Allahabad High Court
Bilal @ Bhola vs State Of U.P. on 15 December, 2023
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:238207 Court No. - 64 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2122 of 2023 Applicant :- Bilal @ Bhola Opposite Party :- State of U.P. Counsel for Applicant :- A.C.Srivastava Counsel for Opposite Party :- G.A.,Harish Chandra Mishra Hon'ble Siddharth,J.
Order on correction application no. 03/2023.
1. Heard learned counsel for applicant, learned counsel for informant and learned AGA for State.
2. This correction application has been filed by Additional Government Advocate-Ist on behalf of State pointing out that due to typographical mistake the order of Apex Court dated 06.11.2023 has not been mentioned in the order dated 06.12.2023 of this Court, hence it should be suitably corrected.
3. This Court after going through the order dated 06.12.2023 finds that correction has rightly been sought in the order of this Court dated 06.12.2023.
4. Accordingly the following order is being passed in place of earlier order dated 06.12.2023:-
"1. Heard learned counsel for applicant, learned counsel for informant and learned AGA for State.
2. Learned counsel for applicant has submitted that earlier the applicant was enlarged on bail by this Court vide order dated 28.02.2023 vide bail application No. 2122 of 2023 which is quoted hereinbelow:-
"1. List has been revised.
2. Heard learned counsel for the applicant, learned counsel for the informant and learned A.G.A for the State.
3. Prosecution case is that on 25.08.2021 in the evening at 7.30 p.m, brother of the informant had gone to offer Namaz but did not return and thereafter in the morning it was found that dead body of his brother was lying on road and he was murdered after cutting of his throat by some unknown person.
4. Counsel for the applicant submits that the applicant is innocent and has been falsely implicated in this case. Co-accused Azeem and Talib, who have been assigned similar role as of the present applicant, have already been granted bail by co-ordinate Benches of this Court vide orders dated 01.08.2022 and 18.10.2022 passed in Criminal Misc. Bail Application Nos. 7927 of 2022 and 40844 of 2022, respectively. Hence, the applicant is entitled to be enlarged on bail on the ground of parity. The applicant is in jail since 29.08.202. Apart from the present case, applicant has criminal history of five other cases, which has been duly explained in para-15 of the affidavit.
5. On the other hand, learned A.G.A has opposed the prayer for bail, but he could not dispute the submissions urged by learned counsel for the applicant.
6. Keeping in view the nature of the offence, evidence, complicity of the accused; submissions of the learned counsel for the parties noted above; finding force in the submissions made by the learned counsel for the applicant; keeping view the uncertainty regarding conclusion of trial; one sided investigation by police, ignoring the case of accused side; applicant being under-trial having fundamental right to speedy trial; larger mandate of the Article 21 of the Constitution of India; considering the dictum of Apex Court in the case of Satendra Kumar Antil vs. C.B.I., passed in S.L.P (Crl.) No. 5191 of 2021; considering 5-6 times overcrowding in jails over and above their capacity by the under trials 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.
7. Let the applicant- Bilal @ Bhola, involved in Case Crime No. 567 of 2021, under Sections- 302, 201, 34, 120B of IPC, Police Station- Sardhana, District- Meerut, 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 subject to following conditions. Further, before issuing the release order, the sureties be verified.
(i) The applicant shall not tamper with the evidence or threaten the witnesses.
(ii) 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.
(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code.
(iv) 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.
(v) The applicant shall remain present in person before the Trial Court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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.
8. In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.
9. Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
10. Trial court is directed to conclude the trial of the applicant as expeditiously as possible preferably within a period of one year.
11. Registrar (compliance) is directed to communicate this order to the trial Court for necessary compliance within ten days."
3. Against the aforesaid order the informant approached the Apex Court by filing Criminal Appeal No. 3526 of 2023 (Special Leave Petition(Criminal) No. 7827 of 2023) which was disposed of by the following order dated 06.11.2023:-
"1. Leave granted.
2. Heard learned counsel appearing for the parties. The informant has come before this Court challenging the grant of bail by the High Court under the impugned order in Crime No.567 of 2021 punishable under Sections 302 and 201 of the Indian Penal Code, 1860 (hereinafter referred to as, 'the IPC'). The case of the prosecution is that the deceased was murdered by the accused respondent No. 1 by cutting his neck.
3. Learned counsel for the appellant submits that the High Court has not taken into consideration the previous antecedents of the respondent no.1. He is involved in seven criminal cases inclusive of offences punishable under Sections 395 and 302 of the IPC. Neither the learned counsel for the State nor one who appeared on behalf of the accused/Respondent no.1 has brought the aforesaid factum to the notice of the Court. Merely because, the co-accused has been released on bail, the same benefit will not be given to the respondent no. 1. While the learned counsel appearing for the State supports the case of appellant, learned counsel appearing for respondent no.1 submits that the charges have been framed and the High Court itself has given an outer limit for the conclusion of the trial. The respondent no.1 is already on bail in other cases which are pending trial. In such view of the matter, no interference is required.
