Makdoom vs State Of U.P.
2023 Latest Caselaw 25907 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:184316
 
Court No. - 68
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 16781 of 2022
 

 
Applicant :- Makdoom
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Pandey Balkrishna,Narendra Kumar,Prashant Kumar Yadav,Rabindra Bahadur Singh
 
Counsel for Opposite Party :- G.A.,Randhir Singh
 

 
Hon'ble Dr. Gautam Chowdhary,J.

1. Supplementary affidavit filed today in the Court by learned counsel for the applicant is taken on record.

2. List revised. Heard learned counsel for the applicant, learned A.G.A for the State, Sri Randhir Singh learned counsel for the informant and perused the record.

3. The prosecution story in brief is that some altercation took place between the first informant's nephew (Bhanja) namely, Saiful son of Anis Ahmad with Saiful son of Wasiya alongwith Makdoom son of Shamim (applicant) due to which, Saiful son of Wasiya and Sumit son of unknown had caught the wrist of the Saiful son of Anis Ahmad and the applicant shot him on his head, which was seen in the bulb light by Tahir and Waseem and when they tried to caught them, the accused persons ran away giving threatening to kill them.

4. Learned counsel for the applicant submits that initially F.I.R. was lodged under Sections 307, 506 I.P.C. on 18.05.2021 with regard to the incident alleged to have taken place on 17.05.2021 without there being any plausible explanation of such delay. Learned counsel further submits that as per general diary details dated 18.05.2021, copy of which is at page 32 of the paper book, wherein it has been stated that on 18.05.2021 at about 03:15 hours, an information has been received that one Saiful son of Anis Ahmad who was referred to higher centre died on the way whereas, the F.I.R. was lodged on 18.05.2021 at about 3:26 hours under Section 307, 506 I.P.C. Learned counsel argued that if the deceased died at 03:15 hours, then as to how and under what circumstances the F.I.R. has registered under Section 307, 506 I.P.C. at about 03:26 hours, which ought to be lodged under Section 302 I.P.C. thus it belies the prosecution story. Learned counsel further submits that the statements of Talib and Bilal demonstrate that the eye-witnesses namely, Tahir and Waseem were not present at the place of occurrence. Learned counsel further argued that the autopsy of the deceased was conducted on 18.05.2021 whereas, the charge sheet was submitted on 12.06.2021 but in the list of witnesses to be examined, the name of as many as 21 persons have been mentioned and at serial no.21, name of Saiful son of Anis Ahmad has been shown to be examined, as an injured witness, which is at page no. 95 of the paper book, when in fact, Saiful son of Anis Ahmad is a deceased person, who died on 18.05.2021 and therefore, it is apparent on the face of record and is crystal clear that the investigation has not been properly conducted by the Investigation Officer. He next argued that by the efflux of time, the trial of the aforesaid case was commenced in the year 2021 being Sessions Trial No. 641 of 2021 wherein, after a lapse of considerable time, the P.W.1 adduce his testimony on 06.09.2022 and he has narrated the entire in such manner that he appears to be an eye witness of the incident when in fact, he was not an eye-witness of the incident. Furthermore, the order sheets since 13.02.2023 till 21.09.2023, shows that none of the witness has appeared before the Court below to adduce their testimony, inspite of the fact that summons were issued against them, certified copy of order sheets is annexed as Annexure-SA1 to the supplementary affidavit dated 22.09.2023. He next argued that on one hand, the applicant is languishing in jail since 20.05.2021 whereas on the other hand, the witnesses are not appearing before the Court below, thus the trial in which as many as 19 witnesses are yet to be examined, which is progressing at a very slow pace and is not likely to be concluded in near future and has relied upon the judgment rendered by Hon'ble the Supreme Court in the case of Indrani Pratim Mukerjea Vs. Central Bureau of Investigation and another passed in Special Leave to Appeal (Crl.) No. 1627 of 2022 to submit that prolonged incarceration of a person as an under trial is against his fundamental rights under Article 21 of the Constitution of India. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been mentioned. It has also been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him without having no criminal history.

5. Per contra, learned A.G.A. as well as learned counsel for the informant have opposed the prayer for bail of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage. He further submits that the applicant is the main accused, who shot the deceased therefore, he does not deserve any indulgence.

6. After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, without expressing any opinion on merits of the case, this Court is of the view, that the applicant may be enlarged on bail.

7. Let applicant Makdoom involved in Case Crime No. 103 of 2021 under Sections 302, 506, 34 I.P.C., Police Station Kanth, District Moradabad, be released on bail on furnishing a personal bond and two heavy local sureties each of the like amount to the satisfaction of the court concerned subject to the following conditions:-

(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 will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.

(iii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date 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.

(iv) 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.

(v) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) 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 and the trial court may proceed against him under Section 229-A IPC.

(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.

8. 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 in accordance with law.

9. The bail application is allowed.

Order Date :- 22.9.2023

S.Ali