Nisar vs State Of U.P.
2021 Latest Caselaw 10432 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 52
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 28413 of 2021
 

 
Applicant :- Nisar
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Prashant Kumar Singh,Harsh Narayan Singh,Sr. Advocate (Shri V.P. Srivastava)
 
Counsel for Opposite Party :- G.A.,Ajay Kumar Srivastava,Shivangi Bhargava
 

 
Hon'ble Samit Gopal,J.

Heard Sri V.P. Srivastava, learned Senior Advocate assisted by Sri Prashant Kumar Singh, learned counsel for the applicant, Ms. Shivangi Bhargava, learned counsel for the first informant and Sri B.B. Upadhyay, learned counsel for the State and perused the material on record.

This bail application under Section 439 of Code of Criminal Procedure which has been filed by the applicant Nisar, seeking enlargement on bail during trial in connection with Case Crime No. 147 of 2020, under Sections 147, 148, 149, 323, 307, 302, 34 I.P.C., Police Station Patwai, District Rampur.

Learned counsel for the applicant argued that the incident in the present case is said to have taken place on 25.07.2020 at about 20:30 hrs for which the First Information Report was registered on 26.07.2020 at about 04:48 AM in which Mashkoor @ Billu is alleged to have died and Husnain Ali @ Guddu is an injured. It is argued that although the role of shooting has been assigned to the applicant upon the deceased with a country made pistol but the present case is where there is a cross version also. It is argued that Shareef @ Dulla who is also an accused in the present matter has received injury who was medically examined on 25.07.2020 at 11:05 PM at the District Hospital, Rampur. He was taken to the hospital by police personnels, copy of which is annexed as annexure 12 at page 75 to the affidavit is his injury report which has been placed before the Court.

Learned counsel has placed annexure 12 at page 71 which is the parcha no. 1 of the case diary of the present case from which it is evident that the investigation started at 22:20 hrs and continued till 23:55 hrs in which S.H.O. Manoj Kumar who was out with his team of police personnels on routine night round got an information that there is a cross firing going on in the village in question on which he reached the place of occurrence and found that one person Mashkoor @ Billu who is the deceased in the present case was taken to the hospital in an injured condition which was informed to him and he found Shareef @ Dulla lying in a poll of blood having injuries after which he specifically states that looking to his condition, he did not arrange for vehicle but directed his accompanying police personnels to take him to the hospital on the police vehicle on which he was taken to the District Hospital, Rampur where he was medically examined and first aid was given. It is argued that the prosecution in so far as it relates to the injury received by Shareef @ Dulla is concerned is silent and the said fact has been suppressed.

Learned Senior counsel has further argued that as a cross version, an application under Section 156(3) Cr.P.C. was moved from the side of the applicant which was initially rejected by the concerned Magistrate against which a Criminal Revision was preferred which was allowed vide order dated 27.01.2021 and the matter was remanded back to be heard and decided a fresh, a copy of the said judgment and order is annexed as annexure 13 to the affidavit. It is further argued that a complaint was also filed with the same version as that of 156(3) Cr.P.C. by Smt. Noor Jahan the wife of Shareef @ Dulla before the concerned court in which vide order dated 05.04.2021 passed by the Chief Judicial Magistrate, Rampur, copy of which is annexed as annexure 17 to the affidavit, the accused persons have been summoned to face trial under Sections 147, 148, 149, 452, 307, 506 IPC. It is argued that as such the case is a cross case in which one person has lost his life from the side of the prosecution and there is one injured and there is one injured from the side of the applicant. It is argued that the factum of injury of Shareef @ Dulla who is from the side of the applicant cannot be disputed and the fact that he was lying at same place of occurrence also cannot be disputed as the police found him to be in an injured condition lying therein a pool of blood after which he was shifted by the police personnels in the police vehicle for the management of his injuries. It is argued that as such the genesis of the occurrence has been suppressed by the prosecution and as of now the cross version has been taken cognizance of and the accused persons have been summoned to face trial. It is further argued that charge sheet has been submitted in the present matter and now there are no chances of the accused tampering with the evidence. He further argued that the applicant has no criminal history as stated in para 28 of the affidavit and is in jail since 27.07.2020.

Per contra, learned counsel for the first informant and learned counsel for the State opposed the prayer for bail and argued that the applicant has been assigned the role of shooting upon the deceased and the postmortem report of the deceased does corroborate with the prosecution version. It is further argued that from the pointing out of the applicant, a country made pistol has been recovered. It is further argued that the applicant is named in the First Information Report.

After having heard learned counsels for the parties and perusing the records, it is apparent that the present case is a cross case. Both sides have been received injuries. One person from the side of the applicant has received gun shot injury. The prosecution of the present case has not spelt out about the injuries received from the side of the applicant. The injured from the side of the applicant was found by the police at the place of occurrence and was taken by the police for his medical examination and treatment.

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 may be enlarged on bail.

Let the applicant Nisar, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties (one of the sureties of the applicant will be his family member) 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 :- 17.8.2021

M. ARIF

(Samit Gopal, J.)