4. We find that the relevant facts have not been placed before the Court. In such view of the matter, without expressing anything on merit, we are inclined to set aside the impugned order by requesting the High Court to reconsider the bail application filed by respondent no.1 by taking into consideration the antecedents.
5. In such view of the matter, the impugned order is set aside and the matter stands remitted back to the High Court for reconsideration. We request the High Court to pass appropriate order after hearing all the parties within a period of four weeks after receipt of this order.
6. The appeal stands disposed of."
4. Learned counsel for applicant has submitted that the Apex Court has set aside the earlier order of this Court only on the ground that criminal antecedents of the applicant were not considered in the earlier bail application of the applicant. He has submitted that in paragraph-3 of the bail order dated 28.02.2023 of this Court, this Court has noted criminal history of five cases of the applicant, but it was not discussed. Hence, the matter has been remanded to this Court by Hon'ble Supreme Court. He has pointed out that criminal history of five cases of the applicant were explained in paragraph-8 of the rejoinder-affidavit filed on behalf of applicant. He has further submitted that subsequently, another co-accused, Talib, has also been enlarged on bail vide bail application No. 40844 of 2022. Co-accused, Azeem, was already enlarged on bail when the first bail application of the applicant was allowed vide bail application no. 7924 of 2022.
5. Learned counsel for the informant and learned AGA-Ist have not disputed the aforesaid contentions regarding the explanation of criminal history of the applicant in the rejoinder-affidavit filed by the counsel for applicant.
6. This Court finds that criminal history of the applicant has already been detailed in paragraph-8 of the rejoinder-affidavit which is reproduced hereinbelow:-
"8. That in reply to the contents of the paragraph no. 9 of the counter affidavit it is stated that the present applicant is alleged to have been involved in five other criminal cases apart from the present case in case crime no. 567 of 2021 and related case regarding recovery in case crime no. 577 of 2021 under Arms Act and those criminal cases are being narrated here-in-below:-
a. The first case in which the present applicant is alleged to have been involved is in case crime no. 102 of 2017 u/s 147, 148, 149, 186, 338, 353, 336, 352 IPC and as far as this case is concerned the present applicant has never been challaned in this case and thus the second case in case crime no. 440 of 2018 u/s 342, 395 IPC and in this case also he has never been challaned even when boone cases have been registered at PS Sardhana District"Meerut and has been languishing in jail since 29.08.2021 in the impugned criminal case.
b. The third case in which the present applicant has alleged to be involved is in case crime no. 11 of 2019 in which the present applicant had not been nominated in the FIR and his name came in to picture during the course of investigation and he has been released on bail on 11.06.2019 and the forth case which has been registered against the applicant is in case crime no. 28 of 2019 u/s 25/27 Arms Act (but in the report of criminal history it has been mentioned as 29 of 2019) and this case is connected with the abovesaid case crime no. 11 of 2019 and in this case the applicant has been released on bail. For a Kind, perusal of this Hon'ble Court a copy of the FIR in case crime no. 11 of 2019 as well as the order dated 10.06.2019 and the FIR in case crime no. 28 of 2019 u/s 25/27 Arms Act is being filed herewith and marked as ANNEXURE NO.1 to this affidavit.
c. The fifth case which has been registered against the applicant is in case crime no.542 of 2020 u/s 3/5/8 Cow Slaughter Act (in the criminal history it has been mentioned as 542 of 2019), in which the present applicant has been released on bail. For a Kind, perusal of this Hon'ble Court a copy of the FIR in case crime no.542 of 2020 as well as order passed by the District Court dated 04.12.2020 is being filed herewith and marked as ANNEXURE NO.2 to this affidavit."
7. From the criminal history of the applicant, it is clear that all the cases registered against the applicant are of minor nature. This is the first implication of the applicant in a case of major offence. He is on bail in the cases wherein he was found to be rightly implicated.
8. In view of the above consideration, the applicant is entitled to enlarged on bail.
9. Having considered the submissions of the parties noted above, finding force in the submissions made by the learned counsel for the applicant, keeping in view the uncertainty regarding conclusion of trial; one sided investigation by police, ignoring the case of accused side; applicant being under-trial having fundamental right to speedy trial; larger mandate of the Article 21 of the Constitution of India, considering the dictum of Apex Court in the case of Satendra Kumar Antil Vs. C.B.I. & Another, passed in S.L.P.(Crl.) No. 5191 of 2021, judgement dated 11.7.2022 and considering 5-6 times overcrowding in jails over and above their capacity by under trials and without expressing any opinion on the merits of the case, let the applicant involved in the aforesaid crime 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 that :-
(i) The applicant shall not tamper with the evidence or threaten the witnesses.
(ii) 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.
(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code.
(iv) In case the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fail 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.
(v) The applicant shall remain present in person before the Trial Court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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.
10. In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.
11. Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted."
5. The order dated 06.12.2023 is corrected as aforesaid.
6. Correction application is allowed.
Order Date :- 15.12.2023 Abhishek