Allahabad High Court
Khan Zafar Alias Zafar Supari vs State Of U.P. Thru. Prin. Secy. Home ... on 13 December, 2024
Author: Karunesh Singh Pawar
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:83768 Court No. - 16 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 14024 of 2023 Applicant :- Khan Zafar Alias Zafar Supari Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lucknow Counsel for Applicant :- Santosh Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Karunesh Singh Pawar,J.
Heard learned counsel for the applicant, learned AGA for the State and perused the record.
This is third bail application. The first bail application of the applicant was rejected vide order dated 07.05.2022 passed in criminal misc. bail application No. 1032/2022. The second bail application of the applicant was also rejected vide order dated 07.07.2023 passed in criminal misc. bail application No. 8511/2023.
While pressing the third bail application, learned counsel for the applicant submits that it is admitted case of the prosecution that the applicant was in jail when the incident took place. He also submits that the applicant is languishing in jail since 14.12.2021 and till date not a single prosecution witness has been examined. So far as criminal history of the applicant is concerned, the applicant has relied on the judgments of the Apex Court passed in the case of "Maulana Mohammed Amir Rashadi Vs. State of Uttar Pradesh and another" and "Prabhakar Tewari Vs. State of Uttar Pradesh and another". It has been further submitted that all the co-accused persons have been granted bail.
It is further submitted that there is no possibility of the applicant of fleeing away after being released from jail or tampering with the witnesses. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail.
Learned AGA has opposed the bail application, however, upon a query made by the Court, he has submitted that there are 69 prosecution witnesses in the charge sheet.
Perused the record.
Perusal of the record as well as status of the trial court shows that till date not a single prosecution witness has been examined, out of 69 prosecution witnesses. The Apex Court in the case of "Javed Gulam Nabi Shaikh v. State of Maharashtra, 2024 SCC OnLine SC 1693" has considered that failure of the prosecution in examining the prosecution witnesses is violation of the fundamental rights of the accused as enshrined under Article 21 of the Constitution. The relevant para 17 is as under:-
17. If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime.
On due consideration to the observation made herein above, judgment of the Apex Court passed in the case of Maulana Mohammed Amir Rashadi (supra) and Prabhakar Tewari (supra) as well as considering the fact that not a single prosecution witness could be examined by the prosecution, although the applicant is languishing in jail since 14.12.2021 and without expressing any opinion on the merits of the case, I find it to be a fit case for enlarging the applicant on bail.
Accordingly, the bail application is allowed.
Let the applicant Khan Zafar Alias Zafar Supari, involved in Case Crime/FIR No. 129/2018, under Sections 147/148/149/302/307/120-B/34/427 IPC and Section 7 of Criminal Law Amendment Act, Police Station - Hanswar, 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.
Order Date :- 13.12.2024 R.C.