Fakharuddin @ Fakeera vs State Of U.P. on 21 July, 2025

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Allahabad High Court

Fakharuddin @ Fakeera vs State Of U.P. on 21 July, 2025

2. Heard Sri Keshari Nath Tripathi, learned counsel for the applicant, Sri Devendra Nath Mishra, learned counsel for the State and perused the material on record. Sri Amit Kumar, learned counsel for the first informant is not present even when the matter has been taken up in the revised list.

3. This bail application under Section 483 BNSS has been filed by the applicant-Fakharuddin @ Fakeera, seeking enlargement on bail during trial in connection with Case Crime No.69 of 2021, u/s 147, 149, 302, 201 IPC, P.S. Bisauli, District Budaun.

4. This is the third bail application. The first bail application of the applicant was rejected vide order dated 16.8.2021 by this Court passed in Criminal Misc. Bail Application No.29265 of 2021. Thereafter the second bail application of the applicant was rejected vide order dated 16.11.2022 passed by this Court passed in Criminal Misc. Bail Application No.33390 of 2021.

5. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is further argued that co-accused Shane Nabi has been granted bail by this Court vide order dated 6.5.2025 passed in Criminal Misc. Bail Application No.2950 of 2025, copy of the same is annexed as Annexure No.3 to the Supplementary Affidavit dated 3.7.2025. It is submitted that as of now the cross-examination of P.W.6 is going on. It is further submitted that in the trial Farooq one of the alleged eye witnesses has been examined as PW-5 who did not support the prosecution case and has been declared hostile. It is further submitted that in so far as the other alleged eye witness Istiyak is concerned, the prosecution has moved an application dated 03.10.2024 before the trial court seeking discharge of the said witness which has been allowed by the trial court vide order dated 03.10.2024 and as such he has been discharged and was not examined before the trial court. It is submitted that although in charge sheet it is shown that Vikas Saxena is also an alleged eye witness who was examined as PW-2 and perusal of which his statement during investigation and even in Court would go to show that he reached the place of occurrence after the incident had occurred and he had seen the dead body of the person lying. It is submitted that the first informant Aslam is not an eye witness of the incident. It is submitted that as such there is no credible evidence against the applicant. The applicant is in jail since 13.3.2021.

6. Per contra learned counsel for the State opposed the prayer for bail but could not dispute the aforesaid arguments of learned counsel for the applicant.

7. After hearing the counsel for the parties and perusing the record, it is evident that this is the third bail application. The first bail of the applicant was rejected by this Court vide order dated 16.8.2021. Thereafter the second bail application was also rejected by this Court vide order dated 16.11.2022. The trial in the matter is going on in which one of the alleged eye witnesses namely Farook PW-5 did not support the prosecution case and has been declared hostile. The other alleged eye witness Istiyak was not produced before the trial court and has been discharged by the trial court on the application of the prosecution. There is no other eye witness of the incident. Co-accused Shane Nabi has been granted bail vide order dated 6.5.2025 by this Court in Criminal Misc. Bail Application No.2950 of 2025, the said order reads as under:-

"1. List revised.

2. Heard Sri Shailesh Upadhyay and Sri Vivek Singh, learned counsels for the applicant, Sri Ajay Singh, learned AGA-I for the State and perused the material on record.

3. This second bail application under Section 483(1) of B.N.S.S. has been filed by the applicant Shane Nabi, seeking enlargement on bail during trial in connection with Case Crime No. 0069 of 2021, under Sections 147, 149, 302, 201 I.P.C., registered at Police Station Visauli, District Badaun.

4. The first bail application of the applicant was rejected by this Court vide order dated 16.11.2022 passed in Crl. Misc. Bail Application No. 33390 of 2021 (Shane Nabi Vs. State of U.P.). The same reads as under:

"Heard Sri Anil Srivastava, learned Senior Advocate, assisted by Sri Tripurari Pal, learned counsel for both the applicants, Sri Anil Kumar, Advocate holding brief of Sri Mohit Singh, learned counsel for the first informant in both the bail applications, Sri Shashi Kant Pandey, learned counsel for the State and perused the record.

