Allahabad High Court
Shane Nabi vs State Of U.P. on 16 November, 2022
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33390 of 2021 Applicant :- Shane Nabi Opposite Party :- State of U.P. Counsel for Applicant :- Ravindra Sharma,Gufran Ahmad Khan,Nasira Adil,Tripurari Pal Counsel for Opposite Party :- G.A.,Akhilesh Kumar Pandey,Mohit Singh,Ravi Shankar Tripathi With Case :- CRIMINAL MISC. BAIL APPLICATION No. - 46383 of 2021 Applicant :- Fakharuddin @ Fakeera Opposite Party :- State of U.P. Counsel for Applicant :- Vinay Kumar Jaiswal Counsel for Opposite Party :- G.A.,Akhilesh Kumar Pandey,Mohit Singh,Ramanuj Saini With Case :- CRIMINAL MISC. BAIL APPLICATION No. - 52341 of 2021 Applicant :- Shakeeluddin @ Shakil Don Opposite Party :- State Of U.P Through Its Secretary Home Up At Lucknow Counsel for Applicant :- Tripurari Pal Counsel for Opposite Party :- G.A.,Mohit Singh Hon'ble Samit Gopal,J.
Heard Sri Anil Srivastava, learned Senior Advocate, assisted by Sri Tripurari Pal, learned counsel for both the applicants, Sri Anil Kumar, Advocate holding brief of Sri Mohit Singh, learned counsel for the first informant in both the bail applications, Sri Shashi Kant Pandey, learned counsel for the State and perused the record.
These three bail applications are connected together as they arise out of the same crime number. Criminal Misc. Bail Application No. 33390 of 2021 (Shane Nabi vs. State of U.P.) is the first bail application. The same has been nominated to this Bench vide order dated 14.3.2022 of Hon'ble The Chief Justice. Criminal Misc. Bail Application No. 46383 of 2021 (Fakharuddin @ Fakeera vs. State of U.P.) is the second bail application. The first bail application of the applicant- Fakharuddin @ Fakeera was rejected by this Court vide order dated 16.8.2021 passed in Criminal Misc. Bail Application No. 29265 of 2021 (Fakharuddin @ Fakeera vs. State of U.P.). Criminal Misc. Bail Application No. 52341 of 2021 (Shakeeluddin @ Shakil Don vs. State of U.P.) is the second bail application. The first bail application of the applicant Shakeeluddin @ Shakil Don being Criminal Misc. Bail Application No. 24753 of 2021 (Shakeeluddin@Shakil Don vs. State of U.P.) was rejected by Hon'ble Om Prakash-VII,J. (as he was then) vide order dated 4.10.2021.
These three bail applications under Section 439 of Code of Criminal Procedure have been filed by the applicants Shane Nabi, Fakharuddin @ Fakeera and Shakeeluddin @ Shakil Don, seeking enlargement on bail during trial in connection with Case Crime No. 69 of 2021, under Sections 147, 149, 302, 201 I.P.C., registered at P.S. Visauli, District Budaun.
The prosecution case as per the F.I.R. lodged on 2.3.2021 at 17:40 hours by Aslam against Abrar, Shakeeluddin@Shakil Don, Shane Nabi, Fakhruddin@Fakeera and Vikaruddin, is that Saleem the brother of the first informant was a friend of Abrar resident of village- Bhawanipur Kheroo, Police Station Sahaswan, who was called on 27.2.2021 at 7.00 am for purchasing buffalos in Haryana and was taken away. On the same day at about 09.00 am Shakeeluddin@ Shakil Don, Shane Nabi, Fakharuddin @ Fakeera and Vikaruddin along with two unknown persons assaulted him with lathi and danda, which was seen by Istiyak and Farooq. The dead body of Saleem is lying near Ashirvad Cold Store. The same was recovered and post mortem has been done. The accused persons are partners in the business of sale and purchase of buffalos. They had taken Rs.3 lakh by cheating from Saleem. Saleem used to ask about refund of money which was not returned by them and for misappropriating it they have murdered him. The First Information Report was thus lodged.
The post mortem of Saleem was done on 28.2.2021 at 2:55 pm and the doctor found three lacerated wounds, one abraded contusion and one abrasion on his body. Fracture of left ulna bone was also seen. Scalp was lacerated and there was a fracture of left perietal bone. Cause of death has been opined as shock and haemorrhage due to anti mortem injury.
During investigation statements of Farooq and Istiyak were recorded which have been placed before the Court which are at page nos. 37 and 40 respectively to the paper book of the accused/applicant Shane Nabi.
Learned counsel for the applicants has argued that the applicants have been falsely implicated in the present case. It is argued that identically placed co-accused Vikaruddin has been granted bail by a co-ordinate Bench of this Court vide order dated 18.10.2021 passed in Criminal Misc. Bail Application No. 31496 of 2021 (Vikaruddin vs. State of U.P.). The copy of said bail order has been placed before the Court which is annexure no. 2 to the affidavit in support of bail application of the applicant- Fakharuddin @ Fakeera. It is argued that the case of the applicants are identical to that of the co-accused Vikaruddin who has been granted bail. While arguing the bail of the applicant Shane Nabi and placing annexure no. 8 to the said bail application, it is argued that although there is an alleged recovery of a danda and a pant which is alleged to be of the deceased, on the pointing out of the applicant Shane Nabi but the same is on 17.4.2021 which is after about 50 days of the incident. It is argued that the recovery as alleged is a planted and false recovery.
Per contra, learned State counsel opposed the prayer for bail and argued that the bail of identically placed co-accused Fakharuddin @ Fakeera was rejected by this Court on merits. It is argued that there is no fresh and new ground shown in so far the bail of Fakharuddin @ Fakeera is concerned. The applicants have been assigned the role of assault on the deceased with lathi and danda. There are eye witness account. The injuries as received by the deceased corroborate with the prosecution case. It is further argued that although the order of co-accused Vikaruddin is to the effect that he has been granted bail but the order states that there is recovery made on the pointing out of co-accused Shakeeluddin @ Shakil Don and Fakharuddin@Fakeera, but as a matter of fact the recovery is on the pointing out of co-accused Shane Nabi of a danda and pant of the deceased. Annexure no. 8 is the recovery memo to the bail application of the said accused. It is argued that even on that count the case of Shane Nabi is showing his implication in the matter. It is prayed that the prayer for bail be rejected. It is further argued that even no fresh and new ground has been shown and argued in the bail of Shakeeluddin@ Shakil Don.
After having heard learned counsels for the parties and perusing the records, it evidence that in so far as case of Fakharuddin @ Fakeera and Shakeeluddin@Shakil Don is concerned, no new and fresh ground is shown. The bail application of the applicant Fakharuddin @ Fakeera is rejected.
The bail application of the applicant Shane Nabi is rejected on the ground of role and participation in the incident which has even been stated by the two eye witnesses Farooq and Istiyak coupled with the fact of recovery of incriminating material on his pointing out.
The bail application of the applicant Shakeeluddin @ Shakil Don is also rejected on the ground that it is a second bail application and there is no fresh and new ground shown on record.
(Samit Gopal,J.) Order Date :- 16.11.2022 Naresh