Allahabad High Court
Naushad vs State Of U.P. on 5 August, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:129964 Court No. - 64 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 19855 of 2024 Applicant :- Naushad Opposite Party :- State of U.P. Counsel for Applicant :- Mohd Raghib Ali,Sr. Advocate Counsel for Opposite Party :- G.A.,Sadrul Islam Jafri Hon'ble Rajeev Misra,J.
1. Heard Mr. Sagir Ahmad, the learned Senior Counsel assisted by Mr. Mohd. Rraghib, the learned counsel for applicant, the learned A.G.A. for State and Mr. N. I. Jafri, the learned Senior Counsel assisted by Mr. Gufran Ahmad Advocate holding brief of Mr. Sadrul Islam Jafri, the learned counsel representing first informant.
2. Perused the record.
3. This application for bail has been filed by applicant-Naushad seeking his enlargement on bail in Case Crime No. 0234 of 2023 under Sections 302, 120B I.P.C., Police Station- Brahampuri, District-Meerut, during the pendency of trial.
4. At the very outset, Mr. Sagir Ahmad, the learned senior counsel for applicant submits that not named but charge sheeted co-accused Shuaib has already been enlarged on bail by this Court vide order dated 15.03.2024 passed in Criminal Misc. Bail Application No.44758 of 2023 (Shuaib Vs. State of U.P.).
5. It is further submitted by Mr. Sagir Ahmad, the learned Senior Counsel that the order dated 15.03.2024 referred to above was challenged by the first informant before Supreme Court by means of Special Leave to Appeal No. 5363 of 2024 (Mujahid Vs. Shuaib and another). However, aforesaid special leave to appeal was dismissed by the Supreme Court vide order dated 14.05.2024. For ready reference the order dated 14.05.2024 is reproduced herein-under:
" We are not inclined to interfere with the impugned judgement and order. The special leave petition is, accordingly, dismissed.
Pending application(s) shall stand disposed of."
6. Subsequently, named and charge sheeted co-accused Aadil has been enlarged on bail by this Court vide order dated 03.07.2024 passed in Criminal Misc. Application No. 11907 of 2024 (Aadil Vs. State of U.P.). For ready reference, the order dated 03.07.2024 is reproduced therein under:
" 1. Heard Mr. Anil Mullick, the learned counsel for applicant, the learned A.G.A. for State/opposite party-1 and Mr. Vinayak Mithal, the learned counsel representing first informant.
2. Perused the record.
3. This application for bail has been filed by applicant- Aadil seeking his enlargement on bail in Case Crime No. 234 of 2023, under sections 302/34 IPC, Police Staiton- Brahampuri, District Meerut, during the pendency of trial.
4. At the very outset, the learned counsel for applicant contends that co-accused Shuaib has already been enlarged on bail by this Court, vide order dated 15.3.2024, passed in Criminal Misc. Bail Application No. 44758 of 2023 (Shuaib Vs. State of U.P.). Copy of the bail order has been produced before Court. Perusal of same goes to show that all necessary facts have been noted by the Court in details. Accordingly, for ready reference, the same is reproduced herein under:
"1. Heard Mr. Sagir Ahmad, the learned Senior Counsel assisted by Mr. Mohd. Raghib Ali, the learned counsel for applicant, Mr. Prashant Kumar, the learned A.G.A. for State and Mr. Shwetaswa Agrawal, the learned counsel representing first informant.
2. Perused the record.
3. This application for bail has been filed by applicant-Shuaib seeking his enlargement on bail in Case Crime No. 234 of 2023, under Sections 302,34 I.P.C. and Sections 3/25/27 Arms Act, Police Station-Brahampuri, District-Meerut. during the pendency of trial.
4. Record shows that in respect of an incident, which is alleged to have occurred on 08.07.2023 at 17:00 hours i.e. 05:00 PM, a prompt F.I.R. dated 08.07.2023 was lodged by first informant-Muzahid on 08.07.2023 at 18:05 hours i.e. 06:05 PM and was registered as Case Crime No. 0234 of 2023, under Sections 302,34 I.P.C. Police Station-Brahampuri, District-Meerut. In the aforesaid F.I.R. 7 persons namely (1) Kala Babu, (2) Abid, (3) Adil, (4) Pravej, (5) Naushad, (6) Adil and (7) Haji Pappu, have been nominated as named accused.
5. The prosecution story as unfolded in the F.I.R. is to the effect that Mutalib (cousin brother of the first informant-Muzahid) informed the first informant that named accused have caused the murder of Asif by firing at him. After receipt of the said information, the first informant is alleged to have reached the place of occurrence and took the victim to Jaswant Rai Hospital, Meerut but unfortunately, the victim/injured ultimately succumbed to the injuries sustained by him on the way. The FIR further records that 5 persons namely (1) Sultan, (2) Arif, (3) Wasim, (4) Sharif and (5) Jishan have witnessed the crime in question.
6. As per the narration of events as noted herein above, prima-facie, the prosecution story as unfolded in the FIR to the effect that after receipt of information regarding the occurrence, the first informant reached the place of occurrence and took the injured to hospital, who died on the way and thereafter, the FIR was lodged. The same is false inasmuch as, the FIR was lodged first and thereafter, the injured was taken to the hospital i.e. Jaswant Rai Hospital, Meerut for treatment but the injured died on the way, as will be evident from the narration of events noted hereinafter.
7. It is apposite to mention here that the first informant is not an eye witness of the occurrence. Similarly, Mutalib who gave information to the first informant about the incident is also not an eye witness of the occurrence nor has he disclosed in his statement under Section 161 Cr.P.C. as to from whom he gathered information regarding the occurrence in question.
8. Immediately after the aforesaid FIR was lodged, the Police arrived at the place of occurrence. Investigating Officer, who had visited the place of occurrence, recovered 8 empties of .32 bore from the spot. He, accordingly, prepared a recovery memo of same dated 08.07.2023 at 18:10 hours i.e. 06:10 PM (C.D. Parcha No.-1). Two of the eye witnesses of the occurrence namely Wasim and Mohd. Jishan are also the witnesses of recovery aforesaid as per the recovery memo. However, these two witnesses did not disclose to the Investigating Officer at this stage that applicant is also involved in the crime in question.
