Court No. - 59
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 34055 of 2018 Applicant :- Javed Khan Opposite Party :- State Of U.P.
Counsel for Applicant :- Sudarshan Singh Counsel for Opposite Party :- G.A.
Hon'ble Suneet Kumar,J.
Heard learned counsel for the applicant, the learned A.G.A. and perused the record.
This bail application has been filed on behalf of the applicant involved in Case Crime No. 1112 of 2017, under Sections 302, 34, 120B I.P.C., P.S. Cantt., District Varanasi.
As per prosecution case, deceased left his house with four lakh rupee to pay for sand; deceased did not return and informed on phone that deceased is in the house of co- accused Abhishek Singh, Advocate; on the following day, father of the deceased was informed by co-accused Abhishek Singh that the son has been murdered; applicant is not named in the F.I.R.; applicant was arrested after ten months of the incident on the statement of a witness that applicant along with five others had caused murder of the deceased.
Learned counsel for the applicant submits that no recovery was made from the applicant; applicant was arrested in a muthbhed with the police team and a country-made-pistol was recovered from him; prior to the incident, there is no criminal antecedent; after the incident, cases have been slapped against the applicant; there is no motive against the applicant; motive has been assigned to co-accused Abhishek Singh; applicant is languishing in jail since 05.06.2018, and in case he is enlarged on bail, he will not misuse the liberty of bail and will cooperate in trial.
Learned Additional Government Advocate opposed the prayer for bail but could not dispute the aforesaid facts as argued by the learned counsel for the applicant.
Keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment, 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-Javed Khan be released on bail in the above case on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of Court concerned subject to following additional 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 dates 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 of the Indian Penal Code.
(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. is issued and the 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 of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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.
However, It is made clear that in case the applicant indulges in intimidating or threatening any witness, the State or Prosecutor would be at liberty to file an application for cancellation of bail.
Order Date :- 7.9.2018 Mukesh Kr.