Court No. - 43
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 21099 of 2021 Applicant :- Babloo @ Sarvar Alam Opposite Party :- State Of Uttar Pradesh Counsel for Applicant :- Sharique Ahmed Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
The matter has been taken up through Video Conferencing.
Heard Sri Sharique Ahmed, learned counsel for the applicant, Sri J.B. Singh, learned A.G.A. for the State who have appeared through Video Conferencing and perused the material on record.
An exemption application has been filed on behalf of the applicant along with present bail application for exempting the filing of the certified copy of the impugned F.I.R. and also to exempt the applicant to swear an affidavit in support of bail application due to COVID-19.
The exemption application is allowed.
The filing of affidavit in the present bail application and the certified copy of the impugned F.I.R. is hereby exempted subject to fulfilling the modalities of filing of fresh cases as issued by this Court.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Babloo @ Sarvar Alam seeking enlargement on bail during trial in connection with Case Crime No.962 of 2020, under Sections 147, 148, 149, 302, 323, 504, 506 & 34 I.P.C., registered at Police Station Chakeri, District Kanpur Nagar.
As per F.I.R., lodged by Deepak (brother of the deceased), it has been stated that on 15.11.2020, at about 06:45PM, when his brother Pintu (deceased) and nephew Sandeep had gone for walking and reached in front of the house of Faiz Mohd., where one pouch of water was lying there in torn condition on which Pintu slipped due to which few drops of water got sprinkled upon Faiz Mohd and his other companions who are named in the F.I.R. and five other persons who are residents of the same colony. All these persons including the accused applicant started abusing the deceased and informant's nephew and when they resisted, all the persons started assaulting them with lathi, danda and bricks and when Ram Naresh who was passing through the passage had seen the occurrence, had reported the same to the informant and thereafter, the informant, his father Sri Ram and uncle Ram Kishor and some villagers went to the poccurrence place and they found that all the assailants were assaulting the deceased, due to which he had died and the assailants had also beaten them also. As per post-mortem report, the deceased is found to have sustained one stab wound at the side of nose bone deep, contused swelling in occipital region and hematoma was also found with underline bone fracture. Apart from that there were two abraded contusion on the top of the shoulder and hand. The cause of death was ante mortem head injury.
It has been argued on behalf of the learned counsel for the accused applicant that accused applicant has been falsely implicated in this case. It is further argued that the occurrence had happened due to sudden quarrel and the accused applicant along with eleven named and five other persons had assaulted the deceased by various weapons, therefore the author of the fatal injury could not be ascertained. It is further argued that as many as six persons are said to have received injuries and are alleged injured witnesses. The injured person Anil has been found to have one stitched wound on his person but the doctor did not give any opinion about the injury. Sri Ram was found to have received one abrasion but the doctor opined it to be a simple injury. It is further argued that Ram Kishor has been found with one abrasion which is also stated to be simple in nature, injured Dashrath received two abrasions which are also opined to be simple in nature. The injury of Deepak has been found to be two abrasions which are also opined to be simple in nature.
It is argued that co-accused Meraj has been granted bail by a co-ordinate Bench of this Court vide order dated 7.4.2021 passed in Criminal Misc. Bail Application No.8458 of 2021, copy of the said order is annexed as Annexure No. 18 to the affidavit filed in support of bail application. It is further argued that another co-accused Mohd. Mohsin @ Lal has also been granted bail by this Court today i.e. 25.5.2021 in Criminal Misc. Bail Application No. 21062 of 2021 (Mohd. Mohsin@Lal Vs. State of U.P.) and the role of the applicant is identical to that of co-accused and claims parity. It has also been pointed out that the applicant is not having any criminal history as stated in para-40 of the affidavit and is in jail since 30.12.2020.
Per contra learned A.G.A. has opposed the prayer for bail and argued that the applicant is named in the FIR. The deceased Pintoo received as many as four injuries and there are six injured witnesses of the incident, hence looking to the participation of the applicant prayer for bail be rejected.
After hearing the counsel for the parties and perusing the record, it is apparent that the present case is a case of sudden provocation and general role to the applicant has been assigned along with ten other named accused persons and five unknown persons, there is no specification to the role of the accused persons and the the role as to who caused the fatal injury cannot be ascertained, co-accused Meraj and Mohd. Mohsin @ Lal whose case is identical have been granted bail by this Court.
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- Babloo @ Sarvar Alam, 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 :- 25.5.2021 Naresh Digitally signed by Justice Samit Gopal Date: 2021.05.26 16:17:25 IST Reason: Document Owner Location: High Court of Judicature at Allahabad