9. Subsequently, the inquest (Panchayatnama) of the body of deceased was conducted on 08.07.2023 at 06:25 PM at Jaswant Rai Hospital, District-Meerut. Investigating Officer appointed the following as the panch witnesses;- Wasim (eye witness of the occurrence), Arif (eye witness of the occurrence), Mutalib (he is the person who gave information to the first informant regarding the occurrence), Hazi Sadab (cousin brother of deceased) and Muzahid (first informant). In the opinion of the witnesses of inquest (Panch witnesses), the nature of death of deceased was categorized as homicidal and the cause of death of deceased was specified as gun shot injury. It is apposite to mention here that first informant-Muzahid, who is a panch witness did not nominate the applicant also as an accused in the crime in question up to this stage. Similarly, the eye witnesses of the occurrence namely Wasim and Arif (two of the panch witnesses) also did not disclose at the time of inquest proceedings that applicant has also participated in the crime in question.
10. Thereafter, the post mortem of the body of deceased was conducted. The Autopsy Surgeon, who conducted autopsy of the body of deceased, opined that the cause of death of deceased is Shock and Haemorrhage as a result of ante-mortem fire arm injuries. The Autopsy Surgeon found following ante-mortem injuries on the body of deceased:-
"1. Firearm entry wound contused and lacerated measuring 2cm x 1 cm, on left side of abdomen 15 cm away from the umbilicus, 27 cm away from left nipple, Margins of wound inverted, there was no blackening, no tattoing, no singeing.
2. Firearm entry wound measuing 2cm x 1 cm on back of left side of chest, 13 cm from C7 vertebra in 7 O' clock direction, Margins of wound inverted, there was no blackening, no tattooing, no singeing. On probing the tract passes from back of chest lacerating the heart where bullet was recovered, The direction of track is from back to front and almost horizontal.
3. Firearm entry wound measuring 2cm x 1 cm, 22 cm below C7 vertebra on the left margin of vertebral coloum, there was no balckening, no tattooing, no singeing.
4. Five firearm entry wound measuring 2 cm x 1cm each over area of 8 cm x 6 cm on midline of vertebral column, 30 cm below C7 vertrbra, there was no balckening, no tattooing, no singeing.
5. Firearm entry wound measuring 2 cm x 1cm on back of left side of abdomen, 10 cm above left mid illicac crest, there was no balckening, no tattooing, no singeing.
6. Firearm entry wound measuring 2cm x 1 cm on back of right side of abdomen, 5 cm above from illiac crest, 3 cm lateral to vertebral column, there was no balckening, no tattooing, no singeing.
7. Firearm exit wound measuring 3 cm x 1.5 cm on left side of abdomen, margins everted, 4 cm lateral to injury no. 01.
8. Abrasion of size 0.5 cm x 0.5 cm on left lateral border of sternum, 11 cm above from umbilicus.
9. Abrasion of size 0.5 cm x 0.5 cm on front of left side of chest, 10 cm below the nipple."
11. After having undertaken the aforementioned exercise, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C.
12. In furtherance of above, Investigating Officer first recorded the statement of the first informant namely Muzahid under Section 161 Cr.P.C. on 08.07.2023. Same is on record at pages 49-51 of the paper book as well as CD Parcha No.-1 of the case diary. The first informant in his aforesaid statement has implicated the following as accused;- Kala Babu, Abid, Adil, Parvez, Naushad, another Adil, Hazi Pappu and applicant Shuaib in the crime in question. The relevant portion of his statement wherein the complicity of present applicant in the crime in question has emerged is worth noticing;-
"???? ?? ???? ???? ??????? ?? ??? ?? ?? ???? ??? ???? ????] ????] ????] ?????] ????? ??? ???? ? ???? ????? ?? ??? ???? ????? ????? ?????? ???? ????? ??? ???? ?????? ??? ???? ?? ????? ??! ???? ?? ?? ???? ?? ??? ???? ???? ???"
It is thus apparent that the first informant in his aforesaid statement has implicated the present applicant for the first time as an accused in the crime in question. However, there is an inherent falacy in the same inasmuch as, the source of information of this witness regarding complicity of present applicant in the crime in question remains conspicuous by its absence.Subsequently, the second statement of first informant i.e. Bayan Majeed was recorded on 18.08.2023, which is on record as CD Parcha No. 22. This witness in his subsequent statement has reaffirmed his earlier statement. However, even in this statement, the first informant has not nominated the present applicant as an accused in the crime in question.
13. Subsequent to above, the Investigating Officer examined the following witnesses under Section 161 Cr.P.C.;-
(a). Investigating Officer examined Wasim (eye witness) under Section 161 Cr.P.C. on 08.07.2023. His statement is on record as CD Parcha No.-1. As per the statement of this witness, he is an eye witness of the occurrence. According to this witness as Asif Bharti, his brother (deceased) turned towards bhumiya pul from the tube well tiraha, Kala Babu, Abid, Adil, Parvez, Naushad, another Adil, Shuaib and Hazi Pappu were exorting that Asif should not be left unspaired. As Asif reached near graveyard in front of the shop of Madeena bags, he was shot dead by all the named accused.
It is apposite to mention here that this witness is a panch witness , but no disclosure was made by him regarding the complicity of present applicant in the crime in question at the time of proceedings of inquest. It is also apparent that Wasim was present at the place of occurrence when the police reached the said place as he is a witness of recovery of empties made by police and he accompanied the first informant when the injured was being taken to the hospital.However, no disclosure was made by him regarding the complicity of present applicant in the crime in question to the first informant at the time of transit or at the time of inquest proceedings. The complicity of present applicant in the crime in question has emerged for the first time in the statement of this witness under Section 161 Cr.P.C. No explanation has come forward from this witness as to why no disclosure was made by him regarding the complicity of present applicant in the crime in question at the aforementioned stages.
Subsequently, the second statement of this witness namely Wasim i.e. Bayan Majeed was recorded on 18.08.2023. Same is on record as CD Parcha No.-22. This witness in his aforesaid statement has stated that he had accompanied the first informant along with the injured/deceased when he was being taken to Jaswant Rai hospital.
(b). Another witness Mohd. Sultan (eye witness) was also examined by the Investigating Officer on 09.08.2023. His statement is on record as CD Parcha No.-18. This witness has implicated Kala Babu, Abid, Adil, Parvez, Naushad, another Adil, Shuaib and Hazi Pappu in the crime in question. His version of the occurrence is similar to that of Wasim. However, this witness in his aforementioned statement has further stated that information regarding the occurrence was given by him to Muzahid, the first informant, after which, Muzahid (first informant) lodged the FIR. However, the first informant Muzahid has not supported the aforesaid statement of this witness in his statement under Section 161 Cr.P.C. Thus if the prosecution story as unfolded in the FIR is believe to be true then the statement of this witness as noted above becomes doubtful and if the statement of this witness is believe to be correct then the prosecution story as unfolded in the FIR becomes doubtful.
