Heard Sri Mirza Ali Zulfaqar, learned counsel for the applicant, Sri B.B. Upadhyay, learned AGA 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 Faraz alias Shabi, seeking enlargement on bail during trial in connection with Case Crime No. 101 of 2016, under Sections 328, 302, 201 I.P.C., registered at P.S.- Naubasta, District- Kanpur Nagar.
Learned counsel for the applicant argued that the occurrence in the present case is said to have taken place on 20.6.2015 in which Syed Zafar Abbas is said to have died. It is argued that the applicant is the brother-in-law(sala) of the deceased. It is further argued that the wife of the deceased is also an accused in the matter along with the applicant and it is mentioned that the other persons of his sasural are also involved in the conspiracy as a result of which he was administered poison on 20.6.2015 and his body was buried as one of mode of cremation in a graveyard. It is further argued that the F.I.R. was lodged on 12.2.2016 i.e. after about eight months from the present incident and then the post mortem examination was done after the dead body was exhumed on 24.2.2016 in which the cause of death could not be ascertained and viscera was preserved and in the viscera "Arsenic"poison was found.
Learned counsel for the applicant argued that delay of about eight months in lodging of the F.I.R. is totally unexplained which clearly shows that it to be an afterthought. It is argued that there is no eye witness to the incident and the applicant has been falsely implicated in the present case just because he is brother-in-law (sala) of the deceased. It is further argued that in the F.I.R. there is a reference of the first informant giving an application to the I.G., Kanpur Nagar regarding the same. Learned counsel for the applicant has placed before the Court annexure no. 6, which is the copy of inquiry report which was done by the Circle Officer, Kanpur Nagar in which no such implication of the applicant or even suspicion against him was opined. The applicant has no other criminal antecedents as stated in para-43 of the affidavit and is in jail since 30.6.2018.
Per contra, learned AGA has opposed the prayer for bail but could not give any satisfactory reply about the delay of eight months in lodging the F.I.R.
After perusing the record in the light of the submissions made at the bar and after taking an overall view of all 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- Faraz Alias Shabi, 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 :- 7.1.2021 Naresh