Court No. - 43
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 20969 of 2021 Applicant :- Saleem @ Ladi Opposite Party :- State Of U.P Counsel for Applicant :- R.K.Paramhans Singh,Manvendra Narain Pathak,Sanjay Tiwari Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Matter taken up through video conferencing.
Heard Sri R.K.Paramhans Singh, learned counsel for the applicant and Sri Virendra Kumar Maurya learned A.G.A. for the State and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Saleem @ Ladi, seeking enlargement on bail during trial in connection with Case Crime No. 174 of 2021, under Section 304 I.P.C., registered at Police Station Kotwali, District Ghaziabad.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the present first information report has been registered on the basis of an application under Section 156(3) Cr.P.C. with a great delay which is dated 26.02.2020. It is argued that incident in the present case is dated 11.12.2019 and the deceased Gulsher Malik died on 15.12.2019 but still the application under Section 156(3) Cr.P.C. was moved after a delay of about more than three months on 26.02.2020 after which the present first information report has been registered on 15.03.2021. It is argued that there is no eye-witness to the incident. The first information report was registered by Sameer Malik the brother of the deceased who although names the applicant as one of the accused persons along with two other persons but assigns general role to all the three accused persons. It is argued that subsequently, the wife of the deceased Smt. Nazreen was examined under Section 161 Cr.P.C., wherein, she stated that her husband was involved in gambling with the three accused persons and some altercation took place on which co-accused Irfan assaulted her husband with some heavy object on his head after which all the three accused persons threw him from the roof of the house as a result of which he received injuries and died. The postmortem report of the deceased, the copy of which is annexed as Annexure-4 to the affidavit has been placed before the Court which shows three stitched wounds present on the body of the deceased out of which one stitched wound is present on the head and the base of skull is shown to be fractured and there is a linear fracture over right temporal bone.
The doctor has opined the cause of death as a result of antimortem injury to head produced by blunt force impact. It is argued that as per the statement of the wife of the deceased she has assigned common and general role along with two other co- accused persons of throwing the deceased from roof but she is not an eye-witness and more so co-accused Irfan has been assigned the role of assaulting the deceased with some heavy object on his head.
It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required. It has also been pointed out that the applicant is not having any criminal history as stated in para 22 of the affidavit and he is in jail since 17.03.2021 and there is no likelihood of early conclusion of trial and hence, the applicant may be released on bail during pendency of trial.
Learned A.G.A. has opposed the prayer for bail and argued that the applicant is named in the first information report and role has been assigned to him. It is argued that since first information report has been registered on the basis of an application under Section 156(3) Cr.P.C. as the same was moved due to inaction of police. The delay in lodging of the same cannot be considered as a fatal delay. It is argued that the prayer for bail be rejected.
After having heard the learned counsel for the parties and perusing the record, it is apparent that the application under Section 156(3) Cr.P.C. was moved on 26.02.2020 which is after about more than three months from the date of incident. There is no eye-witness to the incident. The wife of the deceased assigns the role of assaulting the deceased with a heavy object on his head to co-accused Irfan and the deceased had received head injury and the opinion by the doctor is that the death is due to antimortem injury on head produced by blunt force impact.
The case of co-accused Irfan is distinguishable with that of the applicant.
Looking to the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.
Let the applicant- Saleem @ Ladi, be released on bail in the aforesaid case crime number 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) 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.
(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. 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 I.P.C.
(v) 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 and the trial court may proceed against him under Section 229- A IPC.
(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
The bail application is allowed.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 25.5.2021 AS Rathore Digitally signed by Justice Samit Gopal Date: 2021.05.25 16:59:13 IST Reason: Document Owner Location: High Court of Judicature at Allahabad