Shahbaaz vs State Of U.P.
2023 Latest Caselaw 11449 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 76
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1716 of 2023
 

 
Applicant :- Shahbaaz
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Keshari Nandan Singh
 
Counsel for Opposite Party :- G.A.,Sushil Kumar Pal
 

 
Hon'ble Saurabh Shyam Shamshery,J.

Applicant -- Shahbaaz has approached this Court for bail in Case Crime No. 552 of 2022 under Sections 452, 302, 34 I.P.C., Police Station- Rath, District- Hamirpur.

First Information Report was lodged against accused applicant, co-accused Tauzif @ Nadeem Husain and Roshan alleging that on 11.10.2022 at 4.30 PM, they came at the house of informant and caused murder of widow daughter of informant by firing bullets.

Sri K.N. Singh, learned counsel for applicant has submitted that informant is not eye witness and according to alleged eye witnesses, role of firing was assigned to co-accused Roshan; similarly situated co-accused Tauzif has already been granted bail by coordinate Bench of this Court vide order dated 03.04.2023 in Bail Application No. 1889 of 2023; no overt act has been attributed to applicant; therefore, applicant, who is in jail since 13.10.2022 may be released on bail.

While opposing bail, Sri Sunil Srivastava, learned A.G.A. for State and Sri S.K. Pal, learned counsel for informant have submitted that there are eye witnesses account that all accused persons came together and one of them caused death by firing and after the occurrence, said person has stated to applicant that "??? ??? ???"; therefore, as such, it was a case that all accused came and acted in furtherance of their common intention and for that no specific overt act is required; they further submit that bail order of co-accused Tauzif is not accompanied with reasons as required in terms of judgments of Supreme Court in Manoj Kumar Khokhar vs. State of Rajasthan and Anr. (2022) 3 SCC 501 and Brijmani Devi vs. Pappu Kumar, (2022) 4 SCC 497; therefore, applicant may not be released on bail.

LAW ON BAIL - A SUMMARY

(A) The basic rule may perhaps be tersely put as bail, not jail.

(B) Power to grant bail under Section 439 Cr.P.C., is of wide amplitude but not an unfettered discretion, which calls for exercise in a judicious manner and not as a matter of course or in whimsical manner.

(C) While passing an order on an application for grant of bail, there is no need to record elaborate details to give an impression that the case is one that would result in a conviction or, by contrast, in an acquittal. However, a Court cannot completely divorce its decision from material aspects of the case such as allegations made against accused; nature and gravity of accusation; having common object or intention; severity of punishment if allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of witnesses being influenced by accused; tampering of evidence; character, behaviour, means, position and standing of accused; likelihood of offence being repeated; the frivolity in the case of prosecution; criminal antecedents of accused and a prima facie satisfaction of Court in support of charge against accused. The Court may also take note of participation or part of an unlawful assembly as well as that circumstantial evidence not being a ground to grant bail, if the evidence/ material collected establishes prima facie a complete chain of events. Parity may not be an only ground but remains a relevant factor for consideration of application for bail.

(D) Over crowding of jail and gross delay in disposal of cases when undertrials are forced to remain in jail (not due to their fault) may give rise to possible situations that may justify invocation of Article 21 of Constitution, may also be considered along with other factors.

(See, State Of Rajasthan, Jaipur vs. Balchand @ Baliay (AIR 1977 SC 2447 : 1978 SCR (1) 535; Gurcharan Singh vs. State (Delhi Administration), (1978) 1 SCC 118); State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC 21; Prasanta Kumar Sarkar vs. Ashis Chatterjee and Anr (2010)14 SCC 496; Mahipal vs. Rajesh Kumar, (2020) 2 SCC 118; Ishwarji Mali vs. State of Gujarat and another, 2022 SCC OnLine SC 55; Manno Lal Jaiswal vs. The State of U.P. and others, 2022 SCC OnLine SC 89; Ashim vs. National Investigation Agency (2022) 1 SCC 695; Ms. Y vs. State of Rajasthan and Anr :2022 SCC OnLine SC 458; Manoj Kumar Khokhar vs. State of Rajasthan and Anr. (2022)3 SCC 501; and, Deepak Yadav vs. State of U.P. and Anr. (2022)8 SCC 559)

In the present case, wife of co-accused Tausif had suspected that her husband has illicit relationship with deceased, therefore, accused persons including applicant have planned and went together at the place of deceased where one of co-accused shot dead the deceased. One of co-accused Tauzif @ Nadeem Husain has been granted bail with following reasons :-

"Considering the submissions of learned counsel for the parties, nature of accusations, period of custody and all attending facts and circumstances of the case, without expressing any opinion on the merits of the case, the Court is of the view that a case for bail is made out. Hence, the bail application is hereby allowed."

It is necessary to mention here that above referred paragraph is not accompanied with reasons as required in judgments of Supreme Court in Manoj Kumar Khokhar and Brijmani Devi (supras).

It transpires that applicant came together with other two co-accused and it appears that he has not done any overt act. However, his presence is not doubtful and relevant part of statement of eye-witnesses is that after firing, the co-accused has stated to present applicant that "??? ??? ???". However, still considering that co-accused Tauzif has already been granted bail and applicant may be present at site but prosecution has not come up with any specific motive for applicant to commit crime and taking note of evidence for common intention, in my considered opinion, a case for bail is made out.

Let the applicant- Shahbaaz be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties 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 shall file an undertaking to the effect that he shall not seek any adjournment or exemption from appearance on the date fixed in trial. 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.

(iii) 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.

(iv) The Trial Court may make all possible efforts/endeavour and try to conclude the trial expeditiously, preferably within a period of six months after release of applicant, if there is no other legal impediment.

(v) Applicant has to appear on each and every date before learned trial Court and any application for exemption of his appearance on vague ground could be a ground for cancellation of bail by learned trial Court immediately.

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.

It is made clear that the observations made hereinabove are only for the purpose of adjudicating the present bail application.

Order Date :- 18.4.2023

Nirmal Sinha