High Court · 2025

1. Heard Shri Ramakar Shukla, learned counsel for the accused/applicant, Shri Paritosh Shukla, learned counsel appearing for informant/ complainant as well as learned A.G.A. for the State and perused the record.

2. This bail application has been moved by the accused/applicant- Shamshad Alias Qawwal for grant of bail, in Case Crime No. 672/2019, under Sections 302/34, 120-B IPC, Police Station Kotwali Nagar, District Sultanpur, during trial.

3. Learned counsel for the accused-applicant while pressing the bail application submits that it is a case of false implication. All the allegations which have been levelled in the FIR as well as in the statement of the informant who appears to be not an eye witness of the incident and one Firdos who is claiming himself to an eye witness are false, concocted and could not be believed.

4. Elaborating further, it is further submitted that at first even if the allegations as levelled in the FIR are believed an information obtained through the Right to the Information Act would clearly suggest that the electricity supply of that area where the incident is shown to have occurred was disrupted and therefore as the incident was of night there was no opportunity for any person to have witnessed the crime, especially to see as to who from amongst the accused persons had fired gun shots, and, therefore the whole prosecution story as cooked up by the informant is based on suspicion.

5. It is further submitted that though in the FIR the role of firing has been assigned to all the accused persons named therein including the applicant, however, in the statement of the eye witness Firdos the role of firing has not been attributed to the applicant.

6. It is also submitted that the applicant was also not an accused in the earlier FIR which was lodged in connection with the murder of the father of the deceased Chand Babu.

7. It is also submitted that till now only informant has been testified before the trial court and the other alleged eye witness, namely, Firdos has not been examined yet and the applicant is in jail in this case since 02.07.2019 and thus having regard to the pace in which the trial is proceeding before the trial court the same is not expected to conclude in near future.

8. It is vehemently submitted that many accused persons situated similarly have been granted bail by this Court as well as by the Coordinate Benches of this Court, vide orders dated 21.09.2020, 18.01.2021, 12.11.2024 and 5.12.2024 passed Crl. Misc. Bail Applications No. 1447 of 2020, 7837 of 2020, 3117 of 2024 and 7744 of 2022, respectively. The role of the instant applicant- Shamshad Alias Qawwal is on better footing as at first he was not named in the first FIR lodged in the connection with the murder of the father Chand Babu and secondly no role of firing has been assigned to him by the eye witness Firdos who is yet to be examined before the trial court.

9. It is further submitted that the facility of bail was extended in favour of co-accused Afsar in the year 2022, however, an stray observation of this Court was made while granting bail to the co-accused persons Mohd. Ejaz and Mohd. Shamim in terms that the said order has not been challenged anywhere and now the informant/ complainant has chosen to challenge that order before the Supreme Court only for the purpose of raising an argument before this Court that the bail order of co-accused Afsar has been challenged before the Hon'ble Supreme Court while the bail granted to the accused persons Mohd. Ejaz and Mohd. Shamim has not been challenged any where and the case of the instant applicant is on better footing than the co- accused persons.

10. It is further submitted that criminal history of 06 cases, 04 of which were prior to lodging of FIR have been adequately explained in paragraph 28 of the bail application and paragraph no. 20 of the rejoinder affidavit.

11. It is also submitted that having regard to the period of incarceration already undergone by the applicant and keeping in view the facts that the role of the instant applicant is on better footing than those who have already been granted bail, the facility of bail be extended in favour of the applicant.

12. Learned A.G.A. as well as learned counsel appearing for informant / complainant opposes the prayer of bail of the applicant on the ground that the applicant is accused of committing heinous offence. Shri Paritosh Shukla, learned counsel appearing for informant/ complainant has submitted that since the order of bail in favour of one co-accused Afsar has been challenged before the Supreme Court, the applicant is not entitled to take any benefit of earlier orders of bail passed in favour of co-accused persons.

