Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29299 of 2021 Applicant :- Asif Opposite Party :- State of U.P.
Counsel for Applicant :- Pankaj Kumar Tyagi Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Heard Sri Pankaj Kumar Tyagi, learned counsel for the applicant and Sri Sanjay Singh, learned A.G.A. for the State and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Asif, seeking enlargement on bail during trial in connection with Case Crime No. 245 of 2021, under Sections 304, 504 I.P.C., registered at Police Station Syohara, District Bijnor.
Learned counsel for the applicant argued that the applicant is not named in the first information report and his name has subsequently surfaced in the statement of the first informant recorded under Section 161 Cr.P.C. It is argued that although the first informant has named one Arif in the first information report along with three other co-accused persons but later on, in his statement recorded under Section 161 Cr.P.C., he has stated that he has wrongly given the name of Arif as the accused whereas, the applicant (Asif) was the actual person involved in the matter along with other co-accused persons. In the statement recorded under Section 161 Cr.P.C. of the first informant, he has stated that the accused persons had thrown bricks in the courtyard of the house from which one brick had hit the head of Smt. Rahisha who is the wife of the first informant as a result of which she received injuries and died. It is further argued that common and general role has been assigned to the accused persons without any specification of the role and it is not disclosed as to whose brick hit the deceased which proved to be fatal injury. As per postmortem report, two injuries have been noted by the doctor and there is a head injury with lacerated wound and haematoma was present in the brain and cause of death is coma due to ante-mortem head injury, wherein injury no.1 is multiple abrasion on the right side of face and injury no.2 is on the occipital parietal bone. It is argued that co-accused Rahisuddin, has been granted bail by this Court vide order dated 10.08.2021 passed in Criminal Misc. Bail Application No. 27985 of 2021, the copy of the said order has been produced before the Court which is taken on record. It has also been pointed out that the applicant is not having any criminal history as stated in para 25 of the affidavit and he is in jail since 05.05.2021.
Per contra, learned A.G.A. opposed the prayer for bail and argued that the applicant is named in the first information report and role has been assigned to him of initially abusing and fighting with the first informant and his family members and then all the family members of the applicant have been assigned the role of throwing bricks in the courtyard of the house of first informant due to which his wife died but could not dispute that there is no specification of the fact that whose brick had hit the deceased.
After having heard the learned counsel for the parties and perusing the record, it is apparent that initially, the applicant was named in the first information report and later on, his name was replaced by the first informant in place of one Arif who was named in the first information report and then common and general role has been assigned to four accused persons including the applicant.
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- Asif, 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.
Order Date :- 16.8.2021 AS Rathore
(Samit Gopal,J.)