Court No. - 78
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38808 of 2021 Applicant :- Sarfaraj Khan Opposite Party :- State of U.P.
Counsel for Applicant :- Manoj Kumar Singh,Ajay Kumar Srivastava,Kamal Kishor Mishra Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Heard Sri Ajay Kumar Srivastava, learned counsel for the applicant and Sri Akhilesh Kumar Tripathi, learned counsel 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 Sarfaraj Khan, seeking enlargement on bail during trial in connection with Case Crime No. 408 of 2020, under Sections 302 and 201 IPC, Police Station Kila, District Bareilly.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that in the F.I.R. although the applicant is named as an accused by Smt. Heena Khan the wife of Mohd. Afsar the deceased, but no overt act has been assigned to him. It is argued that F.I.R. has been lodged after a delay of 183 days. It is argued that F.I.R. was lodged on 08.10.2020 whereas the incident in question is of 11.04.2020 and the delay in lodging the F.I.R. is unexplained. It is argued that as per the F.I.R. itself it is alleged that while the first informant was cooking food, she heard the sound of gun shot after which she came out and saw her husband is lying with an injury on his head and Ansar Khan her father-in-law was standing there having a gun in his hand which is a licenced weapon. The applicant Sarfaraj Khan and co-accused Aamir who are dewars of first informant, were also standing there. There was dispute with regard to money and property between the parties. It is argued that no specific role has been assigned to the applicant. The gun has been recovered from the pointing out of co-accused Ansar Khan. Co-accused Amir @ Raj Shekhawat whose case is identical to that of the applicant, has been granted bail by a coordinate Bench of this Court vide order dated 24.03.2021 passed in Criminal Misc. Bail Application No. 11465 of 2021 (Amir @ Raj Shekhawat Vs. State of U.P.), copy of which is annexed as annexure 4 to the affidavit in support of bail application. Further co-accused Ansar Khan has also been granted bail by a coordinate Bench of this Court vide order dated 30.06.2021 passed in Criminal Misc. Bail Application No. 22462 of 2021 (Ansar Khan Vs. State of U.P.), copy of the said order has been produced before the Court which is taken on record. It is argued that the applicant has no criminal history as stated in para 18 and is in jail since 28.07.2021.
Per contra, learned counsel for the State opposed the prayer for bail but could not dispute the aforesaid facts as argued by learned counsel for the applicant.
After having heard learned counsel for the parties and perusing the records, it is apparent that no overt act has been assigned to the applicant. Co-accused Amir @ Raj Shekhawat and Ansar Khan have already been granted bail by coordinate Benches of this Court. The gun was seen in the hand of co-accused Ansar Khan by the first informant when she came immediately to the place of occurrence where her husband was lying due to the gun shot injury. The recovery of gun is from co-accused Ansar Khan.
Looking to the facts and circumstances of this case, the nature of evidence 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 be enlarged on bail.
Let the applicant Sarfaraj Khan, 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:-
1. The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
2. 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.
3 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.
4. 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.
5. 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.
6. 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.
Order Date :- 24.12.2021 Vikram (Samit Gopal,J.)