1. Heard learned counsel for applicant and learned A.G.A. for State.
2. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant seeking enlargement on bail during trial in connection with Case Crime No.362 of 2019, under Section 147, 148, 149, 332, 353, 336, 307, 188/34, 427, 120B, 109, 302 I.P.C. and 3/4 Prevention of Damage to Public Property Act, 7 Criminal Law Amendment Act and 27 of the Arms Act, Police Station - Babupurwa, District - Kanpur Nagar.
3. Learned counsel for the applicant submits that he was not named in the First Information Report. The case is arising out of alleged protestation against the Citizen Amendment Act at Babupurwa, District - Kanpur which took place on 20.12.2019. The named accused were granted bail co-ordinate Bench of this Court even similarly situated accused whose name were disclosed later were also been granted bail by a co-ordinate Bench of this Court. The case of the applicant is a case of parity. Applicant has been falsely implicated in the present case having no criminal history. He is languishing in jail since 8.1.2021 and in case, he is released on bail, he will not misuse the liberty of bail and will cooperate in trial and also undertakes not to participate any such protestation which are not peaceful.
4. Learned A.G.A. has vehemently opposed the prayer of bail and submits that during the protest even the police party was attacked and public property was damaged. However, he has not disputed that similarly situated co-accused were granted bail by this Court.
5. Law on bail is well settled that 'Bail is rule and jail is exception'. Bail should not be granted or rejected in a mechanical manner as it concerns the liberty of a person .At the time of considering an application for bail, the Court must take into account certain factors such as the existence of a prima facie case against the accused, the gravity of the allegations, position and status of the accused, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of tampering with the witnesses and obstructing the Courts as well as the criminal antecedents of the accused. It is also well settled that the Court while considering an application for bail must not go into deep into merits of the matter such as question of credibility and reliability of prosecution witnesses which can only be tested during the trial. Even ground of parity is one of the above mentioned aspects which are essentially required to be considered while considering application for bail. It is also well settled that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner, compassionately and not in whimsical manner. Conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.
6. Considering the rival submission, material available on record, the period of detention already undergone, the unlikelihood of early conclusion of trial, absence of any convincing material to indicate the possibility of tampering with the evidence, relevant factors mentioned above, particularly that named co-accused in the First Information Report as well as similarly situated co-accused who were not named in the First Information Report were granted bail by co-ordinate Benches of this Court; that applicant having no criminal history, is languishing in jail since 8.1.2021and considering undertaking given by the applicant also, this Court is of the view that a case of grant of bail is made out.
7. Let applicant - Hafiz Shakeel Hussain 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 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 she 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 him 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 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 Trial Court absence of applicant is deliberate or without sufficient cause, then it shall be open for Trial Court to treat such default as abuse of liberty of bail and proceed against him in accordance with law and 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 applicant.
8. 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.
9. The bail application is allowed.
10. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
11 The computer generated copy of such order shall be self attested by the counsel of the party concerned.
12. 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 :- 19.2.2021 Rishabh [Saurabh Shyam Shamshery, J.]