Babuddin vs State Of U.P.
2023 Latest Caselaw 11710 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved :- 11/04/2023
 
Delivered :- 19/04/2023
 
Court No. - 76
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 36767 of 2022
 

 
Applicant :- Babuddin
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Suresh Kumar Maurya,Prateek Mishra
 
Counsel for Opposite Party :- G.A.,Saurabh Chaturvedi,Shad Khan
 
and
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35966 of 2022
 

 
Applicant :- Nawabuddin
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Rama Shankar Mishra
 
Counsel for Opposite Party :- G.A.,Saurabh Chaturvedi,Shad Khan
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. By consent of learned counsel for parties, these two applications are being decided by a following common judgment.

2. According to contents of F.I.R., brother of deceased lodged an F.I.R. against seven named and one unknown accused including both applicants that, he along with his brother Irfan (deceased) and Zuber reached near the place of Nazru who called them. They witnessed that accused persons were fighting with family members of Nazru and when brother of applicant tried to talk with them and tried to intervene, the accused Nazim, Naseer @ Gainda caught hold hands and legs of deceased and accused Hazi Kasim instigated him to kill him on which present applicants Babuddin and Nawabuddin and two to three unknown persons who were having knife attacked his brother and when his other brother Zuber tried to save him, he was also assaulted. Deceased (Irfan) has suffered knife injuries and was declared dead at hospital.

3. S/Sri Prateek Mishra and Rama Shankar Mishra, learned counsel for both applicants have submitted that during occurrence, one person died and two persons were injured. Both applicants are named in F.I.R. Contrary to the allegations made in the F.I.R. that there were multiple stab injuries, however, deceased died due to single stab injury. They have further submitted that co-accused Nazim has been granted bail by co-ordinate Bench of this Court as well as co-accused Nasir has already been granted bail by co-ordinate Bench of this Court who has been assigned role of catching hold. They have further submitted that recovery of knife was planted and it was allegedly shown to be recovered on pointing out of applicant Nawabuddin. There are contradictions in statement of witnesses and applicants have been falsely implicated. Therefore, applicants who are in jail since 17.04.2022 and 18.04.2022 respectively may be released on bail.

4. While opposing the bail of both the applicants, Sri Markandey Singh, learned Brief Holder for State and Sri I.K. Chaturvedi, Senior Advocate assisted by Sri Saurabh Chaturvedi, learned counsel for informant have submitted that there are eye witness account that injuries were caused on accused side also and it appears that it was a free fight wherein stab wound was caused to deceased also. Specific role of stabbing was assigned on both present applicants, though in statement of some eye witnesses, specific role of stabbing was attributed to one of applicants, viz., Nawabuddin. Learned Senior Advocate has also submitted that bail applications of Nasir and Nazim have been allowed on basis of their specific role and role of present applicants have been distinguished. Therefore, applicants are not liable to be released on bail.

5. 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)

6. In the present case, one person died and two persons were injured in the occurrence. According to post mortem report, cause of death was opined to be shock and heamorrhage due to ante mortem injury which is a single stab wound near the umbilicus and on exploration, small intestine was protruded outside the wound as well as injured Rizwan and Zuber have suffered lacerated wounds during occurrence. There is prima facie evidence in regard to enmity also. Court also notes that two co-accused have been granted bail, though role assigned to them were different.

7. In the present case, allegations are that all co-accused persons have formed an unlawful assembly and in furtherance with common intention, they caused death to one person (deceased) and injured two persons. However, taking note that the accused persons were at the place of occurrence and deceased and two injured persons reached thereafter and they interfered between fighting of accused and other persons and during which occurrence took place, therefore, the evidence in regard to formation of unlawful assembly and to act in furtherance with common intention does not appear to be supported by cogent evidence.

8. In above circumstances, specific role assigned to present applicants would be a relevant factor to consider their respective bail applications. In this regard, statement of eye witness would be relevant. In the statement, it is referred that both applicants were carrying knives, however, considering the confessional statement of applicant Nawabuddin as well as knife was recovered on pointing out of applicant Nawabuddin and that eye-witnesses have specified the role of stabbing upon Nawabuddin corroborated by post mortem report and therefore, considering specific role assigned to the applicant Nawabuddin, his Bail Application No. 35966 of 2022 is hereby rejected.

9. So far as other applicant Babuddin is concerned, the Court has found that there is no specific allegations against him and that other co-accused have already been granted bail, therefore, applicant Babuddin, an applicant in Bail Application No. 36767 of 2022 has made out a case for bail.

10. Let the applicant- Babuddin 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.

11. 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.

12. The bail application of applicant Babuddin is allowed.

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

Order Date :- April 19, 2023

Nirmal Sinha

[Saurabh Shyam Shamshery, J.]