(c). Sharif (eye witness) was examined by the Investigating Officer as a witness under Section 161 Cr.P.C. on 09.08.2023. His statement is on record as CD Parcha No. 18. This witness in his statement has also supported the FIR. According to this witness, Kala Babu, Abid, Adil, Parvez, Naushad, another Adil, Shuaib and Hazi Pappu committed the crime in question. His version of the occurrence is also similar to that of Wasim.
(d). Arif (eye witness) was also examined by the Investigating Officer as a witness under Section 161 Cr.P.C. on 18.08.2023. His statement is on record as CD Parcha No. 22. As per the statement of this witness, Kala Babu, Abid, Adil, Parvez, Naushad, another Adil, Shuaib and Hazi Pappu have caused the death of Asif by firing upon him. His statement regarding the manner of occurrence is similar to the statement of aforementioned witnesses. This witness is also a panch witness but he also did not disclose the complicity of present applicant in the crime in question at the time of inquest proceedings.
(e). Investigating Officer recorded the statement of one Mohd. Jishan (eye witness) on 18.08.2023 under Secgtion 161 Cr.P.C. His statement is on record as CD Parcha No. 22. This witness in his statement has also implicated Kala Babu, Abid, Adil, Parvez, Naushad, another Adil, Shuaib and Hazi Pappu in the crime in question. His version of the occurrence is similar to that of the other witnesses aforementioned. This witness is also a witness in the recovery memo pertaining to the recovery of 8 empties by the police from the spot. However, no disclosure was made by this witness at this time. The complicity of present applicant in the crime in question has emerged for the first time in his statement under Section 161 Cr.P.C.
(f). Mutalib was also examined as a witness by the Investigating Officer. It is this witness, who according to the prosecution story as unfolded in the FIR is alleged to have informed the first informant about the occurrence in question. This witness in his statement under Section 161 Cr.P.C. has clearly stated that he is not an eye witness of the occurrence. However, this witness in his aforesaid statement has not disclosed as to who informed him about the occurrence in question. The prosecution story is thus vague inasmuch as, the source of information regarding the occurrence and thereafter' it's communication to the first informant remains unexplained. The statement of this witness relates to the incidents that occurred after the occurrence had taken place. As such, the statement of this witness is irrelevant regarding the complicity of present applicant in the crime in question.
(g). Investigating Officer thereafter examined Aftab, Shamshad, Haneef, Kayyum and Mohd. Harun to ascertain the complicity of one of the accused namely Mohd. Afaq @ Haji Pappu in the crime in question. Aforesaid witnesses have clearly deposed regarding the presence of aforementioned accused at his home at the time of occurrence. They have not supported the theory that this accused also participated in the commission of the crime in question.
14. On the basis of above and other material collected by Investigating Officer, during course of investigation, he came to the conclusion that prima-facie the complicity of all the named accused except Mohd. Afaq @ Hazi Pappu is established in the crime in question. He, accordingly, made the following arrests;-
15. Applicant-Shuaib and co-accused Adil were arrested on 10.07.2023.
16. Accused Parvez was arrested on 12.07.2023.
17. From the person of Parvez, a country made .32 bore pistol along with one live cartridge was recovered.
18. The red colour motorcycle of Hero Super Splender make bearing Registration No. UP15BS 6377 and alleged to have been used in the commission of crime as per the statement of eye witness, Wasim was recovered from the applicant and co-accused, Adil, who was a pillion passenger on the same. From the person of applicant, a magazine of .32 bore with 2 live cartridges were recovered whereas from the person of co-accused Adil, a .32 bore pistol with magazine having 2 live cartridges was recovered.
19. Investigating Officer recorded the statements of arrested accused i.e. Shuaib, Adil and Parvez. Named accused Shuaib, in his confessional statement has admitted his complicity in the crime in question. The role of firing was, however, assigned to all the accused.
20. Investigating Officer on the basis of above and other material collected by him, during course of investigation, came to the conclusion that complicity of 3 of the named accused namely Adil, Shuaib (applicant herein) and Parvez is prima-facie established in the crime in question up to this stage. He, accordingly, submitted the charge sheet dated 19.08.2023 whereby aforementioned named accused have been charge sheeted under Sections 302,34 I.P.C. and Sections 3/25/27 Arms Act. One of the named accused Mohd. Afaq @ Hazi Pappu has been exculpated. It is thus apparent that on the same set of evidence one of the named accused has been exculpated whereas a not named accused i.e. applicant herein has been charge sheeted. However, investigation in respect of other named accused Kala Babu, Abid and Naushad is said to be pending.
21. Mr. Sagir Ahmad, the learned Senior Counsel for applicant contends that though applicant-Shuaib is not named in the FIR but he is a charge sheeted accused. However, irrespective of above, he is liable to be enlarged on bail.
22. According to the learned Senior Counsel for applicant, the first informant is not an eye witness of the occurrence. The FIR was lodged by first informant, Muzahid on the information given by one Mutalib on telephone. However, Mutalib is not an eye-witness of the occurrence. Mutalib in his statement under Section 161 Cr.P.C. has not disclosed the source of his information regarding the occurrence. As such, the fact as to on whose information, the prosecution received the information about the occurrence remains a mystery. On the above premise, he submits that the prosecution itself is not very clear and categorical about its own case. Applicant has thus been falsely implicated in the crime in question on account of an after thought, therefore, the applicant is liable to be enlarged on bail.
23. It is next contended by the learned Senior Counsel that from the perusal of the statement of one of the eye witness namely Mohd. Sultan, it is apparent that this witness in his statement under Section 161 Cr.P.C. has stated that information regarding the occurrence was given directly by him to the first informant, Muzahid. However, Muzahid in his statement under Section 161 Cr.P.C. has not affirmed the aforementioned statement of fact inasmuch as, the first informant in his statement under Section 161 Cr.P.C. has clearly stated that his cousin brother Mutalib was informed about the occurrence, who in turn informed the first informant about the occurrence. As such, again the prosecution is not very clear and specific about its own story which it wants to prove against the applicant in respect of the crime in question inasmuch as, the basis of the information upon which, disclosure was made by Mutalib to the first informant remains unexplained up to this stage. On the above inconsistency in the prosecution story, the learned Senior Counsel submits that in view of the fact that applicant is not named in the FIR, he has been subsequently falsely implicated on the basis of an after though. As such, the applicant is liable to be enlarged on bail.
