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law. It is clarified that the observations, if any, made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the ultimate merits of the case. It is further directed that the identity, status and residence proof of the sureties be verified by the authorities concerned before they are accepted. In case of breach of any of the above conditions, the trial court will be at liberty to cancel the bail. The bail application is accordingly allowed. Order Date :- 11.11.2022 R Digitally signed by RAM ASARE MORYA Date: 2022.11.15 10:38:15 IST Reason: Location: High Court of Judicature at Allahabad