Court No. - 55
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10819 of 2018 Applicant :- Islam @ Afimi Opposite Party :- State Of U.P.
Counsel for Applicant :- Adya Prasad Tewari,Ravi Shankar Tripathi Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard Sri Ravi Shankar Tripathi, learned counsel for the applicant, learned AGA and perused the record.
Contention raised at the Bar is that the applicant has been falsely implicated in the present case. It has been further submitted that the applicant is not named in the FIR, which was initially registered under sections 302 and 201 IPC by Noor Mohammad, father of the deceased with regard to his missing son Waseem on 31.08.2017. The informant's another son Ishaq also filed an application intimating the police that a carcass is lying in the millet (bajra) field of Ram Prakash and on the aforesaid information, he rushed to the place of occurrence where he indentified the carcass to be of his brother Waseem. It is further contended that in the statement recorded under section 161 Cr.P.C., sweeping suspicion was raised by the informant regarding the involvement of the present applicant in the commission of the crime.
Thereafter, on 29.09.2017 i.e., after 23 days of the incident, the prosecution has recorded the statements of two persons namely, Munney and Chuttan before whom it was stated that the applicant had made extra judicial confession. Pursuant to this alleged extra judicial confession, the applicant was arrested on 11.10.2017 and the police allegedly recovered a knife, said to have been used in the commission of the crime from a graveyard in an abandoned condition after one and a half month of the incident. So far as motive part is concerned, the story cooked up by the prosecution is too fabricated. The entire case seems to be concocted on the broken links by the prosecution. It is lastly urged that the applicant is in jail since 11,10,2017, having no criminal antecedents to his credit.
Learned AGA opposed the prayer for bail but could not dispute the aforesaid facts and the legal submissions as argued by the learned counsel for the applicant.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties and without expressing any opinion on merits of the case, I am of the view that the applicant has made out a case for bail.
Let the applicant Islam @ Afimi, involved in Case Crime No. 607 of 2017, under sections 302 and 201 IPC, P.S. Gunnaur, District Sambhal be released on bail 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 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.
(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 IPC.
(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., 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 IPC.
(iv) 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.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this court.
Order Date :- 23.3.2018 shailesh