High Court · 2025

Applicant :- Parvez Opposite Party :- State of U.P. Counsel for Applicant :- Kawya,Sarvesh Kumar Dubey,Sushil Kumar Counsel for Opposite Party :- Ayush Mishra,G.A.,Sriprakash Rai,Yogendra Misra Hon'ble Dr. Gautam Chowdhary,J.

1. Heard learned counsel for the applicant, learned A.G.A. for the State as well as learned counsel for the informant and perused the record.

2. This is the second bail application moved on behalf of applicant. His first bail application was rejected by this Court vide order dated 24.03.2024 passed in Criminal Misc. Bail Application No. 32372 of 2023.

3. Learned counsel for the applicant submits that the F.I.R. was lodged in unknown with the allegation that when the deceased was returning to his home after distributing marriage card of his sister, he was found in injured and unconscious state by him and two other persons namely Ikrar Husain and Danish. The alleged incident took place on 01.03.2022 near Dargah, and they took him hospital where he was declared brought dead. On 03.03.2022 the informant submitted an application to the police stating therein that two witnesses, Abid and Danish informed him that accused- applicant had committed the murder of his brother. Learned counsel further submits that after the bail application of the applicant was rejected, the trial proceeded. During course of trial the informant appeared as P.W.1 and in his statement before the trial he has stated that when he reached at the spot Danish and Abid were present, whereas the said witness Danish appeared at the trial as P.W.2, who in his statement before the trial had stated that when he was standing near Balaji Temple he saw that applicant had fired gunshot to the brother of the informant. In his cross-examination P.W.2 further states that he and Abid saw the incident but he did not tell, even during inquest and postmortem he was present but he had not informed the informant as to who killed the deceased. Thus, learned counsel for the applicant argued that as per prosecution version and as per the statement of P.W.2 when this witness (P.W.2) was present at the time of incident, there was no reason for him to inform the informant regarding involvement of the applicant either at the time of lodging of the F.I.R. or at the time of inquest proceeding or even at the time postmortem; and there was also no reason that the F.I.R. was lodged in unknown. It appears that applicant has been falsely implicated in the case with due deliberation and consultation. As to the criminal history there is one case into the credit of applicant in which the applicant was acquitted by the Juvenile Justice Board. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been mentioned. It has also been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. He next submits that applicant is languishing in jail since 05.03.2022.

4. Per contra, learned A.G.A. as well as learned counsel for the informant have vehemently opposed the prayer for bail of the applicant by contending that the innocence of the applicant cannot be adjudged before conclusion of trial, therefore, he does not deserve any indulgence.

5. After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, without expressing any opinion on merits of the case, this Court is of the view, that the applicant may be enlarged on bail.

6. Let applicant-Parvez, involved in Special Case No. 640 of 2022, arising out of Case Crime No. 120 of 2022, under Sections 302, 34, 120-B I.P.C., Police Station Kotwali Nagar, District Etah, be enlarged on bail on furnishing a personal bond and two heavy local sureties each of the like amount to the satisfaction of the court concerned subject to the following conditions:- (i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever. (ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever. (iii) The applicant shall file an undertaking to the effect that he 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. (iv) The applicant will not misuse the liberty of bail in any manner whatsoever. 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., may be issued and if 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 I.P.C. (v) 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 him in accordance with law and the trial court may proceed against him under Section 229-A IPC.

7. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail in accordance with law.

8. The bail application is allowed. Order Date :- 20.5.2025 Mustaqeem. MOHD MUSTAQEEM KHAN High Court of Judicature at Allahabad

Applicant :- Parvez Opposite Party :- State of U.P. Counsel for Applicant :- Kawya,Sarvesh Kumar Dubey,Sushil Kumar Counsel for Opposite Party :- Ayush Mishra,G.A.,Sriprakash Rai,Yogendra Misra Hon'ble Dr. Gautam Chowdhary,J.

1. Heard learned counsel for the applicant, learned A.G.A. for the State as well as learned counsel for the informant and perused the record.

2. This is the second bail application moved on behalf of applicant. His first bail application was rejected by this Court vide order dated 24.03.2024 passed in Criminal Misc. Bail Application No. 32372 of 2023.

3. Learned counsel for the applicant submits that the F.I.R. was lodged in unknown with the allegation that when the deceased was returning to his home after distributing marriage card of his sister, he was found in injured and unconscious state by him and two other persons namely Ikrar Husain and Danish. The alleged incident took place on 01.03.2022 near Dargah, and they took him hospital where he was declared brought dead. On 03.03.2022 the informant submitted an application to the police stating therein that two witnesses, Abid and Danish informed him that accused- applicant had committed the murder of his brother. Learned counsel further submits that after the bail application of the applicant was rejected, the trial proceeded. During course of trial the informant appeared as P.W.1 and in his statement before the trial he has stated that when he reached at the spot Danish and Abid were present, whereas the said witness Danish appeared at the trial as P.W.2, who in his statement before the trial had stated that when he was standing near Balaji Temple he saw that applicant had fired gunshot to the brother of the informant. In his cross-examination P.W.2 further states that he and Abid saw the incident but he did not tell, even during inquest and postmortem he was present but he had not informed the informant as to who killed the deceased. Thus, learned counsel for the applicant argued that as per prosecution version and as per the statement of P.W.2 when this witness (P.W.2) was present at the time of incident, there was no reason for him to inform the informant regarding involvement of the applicant either at the time of lodging of the F.I.R. or at the time of inquest proceeding or even at the time postmortem; and there was also no reason that the F.I.R. was lodged in unknown. It appears that applicant has been falsely implicated in the case with due deliberation and consultation. As to the criminal history there is one case into the credit of applicant in which the applicant was acquitted by the Juvenile Justice Board. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been mentioned. It has also been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. He next submits that applicant is languishing in jail since 05.03.2022.

4. Per contra, learned A.G.A. as well as learned counsel for the informant have vehemently opposed the prayer for bail of the applicant by contending that the innocence of the applicant cannot be adjudged before conclusion of trial, therefore, he does not deserve any indulgence.

5. After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, without expressing any opinion on merits of the case, this Court is of the view, that the applicant may be enlarged on bail.

6. Let applicant-Parvez, involved in Special Case No. 640 of 2022, arising out of Case Crime No. 120 of 2022, under Sections 302, 34, 120-B I.P.C., Police Station Kotwali Nagar, District Etah, be enlarged on bail on furnishing a personal bond and two heavy local sureties each of the like amount to the satisfaction of the court concerned subject to the following conditions:- (i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever. (ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever. (iii) The applicant shall file an undertaking to the effect that he 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. (iv) The applicant will not misuse the liberty of bail in any manner whatsoever. 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., may be issued and if 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 I.P.C. (v) 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 him in accordance with law and the trial court may proceed against him under Section 229-A IPC.

7. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail in accordance with law.

8. The bail application is allowed. Order Date :- 20.5.2025 Mustaqeem. MOHD MUSTAQEEM KHAN High Court of Judicature at Allahabad