Syed Kamil Raja Zaidi vs State Of U.P.
2022 Latest Caselaw 4390 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 14103 of 2022
 

 
Applicant :- Syed Kamil Raja Zaidi
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Imran Ullah,Mohammad Waseem
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Shri Imran Ullah, learned counsel for the applicant and Shri Manoj Kumar Dwivedi, learned A.G.A. for the State and perused the material on record.

The present bail application has been filed on behalf of applicant Syed Kamil Raja Zaidi under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 295 of 2018 for offence punishable under Sections 365, 304, 120-B, 201 of the Indian Penal Code, registered at Police Station Greater Noida (Kasna), District Gautam Budh Nagar, during pendency of the trial, after rejecting the bail application of the applicant by Additional Sessions Judge/F.T.C. Second, Gautam Budh Nagar vide order dated 2.2.2022.

Brief facts of the case are that the First Information Report dated 10.11.2018 has been lodged by brother of one employee Noor Hasan against the applicant and other co-accused S.M. Askari under Section 365, 304-A, IPC stating therein that brother of the first informant Noor Hasan was working as Shift Incharge in S.R.S. Meditech Limited Factory in Greater Noida where the applicant was working as Regional Sales Manager and he has enmity with the brother of the first informant. The applicant has threatened the brother of the first informant and other employees of the factory. On number of occasions complaints were made to the owner of the factory. The company was under heavy loan and was also insured. The factory owner made conspiracy with co-accused S.M. Askari and the applicant in order to get the claim from the Insurance Company. After that on 28.1.2018 on Sunday in the evening when the brother of the first informant was inside the factory, they set the factory on fire. After many days, the whereabouts of his brother could not be known.

It is further alleged that on 2.11.2018, one Majhar Ali @ Kaushar Ali's dead body was found in village Duawat, P.S. Hafeejganj, Bareilly and the applicant and factory owner in connivance with the police conducted the last rites of the body by burying the same. A search was made for his brother, but his whereabouts could not be known and certain persons of the vicinity told him that when the factory was set on fire, a man having fire on him was running out of the factory. The factory owner and the applicant told the first informant to keep mum and the statement has been made by the applicant that since his brother has died in the incident of fire, he will be duly compensated and assured him to give money after the claim is received from the Insurance Company. Shamim Ahmad and Mubin Hasan have also seen the brother of the first informant along with the applicant before the factory was set on fire. On 28.10.2018 at 11.00 a.m., brother of the first informant called the first informant on phone and told him about the settlement of his account.

After lodging of the first informant without recovering the dead body of the brother of the first informant, after recording the statements of the prosecution witnesses and after collecting the affidavit of the first informant, charge sheet has been submitted against the applicant on 20.1.2022 and other co-accused S.M. Askari on 20.6.2019. The applicant was arrested on 25.11.2021.

Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. It is further submitted that the owner of the factory in question is co-accused S.M. Askari. The applicant has no concern with the ownership or any right in the factory. The applicant is not beneficiary of any type in the profits and claims of the factory. It is further submitted that there was dispute between S.M. Askari and one S.K. Gupta. S.K. Gupta was owner of the premises wherein the factory was running. After the incident, landlord took possession over the rented property. It is further submitted that one affidavit of the first informant has been collected by the Investigating Officer, which is part of investigation wherein the first informant has not supported the prosecution case.

It is further submitted that no motive was assigned to the applicant for committing any such offence. First information report has been lodged on the basis of false and frivolous allegations. It is further submitted that the first information report has been lodged after 13 days of the incident. It is further submitted that S.M. Askari has moved an application under Section 156(3), Cr.P.C. in the month of November and thereafter, he has filed a civil suit against S.K. Gupta, owner of the property. It is further submitted that there is no circumstantial evidence with regard to complicity of the applicant in the present case. It is further submitted that co-accused Syed Mujahir Askari, having greater role and motive, has been granted bail by a Coordinate Bench of this Court vide order dated 8.7.2019 in Criminal Misc. Bail Application No. 26682 of 2019.

He has next argued that the applicant has no previous criminal history and if the applicant is released on bail, he shall not misuse the liberty of bail.

Per contra, learned A.G.A. has supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the applicant and submits that the allegations involved are very serious in nature and the delay in lodging the FIR cannot be said to be fatal to the case at this juncture while considering the application of bail. But he could not point out any material to the contrary. He further submits that in case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.

After considering the facts of the present case it prima facie appears that;

(a) The incident took place on 28.10.2018 in the evening;

(b) First information report has been lodged on 10.11.2018 at 18.45 hours under Section 365, 304-A, IPC;

(c) First informant has not supported the prosecution case in his second statement recorded by way of affidavit. It would not be appropriate to discuss the same at this stage;

(d) The applicant was labour in the factory and he is not beneficiary in the profits and claims etc. of the factory;

(e) The applicant has no motive to set the factory of co-accused S.M. Askari on fire;

(f) Co-accused Syed Mujahir Askari, having greater role and motive, has been granted bail by a Coordinate Bench of this Court vide order dated 8.7.2019 in Criminal Misc. Bail Application No. 26682 of 2019.

It is a settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, his role and involvement in the offence, his involvement in other cases and reasonable apprehension of the witnesses being tampered with.

Taking into account the totality of facts and keeping in mind, the ratio of the Apex Court's judgment in the case of State of Rajasthan v. Balchand @ Baliay (1977) 4 SCC 308, Gudikanti Narasimhulu And Ors., v. Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, Ram Govind Upadhyay v. Sudarshan Singh & Ors., (2002) 3 SCC 598, Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr., (2010) 14 SCC 496 and Mahipal v. Rajesh Kumar & Anr., (2020) 2 SCC 118, the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present bail application is allowed.

Let applicant, Syed Kamil Raja Zaidi be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:

(i) The applicant shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.

(ii) The applicant shall not pressurize/intimidate the prosecution witnesses.

(iii) 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 of Cr.P.C.

(iv) 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 the trial court.

(v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel.

(vi) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that 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 in accordance with law.

The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously in accordance with law after the release of the applicant, if there is no other legal impediment.

It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.

The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.

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 :- 27.5.2022

T. Sinha