Court No. - 70
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 31678 of 2021 Applicant :- Zaabir Hussain Opposite Party :- State of U.P. Counsel for Applicant :- Shashank Mishra,Archana Hans Counsel for Opposite Party :- G.A.,Prabha Shanker Mishra,Sharique Ahmed,Sumit Kumar Srivastava
Hon'ble Rajendra Kumar-IV,J.
Counter affidavit filed on behalf of State is taken on record.
Heard learned Counsel for the parties and perused the record.
Accused-applicant, involved in Criminal Case / Session Trial No.5100 of 2016, State versus Sabir & others, (Crime No.634 of 2015), under Sections 147, 148, 149, 302 & 504 I.P.C., Police Station Dhoomanganj, District Prayagraj (Allahabad), applied for bail.
This is second bail application filed on behalf of applicant in the aforesaid case crime number. First Criminal Misc. Bail Application No.23928 of 2019 has been rejected on 19.02.2021 by Hon'ble Pradeep Kumar Srivastava, J. with liberty to the applicant to file second bail application after the witness of facts are recorded and such bail application shall be decided on merits without being influenced by any observation made during the course of disposal of the first bail application.
Learned counsel for the applicant submits in the following manner :-
(i) Applicant is innocent and has been falsely implicated in the present case. He has committed no offence. Entire prosecution story is false and fake. It is a case of no evidence. No credible evidence is against the applicant. Applicant has no role in the present case.
(ii) After the dismissal of first bail application, seven witnesses have been examined by prosecution in the trail Court and no witnesses of fact remains to be produced thus the applicant has moved the second bail application as per direction in earlier order.
(iii) As per prosecution, there remains no witness of fact to be produced and there is no eye witness of the incident. In the trial Court seven witnesses have already been examined but they have turned hostile and they did not support the prosecution case. There are number of witnesses have been shown in the list of witnesses from the side of prosecution and decision of case will take a long time. Due to non-availability of witnesses of fact certainly it will be acquittal. Thus there is no justification to keep the accused in jail.
(iv) In the background of the case, it is stated that present applicant along-with other accused persons shot dead Alqama and one Suraj Patel. FIR of the incident was lodged by cousin brother of Alqama. But, later on, he has been made as an accused in the further investigation under Section 173(8) Cr.P.C. and now he is himself accused along-with other persons in the present case, therefore, other witnesses proposed to be produced from the side of prosecution are not the witness of fact.
(v) Applicant is in jail since 28.03.2019 without any credible evidence.
(vi) There is no possibility of the applicant's fleeing away from the judicial process or tampering with the witnesses. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and he will continue present before the Court till disposal of the trial. Due to heavy pendency of cases in the Court, there is no possibility of early conclusion of the trial.
Learned A.G.A. and learned Counsel for the informant opposed the prayer for bail but did not dispute the factual submissions made by the learned counsel for the applicant. Learned AGA further submitted that it is a planed and brutal murder of two persons but conceded that no witness of facts or eye witness remains to be examined. Entire witnesses, who appeared so far, have been turned hostile and they did not support the prosecution case.
Considering the facts and circumstances of the case, rival contention of learned counsel for the parties, detention of applicant in jail, examination of seven witnesses in the Court, no witness of fact is left and without commenting upon the merit of the case, applicant deserves bail.
Accordingly, bail application is allowed.
Let applicant Zaabir Hussain be released on bail in the aforesaid case crime on his furnishing a personal bond and two reliable sureties to the satisfaction of the court concerned subject to the following conditions:-
1. The applicant shall not tamper with the evidence or threaten the witnesses.
2. The applicant shall co-operate with the trial and shall not seek any adjournment except in exceptional circumstances on the dates fixed for evidence when the witnesses are present in the court, statement under Section 313 Cr.P.C. and argument.
3. During trial, he shall not indulge in any criminal activities or case.
In breach of any condition enumerated above, Trial Court shall be at liberty to treat it as abuse of liberty of bail and pass appropriate orders in accordance with law.
Order Date :- 24.12.2021 I.A.Siddiqui