These three bail applications are connected together as they arise out of the same crime number. Criminal Misc. Bail Application No. 33390 of 2021 (Shane Nabi vs. State of U.P.) is the first bail application. The same has been nominated to this Bench vide order dated 14.3.2022 of Hon'ble The Chief Justice. Criminal Misc. Bail Application No. 46383 of 2021 (Fakharuddin @ Fakeera vs. State of U.P.) is the second bail application. The first bail application of the applicant- Fakharuddin @ Fakeera was rejected by this Court vide order dated 16.8.2021 passed in Criminal Misc. Bail Application No. 29265 of 2021 (Fakharuddin @ Fakeera vs. State of U.P.). Criminal Misc. Bail Application No. 52341 of 2021 (Shakeeluddin @ Shakil Don vs. State of U.P.) is the second bail application. The first bail application of the applicant Shakeeluddin @ Shakil Don being Criminal Misc. Bail Application No. 24753 of 2021 (Shakeeluddin@Shakil Don vs. State of U.P.) was rejected by Hon'ble Om Prakash-VII,J. (as he was then) vide order dated 4.10.2021.

These three bail applications under Section 439 of Code of Criminal Procedure have been filed by the applicants Shane Nabi, Fakharuddin @ Fakeera and Shakeeluddin @ Shakil Don, seeking enlargement on bail during trial in connection with Case Crime No. 69 of 2021, under Sections 147, 149, 302, 201 I.P.C., registered at P.S. Visauli, District Budaun.

The prosecution case as per the F.I.R. lodged on 2.3.2021 at 17:40 hours by Aslam against Abrar, Shakeeluddin@Shakil Don, Shane Nabi, Fakhruddin@Fakeera and Vikaruddin, is that Saleem the brother of the first informant was a friend of Abrar resident of village- Bhawanipur Kheroo, Police Station Sahaswan, who was called on 27.2.2021 at 7.00 am for purchasing buffalos in Haryana and was taken away. On the same day at about 09.00 am Shakeeluddin@ Shakil Don, Shane Nabi, Fakharuddin @ Fakeera and Vikaruddin along with two unknown persons assaulted him with lathi and danda, which was seen by Istiyak and Farooq. The dead body of Saleem is lying near Ashirvad Cold Store. The same was recovered and post mortem has been done. The accused persons are partners in the business of sale and purchase of buffalos. They had taken Rs.3 lakh by cheating from Saleem. Saleem used to ask about refund of money which was not returned by them and for misappropriating it they have murdered him. The First Information Report was thus lodged.

The post mortem of Saleem was done on 28.2.2021 at 2:55 pm and the doctor found three lacerated wounds, one abraded contusion and one abrasion on his body. Fracture of left ulna bone was also seen. Scalp was lacerated and there was a fracture of left perietal bone. Cause of death has been opined as shock and haemorrhage due to anti mortem injury.

During investigation statements of Farooq and Istiyak were recorded which have been placed before the Court which are at page nos. 37 and 40 respectively to the paper book of the accused/applicant Shane Nabi.

Learned counsel for the applicants has argued that the applicants have been falsely implicated in the present case. It is argued that identically placed co-accused Vikaruddin has been granted bail by a co-ordinate Bench of this Court vide order dated 18.10.2021 passed in Criminal Misc. Bail Application No. 31496 of 2021 (Vikaruddin vs. State of U.P.). The copy of said bail order has been placed before the Court which is annexure no. 2 to the affidavit in support of bail application of the applicant- Fakharuddin @ Fakeera. It is argued that the case of the applicants are identical to that of the co-accused Vikaruddin who has been granted bail. While arguing the bail of the applicant Shane Nabi and placing annexure no. 8 to the said bail application, it is argued that although there is an alleged recovery of a danda and a pant which is alleged to be of the deceased, on the pointing out of the applicant Shane Nabi but the same is on 17.4.2021 which is after about 50 days of the incident. It is argued that the recovery as alleged is a planted and false recovery.

