Allahabad High Court
Aas Moammad vs State Of U.P. on 17 July, 2023
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2023:AHC:142944`
Reserved on 12.07.2023.
Delivered on 17.07.2023
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 24945 of 2023
Applicant :- Aas Moammad
Opposite Party :- State of U.P.
Counsel for Applicant :- Vikas Upadhyay,M J Akhtar
Counsel for Opposite Party :- G.A.,Ram Raj Pandey,Shubham Pandey
Hon'ble Siddharth,J.
Heard Sri V. M. Zaidi, learned Senior Advocate, assisted by Sri M.J. Akhtar, learned counsel for the applicant, Sri Ram Raj Pandey, learned counsel for the informant and learned A.G.A. for the State.
There is allegation in the first information report that the informant, Mursaleem, had married his sister, Mehzabi, seven years ago to Sazid, son of Zeeshan. His sister has three children. Prior to her marriage his sister had affair with one boy, Arif, son of Mustaq. Three months ago, Arif, had threatened husband of his sister, Sazid, of life. For this reason, Sazid, was absconding for last three months. His sister was living alone in her rented house and three days ago her landlord informed the informant on phone that his sister was ill. He took her to the Doctor. She informed the informant that Arif had threatened her to enter into court marriage otherwise he will kill her brothers. In the night at about 7.00 p.m., Mehzabi, had taken some money and jewellery with her. Dilshad, who is brother-in-law of Arif, is conspirator in the incident. Her three children are crying hence first information report was lodged.
Learned counsel for the applicant submits that later the implication in the first information report was made under Section 302, 201, 34 and 120B I.P.C when earlier first information report was lodged under Sections 366, 506 I.P.C. He has submitted that subsequently the information was received by the Investigating Officer from the informer that Arif, has been killed and his dead body has been hidden in the Jungle. Co-accused, Mursaleen, confessed before the police that he along with his brother, Yameen and Aas Mohammad, (the applicant), killed Arif and Mehzabi.
Learned counsel for the applicant submits that village, Chaukidar, Akbar Ali, gave statement before the police that he did not knows the name the applicant. Co-accused, Shehnawaz has been granted bail by coordinate bench of court vide Crl. Misc Bail Application No.16376 of 2023. The applicant had no motive to commit the alleged offence nor any recovery has been made from him. He has no criminal history to his credit and is in jail since 07.12.2022. Co-accused, Mutzir and Muzammil, are real brother of deceased and they have also been granted bail. The applicant is not related to the co-accused Mursaleem, who had motive to commit the alleged offence.
Learned counsel for the informant has vehemently opposed the bail application. He has submitted that it is a case of gruesome murder of two persons. The implication of the applicant along with co-accused has been made under sections 120-B and 34 I.P.C. in the first information report lodged by the father of the deceased, Arif. The applicant was one of the named accused in that case and his bail application has already been rejected by coordinate bench of this court vide Crl. Misc. Bail Application No.16211 of 2023 on 25.05.2023. It has been submitted that it is a case of honour killing of two persons, wherein there was active participation of the applicant with the co-accused persons.
Learned AGA has opposed the prayer for bail but could not dispute the above submissions.
After hearing the rival submits this court finds that in this case co-accused, Mutzir and Muzammil, who were real brother of the deceased, Mehzabi and main co-accused, Mursaleem, who had motive to commit the alleged offence, have already been enlarged on bail by this court by two coordinate benches of this court, vide Crl. Misc. Bail Application Nos. 26006 of 2023 and 25624 of 2023 respectively. Apart from the implication in the present case and the connected case applicant has no other criminal history.
Keeping in view the nature of the offence, evidence, complicity of the accused; submissions of the learned counsel for the parties noted above; finding force in the submissions made by the learned counsel for the applicant; keeping view the uncertainty regarding conclusion of trial; one sided investigation by police, ignoring the case of accused side; applicant being under trial having fundamental right to speedy trial; larger mandate of the Article 21 of the Constitution of India and recent judgment dated 11.07.2022 of the Apex Court in the case of Satendra Kumar Antil vs. C.B.I., passed in S.L.P (Crl.) No. 5191 of 2021 and considering 5-6 times overcrowding in jails over and above their capacity by the under trials and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.
Let the applicant, Aas Mohammad, involved in Case Crime No.231 of 2022, under Sections 147, 148, 304 I.P.C, Police Station Dhanari, District- Sambhal 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 subject to following conditions. Further, before issuing the release order, the sureties be verified.
(i) The applicant shall not tamper with the evidence or threaten the witnesses.
(ii) 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.
(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code.
(iv) In case the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fail 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.
(v) 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 Cr.P.C. If in the opinion of the Trial Court 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 against him in accordance with law.
In case of breach of any of the above conditions, the complainant is free to move an application for cancellation of bail before this court.
Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
The trial court is directed to conclude the trial against the applicant as expeditiously as possible, preferable within a period of one year.
Registrar (compliance) is directed to communicate this order to the trial court concerned within ten days.
Dated: 17.07.2023
SS
