Allahabad High Court
Farookh vs State Of Uttar Pradesh on 27 March, 2023
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 85 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 25235 of 2021 Applicant :- Farookh Opposite Party :- State Of Uttar Pradesh Counsel for Applicant :- Rajrshi Gupta,Akhilesh Chandra Shukla,Dileep Kumar(Senior Adv.),Rizwan Ahamad Counsel for Opposite Party :- Ram Raj Pandey,Gaurav Kakkar Hon'ble Siddharth,J.
Heard Sri Dileep Kumar, learned Senior Counsel assisted by Sri Rizwan Ahamad; Sri M.P. Rai, learned Senior Counsel assisted by Sri Ram Raj Pandey, learned counsel for the informant and learned A.G.A for the State.
This is second bail application of the applicant.
The first bail application of the applicant was allowed by coordinate Bench of this Cout on 14.12.2020 vide Criminal Misc. Bail Application No. 37279 of 2020. The aforesaid order was challenged before the Apex Court and it was set aside on the ground that there is no specific analysis of material brought on record to the notice of the Apex Court by the High Court. The Apex Court has directed the High Court to consider the bail application of the applicant on its own merits and in accordance with law.
It is alleged in the FIR lodged by Harun that his brother, Nisar (deceased) had some altercation about four days ago with Jumma (co-accused) and, thereafter on 16.05.2020 at about 9:00 a.m., when the informant was returning to his village with his brother, Nisar along with Mahkar, Angoor and Ikhlakh, accused applicant along with co-accused armed with various weapons i.e. lathi-danda, pistol and rifle, etc., had surrounded them and started making assault in which Mahkar and Angur received injuries and Nisar died. In post-mortem report, deceased was found to have sustained five injuries out of which, injury no. 1 was sustained by him on his scalp i.e., on vital part by which he died. Rest of the injuries were sustained by him on non-vital parts; cause of death of deceased is recorded as head-injury. Further it is argued that apart from the said deceased, there were two other injured also i.e., Angoor and Mahkar in which Angoor has sustained three injuries which were of simple nature; Injured, Mahkar sustained one fracture on tibia and rest of the three injuries received by him, were of simple nature.
Counsel for the applicant has submitted that Angoor Ahmad one of the injured has stated in his statement recorded under Section 161 Cr.P.C., that co-accused, Jumma, caused gun shot injury on his left knee and he along with co-accused persons beated Mehkar. Co-accused, Tauheed, was firing from his country made pistol. Co-accused, Ibne, caused injuries on the head of the deceased, Nisar, by sariya. The applicant was also with the co-accused when they were trying to stop the persons coming for the help of the deceased, Nisar. The other injured, Mehkar, also stated that the applicant along with co-accused were standing for stopping the people coming for help of Nisar. Role of exhortation was also assigned to him. Similar allegation was made by the injured wife of the deceased, Nisar, Smt. Afsari against the applicant.
Counsel for the applicant also submits that the applicant was not assigned any specific role of causing any injury to anyone except the role of exhortation and of preventing help to the deceased, Nisar, by his men. There is no allegation against the applicant in the FIR. The applicant is in jail since 24.06.2020 and has no criminal history to his credit. Subsequently, the second bail applications of co-accused persons, Chhote and Jumma, have been allowed by this Court vide Criminal Misc. Bail Application Nos. 50698 of 2022 and 18716 of 2022.
Counsel for the informant has vehemently opposed the bail application and has submitted that the merits of the case cannot be examined in second bail application. All the arguments were considered by this Court while granting bail to the applicant.
On the other hand learned A.G.A has opposed the prayer for bail.
After hearing the rival contentions, this Court finds that the Apex Court has directed reconsideration of the bail application of applicant afresh on merits and in accordance with law. Therefore, all the arguments on merits can be raised before this Court.
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.
Let the applicant, Farookh, involved in Case Crime No. 272 of 2020, under Sections- 147, 148, 149, 307, 323, 302, 120-B IPC, Police Station- Baghpat, District- Baghpat, 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.
In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
Trial court is directed to conclude the trial of the applicant as expeditiously as possible preferably within a period of one year from the date of production of certified copy of this order.
Order Date :- 27.3.2023 Rohit