Court No. - 78
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 22611 of 2019 Applicant :- Naqshey Ali Opposite Party :- State Of U.P.
Counsel for Applicant :- Subhash Chandra Pandey Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Sri Subhash Chandra Pandey, learned counsel for the applicant, Sri Amit Singh Chauhan, learned A.G.A. for the State and Sri Mirza Ali Zulfaqar, Advocate who has put in appearance on behalf of the informant by filing his vakalatnama in Court today which is taken on record.
Perused the material on record.
The present bail application has been filed by the applicant- Naqshey Ali with a prayer to enlarge him on bail in Case Crime No. 302 of 2019, under Sections 307, 336, 504 and 506 of the Indian Penal Code, Police Station-Swar, District-Rampur, during the pendency of the trial.
Learned counsel for the applicant has submitted that as per allegations made in the first information report, on 5th April, 2019 at 06:20 p.m. (evening) when the first informant along with his nephews, namely, Arif and Ilyas were sitting in the corridor of his house, Sadab @ Bhura, Hibjey Ali, Naqshey Ali (applicant herein) and Mehfooz climbed on their roof of the house, when they objected, they started using abusive language and when they objected not to abuse them, they started pelting stones upon them and Sadab and Hibjey Ali after taking country made pistols from their house, with intention to kill them, fired upon Arif i.e. nephew of the informant due to which sustained injuries. On hearing the noise, people came and on seeing them, they after threatening, ran away. It has further been argued by the learned counsel for the applicant that as per the version of the first information report and as per the statement of injured under Section 161 Cr.P.C., role of firing upon the injured by country-made pistols has been assigned to the co- accused Sadab and Hibjey. As per the medical examination report, all the injuries sustained by the injured have been reported to be caused by fire arm, which are grievous in nature. General role of pelting the stones upon the informant and injured has been assigned to all the accused including the applicant. Therefore, the case of the applicant is clearly distinguishable from the co-accused Sadab and Hijbey. The applicant has no criminal antecedents to his credit except the present one. It is next contended that there is no possibility of the applicant of fleeing away from the judicial process or tampering with the witnesses and in case, the applicant is enlarged on bail, the applicant shall not misuse the liberty of bail. The applicant is in jail since 6th April, 2019.
Per contra learned A.G.A. and the learned counsel for the informant have 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. However, learned A.G.A. and the learned counsel for the informant could not dispute the factual submissions as urged by the learned counsel for the applicant.
Considering the facts and circumstances of the case, submissions made by learned counsel for the parties and the material on record as well as the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. & Another reported in (2018) 3 SCC 22 and 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.
(Manju Rani Chauhan, J.) Order Date :- 29.5.2019 Sushil/-