Allahabad High Court
Siraj Ahmad (Second Bail) vs State Of U.P. on 28 January, 2020
Author: Karunesh Singh Pawar
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Order Reserved on 16.12.2019 Delivered on 28.1.2020 Court No. - 29 Case :- BAIL No. - 2593 of 2019 Applicant :- Siraj Ahmad (Second Bail) Opposite Party :- State of U.P. Counsel for Applicant :- Karuna Shanker Rastogi,Pranjal Krishna,Prasanjal Krishna Counsel for Opposite Party :- G.A.,Mohd.Yasin Hon'ble Karunesh Singh Pawar,J.
1. Heard learned counsel for the applicant, Sri Pranjal Krishna, learned Amicus Curiae, learned counsel for the complainant and learned A.G.A. for the State.
2. This is the second bail application under Section 439 Cr.P.C. Initially the applicant was on bail vide order dated 28.07.2015 passed in Bail No. 5285 (B) 2015. The bail granted to the applicant was cancelled on 09.01.2018 vide criminal Misc. Case No. 6855/2017 ex-parte.
3. The Criminal Misc. Application No.10413 of 2018 for recall of the order dated 09.01.2018 has been rejected on 04.02.2019 with the observation that an accused of a criminal case may move more than one application for bail at various stages of the case due to change in circumstances.
4. Learned counsel for the applicant submits that this is the second bail application on fresh grounds.
5. The brief facts of the case are as under:-
(i) F.I.R. No. 0057/2015, under Sections 147 /148/149/323/307 /504/506 I.P.C. and Sections 25/27 of Arms Act was lodged on 08.05.2015 against the applicant and seven others. Role of firing has been attributed against the applicant.
(ii) Application under Section 156(3) Cr.P.C. was moved on 28.05.2018 by the co-accused Mohd. Atiullah.
(iii) Vide order dated 19.05.2015, the bail application of the applicant was rejected by the learned Sessions Judge, Ambedkar Nagar,
(iv) The first bail application of the applicant bearing bail No. 5285/2015 was allowed vide order dated 28.07.2015.
(v) F.I.R. No. 91/2017, under Sections 342/376/506/354A I.P.C. and under Section 3/4 of Protection of Children from Sexual Offences Act was lodged on 21.06.2017 against Mokaddar, the grand son of Nishad (the complainant in the second F.I.R. and witness in the present case) for the alleged rape of Km. Sazia, the daughter of Abrar, the co-accused in both the F.I.R. Nos. 57/2015 and 90/2017.
(vi) Charge sheet dated 15.08.2017 was filed in case crime No. 0091/2017 (supra) against Mukaddar.
(vii) On 21.06.2017, F.I.R. No. 90/2017, under Section 323/452/504/506 I.P.C. was lodged against the applicant and three others for allegedly threatening Nisar Ahmad.
(viii) Vide order dated 09.01.2018, bail application of the applicant was cancelled by the coordinate Bench of this Court passed in Bail No. 6855/2017.
(ix) Special Leave Petition filed against the bail cancellation order, has been dismissed vide order dated 11.10.2018.
(x) The recall of bail cancellation order was moved by the applicant which was also cancelled vide order dated 04.02.2019.
6. The first bail application of the applicant was allowed vide order dated 28.07.2015, thereafter an F.I.R. No. 90/2017, under Section 323/452/504/506 I.P.C. was lodged and on this pretext, the bail cancellation application was moved in which the notices were issued to the present applicant and despite service to the applicant, he has not put in appearance and on these grounds, the bail of the applicant was cancelled.
7. Learned Amicus Curiae submits that the applicant did not violate any condition of the bail order, nor has misused the liberty of bail. The bail of the applicant was cancelled ex-parte without providing any opportunity of being heard. He further submits that the notice of the bail cancellation was served upon the accused-applicant on 11.12.2017 and the accused-applicant immediately contacted his counsel late Sri Devendra Nath Mishra, Advocate on 19.12.2017 to plead on his behalf, however due to sad demise of his advocate on 21.12.2017, his case could not be argued before the Court and consequently vide order dated 09.01.2018, his bail was cancelled and while passing the bail cancellation order, this Court was not apprised of the fact that the counsel of the applicant late Sri Devendra Nath Mishra is no more.
Learned counsel further submits that it is not the case of prosecution that any one was hurt on his firing. Mohd. Ashraf, Taj Mohammad, Shah Alam and Salman are the people from the applicant side who have received injuries from the sharp and hard blunt objects. The injury reports are on placed on record as Annexure No. 2, 3, 4 and 5 to the bail application. Nothing incriminating has been alleged to be recovered from the applicant. It is further submitted that in F.I.R. No. 0090/2017, under Section 323/452/504/506 I.P.C., the applicant has been enlarged on bail by the trial court. The bail order is on record.
It is further contended on behalf of the applicant that the complainant Nisar Ahmad has admitted the fact that he lodged false F.I.R. to exert pressure upon the applicant side to withdraw the prosecution. The attention of the Court has been drawn towards the C.D. containing conversation on 22.07.2017 along with its transcript. The relevant part of the C.D. is on record as Annexure No. 21 to the bail application.
8. Learned counsel for the complainant as well as learned A.G.A. for the State have opposed the bail prayer, however could not dispute the facts argued on behalf of the applicant.
9. Without entering into on the merits of the case and considering the fact that this Court cancelled the bail order of the applicant without being apprised of the fact that Sri Devendra Nath Mishra, learned counsel for the applicant who was supposed to plead the case of the applicant died on 21.12.2017 and thus, the case of the applicant remained unrepresented and the bail cancellation was moved on the basis of F.I.R. No. 0090/2017 in which the applicant has been enlarged on bail and also the fact that the applicant after cancellation of his bail, surrendered before the court which prima facie rules out the possibility of his absconding or not cooperating in the trial and charge sheet in the matter has already been filed, case for bail is made out.
10. Let the applicant, Siraj Ahmad, involved in Case Crime No. 57/2015, under Sections 147/148/149/323/307/504/506 IPC and Sections 25/27 of Arms Act, Police Station - Jaitpur, District - Ambedkar Nagar, 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 with the following conditions which are being imposed in the interest of justice:-
(i) The applicant will not tamper with the evidence during the trial.
(ii) The applicant will not pressurize/ intimidate the prosecution witness.
(iii) 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.
(iv) 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.
(v) 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 of the Indian Penal Code.
(vi) 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. is issued and the 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 of the Indian Penal Code.
11. I appreciate the efforts of Sri Pranjal Krishna, learned amicus curiae and U.P. State Legal Aid Service Authority, Lucknow, is directed to pay him a sum of Rs. 20,000/- within two months from the date of the production of certified copy of this order.
(Karunesh Singh Pawar, J) January 28, 2020 R.C./