13. Having heard learned counsel for the parties and having perused the record, it is reflected that the First Information Report of the instant case was lodged by the informant Kishwar Jahan (mother of the deceased- Chand Babu) on 28.06.2019. The allegations are in terms that at the relevant point of time the informant was going on a rickshaw and had, incidentally seen deceased being chased by the accused persons who were sitting in their Scorpio vehicle and have further witnessed that accused persons fired gun shots towards the deceased. It appears to be an admitted situation that apart from the informant who is also claiming to himself to be the eye witness of the incident there is another eye witness, namely, Firdos, who in his statement recorded under Section 161 Cr.P.C. has not attributed the role of firing gun shots to the instant applicant- Shamshad Alias Qawwal and the role of only chasing the deceased has been assigned to him. It is on the basis of this statement of Firdos (eye witness) it has been vehemently submitted by learned counsel for the applicant that the case of instant applicant is on better footing than other co- accused persons who have been granted bail by this Court on 5.12.2-024. Though learned counsel for the applicant has relied on the fact that the order in favour of one of the co-accused Mohd. Afsar has been challenged before the Supreme Court but it appears to be an admitted fact that the bail orders in favour of the other co-accused persons including the two accused persons, namely, Mohd. Aijaz and Mohd. Shamim who were granted bail by this Court on 5.12.2024 has not been challenged at any forum. The applicant has already been jail in this case for the last more than 05 years. The criminal history of the applicant in the considered opinion of this Court has been explained adequately.

14. It is worthwhile to record that nothing could be more important to a person than his personal liberty and a person could only be detained in prison in accordance with the procedure established by law.

15. The delay which has already resulted in the trial of this case coupled with the fact that the role of the instant applicant in the alleged crime is on the better footing than those who have already been granted bail and also considering the fact that one of the the eye witness of this Crime Firdos (other than the informant) who has claimed to have seen the incident has not attributed the role of firing to the instant applicant, in the considered opinion of this Court a case of bail is emerging in favour of the applicant. The bail application filed by the applicant is, thus, allowed.

16. Let the applicant- Shamshad Alias Qawwal involved in the aforesaid case be released on bail on furnishing a personal bond with two sureties in the like amount to the satisfaction of the court concerned subject to following conditions:- (i) The applicant shall not tamper with the prosecution evidence by intimidating/pressurizing the witnesses, during the investigation or trial. (ii) The applicant shall cooperate in the trial sincerely without seeking any adjournment. (iii) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

17. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

18. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

19. Observations made herein-above are only for the purpose of disposal of bail application and the same shall not have any bearing on the trial of the case. Order Date :- 15.1.2025 Muk MOHD UMAR KHAN High Court of Judicature at Allahabad, Lucknow Bench

1. Heard Shri Ramakar Shukla, learned counsel for the accused/applicant, Shri Paritosh Shukla, learned counsel appearing for informant/ complainant as well as learned A.G.A. for the State and perused the record.

2. This bail application has been moved by the accused/applicant- Shamshad Alias Qawwal for grant of bail, in Case Crime No. 672/2019, under Sections 302/34, 120-B IPC, Police Station Kotwali Nagar, District Sultanpur, during trial.

3. Learned counsel for the accused-applicant while pressing the bail application submits that it is a case of false implication. All the allegations which have been levelled in the FIR as well as in the statement of the informant who appears to be not an eye witness of the incident and one Firdos who is claiming himself to an eye witness are false, concocted and could not be believed.

4. Elaborating further, it is further submitted that at first even if the allegations as levelled in the FIR are believed an information obtained through the Right to the Information Act would clearly suggest that the electricity supply of that area where the incident is shown to have occurred was disrupted and therefore as the incident was of night there was no opportunity for any person to have witnessed the crime, especially to see as to who from amongst the accused persons had fired gun shots, and, therefore the whole prosecution story as cooked up by the informant is based on suspicion.

5. It is further submitted that though in the FIR the role of firing has been assigned to all the accused persons named therein including the applicant, however, in the statement of the eye witness Firdos the role of firing has not been attributed to the applicant.

6. It is also submitted that the applicant was also not an accused in the earlier FIR which was lodged in connection with the murder of the father of the deceased Chand Babu.

7. It is also submitted that till now only informant has been testified before the trial court and the other alleged eye witness, namely, Firdos has not been examined yet and the applicant is in jail in this case since 02.07.2019 and thus having regard to the pace in which the trial is proceeding before the trial court the same is not expected to conclude in near future.

8. It is vehemently submitted that many accused persons situated similarly have been granted bail by this Court as well as by the Coordinate Benches of this Court, vide orders dated 21.09.2020, 18.01.2021, 12.11.2024 and 5.12.2024 passed Crl. Misc. Bail Applications No. 1447 of 2020, 7837 of 2020, 3117 of 2024 and 7744 of 2022, respectively. The role of the instant applicant- Shamshad Alias Qawwal is on better footing as at first he was not named in the first FIR lodged in the connection with the murder of the father Chand Babu and secondly no role of firing has been assigned to him by the eye witness Firdos who is yet to be examined before the trial court.

