Allahabad High Court
Faisal vs State Of U.P. on 18 February, 2021
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
1
Judgment Reseved on 10.2.2021
Delivered on 18.2.2021
In Chamber.
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 14980 of 2018
Applicant :- Faisal
Opposite Party :- State of U.P.
Counsel for Applicant :- Dharmendra Pratap Singh,Laxmi Kant Bhatt,Moeez Uddin,Satyendra Narayan Singh
Counsel for Opposite Party :- G.A.,Sushil Kumar Pandey
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Satyendra Narayan Singh, learned counsel for the applicant, Sushil Kumar Pandey for the informant, Akhilesh Kumar Mishra, learned A.G.A. and perused the record.
2. The applicant has approached this Court by way of filing the present Criminal Misc. Bail Application seeking enlargement on bail in Case Crime No.199 of 2016, under Sections 147, 148, 149, 302 and 506 of I.P.C., Police Station-Jhinjhana, District-Shamli after rejection of his Bail Application vide order dated 13.10.2017, passed by learned Sessions Judge, Muzaffarnagar.
3. Learned counsel for the applicant contended that initially F.I.R. was lodged against eight named accused, however during investigation four persons were exonerated (who were alleged to be last seen) and investigation was continued against applicant (Faisal) and his three brothers namely Wahid, Mobin and Haidar (who allegedly joined later) at the place of occurrence. Bail of co-accused Haider was rejected by this Court on 25.6.2018 on the ground of his criminal history and recovery, though order was also passed to conclude the trial, preferably within one year, but till date it has not been concluded. The applicant has no criminal history and there was no recovery also. He is languishing in jail since 15.9.2017, there is no likelihood of early disposal of trial and the applicant undertakes that if enlarged on bail, he will never misuse his liberty and will co-operate in the trial.
4. Akhilesh Kumar Mishra, learned A.G.A. has vehemently opposed the bail application and submitted that there were four fire arm injuries to the deceased and it was a broad day light murder. However, it is not disputed that applicant has no criminal antecedent and no recovery is effected from him.
5. Law on bail is well settled that 'Bail is rule and jail is exception'. Bail should not be granted or rejected in a mechanical manner as it concerns the liberty of a person. At the time of considering an application for bail, the Court must take into account certain factors such as the existence of a prima facie case against the accused, the gravity of the allegations, position and status of the accused, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of tampering with the witnesses and obstructing the Courts as well as the criminal antecedents of the accused. It is also well settled that the Court while considering an application for bail must not go into deep into merits of the matter such as question of credibility and reliability of prosecution witnesses which can only be tested during the trial. Even ground of parity is one of the above mentioned aspects which are essentially required to be considered while considering application for bail. It is also well settled that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner, compassionately and not in whimsical manner. Conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.
6. Considering the rival submission, material available on record, the period of detention already undergone, the unlikelihood of early conclusion of trial, absence of any convincing material to indicate the possibility of tampering with the evidence, relevant factors mentioned above, particularly that applicant allegedly joined later in the offence and allegedly four persons who were named as last seen were exonerated, applicant has no criminal antecedent, he is in jail since 15.9.2017, a case of bail is made out.
7. Let the applicant Faisal, involved in the aforesaid Case Crime Number be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-
(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.
8. 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.
9. The bail application is allowed.
10. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
11. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
12. 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.
13. The observations made hereinabove are only for the purpose of adjudicating the present bail application.
Order Date:-18.2.2021
SB
