Allahabad High Court
Furkan vs State Of U.P. on 3 August, 2021
Author: Sanjay Kumar Singh
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 72 A.F.R. Case :- CRIMINAL MISC. BAIL APPLICATION No. - 28457 of 2019 Applicant :- Furkan Opposite Party :- State of U.P. Counsel for Applicant :- Phool Chandra, Mazhar Ullah, Rizwan Ahmad Counsel for Opposite Party :- G.A. Hon'ble Sanjay Kumar Singh,J.
1-Heard learned counsel for the applicant and learned Additional Government Advocate for the State and perused the material placed on record.
2-By means of this application, applicant-Furkan, who is involved in Case Crime No. 329 of 2018, under sections 302, 307, 394, 411 IPC, police station Asmoli, district Sambhal, seeks enlargement on bail during the pendency of trial.
3-The case of the prosecution, in brief, is that the informant Mohammad Islam lodged first information report on 01.09.2018, alleging inter alia that when his brother Ikrar Ahmad and his adopted son Saddam along with Rs.52,000/- (rupees fifty two thousand only) were returning from Manauta Bazar after selling buffalo, three unknown persons, aged about 25-30 years, riding on a black motorcycle were trying to snatch bag from his brother near the field of one Brahm Das. On resistance of the same by his brother, the accused persons fired upon them, due to which Ikrar Ahmad, (brother of the informant Mohammad Islam), died at the spot and his son Saddam was also received injury on the left side of his chest. The whole incident was seen by Rahat Ali and Muzammil, who were also present there along with the deceased and his son Saddam.
4-It has been contended on behalf of the applicant that the applicant is innocent and has been falsely implicated in this case with some ulterior motive. The applicant is not named in the first information report and there is no public witness of the alleged incident. As per prosecution case, the name of the applicant came into light during investigation on 01.12.2018 in the statements of Safdar Hussain and Sujaat Hussain, who have stated that the applicant Furkan and his associate Mahir along with Bhura were confessed their involvement in the alleged crime. Thereafter, the applicant was arrested and he also confessed his involvement in the alleged crime. It is also contended by the learned counsel for the applicant that co-accused Mahir has been granted bail by co-ordinate Bench of this Court vide order dated 11.04.2019 passed in Criminal Misc. Bail Application No. 15053 of 2019, therefore the applicant is also entitled to be released on bail on the ground of parity. It is also submitted that apart from present case, the applicant has criminal history of six cases, which has been explained in paragraph No. 12 of the bail application as well as in paragraph No. 2 of the supplementary affidavit dated 22.09.2020 by contending that in all the six cases, the applicant is on bail. It is also submitted that the applicant is facing detention since 04.12.2018. It is next contended that there is no chance of the applicant of fleeing away from the judicial process or tampering with the prosecution evidence. Learned counsel for the applicant lastly submitted that if the applicant is released on bail, he will not misuse the liberty of bail and will cooperate in the early disposal of the case.
5-Per contra, learned Additional Government Advocate vehemently opposed the prayer for bail by contending that the case of present applicant Furkan is distinguishable from the case of co-accused Mahir as nothing was recovered from his possession, whereas after arrest of the applicant, on his pointing out, country made pistol has been recovered, which was used in the commission of alleged crime. The applicant has also confessed that out of looted amount, Rs. 15,000/- (rupees fifteen thousand only) came in his share and recovery of Rs. 2700/- (rupees two thousand seven hundred only) has been made from his possession. It is also pointed out by learned A.G.A. that one of the consideration of granting bail to co-accused Mahir, is that he does not have any criminal history, whereas apart from present case, the applicant has following six cases of criminal history to his credit:
i. Case Crime No. 179 of 2015, under sections 420, 411, 413, 414 IPC and section 41/102 Cr.P.C., police station Didohi, district Amroha.
ii. Case Crime No. 181 of 2015, under section 4/25 Arms Act, police station Didohi, district Amroha.
iii. Case Crime No. 388 of 2018, under section 392 IPC, police station Saidnagli, district Amroha iv. Case Crime No. 281 of 2018, under sections 394, 411 IPC, police station Haldaur, district Bijnor.
v. Case Crime No. 459 of 2018, under sections 379, 411 IPC, police station Chandpur, district Bijnor.
vi. Case Crime No. 745 of 2018, under sections 307, 413, 414, 420, 467, 468, 471 IPC, police station Amroha Nagar, district Amroha.
6-It is further argued by the learned Additional Government Advocate that out of aforesaid six cases, in one case being Sessions Trial No. 117 of 2018 arising out of Case Crime No. 179 of 2015, under sections 420, 413 and 414 IPC, police station Didauli, district J.P. Nagar (Amroha), the applicant has been convicted and sentenced vide order dated 24.04.2018 by the learned Additional Sessions Judge, court No. 2, Amroha. It is next submitted that charge sheet dated 25.01.2019 has been submitted against the applicant along with two other co-accused persons, namely, Mahir and Bhura alias Intezam. Lastly, it is argued that the offence is heinous in nature, therefore the applicant is not entitled to be released on bail.
7-Perusal of bail order of co-accused Mahir shows that no recovery has been made from the possession or pointing out of co-accused Mahir and he has no criminal history, whereas there is recovery of country made pistol, which was used in the commission of crime on the pointing out of the applicant and he has a long criminal history as mentioned above, out of which in one case, he has been convicted also. As such, in my opinion, the case of the applicant is distinguishable from the case of co-accused Mahir and benefit of parity of bail order dated 11.04.2019 cannot be extended to the present applicant, as he is habitual offender.
8-In view of judgment of Hon'ble the Apex Court in the case of Neeru Yadav vs. State of U.P. (2015) 3 SCC 527, the criminal antecedents of the accused cannot be ignored while deciding bail application, discretionary powers of Courts to grant bail must be exercised in a judicious manner in case of a habitual offender, who should not be enlarged on bail merely on the ground of parity, if other accused in the case were granted bail.
9-Considering the facts and circumstances of the case, submissions advanced on behalf of parties, gravity of the offence and severity of the punishment, as well as considering the submission that the offence is heinous in nature and the applicant has a long criminal history to his credit, I do not find any good ground to grant bail to the applicant at this stage.
10-Accordingly, the bail application is rejected.
11-However, considering the facts and circumstances of the case, the trial court is directed to make an endeavour to conclude the trial, expeditiously, preferably within a period of one year from the date of production of a certified copy of this order without granting any unnecessary adjournment to either of the parties.
12-It is directed that in case certified copy of this order is not issued due to COVID-19 pandemic, the copy of the order downloaded from the official website of the Allahabad High Court shall be acted upon.
Order Date :- 3.8.2021 Sazia