Allahabad High Court
Farman vs State Of U.P. on 1 November, 2022
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29046 of 2022 Applicant :- Farman Opposite Party :- State of U.P. Counsel for Applicant :- Rajiv Lochan Shukla,Arya Suman Pandey Counsel for Opposite Party :- G.A.,Mohammad Zakir Hon'ble Rajeev Misra,J.
1. Supplementary affidavit filed by learned counsel for applicant in Court today is taken on record.
2. Heard Mr. Rajiv Lochan Shukla, the learned counsel for applicant and the learned A.G.A. for State.
3. Perused the record.
4. Instant application for bail has been filed by applicant-Farman seeking his enlargement on bail in Case Crime No. 671of 2017 under Sections 147, 148, 149, 323, 342, 352, 302, 307 and 308 I.P.C., Police Station- Parikshitgarh, District-Meerut, during pendency of trial.
5. Record shows that in respect of an incident, which is alleged to have occurred on 28.12.2017, a delayed F.I.R. dated 29.12.2017 was lodged by first informant Sri Rafeeushan and was registered as 671of 2017 under Sections 147, 148, 149, 323, 342, 352, 307, 302 and 308 I.P.C., Police Station- Parikshitgarh, District-Meerut. In the aforesaid F.I.R. thirteen persons namely, Ameen, Ikhtaran, Jahangir, Zulfnain, Adnan, Baseem, Farman (applicant herein), Husain, Rameez, Ikhtedar, Reijwan, Ikram, Jeeshan have been has been nominated as named accused.
6. After registration of aforesaid F.I.R., Investigating Officer proceeded with statutory investigation of afore-mentioned case crime number in terms of Chapter XII Cr.P.C. On the basis of statement of witnesses examined under Section 161 Cr.P.C. as well as other material collected by him during course of investigation, he came to the conclusion that up to this stage complicity of some of the named accused alone is established in the crime in question. He accordingly submitted charge-sheet dated 20.03.2018 whereby eight persons, namely, Ameen, Ikhtran, Jahangir, Julsarnain, Adnan, Waseem, Rizwan, Ikram were charge-sheeted. Subsequently a supplementary charge-sheet dated 23.06.2018 was submitted whereby two of the named accused namely Ikhtekar and Jeeshan have been charge-sheeted.
7. Upon submission of aforesaid charge-sheets, cognizance was taken upon same by concerned Magistrate. Offence complained of is exclusively triable by Court of Sessions. Accordingly, concerned Magistrate committed the case to the Court of Sessions. As a consequence of above, Sessions Trial No. 447 of 2018 (State of U.P. Vs. Ikram and others) came to be registered which is now said to be pending in the Court Additional Sessions Judge, Court 10, Meerut.
8. After the statement of P.W.-1 Sri Rafeeushan (first informant) was recorded, an application under Section 193 Cr.P.C. was filed by prosecution for taking cognizance against three of the named accused, who were exculpated. Court below allowed the said application. Applicant and two others were summoned by court below vide order dated 18.09.2019. Against above order dated 18.09.2019, Farman and others filed criminal Misc. Application No. 38361 of 2019 (Farman and 2 others Vs. State of U.P. and another) before this Court, which was allowed vide order dated 07.11.2019. However, the order dated 07.11.2019 was set aside by Apex Court vide order dated 08.11.2021.
9. In the aforesaid factual background, learned counsel for applicant contends that two of other co-accused who had already been exculpated but were subsequently summoned i.e. Rameez and Husain, have already been enlarged on bail by means of orders dated 26.05.2022 and 28.07.2022 passed in Criminal Misc. Bail Application No. 9015 of 2022 (Rameez Vs. State of U.P.) and Criminal Misc. Bail Application No. 24954 of 2022 (Hussain Vs. State of U.P.), respectively. For ready reference above orders dated 26.05.2022 and 28.07.2022 are extracted herein-under:
Order dated 26.05.2022:
"Heard over bail application moved by applicant, Rameez, in Case Crime No. 671 of 2017, under Sections- 147, 148, 149, 323, 342, 352, 302, 307, 308 I.P.C., P.S. Parikshitgarh, District- Meerut.
Learned counsel for the applicant argued that the accused-applicant is innocent; he has been falsely implicated in this very case crime number and is languishing in jail since 22.10.2021; he was of no criminal antecedents before present case crime number but has been implicated in two other cases; one is of Case Crime No.39 of 2018, under Section 147 and 506 I.P.C., P.S. Parikshitgarh, wherein he is on bail and the other is of Section 174-A I.P.C., as Case Crime No. 364 of 2018, connected with present case crime number for not appearing before Investigating Officer whereas charge-sheet against applicant was not there; first information report of this occurrence was got lodged against 13 named accused persons, with accusation of giving assault and commission of murder of two persons, punishable under Sections 147, 148, 149, 323, 342, 352, 302, 307, 308 I.P.C., P.S. Parikshitgarh; the investigation resulted in submission of charge-sheet against 8 accused persons, over which cognizance was taken; subsequently, a charge-sheet for two others were filed but for three accused persons i.e. for applicant Rameez and Hussain and Farman, charge-sheet was not filed but over an application moved under Section 193 Cr.P.C., they were summoned; they went up to Apex court but ultimately after rejection and direction by Apex Court, they made surrender before the appropriate Court; bail to all those accused persons, against whom charge-sheet was filed in the first instance, have been granted by Coordinate Benches of this Court and bail orders have been filed on record; although bail to two co-accused have been rejected but thereafter bail to accused Adanan has been granted vide order dated 23.5.2022 passed in Criminal Misc. Bail Application No. 48751 of 2021 and bail to co-accused Vaseem vide order dated 26.11.2021 in Criminal Misc. Bail Application No. 10867 of 2019, was granted after considering the bail rejection order; case of applicant is on better footing than those who granted bail; there is no likelihood of fleeing from course of justice or tempering with evidence in case of release on bail. Hence, bail has been prayed for.
