Allahabad High Court
Faiyyaz & Another vs State Of U.P. on 8 July, 2021
Bench: Vikas Kunvar Srivastav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 29
Case :- BAIL No. - 6939 of 2021
Applicant :- Faiyyaz & Another
Opposite Party :- State of U.P.
Counsel for Applicant :- Ashish Raman Mishra
Counsel for Opposite Party :- G.A.
(In chamber)
Hon'ble Vikas Kunvar Srivastav,J.
The case is called out through video conferencing.
Learned counsel for the bail-applicants Sri Ashish Raman Mishra, Advocate and learned A.G.A. for the State Sri Diwakar Singh, Advocate are connected through video conferencing.
The present bail application is filed on behalf of the accused-applicants, Faiyyaz and Shakeel, involved in Case Crime No.201 of 2020, under Sections 147, 148, 149, 323 and 304 of I.P.C., registered at Police Station Baundi, District Bahraich.
The occasion of present bail application has arisen on rejection of bail plea of applicant by learned Sessions Judge, Bahraich vide order dated 28.06.2021.
Learned A.G.A. for the State informs that he has received the instructions alongwith C.D. and material papers from the prosecution. Since the learned counsel for the bail-applicants presses to argue the matter instantly, therefore, learned A.G.A. is also ready to protest the bail-plea.
Learned counsel for the bail-applicants submitted that the first information report is lodged by the complainant on 26.10.2020, wherein, in very clear explicit terms, the role of present accused-applicants is assigned to arm with lathi and danda, whereas the victim-Ram Naresh Singh of the incident suffered serious injuries by reason of fire arm with which, specifically the co-accused, Abdul Kalam and Furkan are assigned the role of firing upon the victim.
Learned counsel for the bail-applicants further submitted that the present accused-applicants have never involved in any criminal case or posted with the criminal antecedents but for a fracas between the parties to the incident, occurred prior to the present incident on 14.07.2020 with regard to which the accused side was the complainant, the present accused-applicants are falsely implicated in the present case.
Learned counsel for the bail-applicants further submitted that the incident happened on 26.10.2020, whereas the death of the victim occurred on 05.04.2021 after a considerable lapse of time. Learned counsel drew the attention towards the post mortem report which shows anti mortem injury as under:-
"Note - Infected Bed sore present over back. R both Buttock size 12 cm x 8 cm and lower part of.....posteriorty and paisterio lateral aspect Lt thigh 10 cm x 6 cm and both legs below knee joint wounds infected non.......and .......with pus and slough."
Learned counsel for the bail-applicants on the basis of aforesaid facts and circumstances coming out on record, submitted that there is no nexus between the incident and death of victim. The injuries sustained, if any of lathi and danda cannot be sufficient to cause death and also the immediate cause of death. The injuries reported just after the incident on having been medically examined made by the doctor with regard to the fire arms and the fire arms were applied by the co-accused, Abdul Kalam and Furkan only, as such, the case of Abdul Kalam and Furkan is distinguishable than that of the present accused-applicants.
Learned counsel for the bail-applicants further submitted that applicants are local resident, common people having no criminal history, they are not in a position to flee away from the process of the Court as well as to adversely affect the witnesses, as such, they deserve to be released on bail for the purpose of providing them a fair opportunity of facing trial.
Learned A.G.A. for the State in protest of the bail-application on the basis of instructions received to him has also not denied that the present accused-applicants have no criminal antecedents. Moreover, the first information report and statements recorded by the Investigating Officer, is also not showing infliction of injury by fire arms, as such, injuries are assigned to the two co-accused persons namely Abdul Kalam and Furkan.
Learned A.G.A. has also not denied that the incident occurred on 26.10.2020, whereas the inquest report and post mortem report clearly mentioned the death of the victim of the said incident on 05.04.2021 and the anti mortem reports are not fresh or new but for the reason of bed sores. The prima facie case of prosecution is not found establised against the present accused-applicants.
Keeping into mind the valuable right of personal liberty and the fundamental principle not to disbelieve a person to be innocent unless held guilty and if he is not arraigned with the charge of an offence for which the law has put on him a reverse burden of proving his innocence as, held in the judgment of Hon'ble the Supreme Court in Dataram Singh Vs. State of U.P. and ors. reported in (2018) 3 SCC 22, I find force in the submission of learned counsel for the bail-applicant to enlarge her on bail.
Considering the facts and circumstances of the case, perusing the record, considering the nature of allegations, arguments advanced by learned counsel for the parties and looking into the complicity of the applicants-accused in the offence, the gravity of offence, severity of punishment without expressing any opinion on the merit of the case, I find it to be a fit case for granting bail.
Let applicants (Faiyyaz and Shakeel), involved in Case Crime No.201 of 2020, under Sections 147, 148, 149, 323 and 304 of I.P.C., registered at Police Station Baundi, District Bahraich be released on bail on their furnishing a personal bond of Rs.1,00,000/- each and two reliable sureties of the like amount to the satisfaction of the court concerned subject to following additional conditions, which are being imposed in the interest of justice:-
(i) The applicants shall file an undertaking to the effect that they 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 applicants shall remain present before the trial court on each date fixed, either personally or through their counsel. In case of their absence, without sufficient cause, the trial court may proceed against them under Section 229-A of the Indian Penal Code.
(iii) In case, the applicants misuse the liberty of bail during trial and in order to secure their presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against them, in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) The applicants 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 applicants 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 them in accordance with law.
Order Date :- 8.7.2021/Saurabh
