Allahabad High Court
Firoj vs State Of U.P. on 25 April, 2023
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 76
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11591 of 2023
Applicant :- Firoj
Opposite Party :- State of U.P.
Counsel for Applicant :- Krishna Kant Dubey,Anand Prakash Dubey
Counsel for Opposite Party :- G.A.,Sunil Kumar Tiwari
Hon'ble Saurabh Shyam Shamshery,J.
Applicant- Firoj has approached this Court for bail in Case Crime No. 672 of 2022 under Sections 147, 148, 149, 302, 504, 506, 323, 307, 120-B I.P.C., Police Station- Lisari Gate, District- Meerut .
In the present case, brother of deceased lodged an F.I.R. against six named accused that due to prior dispute of money, one of named co-accused called deceased who went there along with his friend Sajim where struggle started and deceased died due to firearm injuries and injured also received firearm injuries.
Sri Krishna Kant Dubey, learned counsel for applicant submits that in the statement recorded during investigation, specific role of firing was assigned to Murtalib and Dillu whereas other four co-accused including applicant were only shown to be part of unlawful assembly; he further submits that one co-accused whose name was later on disclosed has been granted bail by coordinate Bench of this Court, however, he fairly submits that reasons given therein may not be accompanied 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, who is in jail since 15.12.2022 may be released on bail during trial.
Sri Markandey Singh, learned Brief Holder appearing for State and Sri Sunil Kumar Tiwari, learned counsel for informant submit that it was a planned murder wherein applicant along with co-accused not only called deceased but has actively participated in crime also and assaulted them and thereafter two co-accused started firing in which one person died and other person was injured; learned counsel have also referred upon Section 149 of I.P.C. that applicant has vicarious liability for act of murder; 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, it appears that presence of applicant is not under dispute as it is consistent in evidence of witnesses recorded during trial including injured witness as well as that role of firing is assigned to two other co-accused. However, considering that dispute in regard to money was between deceased and co-accused Majid and applicant has no prior enmity as well as at this stage, there is no cogent evidence that applicant was aware of common intention of unlawful assembly and considering that charge sheet has been filed against eight accused persons, however, specific role has been assigned only against two co-accused persons, therefore, considering the nature of evidence of common intention against applicant, the applicant who is in jail since 15.12.2022 has made out a case for bail.
Let the applicant- Firoj 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 :- 25.4.2023
Nirmal Sinha