24. According to the learned Senior Counsel for applicant, the written report giving rise to present criminal proceedings was scribed by Mutalib. This witness accompanied the first informant from the place of occurrence to the hospital where the victim/deceased had been taken for medical treatment. Admittedly, the inquest of the deceased was conducted at Jaswant Rai Hospital and Mutalib is also a panch witness. However, up to this stage, he did not disclose that present applicant has also particiapted in the crime in question. The FIR giving rise to the present criminal proceedings was lodged prior to the inquest proceedings inasmuch as, in the recovery memo pertaining to the recovery of the empties made by the police from the place of occurrence, the case crime number has been transcribed. Reference at this stage was made to paragraph 9 of the affidavit filed in support of the present application. On the above conspectus, the learned Senior Counsel submits that the inconsistency in the prosecution case qua the lodging of the FIR is writ large on the face of the record. Immediately after the occurrence, the police had reached on the spot and made recoveries. The recovery memo records the case crime number in which the recovery was made, therefore, the prosecution story to the effect that after the occurrence have taken place, the injured was first taken to Jaswant Rai Hospital, where his inquest was conducted and thereafter the FIR was lodged is a fact which is contrary to the record. On the above premise, he therefore, contends that in view of the inherent contradictions and inconsistencies in the prosecution case the applicant is liable to be enlarged on bail.
25. Challenging the very credibility of the prosecution story, the learned Senior Counsel submits that one of the witness namely Wasim is alleged to be an eye witness of the crime in question. This witness in his statement which was recorded on the date of occurrence i.e. 08.07.2023 has specifically implicated the present applicant also in the crime in question. He has also stated that the applicant along with another accused came on the spot on a red motor cycle. However, the credibility of this witness and his statement is doubted on the facts that (a)- he is a witness of the recovery pertaining to the 8 empties recovered by the police from the spot, (b)- he accompanied the first informant and others when the injured/deceased was being taken to the hospital for treatment and (c)- he is a witness of inquest. Furthermore, the identity of the motorcycle that was used to be in the commission of crime and recovered from the possession of applicant along with co-accused is the same motorcycle has not been established till date. As such, this witness has continuously accompanied the Investigating Officer and the first informant, but at no point of time, he disclosed the complicity of present applicant in the crime in question, which creates a doubt regarding his credibility and reliability. No attempt was made by this witness to explain the above in his statement under Section 161 Cr.P.C. either.
26. On the above premise, the learned senior counsel submits that the prosecution story as unfolded in the FIR is itself false inasmuch as, after the FIR was lodged, the police arrived on the spot, thereafter, the injured was taken to hospital but he died on the way and then his inquest was conducted at the hospital i.e. Jaswant Rai Hospital, Meerut. There is no connecting evidence to show that any disclosure was made by any of the eye witnesses to the first informant about the complicity of the present applicant in the crime in question prior to the lodging of the FIR. Nor the first informant in his statement has disclosed as to who informed him about the complicity of present applicant in the crime in question. The timings i.e. the time of occurrence, the time of lodging of FIR, the time of arrival of police at the place of occurrence, the time at which, the inquest proceedings commenced at Jaswant Rai Hospital, Meerut when taken together do not inspire confidence in the prosecution story as unfolded in the FIR.
27. Referring to the counter affidavit filed by the first informant, it is urged by the learned Senior Counsel that the motive attached to the applicant behind the occurrence as has been pleaded by the first informant is to the effect that since deceased was raising voice against the illegal trade of cattle i.e cow and it's proginee by the accused, therefore, he has been put to death. Learned Senior Counsel contends that the said fact has not been disclosed by any of the witnesses examined under section 161 Cr.P.C. As such, the said fact has not been investigated by Investigating Officer while investigating concerned case crime number. Therefore,the motive assigned by the first informant to the accused applicant for committing the crime in question is based upon non-existent facts.
28. Learned Senior Counsel then contends that though in a case of direct evidence, motive behind the occurrence is irrelevant but in the present case, the motive alleged against the present applicant for committing the crime in question is conspicuous by it's absence in the case diary. He further submits that there can be no motiveless malignancy either. As such, the present applicant has been falsely implicated in the crime in question.
29. In support of his submission that applicant has been falsely implicated in the crime in question, he submits that on the same set of evidence i.e. the statements of the eye witnesses who have clearly implicated one Kala Babu in the crime in question but the said accused has been exculpated by the Investigating Officer on the basis of the statement of other witnesses examined under Section 161 Cr.P.C. He, therefore, contends that the statement of the eye witnesses relied upon by the Investigating Officer for implicating the present applicant in the crime in question is not beyond doubt.
30. In furtherance of above, the learned Senior Counsel contends that as per the narration of events that have occurred particularly the fact that the FIR was lodged on 08.07.2023 i.e. at 18:05 hours whereas the inquest of the deceased was conducted on 08.07.2023 at 18:25 hours. According to the first informant, the information regarding the occurrenc was given by one Mutalib whereas one of the eye witness namely Mohd. Sultan in his statement has stated that he has directly informed the first informant about the occurrence. If the statement of Mohd. Sultan (eye witness) is prima-facie taken to be correct then the omission of the name of present applicant in the FIR remains unexplained. Furthermore, if the prosecution story as unfolded in the FIR is accepted to be true then the statement of this witness becomes false. As such, the applicant has been falsely implicated in the crime in question as an afterthought. To buttress his submission he has referred to the judgments of the Supreme Court in Lakshmi Singh and Others Vs. State of Bihar (1976) 4 SCC 394 and Machhi Singh and Others Vs. State of Punjab, (1983) 3 SCC 470.
31. On the conspectus as noted above and upon the cumulative strength of aforesaid submissions, the learned senior counsel for applicant contends that applicant is liable to be enlarged on bail. Even otherwise, applicant is a man of clean antecedents having no criminal history to his credit except the present one. Applicant is in jail since 10.07.2023. As such, he has undergone more than 8 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. To buttress his submission, reference has been made to the judgment of Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5). It is then reiterated that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.
