Court No. - 42
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 23298 of 2019 Applicant :- Azad Opposite Party :- State Of U.P. Counsel for Applicant :- Deepak Rana Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Sri Deepak Rana, learned counsel for the applicant, Sri Prashant Kumar, learned A.G.A. for the State and perused the material on record.
The instant bail application has been filed on behalf of the applicant, Azad with a prayer to release him on bail in Case Crime No. 1361 of 2018, under Sections 302, 394 I.P.C., Police Station- Loni Border, District- Ghaziabad, during pendency of trial.
It is argued by the learned counsel for the applicant that for the incident dated 05.10.2018, the F.I.R. has been lodged by Jahid against two unknown persons, who are said to have come on motorcycle and shot fire upon the deceased-Parvez Shaifi, due to which he sustained injuries. Abdul Rahman and Shahe Alam, who are said to be the eye witnesses of alleged incident, have not taken the name of anyone in their statements. Thereafter Raja son of Shamim in his statement has stated that the deceased told him that two unknown persons, who were on motorcycle, snatched his mobile phone. When he caught hold the hand of one of the miscreants, they fired upon him. In the second statement of Jahid (informant) it has come that Sameer son of Salim told him that Azad (applicant herein) and Nadeem @ Hakla have snatched the mobile of the deceased and the applicant caused injury to the deceased with a country made pistol. It is next submitted that the alleged eye witnesses, namely, Abdul Rahman and Shahe Alam, have not disclosed the name of applicant whereas in the confessional statement of the applicant, he has confessed that he is the person, who has caused injury to the deceased and the co-accused-Nadeem @ Hakla is said to be driver of the said motorcycle. Such statement has come after one and half month of the alleged incident. It is next submitted that a country made pistol has been recovered on the pointing out of the applicant, but the said recovery has not been witnessed by any independent witness. It is next submitted that the applicant has been falsely implicated in the present case as there is no motive to commit the offence and the eye witnesses of the alleged incident have not disclosed the name of the applicant also. The applicant is languishing in jail since 26.11.2018. The applicant does not have any previous criminal history. In case, he is released on bail, he will not misuse the liberty of bail and will cooperate in the trial by all means. Lastly, it is submitted that there is no chance of applicant fleeing away from judicial process or tampering with the witnesses.
Per contra learned A.G.A. has opposed the bail prayer of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserves any indulgence. In case the applicant is released on bail he will again indulge in similar activities and will misuse the liberty of bail.
Considering the facts and circumstances of the case as well as submissions made by learned counsel for the parties and also perusing the material on record, without expressing any opinion on merit of the case, let the applicant involved in aforesaid case crime be released on bail on his furnishing a personal bond and two local sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions:-
(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iii) 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. is issued and the 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 of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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.
Order Date :- 4.6.2019/JK Yadav