Court No. - 42
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 23354 of 2019 Applicant :- Mohd Raheem Opposite Party :- State Of U.P.
Counsel for Applicant :- Ram Shiromani Shukla,Anubhav Shukla Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Sri Anubhav Shukla, learned counsel for the applicant, Sri Mohd. Shoaib Khan, learned A.G.A. for the State and perused the material on record.
The instant bail application has been filed on behalf of the applicant, Mohd Raheem with a prayer to release him on bail in Case Crime No. 374 of 2018, under Sections 302, 201/34 I.P.C., Police Station- Expressway, District- Gautam Buddh Nagar, during pendency of trial.
It is argued by the learned counsel for the applicant that as per the version of F.I.R., the brother of the informant, who used to ply auto-rickshaw, went out on 02.09.2018. He met the informant at about 10:00 p.m. after that when the informant tried to contact him on phone, his mobile was found switched off and he could not be contacted or traced out. On 03.09.2018, an information was received by the informant from concerned police station about a dead body lying there and voter I.D. bearing the name of Israfil was also recovered, after which the present F.I.R. was lodged against unknown person. In the statement recorded under Section 161 Cr.P.C, for the first time, the name of the applicant has surfaced. After arresting the applicant, his confessional statement was recorded wherein he has accepted that he had committed the offence with the help and assistance of co-accused-Km. Saira Khatoon. It is next submitted that there is recovery of auto-rickshaw on the pointing out of the applicant but the number of recovered auto- rickshaw was not same as mentioned in the F.I.R. It is next submitted that there is no direct evidence against the applicant except the confessional statement of the applicant and there is no eye witness or public witness or any independent witness of the said incident. It is next submitted that the co-accused Km. Saira Khatoon, having identical role, has already been granted bail by another Bench of this Court vide order dated 27.02.2019 passed in Cri. Misc. Bail Application No. 1646 of 2019, copy of which order has been appended as Annexure no.10 of the affidavit accompanying the bail application, therefore, the applicant is also entitled for bail. The applicant is languishing in jail since 09.09.2018. The applicant does not have any previous criminal history. In case, he is released on bail, he will not misuse the liberty of bail and will cooperate in the trial by all means. Lastly, it is submitted that there is no chance of applicant fleeing away from judicial process or tampering with the witnesses.
Per contra learned A.G.A. has opposed the bail prayer of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserves any indulgence. In case the applicant is released on bail he will again indulge in similar activities and will misuse the liberty of bail.
Considering the facts and circumstances of the case as well as submissions made by learned counsel for the parties and also perusing the material on record, without expressing any opinion on merit of the case, let the applicant involved in aforesaid case crime be released on bail on his furnishing a personal bond and two local sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions:-
(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.
Order Date :- 4.6.2019/JK Yadav