32. Per contra, the learned A.G.A. for State and Mr. Swetaswa Agarwal, the learned counsel representing first informant have vehemently opposed this bail application. They submit that since applicant is a charge sheeted accused, therefore, he does not deserve any indulgence by this Court. The occurrence giving rise to present application for bail occurred on 08.07.2023 at around 05:00 PM i.e. in broad day light. The deceased was a young man aged about 36 years. As per the post mortem report, the deceased sustained as many as 9 injuries on his person including 7 fire arm injuries. Investigating Officer had recovered 8 empties of .32 bore from the spot. From the person of applicant, a magazine of .32 bore with 2 live cartridges were recovered. At the time of arrest and recovery no explanation could be offered by the applicant regarding the same, which fact is explicit from the recovery memo regarding above, dated 10.07.2023, which is on record as CD Parcha No.-5.
33. Thereafter, the statement of applicant was also recorded under Section 161 Cr.P.C., which is on record at CD Parcha No. 6. However, the applicant in his aforesaid statement could not justify the legal possession of the magazine of .32 bore pistol along with two live cartridges. It is on account of above, that applicant has been charge sheeted under Section 3/25/27 Arms Act also. As per the charge sheet, applicant has also been charge sheeted under Section 302/34 IPC. As such, there is common intention with the charge sheeted accused for committing the crime in question. The eye witnesses of the occurrence namely Wasim, Mohd. Sultan, Sharif, Arif and Mohd. Jishan have fully supported the FIR. The applicant in his confessional statement before the police officer during his period of arrest has duly confessed about his complicity in the crime in question. The statement of Wasim (an eye witness) was recorded on the same day and he has clearly implicated the applicant also in the crime in question as well as the circumstances that emerged at the time of occurrence in respect of present applicant. On the above premise, he, therefore, submits that simply on the basis of technicalities, the role of applicant in the crime in question can neither be doubted nor his role can be separated or segregated in the crime in question so as to enlarge him on bail. The motive behind the occurrence attached to the applicant is that since the deceased had raised a voice against the illegal trade of cattle by the named accused, as such, he has been shot dead in broad day light.
34. On the above premise, it is thus urged by the learned counsel representing first informant that considering the totality of the circumstances, the nature and gravity of offence, applicant does not deserves to be enlarged on bail.
35. In rejoinder, Mr. Sagir Ahmad, the learned Senior Counsel has rejoined his submissions made in support of the bail application. He, however, submits that it is an undisputed fact that applicant is not named in the FIR. The FIR regarding the crime in question was lodged on the information given by one Mutalib, as per the recital contained in the FIR itself. However, Mutalib in his statement under Section 161 Cr.P.C. has not disclosed as to how he came to know about the occurrence.
36. It is next contended that contrary to the prosecution story as unfolded in the FIR is the statement of Mohd. Sultan (eye witness). This witness in his statement under Section 161 Cr.P.C. has clearly stated that he had directly informed Muzahid (first informant) about the occurrence. However, the first informant in his statement under Section 161 Cr.P.C. has not supported the aforesaid statement of Mohd. Sultan. The submission which has thus been made is that if the statement of Mohd. Sultan is believed to be true, then the prosecution story as unfolded in the FIR is false and if the prosecution story as unfolded in the FIR is taken as true then the statement of this witness is false. As such, the prosecution itself is not clear about the very story which it set out to establish against the present applicant.
37. With reference to the record, he submits that in the FIR, 5 persons namely Sultan, Arif, Wasim, Sharif and Jishan are said to have witnessed the crime in question. As per the recital contained in the FIR, the occurrence giving rise to present criminal proceedings is alleged to have occurred at 17:00 hours. However, the FIR in respect of the same was lodged on 08.07.2023 at 18:05 hours. There is no explanation in the statement of the first informant, Muzahid as to from whom, he gathered the information about the occurrence in question. Admittedly, the occurrence is said to have been witnessed by 5 witnesses and injuries are alleged to have been caused by named accused and applicant. As per the prosecution story the FIR was lodged on the information given by Mutalib but Mutalib is not an eye witness of the occurrence. The eye witnesses of the occurrence in their statements under Section 161 Cr.P.C. do not say that they had informed the first informant about the complicity of present applicant in the crime in question. Therefore, on what basis, first informant formed satisfaction regarding complicity of present applicant in the crime in question is a mystery.
38. It is then contended that applicant has been falsely implicated in the crime in question as an afterthought. The said submission is founded on the fact that the occurrence giving rise to present criminal proceedings is alleged to have occurred at 17:00 hours, the FIR in respect of the same was lodged at 18:05 hours as per the inquest report, the inquest proceedings commended at 18:25 hours. Two of the eye witnessed named in the FIR namely Wasim and Arif are also the witnesses of inquest but they have not disclosed the complicity of applicant in the crime in question at the time of inquest proceedings. Apart from above, after the FIR was lodged the police had arrived on the spot and recovered 8 empties. The eye witnesses namely Wasim and Jishan are the witnesses of recovery as per the recovery memo but even at this juncture, they did not disclose to the Investigating Officer about the complicity of applicant in the crime in question. Referring to the statement of the witnesses and the first informant, he submits that the first informant has not nominated the present applicant in the crime in question, applicant has been nominated in the crime in question by the first informant for the first time, in his statement under Section 161 Cr.P.C. but without disclosing the factum as to how, he got to know about the complicity of applicant in the crime in question. Except for the statement of Wasim the statement of other eye witnesses was recorded after about one month from the date of occurrence. Referring to the judgment of Supreme Court in Shahid Khan Vs. State of Rajasthan, (2016) 4 SCC 96, he contends that since the statement of other eye witnesses were recorded with delay, the same are not worthy of reliance. Doubting the credibility of the statement of Wasim, the learned Senior Counsel submits that admittedly this witness is a witness of recovery made by the Investigating Officer from the place of occurrence, he had accompanied the first informant along with the injured/deceased when he was being taken to the hospital i.e. Jaswant Rai Hospital Meerut. He is also a witness of inquest. However, up to all these stages, this witness has not disclose about the complicity of present applicant in the crime in question to the first informant. He, therefore, concludes that the present case is a case of false implication of applicant on the basis of an after thought, as such, the present applicant is liable to be enlarged on bail.