9. It is further submitted that the facility of bail was extended in favour of co-accused Afsar in the year 2022, however, an stray observation of this Court was made while granting bail to the co-accused persons Mohd. Ejaz and Mohd. Shamim in terms that the said order has not been challenged anywhere and now the informant/ complainant has chosen to challenge that order before the Supreme Court only for the purpose of raising an argument before this Court that the bail order of co-accused Afsar has been challenged before the Hon'ble Supreme Court while the bail granted to the accused persons Mohd. Ejaz and Mohd. Shamim has not been challenged any where and the case of the instant applicant is on better footing than the co- accused persons.

10. It is further submitted that criminal history of 06 cases, 04 of which were prior to lodging of FIR have been adequately explained in paragraph 28 of the bail application and paragraph no. 20 of the rejoinder affidavit.

11. It is also submitted that having regard to the period of incarceration already undergone by the applicant and keeping in view the facts that the role of the instant applicant is on better footing than those who have already been granted bail, the facility of bail be extended in favour of the applicant.

12. Learned A.G.A. as well as learned counsel appearing for informant / complainant opposes the prayer of bail of the applicant on the ground that the applicant is accused of committing heinous offence. Shri Paritosh Shukla, learned counsel appearing for informant/ complainant has submitted that since the order of bail in favour of one co-accused Afsar has been challenged before the Supreme Court, the applicant is not entitled to take any benefit of earlier orders of bail passed in favour of co-accused persons.

13. Having heard learned counsel for the parties and having perused the record, it is reflected that the First Information Report of the instant case was lodged by the informant Kishwar Jahan (mother of the deceased- Chand Babu) on 28.06.2019. The allegations are in terms that at the relevant point of time the informant was going on a rickshaw and had, incidentally seen deceased being chased by the accused persons who were sitting in their Scorpio vehicle and have further witnessed that accused persons fired gun shots towards the deceased. It appears to be an admitted situation that apart from the informant who is also claiming to himself to be the eye witness of the incident there is another eye witness, namely, Firdos, who in his statement recorded under Section 161 Cr.P.C. has not attributed the role of firing gun shots to the instant applicant- Shamshad Alias Qawwal and the role of only chasing the deceased has been assigned to him. It is on the basis of this statement of Firdos (eye witness) it has been vehemently submitted by learned counsel for the applicant that the case of instant applicant is on better footing than other co- accused persons who have been granted bail by this Court on 5.12.2-024. Though learned counsel for the applicant has relied on the fact that the order in favour of one of the co-accused Mohd. Afsar has been challenged before the Supreme Court but it appears to be an admitted fact that the bail orders in favour of the other co-accused persons including the two accused persons, namely, Mohd. Aijaz and Mohd. Shamim who were granted bail by this Court on 5.12.2024 has not been challenged at any forum. The applicant has already been jail in this case for the last more than 05 years. The criminal history of the applicant in the considered opinion of this Court has been explained adequately.

14. It is worthwhile to record that nothing could be more important to a person than his personal liberty and a person could only be detained in prison in accordance with the procedure established by law.

15. The delay which has already resulted in the trial of this case coupled with the fact that the role of the instant applicant in the alleged crime is on the better footing than those who have already been granted bail and also considering the fact that one of the the eye witness of this Crime Firdos (other than the informant) who has claimed to have seen the incident has not attributed the role of firing to the instant applicant, in the considered opinion of this Court a case of bail is emerging in favour of the applicant. The bail application filed by the applicant is, thus, allowed.

16. Let the applicant- Shamshad Alias Qawwal involved in the aforesaid case be released on bail on furnishing a personal bond with two sureties in the like amount to the satisfaction of the court concerned subject to following conditions:- (i) The applicant shall not tamper with the prosecution evidence by intimidating/pressurizing the witnesses, during the investigation or trial. (ii) The applicant shall cooperate in the trial sincerely without seeking any adjournment. (iii) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

17. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

18. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

19. Observations made herein-above are only for the purpose of disposal of bail application and the same shall not have any bearing on the trial of the case. Order Date :- 15.1.2025 Muk MOHD UMAR KHAN High Court of Judicature at Allahabad, Lucknow Bench