Allahabad High Court
Sakib vs State Of U.P. on 30 June, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 43 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 21725 of 2022 Applicant :- Sakib Opposite Party :- State of U.P. Counsel for Applicant :- Ayub Khan Counsel for Opposite Party :- G.A.,Kuldeep Kumar Hon'ble Vikas Budhwar,J.
Heard Sri Ayub Khan, learned counsel for the applicant as well as Sri Bhanu Pratap Singh, learned AGA for the State and Sri Kuldeep Kumar, learned counsel appearing on behalf of the complainant.
This bail application purported to be under Section 439 of the Cr.P.C. has been moved on behalf of the applicant namely, Sakib for seeking bail in Case Crime No. 249 of 2021 under Sections 452, 307, 302/34 I.P.C. registered at Police Station- Agauta, District- Bulandshahr.
The bail application of the applicant has been rejected by the court below, on 25.04.2022.
The learned counsel for the applicant has argued that the FIR has been lodged by one Sri Mustakeem before Police Station Agauta, District- Bulandshahr being FIR No. 0249 on 24.11.2021 at 19:56 hours u/s 452, 302, 307/34 I.P.C. relatable to the commission of the offence on 24.11.2021 at 13:30 hours against the applicant and three others with the allegation that the complainant's son being Irfan is engaged in a saloon work. It has been further alleged in the FIR that about two months prior to the lodging of the FIR in question when Ifran had closed down his shop but one Sameer and Sakib who are the co-accused met Irfan on 24.11.2021 and instructed him to come to their house for the purposes of cutting hairs and when Irfan (deceased) refused to the said proposal then they started threatening him and thereafter on the same date i.e. 24.11.2021 at 01:30 hours one of the co-accused Sameer S/o Shahid armed with the licency rifle of his grand father Yameen and the other co-accused Shahid S/o Yameen armed with country made pistol and the applicant S/o Ishtiyak was further armed with country made pistol and Arif S/o Yameen armed with country made pistol with the common intention assembled and thereafter barged into the house of the deceased and the co-accused Sameer resorted to gun shot injury by aid of rifle upon the deceased Irfan and the same hit over the chest and the other co-accused Shahid, Sakib the applicant and Arif with the aid country made pistol resorted to gun shot firing upon the brother of the deceased being Imran and it has been further alleged that both the brothers being Imran and Irfan sustained gun shot injuries and thereafter, the applicant along with the other co-accused waving of their weapons thereafter went away. Learned counsel for the applicant has drawn attention of the Court towards page no. 35 of the bail application so as to contend that so far as Imran is concerned he was subjected to medical examination and according to the supplementary report there was no fracture seen in the X-ray, so nature of injury was simple and in the opinion of the concerned doctor duration of injuries were fresh and the weapon/object which was used was hard and blunt object. He next drawn the attention of the Court towards annexure 10 which happens to be the statement of the injured Imran wherein this much has been reflected that from the gun shot so sought to be extended through the rifle of Sameer the bullet penetrated over the chest of the deceased and so far as the applicant along with Sameer, Shahid and Arif are concerned they have resorted to gun shot fire but he could saved himself from the injuries itself. Learned counsel for the applicant has thus sought to argued that the appllicant has been falsely implicated in the case in question as even otherwise the role so assigned in the FIR is also emerging from the deposition of the witness itself shows that it was the Sameer who had resorted the gun shot injury pursuant thereto Irfan died and so far as the applicant is concerned has been assigned the role of resorting to gun shot injury with the country made pistol upon Imran as well as Imran has not sustained any injury as per the statement and further from the medical report being the supplementary report of the radiologist. He further drawn the attention of the Court towards paragraph no. 25 so as to contend that the applicant does not possess any criminal history. He further drawn the attention of the Court towards order dated 25.05.2022 passed in Crl. Misc. Bail Application No. 20395 of 2022 (Shahid Vs. State of U.P.) wherein he has been assigned with the similar role, has been enlarged on bail order whereof is being quoted hereinunder:-
"Heard learned counsel for the applicant, learned A.G.A for the State and perused the record.
Learned counsel for the applicant has submitted that the applicant is innocent and has falsely been implicated in the present case being father of co-accused Sameer who is said to have caused fire arm injury to Irfan who succumbed to injury. Allegedly, this applicant is said to have made fire with Tamancha on Imran the brother of deceased but no any fire arm injury was found on his person. Even in the statement of Imran he has not stated that this applicant made fire on him but has stated that the applicant along with other co-accused persons were making fire from the roof, as a result the injuries were caused. Further submitted that only one entry wound was found in the postmortem of deceased Irfan which also shows that single fire arm injury was caused to him which has been assigned to co-accused Sameer. It is further submitted that there is a cross case against the informant side in which Arif who is co-accused of this case has also sustained injuries and fracture was found on his skull. At this stage, it cannot be decided as to which party was aggressor. The criminal history of two cases against the applicant has been explained in para 29 of the affidavit. The applicant is in jail since 26.11.2021 and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.
On the other hand, learned AGA opposed the prayer for bail.
Considering the facts and circumstance of the case and nature of the offence and evidence on record and the fact that no fire arm injury was found on the person of Imran and also there is a cross case and aggressor can not be decided at this stage 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- Shahid involved in Case Crime No.249 of 2021, under Sections 452, 307, 302/34 I.P.C, P.S. Agouta, District Bulandshahar be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions.
1. The applicant will not tamper with the evidence during the trial.
2. The applicant will not pressurize/ intimidate the prosecution witness.
3. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
4. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected of the commission of which he is suspected.
5. 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.
In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.
The party shall file self attested computer generated copy of this order downloaded from the official website of High Court, Allahabad. The concerned court/authority/official shall verify the authenticity of such computerized copy of the order from the official website of High Court, Allahabad and shall make a declaration of such verification in writing."
Thus according to the learned counsel for the applicant he is entitled to be enlarged on bail and he is languishing in jail since 18.12.2021.
Countering the said submission learned AGA for the State has opposed the bail while arguing that common intention was already there might be that the deceased died due to gun shot injury of Sameer and irrespective of the fact that the applicant did not possess any criminal history but the seriousness of the offence itself makes it clear that they had a common intention to inflict injury and rather to dispose of them.
Sri Kuldeep Kumar, learned counsel for the complainant has adopted the argument of the learned A.G.A. while further adding that the applicant has committed offence and it was the sheer good luck of Imran that he could saved himself and further the fact that the intention of the applicants was to dispose them and that is why they even dragged them to the house however, he could not dispute the fact that the co-accused has been granted bail and the applicant has no criminal history.
Considering the submission so advanced by the learned counsel for the parties, on the question of bail, prima facie this Court finds that this is a fit case for grant of bail as the role to resort to gun shot injury which became fatal and further death of Irfan has been assigned to Sameer and so far as the applicant is concerned as per statement of the Imran the applicant has though fired but no injury has been sustained and the applicant does not possess any criminal history and the co-accused has been granted bail and looking into the nature of the acquisition, the evidence collected by the I.O. in support of the charge, gravity of offence, nature and severity of the punishment in the case of conviction, complicity of accused and all attending circumstances.
Let the applicant Sakib 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) 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.
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 and send the applicant to prison.
The bail application is allowed.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Observations made above are only for the purpose of adjudicating the present bail application.
Order Date :- 30.6.2022 Nisha