Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 23105 of 2019 Applicant :- Irfan And Another Opposite Party :- State of U.P.
Counsel for Applicant :- Yagyadhar Tripathi,Manish Tiwary(Senior Adv.),Raghuvansh Misra Counsel for Opposite Party :- G.A.,N. I. Jafri Adv,Sadaful Islam Jafri
Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri Manish Tiwary, learned Senior Advocate, assisted by Sri Raghuvansh Misra, learned counsel for the applicants; Sri N.I. Jafri, learned Senior Advocate, assisted by Sri Sadaful Islam Jafri, learned counsel for the informant and; Sri Sanjay Kumar Singh, learned AGA for the State. Perused the material placed on record.
2. The instant bail application has been filed on behalf of the applicants - Irfan & Furkan, with a prayer to release them on bail in Case Crime No. - 0093 of 2017, under Sections -147, 148, 149, 307, 302, 504, 506 I.P.C., Police Station -Kharkhauda, District - Meerut, during pendency of trial.
3. The applicants and others are accused of having formed an unlawful assembly and murder of two individuals namely, Junaid & Bilal and of causing grievous injuries constituting attempt to murder two others namely, Mehraz & Shahid. Against FIR lodged on 10.02.2017, the applicants are in confinement since 10.04.2019.
4. Allegations exist of unlawful assembly and assault with firearm, 'lathi', 'danda' and 'sariya'. Prima facie, the post- mortem and injury reports indicate, both, firearm and other injuries suffered due to blows of 'lathi', 'danda' and 'saria'. As per the FIR, accusation has been made against eight persons of use of firearm and against six persons for assault with 'lathi', 'danda' and 'sariya'.
5. It is also a fact that against the FIR lodged on 10.02.2017, initially the applicants had approached this Court by means of writ petition seeking quashing of the FIR. It was dismissed vide order dated 04.05.2017. Thereafter the applicants remained at large. In such facts and in the meantime, a chargesheet came to be filed against the applicants, in May 2017. The 482 Cr.P.C. Application No. 23132 of 2017 filed to question the same also came to be dismissed vide order dated 28.07.2017. Against that, a SLP is stated to have been filed before the Supreme Court which was dismissed as withdrawn on 25.08.2017.
6. Though the chargesheet had been submitted against the applicants, in May 2017, apparently, on some application filed by the father of the present applicants, further investigation was directed to be made by the administrative authorities on 28.08.2017. It is in the course of such further investigation, the Investigating Officer is claimed to have recorded further statements and collected further material especially recording available on a hard drive of the C.C.T.V. camera set-up, claimed to be installed at the own residential premises of the applicants. Based on that, the Investigating Officer reached a conclusion that the applicants had been wrongly implicated.
7. It is however undisputed that vide his order dated 18.09.2017, the learned Magistrate rejected the application seeking further investigation. That issue is pending before this Court in section 482 Cr.P.C. Application No. 35477 of 2017.
8. According to the applicants, vide another order dated 14.08.2018, non-bailable warrants came to be issued against the applicants. Then they again approached this Court in Application under section 482 Cr.P.C., No. 33621 of 2018, to challenge that order. An interim order was passed by this court to stay operation of the order dated 14.08.2018.
9. In such circumstances, it appears that on 03.04.2019, an order came to be passed in 482 Application No.33621 of 2018 wherein the following direction was issued:-
"In the aforesaid backdrop, learned Sessions Judge/the concerned Trial Judge is directed to ensure that the guidelines given in the case of Hussain and another (supra) as well as in Brahm Singh and others(Supra) has to be carried out in its letter and spirit, failing which an adverse inference would be drawn against the erring officers and this Court would be compelled to take appropriate action against them, if found that there is laxity in adhering the above directions.
In the event, the bail application is not decided within seven days as contemplated above, the learned Judge will have to spell out the justifiable reasons and record the same on the order sheet of such cases.
It is made clear that no further time would be allowed to the applicants for this purpose and after getting themselves surrendered and bailed out, if at all, the applicants want to press their prayer.
Let this 482 application may be listed before the court of competent jurisdiction along with the record of 35477 of 2017.
