Allahabad High Court
Jiyaul vs State Of U.P. on 23 March, 2023
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 75
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 7498 of 2022
Applicant :- Jiyaul
Opposite Party :- State of U.P.
Counsel for Applicant :- Sunil Singh,Amresh Singh
Counsel for Opposite Party :- G.A.,Mayank Yadav,Vivek Kumar Singh
Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the applicant, learned Additional Government Advocate representing the State and learned counsel appearing on behalf of the first informant.
The instant bail application under Section 439 of Cr.P.C. has been filed on behalf of the applicant with a prayer to release him on bail in Session Trial No. 1108 of 2021 arising out of Case Crime No. 150 of 2021, under Sections 147, 148, 149, 452, 504, 302, 307 of I.P.C., Police Station- Budhana, District- Muzaffar Nagar, during the pendency of trial.
It is submitted by the learned counsel for the applicant that the F.I.R. dated 10.5.2021 has been lodged against the applicant Jiyaul and five others, namely, Arif, Julfukar, Sattar, Rakib and Adil. The main role of shooting the deceased has been assigned to co-accused Julfukar and so far as the present applicant is concerned, he has been assigned the role of catching hold only. It is next submitted that the case of present applicant is distinguishable from the case of co-accused Julfukar and is similar to co-accused Sattar. It is also submitted that the applicant has been convicted and sentenced for life in one case by the judgment and order dated 16.09.2016 of the Additional Sessions Judge, Court No. 4, Muzaffar Nagar, in Sessions Trial No. 138 of 2008 arising out of Case Crime No. 719 of 2007, under Section 302 of I.P.C., Police Station Budhana, District Muzaffar Nagar, against which he has preferred Criminal Appeal No. 5689 of 2016 before the Division Bench of this Court, in which applicant has been granted bail vide order dated 15.11.2017, in Criminal Misc. Bail Application No. 345980 of 2016 and his above criminal appeal is still pending before this Court which should be treated in continuation of his trial. Much emphasis has been given by contending that applicant has been falsely implicated in this case, therefore, bail to the applicant should not be refused ignoring the merit of this case merely on account of his conviction in one case. It is also pointed out that co-accused Rakib, Arif and Sattar have been granted bail by the co-ordinate Bench of this court vide order dated 23.9.2021, 28.10.2021, 24.03.2022 passed in Criminal Misc. Bail Application Nos. 28822 of 2021, 43478 of 2021 and 51696 of 2021 respectively. It is submitted by learned counsel for the applicant that there is no chance of the applicant of fleeing away from the judicial process or tampering with the prosecution evidence. The applicant is languishing in jail since 18.05.2021 and till date his trial has not been concluded. In case, he is released on bail, he will not misuse the liberty and cooperate with the trial.
Per contra, learned A.G.A. for the State as well as learned counsel appearing on behalf of informant opposed the prayer for bail of the applicant mainly on the ground that applicant is a convicted person as mentioned above, therefore, in view of clause (ii) of sub-section (1) of Section 437 of Cr.P.C., bail cannot be granted to him. He further submits that provisions provided under Section 437 of the Code shall also be applicable for considering bail under Section 439 of Cr.P.C. by the High Court. No other point has been pressed.
Having heard learned counsel for the parties and examined the matter in its entirety, I find that in view of second proviso of clause (ii) of sub-section (1) of Section 437 Cr.P.C., there is no complete bar that convicted person cannot be granted bail in subsequent offence/case. The said provisions indicate that such an accused can be released on bail if it is just and proper to do so for any special reason. In this regard, it is relevant to mention that there is no dispute that the applicant has been granted bail in the above mentioned previous case vide order dated 15.11.2017 of Division Bench of this Court considering one of the submissions on behalf of the applicant that out of seven accused in that case, six have been acquitted by trial court while on the same set of facts, the applicant has been convicted. Criminal appeal of the applicant relating to his previous case is pending, which is not likely to be heard in near future on account of huge pendency of Criminal Appeals before this Court. So far as merit of the case in hand is concerned, I find that learned A.G.A. for the State and learned counsel appearing on behalf of informant did not dispute the factual aspect of the matter as argued on behalf of the applicant that he has been assigned the role of catching hold only and his case is distinguishable from the case of main accused Julfukar and is similar to co-accused Sattar, who has been granted bail by this Court as noted above, therefore, the applicant who is languishing in jail since 18.05.2021 is also entitled to be released on bail. Accordingly, the bail application is hereby allowed.
Let the applicant- Jiyaul, 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) That the applicant shall cooperate in the expeditious disposal of the trial and shall regularly attend the court.
(ii) That 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.
(iii) That after his release, the applicant shall not involve in any criminal activity.
(iv) The identity, status and residential proof of sureties will be verified by court concerned before the release of the applicant on bail.
(v) That the applicant shall not seek any adjournment on any dates before the trial court.
In case of breach of any of the conditions mentioned above, the concerned Court below will be at liberty to cancel the bail of the applicant after recording reasons according to law.
Order Date :- 23.3.2023
Kashifa
