Court No. - 76
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 46588 of 2021 Applicant :- Javed And Another Opposite Party :- State of U.P.
Counsel for Applicant :- Raja Ullah Khan Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Pachori,J.
Heard Sri Raza Ullah Khan, learned counsel for the applicants, learned A.G.A. for the State and perused the record of the case.
The present bail application has been filed on behalf of applicants Javed and Fariyad under Section 439 of The Code of Criminal Procedure, with a prayer to release them on bail in Case Crime No. 35 of 2020, under Section 3/5/8 U.P. Prevention of Cow Slaughter Act, 1955, registered at Police Station- Nigohi, District- Shahjahanpur during pendency of the trial.
It has been submitted by learned counsel for the applicants that the applicants are innocent and has been falsely implicated in the present case along-with other five co-accused persons due to ulterior motive. It is further submitted that no incriminating article has been recovered from the possession of the applicants. The alleged recovery of 100 kg beef and other slaughtering instruments have been recovered from possession of co-accused Kadeer, as shown in the first information report, have been made without complying the mandatory provisions of Section 100 Cr.P.C. It is next contended that no other previous criminal antecedent to their credit. It is further submitted that co-accused Kadeer, has already been granted bail by the Coordinate Bench of this Court in Criminal Misc. Bail Application No. 34042 of 2020 vide order dated 20.10.2020 and the applicants are also entitled to be enlarged on bail on the ground of parity. It is next submitted that there is also no possibility of the applicants either fleeing away from the judicial process or tampering with the witnesses. The applicants, who are languishing in jail since 06.10.2021, undertakes that they will not misuse the liberty, if granted. It has also been pointed out that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.
Per contra learned A.G.A. has opposed the prayer for bail. In case the applicants are released on bail, they will again indulge in similar activities and will misuse the liberty of bail.
It is settled position of law that bail is the rule and committal to jail is an exception in the case of State of Rajasthan Vs. Balchand @ Baliay (1977) 4 SCC 308, the Apex Court observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution and opined para 2 "The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the court. We do. not intend to be exhaustive but only illustrative." and considering the facts of the case and keeping in mind, the ratio of the Apex Court's judgment in the case of Gudikanti Narasimhulu And Ors vs Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, larger mandate of Article 21 of the constitution of India, the nature of accusations, the nature of evidence in support thereof, the severity of punishment which conviction will entail, the character of the accused-applicant, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interest of the public/ State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present bail application is allowed.
Let applicants, Javed and Fariyad be released on bail in the aforesaid case crime number on their furnishing a personal bonds and two reliable sureties each of the like amount to the satisfaction of the court concerned with the following conditions-
(i) The applicants shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the court or to any police officer or tamper with the evidence.
(ii) The applicants shall not pressurize/intimidate the prosecution witnesses.
(iii) The applicants 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 of Cr.P.C.
(iv) The applicants shall file an undertaking to the effect that they shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in the trial court.
(v) The applicants shall remain present before the trial court on each date fixed, either personally or through their counsel.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
Order Date :- 21.12.2021 Ishan