Court No. - 79
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 25880 of 2021 Applicant :- Aas Mohammad @ Ashu Opposite Party :- State of U.P.
Counsel for Applicant :- Saurabh Tripathi Counsel for Opposite Party :- Amit Rana
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Shri Aishwarya Pratap Singh, Advocate holding brief of Shri Saurabh Tripathi, learned counsel for the applicant, learned A.G.A. for State, Shri Amit Rana, learned counsel for the informant and perused the record.
2. The applicant has approached this Court by way of filing the present Criminal Misc. Bail Application seeking enlargement on bail in Case Crime No.111 of 2021, under Sections 302, 120- B IPC, Police Station - Kotwali Shahar, District – Bijnor.
3. Learned counsel for the applicant submitted that initially the First Information Report was lodged against the wife of deceased and co-accused Zakir, alleging that there was a love affair between the named accused and they eliminated the deceased - (husband of Smt. Gulshan - co-accused), who returned from Rishikesh. Dead body was found in the jungle. During investigation, name of applicant and co-accused Abid were also disclosed. It is also alleged that they have confessed about their involvement in the crime. It was also alleged that on the pointing out of the applicant, co-accused Abid and named accused Zakir, a muffler and purse of deceased were recovered. It is further submitted that similarly situated co-accused Abid has already been granted bail. Applicant has no criminal history and is languishing in jail since 3.3.2021. It is lastly submitted that there is no likelihood of early disposal of trial and the applicant undertakes that if he is enlarged on bail, he will never misuse his liberty, will not commit any offence during bail and will co-operate in the trial.
4. Learned A.G.A. and learned counsel for the informant have vehemently opposed the prayer of bail and submitted that subsequently, bail application of the named accused Zakir was rejected by a co-ordinate Bench of this Court, vide order dated 27.5.2021, passed in Criminal Misc. Bail Application No.21563 of 2021, whose case was distinguishable not denied that case of applicant is similarly situated to the case of co-accused Abid, who has already been granted bail.
5. (A) Law on bail is well settled that 'Bail is rule and Jail is exception'. Bail should not be granted or rejected in a mechanical manner as it concerns liberty of a person. At the time of considering an application for bail, the Court must take into account certain factors such as existence of a prima facie case against the accused, gravity of the allegations, severity of punishment, position and status of the accused, likelihood of the accused fleeing from justice and repeating the offence, reasonable apprehension of tampering with the witnesses and obstructing the Courts as well as criminal antecedents of the accused.
(B) It is also well settled that the Court while considering an application for bail must not go into deep merits of the matter such as question of credibility and reliability of prosecution witnesses which can only be tested during the trial. Even ground of parity is one of the above mentioned aspects which are essentially required to be considered.
(C) It is also well settled that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner, compassionately and not in whimsical manner. The Court should record the reasons which have weighed with the count for the exercise of its discretionary power for an order granting or rejecting bail. Conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.
6. Considering the rival submission, material available on record, the period of detention already undergone, the unlikelihood of early conclusion of trial, absence of any convincing material to indicate the possibility of tampering with the evidence, relevant factors mentioned above, particularly that applicant is not a named accused, his name was disclosed along with co-accused Abid on the basis of a disclosure given by the police informer, who has already been granted bail. The alleged recovery of muffler and purse of deceased, prima facie, not corroborated by any source. It is apparent that present case is based on circumstantial evidence and also considering that there is no previous criminal history of applicant and he is languishing in jail since 3.3.2020, this Court is of the view that a case of grant of bail is made out.
7. Let applicant - Aas Mohammad @ Ashu be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of Court concerned with the following conditions which are being imposed in the interest of justice:-
i) The applicant will not tamper with prosecution evidence and will not harm or harass the 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 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 Trial Court absence of applicant is deliberate or without sufficient cause, then it shall be open for Trial Court to treat such default as abuse of liberty of bail and proceed against him in accordance with law and Trial Court may proceed against him under Section 229-A IPC.
8. 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 and send the applicant to prison.
9. The bail application is allowed.
10. It is made clear that the observations made hereinabove are only for the purpose of adjudicating the present bail application.
11. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
12. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
13. It is expected from the trial court that trial of this case will be concluded expeditiously and while granting any adjournment, trial court will take note of the provisions of Section 309 Cr.P.C.
14. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 30.7.2021 Rishabh Digitally signed by SAURABH SHYAM SHAMSHERY Date: 2021.08.02 11:08:55 IST Reason: Document Owner Location: High Court of Judicature at Allahabad