Learned AGA has vehemently opposed but could not oppose this fact that the applicant was of no criminal antecedent till implication in present case and bail to co-accused persons, against whom charge-sheet was filed, have been granted by coordinate Benches of this Court, as above.
Having heard learned counsels for both sides and gone through materials placed on record as well as considering all above facts and circumstances, the nature of accusations, severity of the punishment in the case of conviction and nature of supporting evidence, reasonable apprehension of tampering with the witness and prima facie case, but, without commenting on merits of the case, a case for bail is made out.
Accordingly, the bail application is allowed.
Let the applicant, Rameez, involved in above mentioned case crime number be released on bail, on his executing a personal bond and two reliable sureties, each, in the like amount, to the satisfaction of the court concerned, subject to the following conditions:
1. The applicant will not tamper with the evidence.
2. The applicant will not indulge in any criminal activity.
3. The applicant will not pressurize/intimidate the prosecution witnesses and co-operate in the trial.
4. The applicant will appear regularly on each and every date fixed by the trial court, unless his personal appearance is exempted through counsel by the court concerned.
In the event of breach of any of the aforesaid conditions, the court below will be at liberty to proceed to cancel his bail.
Order Date :- 26.5.2022"
Order dated 28.07.2022:
"Heard learned counsel for the applicant as well as learned A.G.A. for the State while learned counsel for the informant is not present and perused the material on record.
As per orders dated 27.06.2022 and 21.07.2022 also learned counsel for the informant was not present.
The present bail application has been filed by the applicant with a prayer to enlarge him on bail in Session Trial No. 912 of 2018 arising out of FIR No. 671 of 2017, under Sections 147, 148, 149, 323, 342, 352, 302, 307, 308 IPC, Police Station Parikshitgarh, District Meerut.
Learned counsel for the applicant submits that general allegations have been levelled for causing injuries against 13 persons including the applicant. He further submits that after investigation applicant, Farman and Rameez were exonerated and legal proceedings initiated against all the other co-accused before the trial court. He further submits that as per Annexure No. 17 co-accused Julkarnain, Rizwan, Zeeshan, Ikram and Vaseem have been granted bail by co-ordinate Bench of this Court, therefore, the applicant is entitled for bail on the ground of parity. There is no possibility of the applicant of fleeing away from the judicial process or tampering with the witnesses and, in case, the applicant is enlarged on bail, the applicant shall not misuse the liberty of bail. It is next contended that applicant has one criminal history in which he has been acquitted by the trial court and he is languishing in jail since 22.10.2021.
Per contra, learned A.G.A. has opposed the bail prayer of the applicant but could not dispute the aforesaid fact that co-accused have already been released on bail.
Considering the facts and circumstances of the case as well as submissions advanced by learned counsel for the parties and also perusing the material on record, general allegations as well as enlargement of identically placed co-accused on bail, without expressing any opinion on merit of the case, let the applicant- Hussain involved in aforesaid case crime be released on bail on his/her furnishing a personal bond and two local sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions :-
(i) The applicant shall file an undertaking to the effect that he will not tamper with the evidence and will not pressurize/intimidate the prosecution witnesses and will cooperate with the trial. The applicant 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.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iii) 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.
(iv) 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.
Order Date :- 28.7.2022 "
10. On the aforesaid premise, learned counsel for applicant contends that case of present applicant is similar and identical to that of co-accused Rameez and Hussain, who have already been enlarged on bail. Thus for the facts and reasons recorded in the bail orders of co-accused Rameez and Hussain, applicant is also liable to be enlarged on bail. He also contends that there is no such distinguishing feature on the basis of which case of present applicant can be distinguished from aforesaid co-accused so as to deny bail to present applicant. As such, applicant is also liable to be enlarged on bail on the ground of parity. It is also contended that out of eight charge-sheeted accused, one co-accused namely Ameen has not been enlarged on bail. According to learned counsel for applicant case of aforesaid co-accused is altogether different from present applicant. As such no parallel can be drawn regarding the case of present applicant with non bailed out co-accused Ameen. Applicant is in jail since 22.11.2021. As such, he has under-gone more than 11 months of incarceration. In case applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial. It is lastly submitted that trial is going on. Applicant was summoned by court below on the basis of material on record. As such, custodial arrest of applicant is not absolutely necessary during the course of trial. On the cumulative strength of aforesaid, learned counsel for applicant contends that applicant be enlarged on bail on the ground of parity also.
11. Per contra, the learned A.G.A. has opposed the present application for bail. However, he could not dispute the factual and legal submissions urged by learned counsel for applicant.
12. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon consideration of evidence on record, accusations made as well as complicity of applicant, coupled with the fact that two similarly situated co-accused namely Hussain and Rameez have already been enlarged on bail and there being no distinguishing feature on the basis of which case of present applicant can be distinguished from aforesaid co-accused but without expressing any opinion on the merits of the case, applicant has made out a case for bail.
13. Accordingly, present application for bail is allowed.
14. Let the applicant-Farman involved in aforesaid case crime number be released on bail 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) 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.
15. 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 :- 1.11.2022 YK