39. Having heard, the learned senior counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant, upon perusal of record, evidence, nature and gravity of offence, complicity of accused, accusations made coupled with the fact that the occurrence giving rise to present criminal proceedings occurred on 08.07.2023 at 17:00 hours, the FIR in respect of the aforesaid incident was lodged by one Muzahid at 18:05 hours, on the information given by one Mutalib, the said Mutalib is not an eye witness of the occurrence, Mutalib in his statement under Section 161 Cr.P.C. has not disclosed as to how and from where he got information about the occurrence, one of the eye witness Mohd. Sultan in his statement under Section 161 Cr.P.C. has stated that he himself directly informed the first informant, Muzahid about the occurrence, however, aforesaid statement has not been supported by Muzahid, the first informant in his statement under Section 161 Cr.P.C., if the prosecution story as unfolded in the FIR is taken as correct, then the statement of eye witness Mohd. Sultan becomes false and if the statement of Mohd. Sultan is taken as correct then the prosecution story as unfolded in the FIR becomes false, prima-facie the prosecution story as unfolded in the FIR is false inasmuch as, after the occurrence, the FIR was lodged and thereafter, the injured was taken to the hospital and not vice-versa as is evident from the chain of events noted above, the applicant is not named in the FIR, immediately after lodging of the FIR, the police arrived on the spot and recovered 8 empties from the place of occurrence, as per the recovery memo dated 08.07.2023 at 18:10 hours, which is on record as CD Parcha No.-1, case crime number is duly transcribed therein, two of the eye witnesses mentioned in the FIR i.e. Wasim and Jishan are also witnesses of the recovery as mentioned in the recovery memo aforementioned, however, the aforesaid two witnesses have not stated about the complicity of the present applicant in the crime in question to the Investigating Officer, two eye witnesses of the occurrence namely Wasim and Arif are also witnesses of inquest (panch witnesses) but again they have not disclosed about the involvement of the present applicant in the crime in question during the inquest proceedings, the statement of the other 4 eye witnesses namely Mohd. Sultan, Sharif, Arif and Mohd. Jishan were recorded after more than one month and therefore, even though they are eye witnesses, their statements are not worthy of reliance in view of the law laid down by Apex Court in Shahid Khan (Supra), the statement of the eye witness Wasim is not worthy of reliance inasmuch as, this witness in his statement has not disclosed regarding his silence about the complicity of present applicant in the crime in question, (a)- at the time of recovery of empties by the police from the spot, even when, he is a witness of recovery, (b)- he is a witness of inquest during the inquest proceedings, (c)- this witness is alleged to have accompanied the first informant, when the injured/deceased was being carried to Jaswant Rai Hospital, on the basis of information given by Mutalib or any of the eye witnesses but on account of his own knowledge, the first informant in his statement under Section 161 Cr.P.C. has implicated the present applicant in the crime in question not on the basis of information given by Mutalib or any of the eye witnesses of the occurrence but on account of his own satisfaction, the motive assigned by the learned counsel for first informant to the present applicant for committing the crime in question is a non-existent motive as none of the witnesses examined under Section 161 Cr.P.C. have stated that the deceased was murdered by applicant along with others on account of his having raised voice against the illegal trade of cattle i.e. cow and it's proginee by the named accused, on the same set of evidence, one of the named accused namely Mohd. Afaq @ Hazi Pappu, has been exculpated, the clean antecedents of applicant, the period of incarceration undergone, the police report in terms of Section 173(2) Cr.P.C. having been submitted, therefore, the enitre evidence sought to be relied upon by the prosecution against applicant stands crystallized, yet in spite of above, the learned A.G.A. and the learned counsel for first informant could not point out any such circumstance necessitating the custodial arrest of applicant during the pendency of trial, the judgment of Supreme Court in Sumit Subhashchandra Gangwal (Supra), therefore, irrespective of the objections raised by the learned A.G.A. and the learned counsel for first informant in opposition to the present application for bail but without making any comments on the merits of the case, applicant has made out a case for bail.
40. Accordingly, the bail application is allowed.
41. Let the applicant-Shuaib, be released on bail in the aforesaid case crime number 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 SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE 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.
(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(iv) 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 THE HIM/HER IN ACCORDANCE WITH LAW.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.
42. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above. "
5. It is then contended by learned counsel for applicant that against aforementioned order dated 15.3.2024, the first informant filed Special Leave to Appeal No. 5363 of 2024 (Mujahid Vs. Shuaib and Another). However, the said special leave to appeal was dismissed by Apex Court, vide order dated 14.5.2024. For ready reference, the same is reproduced herein under:
"We are not inclined to interfere with the impugned judgement and order. The special leave petition is, accordingly, dismissed.
Pending application(s) shall stand disposed of."
6. Learned counsel for applicant in support of this bail application contends that all necessary facts, essential for deciding the present bail have already been noted by this Court in aforementioned order. He, further submits that in view of the recital contained in paragraphs 7, 13-F, 22, 23, 24, 26 of aforesaid order, the present applicant is also liable to be enlarged on bail. However, he has made the following submissions in support of present application for bail:
"1. Mutlib received a call on his phone that his cousin brother Asif Bharti has been murdered by Parvez and others, he informed his cousin brother Muzahid regarding incident, who lodged the FIR naming Mutlib received a call on his phone that his cousin brother Asif Bharti has been murdered by Parvez and others, he informed his cousin brother Muzahid regarding incident, who lodged the FIR naming the accused person and further mentioning the name of witnesses. Mutlib in his statement under Section 161 Cr.P.C. says he does not remembered the name of person who informed him.
2. Neither Mutlib nor Muzahid are eye witness of incident.
3. All the witnesses named in the First Information Report (F.I.R.) are chance and interested witnesses resident of far away from place of incident (para 20 of bail application) who claimed to have witnessed the occurrence their presence on spot is highly doubtful and their conduct not informing the relatives of deceased and not informing police in quite un natural. The Hon'ble Supreme Court has held the evidence of chance and interested related witnesses should be scrutinised with greater care and circumspection.
(Case Law)
(a) Shahid Khan Vs. State of Rajshthan 2016 (4) SCC 96 (Para 6)
(b) Khema @ Khem Chandra & others Vs. State of U.P. 2024(1) SCC (Cr.)95 Para 12
(c) Rajesh Yadav & Another Vs. State of U.P: 2024 SCC (Cr.) 379 (Para 29)
4. Presence of witnesses on spot is further belied because in site plant the place of witnesses is not shown (Anx 13 Page67/68).
5. In site plan there are houses of several persons yet no independent witness came forward (site plan- page 68)
6. Witness Sultan and Waseem in their statement u/s 161 Cr.P.C say they informed the informant, regarding incident but informant Muzahid does not say so. (Anx 5, 6 page 40, 44)
7. Statement of witness Sultan, Md. Jeshan ,Sarif recorded on 2.8.2023 and Aarif on 18.08.2023 (in view of case reported in 2016 (4) SCC page 96(6) Shahid Khan vs. State of Rajasthan), they are not reliable.
