Court No. - 42
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 20986 of 2019 Applicant :- Satish Opposite Party :- State Of U.P.
Counsel for Applicant :- Veer Singh Counsel for Opposite Party :- G.A.,Nazrul Islam Jafri
Hon'ble Mrs. Manju Rani Chauhan,J.
Nobody is present on behalf of the informant even in the revised reading of the list.
Heard Mr. Veer Singh, learned counsel for the applicant and Mr. Prashant Kumar, learned A.G.A. for the State as well as perused the material on record.
The present bail application has been filed by the applicant-Satish with a prayer to enlarge him on bail in Case Crime No. 1036 of 2016, under Sections 147, 148, 149, 452, 307, 302, 354, 436, 504, 336 I.P.C., Sections 7 of Criminal Law Amendment Act and Sections 7/8 POCSO Act, Police Station-Kotwali City, District Bijnor, during the pendency of the trial.
In substance in the FIR, it has been stated that on 16.9.2016 at about 07:00 AM, Mohd. Talib, nephew of the informant had gone to drop his daughter Yasmin to the school. At Penda Bus Stand, Nitin and his four friends committed indecent act with Yasmin, therefore, Mohd. Talib returned back to house along with Yasmin and complained about the incident to Sansar Singh and also informed the police. Sansar Singh and others hurled abuses to the informant and started collecting his own men and extorted to finish the persons of Muslim community. On which at about 07:30 PM, Sansar Singh, Nitin, Raju, Pappan, Naresh, Tikam Singh son of Bati, Tejpal, Koman, Pankaj, Anuj, Satish, Prem, Billu, Rinku, Sonu, Kakku, Ompal, Rajpal, Anil Kumar, Manoj, Tishu, Akash all are residents of village Penda, Dilawar Singh, resident of village Kachchapura, Kunwar Sen, Billu (Cementwala) two nephew of Kunwar Sen (who were working as Homeguard) armed with pistol, gun, rifle attacked on the residents of Muslim community. They also opened fire due to which Aneesuddin, Ehsaan and Sarfaraj had died on the spot and various other persons received grievous injuries. The accused set fire in the shop of Mahboob as well as on the motorcycle of the informant. They also set fire on the bitora of upla of Zamil and the informant.
Learned counsel for the applicant submits that the FIR has not been lodged on correct version. It is admitted in the FIR that after the incident dated 16.9.2016 at 07:00 AM, the police was called on the spot. Sub Inspector Anurag Chaudhary, who had come on the spot, was interrogated under Section 161 Cr. P. C. He has given a different seen of occurrence inasmuch as according to S.I. Anurag Chaudhary, Aishwarya Chaudhary @ Mausam, Arun Kabadi, Kartik @ Bittu instigated the mob on which the incident had occurred. S.I. Anurag Chaudhari had prepared a videography relating to entire incident from his mobile phone. In that videography, presence of the applicant on the spot has not been found. The applicant was arrested on 17.9.2016.
Learned counsel for the applicant further submits that though the applicant has been named in the first information report and his name was also came in the statement of the Sub-Inspector Anurag Chaudhary without assigning any role of participating in the alleged incident. The incident is alleged to have taken place on 16.9.2016 but the trial has not been started till today. He submits that in the present case, Aishwarya Chaudhary @ Mausam was granted bail in Criminal Misc. Bail Application No. 37353 of 2018 by order dated 24.4.2019, Arun Kabadi was granted bail in Criminal Misc. Bail Application No. 3820 of 2017 by order dated 14.11.2017 and Kartik @ Vikku was granted bail in Criminal Misc. Bail Application No. 15916 of 2018 by order dated 17.4.2019.
This Court by order dated 8.5.2019 has granted bail to one of the co-accused Teekam Singh in Criminal Misc. Bail Application No.10709 of 2018 and the applicant is entitled for bail on parity.
The order dated 8.5.2019 passed in Criminal Misc. bail Application No. has been challenged in Special Leave Petition (Criminal ) Diary No(s) 17068 of 2019 before the Supreme Court and the Supreme Court has entertained the Special Leave Petition and issued notices to the accused as well as State of U.P.
Learned counsel for the applicant further submits that this Court vide order dated 15th May, 2019 has granted bail to one of the co- accused Omkar @ Billu passed in Criminal Misc. Bail Application No. 28587 of 2017. The case of the present applicant is similar and identical to that of the co-accused Omkar. As such the present applicant is also liable to be enlarged on bail. 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 17.09.2016.
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, the 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 :- 6.6.2019 Sushil/-