It is made clear that till the applicants being bailed out they are not entitled for any discretion in favour of the applicant."
10. It is in pursuance of that order that the applicants appear to have surrendered before the learned court below on 10.04.2019 since when they are in confinement. In such circumstances, it has been submitted by learned Senior Counsel that the applicant no.1-Irfan is a business man of reputation running a cattle field unit at his village- Ghosipur, where the incident had taken place whereas applicant no.2-Furkan, who is his real brother is a government servant working at the postal department. They have absolutely clean record and have no criminal history to their discredit.
11. Second, the said applicants had been falsely implicated in the incident that had taken place involving the other accused persons. Purely on account of pre- existing disputes between the parties, they were falsely implicated and the chargesheet came to be submitted against them in May, 2017 on such false allegations. However, upon further investigation being conducted, other independent eye witness account were recorded that establish that the applicants were not involved in commission of the aforesaid offence. Also, wholly credible evidence is available in the shape of video recording on the C.C.T.V. camera set-up installed at the residence of the applicants. It shows that the applicants had not left their house till about 6:30 p.m. on the date of the incident whereas the incident had taken place at 5:45 pm at a different place.
12. Third, it has been submitted that the role of causing gun shot injury has been ascribed to two other accused namely, Abid & Javed but not to either of the applicants. In such circumstances, in light of general and vague allegations made against other persons (including the applicants) of having caused injuries with blows of 'lathi', 'danda' and 'sariya', the applicants are entitled to bail at this stage.
13. The case of the present applicants is also stated to be wholly distinguishable from that of Imran who, on similar allegations had earlier been enlarged on bail by this court but whose bail came to be cancelled upon order by the Supreme Court on solitary ground and reason of criminal history of that accused person. The applicants have no criminal history.
14. The submissions so made have been opposed by Sri Jafri, who would submit that the applicants are not entitled to any discretion. Against the FIR lodged on 10.02.2017, they did not participate in the investigation and remained absconding for more than two years. In that circumstance, the chargesheet came to be filed against them in May, 2017. They never appeared before the court below till they were forced to, under order of this Court in Application 482 No. 33621 of 2018, dated 03.04.2019.
15. The submission that there is credible material and evidence available in the supplementary case diary to establish that the applicants were not present at the place and time of occurrence has been met by submitting that the plea of alibi may not be considered at this stage, and in any case, in the connected trial that is going on against the other accused person being ST No.473 of 2017 (State Vs. Abid), various witness of fact have been examined. They have wholly supported the prosecution story and named the applicants and others as the aggressors who assaulted the victims, in their statements recorded in oath.
16. Then, it has been submitted, the place of occurrence is very near to the residence of the applicants, and therefore, at this stage, no inference may be drawn on the basis of C.C.T.V. recording as it would remain purely speculative at that stage and also it may remain a factor to be considered at the trial.
17. As to the status of the proceeding against the applicants, it has been submitted, at present, charges have been framed against the applicants but the trial is yet to commence. Enlarging the applicants on bail, at this stage, in light of their past conduct may only delay the trial as there is every likelihood that the applicants would again avoid the law and thus delay the trial proceedings.
18. In that regard, learned Senior Counsel for the applicants would submit that the order framing charge against the applicants suffers from manifest error of law, inasmuch as, charges had been framed against the applicants in absentia. It could never be done and that matter is engaging the attention of this Court in Criminal Revision No. 3358 of 2019 which is also pending.
19. Sri Sanjay Kumar Singh, learned AGA would submit, in the first place, the allegation is of common intention which was wholly consistent with the statement of the eye witness recorded during investigation. At the trial of the co-accused in ST No.473 of 2017 (State Vs. Abid), such evidence has also been adduced. Insofar as the recording of the C.C.T.V. camera is concerned, it has been submitted that probabilities and possibilities as may exist or arise owing to a fact that the residence of the applicants may not be more than 150 to 200 meters from the place of occurrence, cannot be examined at this stage. Again much emphasis has been laid on the conduct of the applicants in having avoided the law by absconding over a long period of time. Proceedings under Sections 82 and 83 Cr.P.C. had to be resorted to before the applicants offered their surrender. In totality of the facts and circumstances, learned AGA would submit, if enlarged on bail, there is every possibility that the applicants would avoid the process of law.