8. Blood not found on spot (Anx 14-A page 72)
9. Name of one co-accused namely Hazi Pappu named in FIR has been exculpated
10. The Prosecution story is vague as source of information regarding incident is un explained.
11. The deceased was brought to hospital by his family members in the meantime police reached the spot and came to know deceased has been taken to Jashwant Rai hospital. The I.O. prepared the recovery memo of eight empty cartage from spot which was prepared and 6.10 PM and crime no. is mentioned on it, as per prosecution the inquest was prepared in hospital an FIR was lodged was prior of inquest report but according to statement of Mutlib, it appears the FiR was lodged after the preparation of inquest report which is contrary to record.
12. The deceased received total 9 injuries out of which two are abrasion which can be by fall (Injury no.8 and 9) and injury no.7 is exit wound meaning there by there are six wound of entry of fire arms and according to FIR seven persons fired and according to 161 Cr.P.c. statement of witnesses 8 persons fired, thus injuries are less then number of assailants
13. The witnesses are wholly unreliable and not trustworthy.
14. No recovery from applicant, motor bike alleged to be used in crime was recovered from Shoib (co-accused.) and Adil son of Kale Khan where as applicant is son of Hazi Annu"
7. Applicant has criminal history of one case i.e. by way of Case Crime No. 171 of 2018, under Sections 3/5/8 of U.P. Prevention of Cow Slaughter Act. However in the aforesaid case crime number, the applicant has already been charge sheeted but under sections 269 and 270 IPC only. However, the applicant has been enlarged on bail. Subsequent to F.I.R. dated 8.7.2023, giving rise to present application for bail, proceedings under The Uttar Pradesh Gangsters and Antisocial Activities (Prevention) Act, 1986 have also been initiated against applicant. The applicant is in jail since 23.7.2023. As such, he has undergone more than 10 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted against applicant on 19.08.2023. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such incriminating circumstance has emerged on record necessitating the custodial arrest of applicant during the pendency of trial. On the above premise, he thus contends that applicant is liable to be enlarged on bail. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.
8. Per contra, the learned A.G.A. for State/opposite party-1 and Mr. Vinayak Mithal, the learned counsel representing first informant have opposed the prayer for bail. They submit that since applicant is a named accused, therefore his case is distinguishable from co-accused Shuaib who has already been enlarged on bail. The charge sheet has already been submitted against applicant under Sections 302/34 IPC, as such, applicant is a charge sheeted accused. It is thus evident that as per the material accompanying the police report, the complicity of applicant in the crime in question is fully established. Offence complained of is a heinous offence, inasmuch, a young man aged about 36 years has been put to death. The deceased has sustained as many as 6 gun shot entry wounds on his person. The witness examined under section 161 Cr.P.C. have clearly implicated applicant in the crime in question. On the above conspectus, they, therefore, contend that applicant is not liable to be enlarged on bail and the bail application be rejected.
9. Having heard the learned counsel for applicant, the learned A.G.A. for State/opposite party-1, Mr. Vinayak Mithal, the learned counsel representing first informant and upon perusal of record, considering the nature and gravity of offence, accusations made, complicity of accused, this Court finds that the following facts stands crystallized;-
(i). Co-accused Shuaib has been enlarged on bail by this Court, vide order dated 15.03.2024 passed in Criminal Misc. Bail Application No. 44758 of 2023 (Shuaib Vs. State of U.P.).
(ii). Order dated 15.03.2024 passed by this Court has been affirmed by the Supreme Court in Special Leave to Appeal (Crl.) No. 5363 of 2024.
(iii). Though co-accused Shuaib is not named in the FIR, present applicant Aadil is named in the FIR. However, general and omnibus allegations have been made against all the accused.
(iv). As per the prosecution story unfolded in the FIR, the role of firing is assigned to all the named accused, but the nature of the weapon held by each of the accused has not been specified.
(v). Named accused Mohd. Afaq @ Haji Pappu has been exculpated as according to the statements of other independent witnesses namely ? (1) Hanif S/o Hasib, (2) Qayum S/o Kadeer and (3) Haroon S/o Matloob, who gave an application before SSP, Meerut along with their affidavits on oath that he was not present at the time and place of the occurrence but at his home (C.D. Parcha No. 22, dated 18.08.2023).
(vi). As per the information disclosed by the learned A.G.A., no protest petition has been filed by the first informant Muzahid against the police report dated 19.08.2023 submitted in terms of Section 173(2) Cr.P.C. against named accused Aadil, Shuaib, Parvez, under Sections 302/34 IPC and Sections 3/25/27 Arms Act. Aadil S/o Haji Annu under Sections 302/34 IPC, whereas in respect of named accused Mohd. Afaq @ Hazi Pappu. It has been clearly mentioned that the implication of co-accused Mohd. Afaq @ Hazi Pappu is found to be false.
(vii). Neither any recovery has been made from the person of applicant Aadil nor on his pointing out.
(viii). The named accused belong to different families as is evident from the parentage of the accused mentioned herein under:-
(a). Kala Babu S/o Jaaju, R/o Neecha Saddik Nagar, Lisadi Gate, Merut, U.P., India.
(b). Aabid S/o Asfaq, R/o Neecha Saddik Nagar, Lisadi Gate, Merut, U.P., India.
(c). Aadil S/o Kale Khan, R/o Neecha Saddik Nagar, Lisadi Gate, Merut, U.P., India.
(d). Parvez S/o Saanu, R/o Neecha Saddik Nagar, Lisadi Gate, Merut, U.P., India.
(e). Naushad S/o Pandit Farooq, R/o Neecha Saddik Nagar, Lisadi Gate, Merut, U.P., India.
(f). Aadil S/o Hazi Annu, R/o Neecha Saddik Nagar, Lisadi Gate, Merut, U.P., India.
(g). Hazi Pappu S/o Hazi Gaffar, R/o Bhumiya ka Pul, Pandat wali Gali, Bramhpuri, Meerut, U.P., India.
It is thus evident that all the named accused do not belong to the same family.
