High Court
Case Details
Court No. - 42 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 42026 of 2022 Applicant :- Adil Opposite Party :- State of U.P. Counsel for Applicant :- S.M.Ayaz Ali Counsel for Opposite Party :- G.A. Hon'ble Vivek Kumar Birla,J.
Legal Reasoning
Heard learned counsel for the applicant and learned A. G. A. for the State and perused the record. Present application under Section 439 Cr.P.C. has been filed by the applicants who is involved in Case Crime No. 161 of 2022, under Sections 147, 148, 149, 302, 120-B, 34 I.P.C., P.S. Gulawathi, District Bulandshahar. Learned counsel for the applicant submitted that the other co- accused Hasin has already been enlarged on bail by this Court vide order dated 29.11.2022 passed in Criminal Misc. Bail Application No. 49942 of 2022 (Hasin vs. State of U.P.) He further submitted that since the role of the applicant is identical to that of the co-accused who have already been enlarged on bail, the applicant is also entitled to be enlarged on bail on the ground of parity. Learned counsel for the applicant further submits that the applicant is in jail since 11.5.2022. The applicant has not been named in the first information report and therefore, it is asserted that the applicant is entitled for grant of bail on the ground of parity with the co-accused Hasin, who has also not been named in the first information report. The aforesaid order dated 29.11.2022 is quoted as under:- "Heard learned counsel for the applicant as well as learned A.G.A. for the State and perused the entire record. The present bail application has been filed by the applicant in case crime No. 161/2022, under Sections 147, 148, 149, 302, 34, 120-B IPC, police station Gulawathi, District Bulandshahr with the prayer to enlarge the applicant on bail. It has been argued by learned counsel for the applicant that the accused- applicant is innocent and he has been falsely implicated in this case. It was submitted that the first information report was lodged by the informant against co-accused Asarfi @ Sharfraj, Imran, Raja and 2-3 unknown persons alleging that on 08.05.2022 they came at the clinic of deceased and made indiscriminate firing upon the deceased and resultantly deceased died of firearm injuries. Learned counsel submitted that applicant is not named in the first information report. In his statement, recorded under Section 161 Cr.P.C. also, informant has not named the applicant. It was submitted that involvement of applicant has been shown on the basis of statement of witness Mohd. Shahid, who has inter-alia stated that co- accused Asarfi @ Sharfraj, Asif, Imran and Raja along with Wasid, Hasin (applicant), Adil, Shazid, Kasif, Kabir, Jagir and Sufiyan have committed murder of deceased. It was submitted that the said witness, namely, Mohd. Shahid has also stated that murder of deceased was committed by hatching a conspiracy with applicant and co-accused persons. Referring to the facts of the matter, it was submitted that alleged statement of witness Mohd. Shahid regarding implication of applicant is thoroughly unreliable. Applicant has no motive to indulge in the alleged incident. Further, during trial informant/PW-1 Abrar as well as PW-2 Mohd. Shahid have already been examined before the trial court. Referring to the statements of PW-1 Abrar and PW-2 Mohd. Shahid, it has been pointed out that these witnesses have ruled out the involvement of applicant in the incident and these witnesses have not supported the prosecution version and turned hostile. It was submitted that after being implicated in this case, applicant has also been implicated in one case under Arms Act. It has further been argued that the applicant is in judicial custody since 20.05.2022 and that in case, applicant is enlarged on bail, the applicant will not misuse the liberty of bail. Learned A.G.A. has opposed the prayer for bail. Considering the submissions of learned counsel for the parties, facts of the case, nature of allegations, period of custody and all attending facts and circumstances of the case, without expressing any opinion on the merits of the case, the Court is of the view that a case for bail is made out. Hence, the bail application is hereby allowed. Let the applicant Hasin involved in the aforesaid crime be released on bail on furnishing a personal bond and two local sureties each of the like amount to the satisfaction of court concerned subject to the following conditions: 1. The applicant will not tamper with the evidence during trial. 2. The applicant will not pressurize/intimidate the prosecution witnesses. 3. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted. 4. The applicant will not try to contact, threat or otherwise influence the complainant or any of the witness of the case. In case of breach of any of the above condition, the court below shall be at liberty to cancel the bail of applicant in accordance with law." The prayer for bail has vehemently been opposed by learned A. G. A. However, he does not dispute the fact that the similarly placed co-accused has been granted bail by this Court. Considering the submissions made by learned counsel for the applicant as well as learned A. G. A. and the fact that identically placed co-accused Hasin has already been enlarged on bail by this Court, without expressing any opinion on the merits of the case, it is deemed fit to enlarge the applicant on bail. Let the applicant Adil, who is involved in aforementioned Case Crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified. (i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT SHE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE 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. (ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS COUNSEL. IN CASE OF HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HER UNDER SECTION 229-A IPC. (iii) IN CASE, THE APPLICANT MISUSE THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAIL TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC. (iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) 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 SUFFICIENT CAUSE, THEN IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT SUCH DEFAULT AS ABUSE OF LIBERTY OF BAIL AND PROCEED AGAINST HER IN ACCORDANCE WITH LAW. (v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above. Order Date :- 19.12.2022 Lalit Shukla Digitally signed by LALIT KUMAR SHUKLA Date: 2022.12.19 17:28:52 IST Reason: Location: High Court of Judicature at Allahabad