20. Having heard learned counsel for the parties and having perused the record, the learned Senior Counsel for the applicants may be absolutely right in his contention that the bail application of the present applicants may not be rejected on account of the bail cancellation application order passed by the Supreme Court in Criminal Appeal No. 1274 of 2018 (Mohammad Abrar Alam Vs. Imran and Another), decided on 10.10.2018. Perusal of that order would clearly reveal that the Supreme Court cancelled the bail of that accused person, upon a solitary reasoning that he was alleged to be involved in multiple other offences. Therefore, according to the Supreme Court, consideration of gravity of those offences should have been taken into account before granting bail for the present accusation. In absence of any criminal history of the present applicants, the cancellation of bail to Imran is found to be not relevant.
21. Insofar as emphasis has been laid to the material collected during further investigation that is recording of C.C.T.V. camera and the further statements of witnesses recorded under Section 161 Cr.P.C., merits and credibility of that material apart, at present, for right or wrong reasons, the learned court below has rejected the application for further investigation. The material being thus referred to by learned Senior Counsel for the applicants cannot be examined at this stage as at present there is no judicial order enabling such material to be received on the record. The grievance of the applicants in that regard is engaging the attention of this Court in Application u/s 482 No. 35477 of 2017.
22. Therefore, till the order dated 14.08.2018 is set aside, no blind reliance may be placed on such material, at this stage. For the present limited purposes, it has to be assumed that such material is not part of the case diary. The claim of the applicants that such material must necessarily be considered as part of the case diary, would remain a matter to be considered in the Application u/s 482 Cr.P.C., referred to above.
23. Even otherwise, if for the purposes of grant of bail, that material were to be looked into, to any extent, the same cannot be examined in isolation. There are other materials available in the case diary being the statements of the victim and others as are part of the original case diary that clearly suggest that the applicants were equally involved in the commission of offence with common intent. The plea of alibi is a plea in defence. The stage to raise it would arise later. In any case, the material referred to by the learned senior counsel for the applicants, is not of unimpeachable credibility as may give rise to any satisfaction, to any extent, at this stage.
24. Grant of bail is discretionary. For any judicial discretion that may be exercisable in such matters, on account of the clean criminal record of the applicants and general allegations made as to injuries caused, it cannot be ignored or overlooked that the applicants themselves, undeniably did avoid the law for a long period of one year. The F.I.R. was lodged on 10.02.2017, whereas, the chargesheet was submitted within three months therefrom. Not only the applicants did not participate in the initial investigation but they remained at large for almost one year since then despite being fully aware of the proceedings as is clear from their conduct of filing proceedings to challenge the F.I.R. and orders passed at stage of inquiry and trial. In such circumstances, their trial came to be separated causing delay.
25. Clearly, the applicants appear to have surrendered in the situation arising from the order dated 03.04.2019. Therefore, at present the applicants are found to be not entitled to bail. An accused person who tests the long arm of the law in such matters for a long period of two years and who submits to it after resort is made to coercive measures accompanied with a positive direction issued by this Court, as has been done in this case, cannot, as of right claim bail at the time of his choosing. At present, looking at their past conduct, the court has no reason to be satisfied that the applicants, if enlarged on bail would continuously and regularly participate in the trial. In fact their past conduct indicates otherwise.
26. However, at the same time, it is made clear, no conclusion of fact has been drawn as to merits of issues that have been raised in the present matter as have also been noted above. All such and other matters as have arisen or may arise would remain to be considered before the appropriate forum in appropriate proceedings. Thus, it is clarified, the rights of the applicants to challenge the charge sheet, order framing charge and/or order refusing to take on record supplementary case diary may remain to be considered in appropriate proceedings before this Court.
27. Needless to add in event of challenge as has been raised by the applicants in other proceedings succeeding, the applicants will remain entitled to apply for bail afresh at that stage, in that light of changed circumstances, if required.
28. Accordingly, for the reasons noted above, the present application is rejected, at this stage.
Order Date :- 28.11.2019 S.Chaurasia