Single judge order granting bail to an applicant accused of assault causing grievous hurt with a country-made pistol under Section 307 IPC, subject to conditions including personal bond and sureties.
Applicant released on bail failing to furnish a personal bond and two reliable sureties of the like amount.
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Court No. - 68 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 12595 of 2021 Applicant :- Arshad @ Arshad ( Katara) Opposite Party :- State of U.P. Counsel for Applicant :- Amlendu Maya Shukla Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Pachori,J.
Second Supplementary affidavit filed today which is taken on record.
Heard Sri Amlendu Maya Shukla, learned counsel for the applicants, learned A.G.A. and perused material on record.
The present bail application has been filed by the applicant Arshad @ Arshad (Katara) seeking enlargement on bail in Case Crime No. 658 of 2020, under Sections 307 I.P.C., P.S. Colonelganj, District -Prayagraj, during pendency of trial.
It has been submitted by learned counsel for the applicant that the applicant is innocent and has been falsely implicated in this case due to ulterior motive. As per allegations made in the F.I.R. dated 06.09.2020 which has been lodged against the applicant by injured Mohd. Sameer after five hours of the alleged incident alleging that alleged incident took place with regard to parking of Motorcycle due to which the applicant became furious and assaulted the injured by kicks and fists threatening to kill him and when injured tried to flee, the applicant fired upon him by country made pistol which hit at his right hand. As per medial report, 1. fire-arm entry 1cm x1cm x muscle deep (Rt) Forearm 11 cm below to (Rt) elbow. 2. Firearm entry 1 cm x 1 cm x muscle deep over Rt forearm, 2.5 cm. medial to 1st injury, were found. There is no X Ray report with regard to the injuries. It is next contended that F.I.R. has been lodged on basis of false and frivolous allegation and chargesheet has been submitted on basis of fake injuries and Chargesheet has been filed on 18.12.2020, hence, the applicant is no more required for the purpose of the investigation.
It is further stated the applicant has criminal history of three cases being Case Crime No. 673 of 2018 under Sections 323, 504, 506, 354 I.P.C.; Case Crime No. 844 of 2018 under Sections 352, 504, 323, 354 (A) I.P.C.; Case Crime No. 132 of 2020 under Sections 504, 506, 323, 452 I.P.C all the aforesaid criminal cases were registered at Police Colonelgang, District Prayagraj in which he has granted bail by court below. copies of the bail are annexed as Annexure No.7 and 8 to the affidavit as
well as S.A 3 to the supplementary affidavit. It is lastly submitted that there is also no possibility of the applicant either fleeing away from the judicial process or tampering with the witnesses. The applicant, who is languishing in jail since 24.06.2020, undertakes that he will not misuse the liberty, if granted. It has also been pointed out that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.
Per contra learned A.G.A. has opposed the prayer for bail of the applicants and argued that in case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail
It is settled position of law that bail is the rule and committal to jail is an exception in the case of State of Rajasthan Vs. Balchand @ Baliay (1977) 4 SCC 308 , the Apex Court observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution and opined para 2 "The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the court. We do. not intend to be exhaustive but only illustrative." and considering the facts of the case and keeping in mind, the ratio of the Apex Court's judgment in the case of Gudikanti Narasimhulu And Ors vs Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429 , larger mandate of Article 21 of the constitution of India, the nature of accusations, the nature of evidence in support thereof, the severity of punishment which conviction will entail, the character of the accused-applicant, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interest of the public/ State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail.
Let applicant, Arshad @ Arshad (Katara), be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned with the following conditions-
(i) The applicant shall file an undertaking to the effect that she 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 them 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 applicants fail to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against them, 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 them in accordance with law.
It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
In case of default of any of the above conditions, it shall be a ground for cancellation of bail
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the petitioner alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 16.9.2021 aks
3 issues framed by the court
Whether the applicant is eligible for bail in a bailable criminal trial under Section 307 IPC.
Whether the applicant poses a risk of fleeing justice or tampering with witnesses.
Whether the gravity of the offence and the applicant's criminal history preclude bail.
Colour shows how this judgement treated each authority
State of Rajasthan Vs. Balchand @ BaliayRelied on¶10
State of Rajasthan Vs. Balchand @ Baliay (1977) 4 SCC 308 · Who else cites this
Gudikanti Narasimhulu And Ors vs Public Prosecutor, High Court Of Andhra PradeshRelied on¶10
Gudikanti Narasimhulu And Ors vs Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429 · Who else cites this
Arshad @ Arshad (Katara)
State of U.P.
Sanjay Kumar Pachori
As recorded by the court registry
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