Allahabad High Court
Wasib Ali @ Kallu Second Bail vs State Of U.P. on 18 January, 2023
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 12
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 8727 of 2021
Applicant :- Wasib Ali @ Kallu Second Bail
Opposite Party :- State of U.P.
Counsel for Applicant :- Shanker Lal Pandey,Adarsh Srivastava,Anand Dubey
Counsel for Opposite Party :- G.A.,Ashok Kumar Srivastava
Hon'ble Karunesh Singh Pawar,J.
This is a second bail application. The first bail application was rejected by this Court vide order dated 17.03.2021 passed in Bail No. 1233 of 2021. While rejecting the first bail application, the trail court was directed to expedite the trial within a period of one year from the date of production of certified copy of the order.
The prosecution case is that on 12.04.2020 at about 8.00 AM, the named six accused persons went at the house of the informant armed with country made pistol/katta, axe, lathi, danda and one of the accused Mohd. Salman fired on the informant with country made pistol with intention to commit murder. Upon hearing the fire shot, the father of the informant Hamid Ali came outside to rescue then the another co-accused Wasib Ali @ Kallu (present applicant) fired upon him with intention to kill. He fainted and fell down and then all accused started beating him with lathi and danda with intention to kill him. He was also beaten and threatened that his house will be burnt and kill family members.
Learned counsel for the applicant submits that in compliance of the rejection order dated 17.03.2021, the applicant has served the copy of the order of this Court before the trial court on 13.07.2021. He submits that examination of fact witnesses is complete. There is no chance of tempering with the evidence.
It is next submitted that the applicant, who is under trial prisoner, is languishing in jail since 27.06.2020.
Learned counsel for the applicant has drawn attention of the Court towards the statements of PW-1 and submits that from perusal of the cross examination of PW-1 it is evident that he is not the eye witness. It is next submitted that this statement further shows that PW-1 was not having any knowledge about the dying declaration of the deceased which was recorded by the Investigating Officer.
In support of his submission he has relied upon the judgment of the Apex Court in the case of Union of India vs. K.A. Najeeb reported in (2021) 3 SCC 713. He emphasis on paragraph 15 of the judgment.
Per contra learned A.G.A. as well as learned counsel for the complainant have opposed the bail prayer.
Learned counsel for the complainant while relying upon the judgment of Hon'ble Supreme Court in Gobarbhai Naranbhai Singala and others vs. State of Gujarat and others reported in (2008) 3SCC 775, has submitted that mere incarceration cannot be a ground for bail.
It is lastly submitted that there is no possibility of the applicant of fleeing away after being released from jail or tampering with the witnesses. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail.
Heard learned counsel for the parties and perused the record.
It is not disputed between the parties that examination of fact witnesses is complete. It is also not disputed that the applicant is in jail since 27.06.2020 and rejection order of first bail application passed by this court was served before the learned trial court on 13.07.2021. The trial is still pending and has not been completed despite lapse of one year.
This Court has also taken note of the fact that examination of PW-1 is subsequent to the rejection of first bail application and, therefore, it is fresh ground available to the applicant.
So far as contention of learned counsel for the complainant that mere incarceration cannot be a ground to enlarge the applicant on bail is concerned, in this case apart from fact that the applicant is in jail since 27.06.2020, there are other grounds such as examination of fact witnesses is complete; the trial court has not been able to conclude the trial despite order of this Court dated 17.3.2021 and also fact that first bail application was rejected merely on the ground that in the statement of eye witness the applicant was assigned the role of firing and there was dying declaration against the applicant.
Another factor which this Court has noticed that the incident has occurred on 12.04.2020 and after being admitted in hospital at Prayagraj on 12.04.2020 the deceased was discharged after one month and thereafter he resided in his house at Pratapgarh and then again he was admitted on 10.06.2020 at District Hospital Pratapgarh and ultimately he died on 11.06.2020 due to septicemia. Thus, apart from the fact that the applicant is in jail since 27.06.2020, there are other factors as stated above, which in the opinion of this Court are sufficient to enlarge the applicant on bail.
Accordingly, for the above reasons, the bail application is liable to be allowed.
Accordingly, bail application is allowed. Let the applicant, Wasib Ali @ Kallu involved in Case Crime No. 140 of 2020 under Sections 147, 148, 149, 307, 302, 323, 504, 506 I.P.C., Police Station Raniganj, District Pratapgarh, be released on bail on his 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 the evidence during the trial.
(ii) The applicant will not pressurize/ intimidate the prosecution witness.
(iii) 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.
(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 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.
(v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(vi) 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. is issued and the 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 of the Indian Penal Code.
Learned A.G.A. as well as learned counsel for the complainant at this stage prays that the trial may be directed to be expedited, to which learned counsel for the applicant has no objection.
In view of the above, learned trial court is directed to expedite the trial preferably, if possible, on day to day basis.
Learned counsel for the applicant undertakes that the applicant shall not take any unnecessary adjournment before the trial court when the prosecution witness is produced before the trial court.
Office is directed to send copy of this order to the learned trial court.
Order Date :- 18.1.2023/Madhu
