Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43478 of 2021 Applicant :- Arif Opposite Party :- State of U.P.
Counsel for Applicant :- Sunil Singh Counsel for Opposite Party :- G.A.,Sunil Kumar Tiwari
Hon'ble Samit Gopal,J.
Heard Sri Sunil Singh, learned counsel for the applicant and Sri B.B. Upadhyay, learned counsel for the State and perused the material on record. Sri Sunil Kumar Tiwari, learned counsels for the first informant is not present though the matter has been called out in the revised list.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Arif, seeking enlargement on bail during trial in connection with Case Crime No. 150 of 2021, under Sections 147, 148, 149, 452, 504, 302, 307, 34 I.P.C., registered at Police Station Budhana, District Muzaffar Nagar.
Learned counsel for the applicant argued that although the applicant is named in the First Information Report along with five other co-accused persons but there is an allegation that all the accused persons including the applicant had entered inside the dairy and started abusing and then Taimoor the brother of the first informant was pulled outside after which co-accused Sattar and Zaul caught hold of Taimoor and on exhortation to co-accused Zulfkar, he shot Taimoor from his firearm after which there was an attempt to apprehend the accused persons but co-accused Zaul, Aarif (the present applicant), Rakib and Adil resorted to fire and ran away.
It is further argued that the prosecution story is false in so far as the implication of the applicant is concerned and the present case is a case of inflation of the accused persons. The role assigned to the applicant is ornamental. Co-accused Sattar and Zaul have been assigned the role of catching hold of the deceased Taimoor whereas co-accused Zulfkar is assigned the role of firing upon the deceased. It is argued that even as per the postmortem report, the deceased has received firearm wound which are having pellets in them and the same is the cause of death. It is argued that as such the role of the applicant is distinguishable with that of co-accused Sattar, Zaul and Zulfkar.
It is further argued that after the present case, two other cases have been registered against the applicant. One being case under Section 3/25/27 Arms Act which relates to the recovery of firearm and the other is under the Gangster Act which is also after the present case. Apart from the said two cases and the present case, the applicant has no other case. Para 13 and 14 of the affidavit in support of bail application has been placed before the Court as disclosure and explanation of the said case. The co-accused Rakib has been granted bail by this Court vide order dated 23.09.2021 passed in Criminal Misc. Bail Application No.28822 of 2021, copy of the said order is annexed as annexure no.9 to the affidavit. The applicant is in jail since 16.05.2021.
Per contra, learned counsels for the first informant and learned counsel for the State vehemently opposed the prayer for bail and argued that the applicant was instrumental in the present case and was present at the time of the incident along with other accused persons and had initially entered inside the dairy and pulled the deceased outside along with other accused persons and after the incident was committed by co-accused Sattar, Zaul and Zulfkar had resorted to firing along with co-accused persons while running away and as such the applicant is involved in the present case.
After having heard learned counsels for the parties and perusing the records, it is evident that there is no active role assigned to the applicant of catching hold and firing on the deceased. Co-accused Sattar and Zaul are alleged to have caught hold the deceased and then on exhortation, co-accused Zulfkar fired upon the deceased.
The case of the applicant is distinguishable with that of co-accused Sattar, Zaul and Zulfkar.
Looking to 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, this Court is of the view that the applicant may be enlarged on bail.
Let the applicant Arif, 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 the 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 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.
(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.
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.
The bail application is allowed.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
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.
(Samit Gopal, J.) Order Date :- 28.10.2021 Gaurav