Allahabad High Court
Faizan vs State Of U.P. on 27 July, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:150547 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29328 of 2023 Applicant :- Faizan Opposite Party :- State of U.P. Counsel for Applicant :- Mirza Ali Zulfaqar,Imran Mabood Khan Counsel for Opposite Party :- G.A.,Ghazala Bano Quadri Hon'ble Rajeev Misra,J.
Heard Mr. I.M. Khan along with Mr. Mirza Ali Zulfaqar, the learned counsel for the applicant and the learned A.G.A. for the State. Though the name of Miss Ghazala Bano Quadri is duly published in the cause list as counsel for first informant, neither she nor any one on her behalf is present to oppose this application.
Perused the record.
This bail application has been filed by the applicant Faizan, seeking his enlargement on bail in Case Crime No. 91 of 2023, under Sections 304, 323, 504, 506 IPC, P.S. Ganj, District Rampur during the pendency of the trial.
Record shows that in respect of an incident which is alleged to have occurred on 16.4.2023, a delayed F.I.R. dated 18.4.2023 was lodged by first informant Smt. Saleem Jahan (mother of the deceased) and was registered as Case Crime No. 91 of 2023, under Sections 302, 323, 504, 506 IPC, P.S. Ganj, District Rampur. In the aforesaid F.I.R., three persons namely Faizan (applicant herein) Kurban and Anas have been nominated as named accused.
In respect of the same incident, a N.C.R. dated 16.4.2023 was previously registered at the behest of applicant Faizan as N.C.R. No. 050 of 2023, under Sections 323, 504 IPC.
However, it is apposite to mention here that in respect of the occurrence which occurred on 16.4.2023, giving rise to Case Crime No. 91 of 2023 one Jubair sustained injuries. Injured was medically examined. The Medico Legal report of injured Jubair is on record at page 20 of the paper book. As per the said medical report, injured Jubair sustained two injuries which are detailed herein under:-
1. Lacerated wound (2 x 05 cm) present on left side of skull 4 cm above from left ear.
2. Lacerated wound (.1 x 0.5 cm) present on back of skull 10 cm medially from right ear.
However, subsequently injured Jubair succumbed to the injuries sustained by him on 17.4.2023. Thereafter, inquest of the body of the deceased was conducted on 17.4.2023. In the opinion of witnesses of inquest (Panch witnesses), the nature of death of the deceased could not be characterized as to whether it is homicidal or suicidal. Thereafter, the post mortem of the body of the deceased was conducted. The Autopsy Surgeon, who conducted autopsy of the body of the deceased, found following ante mortem injuries on the body of the deceased:-
1. Steel stitched wound 32 cm long with 46 stitches over mid parietal and left parietal region. Fracture of frontal and left parietal bone.
2. Stitched wound 2 cm long with 2 stitches right parietal region 6 cm above and behind right ear pinna.
In the opinion of Autopsy Surgeon, the cause of death of deceased was coma due to ante mortem head injuries.
In the same occurrence leading to the N.C.R. registered at the behest of applicant Faizan, the applicant Faizan had also sustained injuries. He was also medically examined. His injury report is at page 79 of the paper book. As per the Medico Legal report, applicant Faizan has sustained following injuries on his person:-
(1) Lacerated wound 2 cm x 0.5 cm on parietal region of scalp 7 cm from right ear.
(2) lacerated wound 3.5 cm x 0.5 cm over parietal region of scalp 5.5 cm from left ear.
(3) Multiple abrasion 9 cm over right foot.
(4) Abrasion 2 cm x 1 cm over left joint.
On the above conspectus, the learned counsel for applicant contends that cross versions have come from both the sides and injuries have been sustained by persons from both sides. As such, occurrence is admitted to the parties. However, the primary issue, which is to be decided by the Court is as to who is the aggressor. Upto this stage, no such evidence has emerged in the case diary, on the basis of which it can be conclusively concluded that applicant can be classified as the aggressor in the crime in question. He, therefore, contends that applicant is liable to be enlarged on bail. Even otherwise, applicant is a man of clean antecedents, inasmuch as he has no criminal history to his credit except the present one. Applicant is in jail since 18.4.2023. As such, he has undergone more than 3 months of incarceration. The police report in terms of Section 173 (2) Cr. P. C. i.e. charge sheet has already been submitted on 31.5.2023. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, no such circumstance has emerged, on the basis of which it can be said that the custodial arrest of applicant is absolutely necessary during the pendency of trial. He, therefore, contends that applicant be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.
Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since the applicant is a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. However, the learned A.G.A. could not dislodge the factual/legal submissions urged by the learned counsel for applicant with reference to the record at this stage.
Having heard the learned counsel for applicant, the learned A.G.A. for state, upon perusal of material brought on record, nature and gravity of offence, evidence, complicity of the accused, accusation made and coupled with the fact that there are cross versions of the occurrence giving rise to present criminal proceedings, upto this stage, there is nothing on record to conclude that the applicant is aggressor in the crime in question, the issue as to who is the aggressor can be decided only during the course of trial, injuries have been sustained by the persons from both sides, clean antecedents of the applicant, the period of incarceration undergone, in spite of the fact that the charge sheet has been submitted, the learned A.G.A. could not point out any such circumstance necessitating the custodial arrest of applicant during the pendency of trial but without making any comments on the merits of the case, the applicant has made out a case for bail.
Accordingly, the bail application is allowed.
Let the applicant Faizan involved in aforesaid case crime number, be released on bail on his furnishing a personal bond with two heavy 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 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.
(ii) 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 I.P.C..
(iii) 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 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.
(v) The trial court may make all possible efforts/endeavour and try to conclude the trial within a period of one year after the release of the applicant.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Order Date :- 27.7.2023 HSM