Allahabad High Court
Aasif Khan vs State Of U.P. on 8 April, 2024
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:60668 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 25184 of 2021 Applicant :- Aasif Khan Opposite Party :- State of U.P. Counsel for Applicant :- Anupam Tripathi,Satish Trivedi (Senior Adv.),Sheshadri Trivedi Counsel for Opposite Party :- Alok Sharma,G.A. Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Satish Trivedi, learned Senior Counsel assisted by Sri Sheshadri Trivedi, learned counsel for applicant, Sri Alok Sharma, learned counsel for informant and Sri Paritosh Malviya, learned A.G.A.-I for State.
2. Applicant has approached this Court by way of filing the present Criminal Misc. Bail Application under Section 439 Cr.P.C. in Case Crime No.837 of 2019 under Sections 307, 302, 120-B/34 I.P.C., Police Station- Sadar Bazar District - Shahjahanpur.
3. In the present case, initially, an F.I.R. was lodged against unknown persons that when applicant along with deceased and others were traveling in a car and entered at P.W.D. Office on 02.12.2019 at about 1.00 p.m., their vehicle was ambushed by three unknown persons who started in discriminatory firing which led to death of one person namely Rakesh Yadav and other person namely Kuldeep Jaiswal suffered injuries.
4. According to post-mortem report, immediate cause of death was shock and hemorrhage due to ante-mortem fire-arm injuries (6 fire-arm entry wound and 3 fire-arm exist wound).
5. Learned Senior Counsel for applicant submits that it is a case of circumstantial evidence. There is no eye-witness account. No motive has been assigned to applicant to commit the crime. The only evidence against applicant is confessional statement of applicant. Some of co-accused have already been granted bail. No legal identification parade was conducted and procedure undertaken for alleged identification has no legal basis.
6. Learned A.G.A. for State and learned counsel for informant have opposed bail that applicant was identified by injured witness being one of assailants. Asif Khan (applicant) and co-accused Rahul Chaudhary were contract killer who were paid to cause death of deceased Rakesh Yadav. Learned counsel further submits that present applicant was recently live on his Instagram account from inside jail. The cognizance was taken of aforesaid act and an F.I.R. was lodged against applicant and disciplinary proceedings were initiating against erring officers, however, both counsel have not disputed that co-accused Rahul Chaudhary who has been alleged to be other contract killer has already been granted bail by a co-ordinate Bench by an order dated 30.01.2024.
7. In rejoinder, learned Senior Counsel for applicant submits that alleged viral video played by applicant from jail has not been recovered.
8. I have considered the above mentioned rival submissions in referred factual and legal background and in view of established principle of jurisprudence of bail i.e 'bail is rule and jail is exception' as well as relevant factors for consideration of a bail application such as (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused;(vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; (viii) danger of course, of justice being thwarted by grant of bail etc. and that an order to grant or not to grant bail must assigned reasons (see Deepak Yadav vs State of U.P. (2022) 8 SCC 559, Manoj Kumar Khokar vs State of Rajasthan and Anr (2022) 3 SCC 501, The State of Jharkhand vs Dhananjay Gupta @ Dhananjay Prasad Gupta: Order dated 7.11.2023 in SLP(Crl) No.10810/2023 and Shiv Kumar Vs The State of U.P. and Ors : Order dated 12.9.2023 in Criminal Appeal No.2782 of 2023), therefore, I am of considered opinion that present application is a fit case to grant bail to applicant mainly on following grounds:-
(a) Prosecution story rest upon circumstantial evidence. The trial is proceeding in a snail's speed and till date only one witness has been examined though there are number of witnesses are proposed as prosecution witnesses.;
(b) Applicant and co-accused Rahul Chaudhary were alleged to be contract killer, however, co-accused Rahul Chaudhary has been granted bail by co-ordinate Bench;
(c) The Court notes process of identification as well as recovery.
(d) The Court notes that recently an F.I.R. has been lodged against applicant that he was allegedly live on his Instagram account, however, till date alleged viral video has not been recovered.
9. Accordingly, bail application is allowed, however, considering above circumstances, it is directed that applicant will mark his presence before concerned S.H.O. Sadar Bazar, District- Shahjahanpur on every Saturday between 10.00 a.m. to 4.00 p.m. till the conclusion of trial.
10. Let the applicant- Aasif Khan 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
(ii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment or exemption from appearance on the date fixed in trial. 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 will not misuse the liberty of bail in any manner whatsoever. 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., 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, in accordance with law, under section 174-A I.P.C.
(iv) The Trial Court may make all possible efforts/endeavour and try to conclude the trial expeditiously, preferably within a period of six months after release of applicant, if there is no other legal impediment.
11. 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 and send the applicant to prison.
12. It is made clear that the observations made hereinabove are only for the purpose of adjudicating the present bail application.
Order Date :- 8.4.2024 P. Pandey