Per contra, learned State counsel opposed the prayer for bail and argued that the bail of identically placed co-accused Fakharuddin @ Fakeera was rejected by this Court on merits. It is argued that there is no fresh and new ground shown in so far the bail of Fakharuddin @ Fakeera is concerned. The applicants have been assigned the role of assault on the deceased with lathi and danda. There are eye witness account. The injuries as received by the deceased corroborate with the prosecution case. It is further argued that although the order of co-accused Vikaruddin is to the effect that he has been granted bail but the order states that there is recovery made on the pointing out of co-accused Shakeeluddin @ Shakil Don and Fakharuddin@Fakeera, but as a matter of fact the recovery is on the pointing out of co-accused Shane Nabi of a danda and pant of the deceased. Annexure no. 8 is the recovery memo to the bail application of the said accused. It is argued that even on that count the case of Shane Nabi is showing his implication in the matter. It is prayed that the prayer for bail be rejected. It is further argued that even no fresh and new ground has been shown and argued in the bail of Shakeeluddin@ Shakil Don.

After having heard learned counsels for the parties and perusing the records, it evidence that in so far as case of Fakharuddin @ Fakeera and Shakeeluddin@Shakil Don is concerned, no new and fresh ground is shown. The bail application of the applicant Fakharuddin @ Fakeera is rejected.

The bail application of the applicant Shane Nabi is rejected on the ground of role and participation in the incident which has even been stated by the two eye witnesses Farooq and Istiyak coupled with the fact of recovery of incriminating material on his pointing out.

The bail application of the applicant Shakeeluddin @ Shakil Don is also rejected on the ground that it is a second bail application and there is no fresh and new ground shown on record."

5. Learned counsel for the applicant submitted that the trial in the present matter is going on in which Farooq one of the alleged eye witnesses has been examined as PW-5 who did not support the prosecution case and has been declared hostile, the true and certified copy of his statement has been placed before the Court which is annexure 11 to the affidavit. It is further submitted that in so far as the other alleged eye witness Istiyak is concerned, the prosecution has moved an application dated 03.10.2024 before the trial court seeking discharge of the said witness which has been allowed by the trial court vide order dated 03.10.2024 and as such he has been discharged and was not examined before the trial court, copy of the same has been placed before the Court which is annexure 12 to the affidavit. It is submitted that although in charge sheet it is shown that Vikas Saxena is also an alleged eye witness who was examined as PW-2 and perusal of which his statement during investigation and even in Court would go to show that he reached the place of occurrence after the incident had occurred and he had seen the dead body of the person lying. It is submitted that the first informant Aslam is not an eye witness of the incident. It is submitted that as such there is no credible evidence against the applicant. It is submitted that the applicant has no criminal history as stated in para 53 of the affidavit and is in jail since 09.04.2021.

6. Per contra, learned counsel for the State vehemently opposed the prayer for bail and submitted that the first bail application of the applicant was rejected by this Court on merits by a detailed order vide order dated 16.11.2022. It is submitted that the first informant has named the applicant and has assigned the role but did not dispute the factual aspect of the matter that the first informant and Vikas Saxena are not the eye witnesses of the incident, Farooq the alleged eye witness was examined as PW-5 who has not supported the prosecution case and has been declared hostile and further the other alleged eye witness Istiyak has been discharged by the trial court concerned on the application by the prosecution itself.

7. After having heard learned counsels for the parties and perusing the records, it is evident that this is second bail application. The first bail application of the applicant was rejected by this Court vide order dated 16.11.2022. The trial in the matter is going on in which one of the alleged eye witnesses namely Farook PW-5 did not support the prosecution case and has been declared hostile. The other alleged eye witness Istiyak was not produced before the trial court and has been discharged by the trial court on the application of the prosecution. There is no other eye witness of the incident.

8. Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.

9. Let the applicant Shane Nabi, 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 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) The applicant shall file an undertaking to the effect that he 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.

(iv) 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.

(v) 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 him in accordance with law and the trial court may proceed against him under Section 229-A IPC.

(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.

10. 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.

11. The bail application is allowed.

12. Pending application(s), if any, shall stand disposed of."

9. Let the applicant-Fakharuddin @ Fakeera, 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 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) The applicant shall file an undertaking to the effect that he 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.

(iv) 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.

(v) 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 him in accordance with law and the trial court may proceed against him under Section 229-A IPC.

(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.

11. The bail application is allowed.

12. Pending application(s), if any, shall stand disposed of.

(Samit Gopal, J.) Order Date :- 21.7.2025 Gaurav Kuls

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Allahabad High Court