(ix). Applicant Aadil has been charge sheeted under Sections 302/34 IPC. Admittedly, no recovery of weapon has been made either from the person of applicant nor on the pointing of applicant. There are five eye witnesses mentioned in the FIR. Vide order dated 15.03.2024, this Court has already held that statements of the following four eye witnesses mentioned in the FIR namely (1) Sultan, (2) Arif, (3) Sharif and (4) Jishan are unworthy of reliance as the same were recorded after a period of more than one month from the date of occurrence by virtue of the law laid down by Apex Court in Shahid Khan Vs. State of Rajasthan, (2016) 4 SCC 96. Named eye witness Waseem in his statement under Section 161 Cr.P.C. has not stated any such fact so as to establish a common intention with the accused-applicant to commit the crime in question.
(x). The complicity of an accused and charge under Section 34 IPC has to be judged in accordance with the parameters laid down by the Apex Court in Gadadhar Chandra Vs. State of West Bengal (2022) 6 SCC 576. Paragraph 14 of the said report are relevant for the controversy in hand. When the aforesaid observations are applied to the facts of the present case, it is evident that except for the solitary evidence, as per the statement of eye witness Waseem that the accused applicant was also present at the place of occurrence and had fired at the deceased, no other evidence has come forward to establish a common intention with the accused-applicant to commit the crime in question.
(xi). This Court, vide earlier order dated 15.03.2024, has already held that the FIR giving rise to the present criminal proceedings is ante-timed. Reference in this regard be made to paragraph 39 of the earlier order dated 153.03.2024.
(xii). Once the FIR giving rise to the present criminal proceedings is itself ante-timed the entire prosecution story as unfolded in the FIR and supported in the statement of the eye witness Waseem shall fall like a house of cards.
(xiii). The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, neither the learned A.G.A. nor the learned counsel representing first informant could point out from the record any such incriminating circumstance necessitating the custodial arrest of applicant during the pendency of trial. Reference in this regard be made to the judgment of Supreme Court in Sumit Subhaschandra Gangwal and another Vs. The State of Maharashtra and Another, 2023 Live Law (SC) 373.
(xiv). Applicant has criminal history of one case in Case Crime No. 171 of 2018, under sections 3/5/8 of U.P. Prevention of Cow Slaughter Act. However, in the aforesaid case crime number, the applicant has already been charge sheeted but under sections 269 and 270 IPC only. However, the applicant has been enlarged on bail. Subsequent to F.I.R. dated 8.7.2023, giving rise to present application for bail, proceedings under The Uttar Pradesh Gangsters and Antisocial Activities (Prevention) Act, 1986 have also been initiated against applicant. In view of above, the rigours of law laid down by Apex Court in Neeru Yadav Vs. State of UP and another, (2016) 15 SCC 422, are not attracted inasmuch as, the applicant has not been charge sheeted for a grievous or a heinous offence.
(xv). Therefore, irrespective of the objections raised by the learned A.G.A. and the learned counsel representing first informant but without making any comments on the merits of the case and considering the facts that stand crystallized as noted above, applicant has made out a case for bail.
10. Accordingly, the bail application is Allowed.
11. Let the applicant- Aadil, 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 SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE 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.
(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(iv) 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 THE HIM/HER IN ACCORDANCE WITH LAW.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.
12. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Order Date :- 03.07.2024 "
7. On the above premise, the learned senior counsel for applicant contends that the case of present applicant is similar and identical to that of named and charge sheeted co-accused Aadil, who has already been enlarged on bail. He, therefore, contends that in view of above and for the facts and reasons recorded in the bail order of not named but charge sheeted co accused Shuaib and named and charge sheeted accused Aadil, applicant is also liable to be enlarged on bail. There is no such distinguishing feature on the basis of which case of present applicant can be so distinguished from the named and charge sheeted co-accused Aadil so as to deny him bail. It is thus urged by the learned senior couinsel that in view of above and for the facts and reasons recorded in the bail orders of co-accused Shuaib and Aadil, the present applicant is also liable to be enlarged on bail on the ground of parity.
8. According to the learned senior counsel, there are seven persons named in the F.I.R. However, three out of seven accused have been exculpated by the Investigating Officer.
9. Even otherwise applicant is a man of clean antecedents inasmuch he has no criminal history to his credit except the present one. Applicant is in custody since 07.11.2023. As such, he has under-gone more than nine months of incarceration. The police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to relied upon by the prosecution against applicant stands crystallised. Upto this stage, no such circumstance has emerged on record necessitating the custodial arrest of applicant during the pendency of trial. He therefore submits that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial
10. Per contra, the learned A.G.A. for State and Mr. N. I. Jafri, the learned senior counsel representing first informant have vehemently opposed the prayer for bail. However, they could not dislodge the factual and legal submissions urged by the learned counsel for applicant as noted herein above with reference to the record at this stage, .
11. Having heard the learned senior counsel for applicant, the learned A.G.A. for State, the learned senior counsel representing first informant and upon consideration of material on record, evidence, nature and gravity of offence, accusations made as well as complicity of applicant coupled with the fact that not named but charge sheeted accused Shuaib has already been enlarged on bail by this Court vide order dated 15.03.2024, the order dated 1503.2024 passed by this Court was challenged by the first informant before Supreme Court, however, the special leave to appeal so filed by first informant was dismissed, subsequently named and charge sheeted co-accused Aadil has been enlarged on bail by this Court vide order dated 03.07.2024, the case of present applicant is similar and identical named/charge sheeted but bailed out co-accused Aadil, therefore, there does not exist any such distinguishing feature in the case of present applicant on the basis of which, case of present applicant can be so distinguished from named/charge sheeted but bailed out co-acused Aadil so as to distinguish the case of present applicant and deny him bail, the clean antecedents of applicant, period of incarceration undergone, the police report in terms of Section 173 (2) Cr.P.C. has already been submitted therefore the entire evidence sought to be relied upon by the prosecution against applicant stand crystallised, yet in spite of above, the learned AG.A. could not point out any such incriminating circumstance from the record necessitating the custodial arrest of the applicant during the pendency of trial, the judgement of Apex Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5), therefore irrespective of the objections raised by the learned A.G.A. and the learned senior counsel representing first informant in opposition to the present applicant for bail, but without making any comments on the merits of the case, applicant has made out a case for bail.
12. Accordingly, present application for bail is allowed.
13. Let the applicant-Naushad involved in aforesaid case crime number 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) Applicant will not tamper with prosecution evidence.
(ii) 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) Applicant will not indulge in any unlawful activities.
(iv) Applicant will not misuse the liberty of bail in any manner whatsoever.
14. 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 of applicant and send him to prison Order Date :- 5.8.2024 YK