High Court Allahabad discharge bail in murder appeal citing prosecution role as mere excitation and CCTV showing other accused assaulted victim. Bail granted with strict conditions.
Bail allowed; applicant released on personal bond with two sureties subject to strict conditions including no tampering with witnesses or further criminal activities.
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Court No. - 69
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 12824 of 2022
Applicant :- Junaid Kamal @ Junna Opposite Party :- State of U.P. Counsel for Applicant :- Aditya Narayan Shukla,Aanjaneya Dwivedi,Sheshadri Trivedi,Sr. Advocate Counsel for Opposite Party :- G.A.
Hon'ble Mohd. Faiz Alam Khan,J.
Heard Shri Satish Trivedi, learned Senior Advocate assisted by Shri Aditya Narayan Shukla, Aanjaneya Dwivedi and Sheshadri Trivedi, learned counsels for the accused-applicant as well as learned A.G.A. for the State and perused the record.
This bail application has been moved by the accused/applicant- Junaid Kamal @ Junna for grant of bail, in Case Crime No. 304 of 2018, under Sections 147, 148, 149, 302, 120-B, 504, 506 I.P.C. and 7 Criminal Law Amendment Act, Police Station Shivkuti, District Allahabad, during trial.
Learned counsel for the accused-applicant while pressing the bail application submits that the applicant has been falsely implicated in this case only on the basis of enmity with the informant's side and he has not committed any offence as stated in the first information report and claimed by the eye witnesses.
It is further submitted that case of the prosecution as is evident from the first information report is that on the basis of verbal altercation which had occurred in the early hours of 03.09.2018 on the exhortation given by the instant applicant, the other coaccused persons and the instant applicant himself assaulted the deceased with 'lathi-danda' and some gun shots were also been fired from the country-made pistols, however, the same appears to have missed the target and by the assault given by the applicant and other co-accused persons the deceased appears to have sustained 13 injuries and ultimately died of the same as is evident from the postmortem report.
Highlighting the above facts, it is vehemently submitted by learned Senior Advocate that even if the case of the prosecution is taken on its face, the role which has been assigned to the instant applicant is only of exhortation. To buttress his point further learned Senior Advocate has drawn the attention of this Court towards the statement of the informant, eye witnesses Firdaus, Shireen, Mohd. Ahmad and one Mohd. Safeek, who in
their statements recorded under Section 161 of the Cr.P.C. who have categorically stated that the assault on the deceased with 'lathi-danda' was given by the co-accused Shebu @ Asif, Ibne and Yusuf.
Learned Senior Advocate has also drawn the attention of this Court on Page No. 61 i.e. a transcription of the C.C.T.V. footage obtained by the investigating officer during investigation, wherein it is shown that the assault to the deceased was made by the co-accused Shebu @ Asif, Ibne and Yusuf.
It is further submitted that during the course of investigation, the investigating officer has also observed, on the basis of the material and evidence collected during investigation that there is no evidence against the applicant pertaining to Section 120-B I.P.C. has been found.
Highlighting the above material and submissions, it is submitted that only role of 'exortation' has been assigned to the applicant while the identically placed co-accused person namely Javed Kamal has been granted bail by a co-ordinate Bench of this Court, vide order dated 05.02.2020 passed in Crl. Misc. Bail Application No. 55840 of 2019. It is next submitted that other co-accused persons having almost similar role in the alleged crime as of applicant namely Naeem @ Naeemuddin, Raziq Kamal, Mehdi @ Anmata, Hina and Ruksana @ Shana have also been granted bail by co-ordinate Benches of this Court, vide order dated 17.03.2021 and 04.12.2019 passed in Crl. Misc. Bail Application No. 22726 of 2020 and 13353 of 2019.
It is also submitted that though criminal history of 07 cases is being alleged against the applicant, however, the seventh case is pertaining to the Gangster Act, which has been invoked against the applicant on the basis of the instant case and other criminal cases and the bail application could only be moved in that case after obtaining regular bail in the other cases.
It is further submitted that criminal history of 06 other cases has been explained in Para No. 27 of the bail application and in all these cases the applicant has been granted bail by competent criminal courts, moreover, these cases are pertaining to the minor criminal offences, which were the result of the local political enmity and is not having any bearing on the present case.
It is next submitted that applicant is in jail in this case since 07.09.2018 and he is not having any criminal history. Chargesheet in this case has already been filed and there is no
apprehension that after being released on bail he may flee from the course of law or may otherwise misuse the liberty.
Learned A.G.A. on the other hand submits that keeping in view the heinousness of the offence and the role played by the applicant in the commission of the crime, he is not entitled to be released on bail, but he could not controvert the factual submissions made by learned Senior Advocate with regard to the fact that identically placed co-accused person namely Javed Kamal has been granted bail by a co-ordinate Bench of this Court.
Having heard learned counsel for the parties and having perused the record, it is evident that in the first information report initially the role of exhortation was attributed to the instant applicant. Subsequently it is shown that the applicant was also involved in the 'marpeet' given to the deceased. However, during the course of investigation, the statement of the informant as well as 03 eye witnesses were recorded and these eye witnesses have assigned the role of assault on deceased with lathi, danda to the three co-accused persons namely Shebu @ Asif, Ibne and Yusuf. A C.C.T.V. footage has also been perused by the investigating officer wherein also the three accused persons named above have been seen assaulting the deceased. The identically placed co-accused person namely Javed Kamal has been granted bail by a co-ordinate Bench of this Court. The applicant is assigned criminal history of 06 cases, however, the criminal history of the applicant could have been relevant only in the background of his role in the commission of the crime. Applicant is in jail in this case since 07.09.2018 and the presence of the applicant could be secured before the trial court by placing adequate conditions.
Thus, without commenting on the merits and demerits of the case and without going to the detailed discussions and also keeping an eye that identically placed co-accused person namely Javed Kamal has been granted bail by a co-ordinate Bench of this Court, in the considered opinion of this Court, the applicant has made out a case for bail. The bail application is thus allowed .
Let the accused/applicant- Junaid Kamal @ Junna involved in above-mentioned case, be released on bail on his furnishing a personal bond with two sureties in the like amount to the satisfaction of the court concerned subject to following conditions:-
(i) The applicant shall not tamper with the prosecution evidence by intimidating/pressurizing the witnesses, during the
investigation or trial.
(ii) The applicant shall cooperate in the trial sincerely without seeking any adjournment.
(iii) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Identity, status and residence proof of the applicant and sureties be verified by the Court concerned before the bonds are accepted.
Observations made herein-above by this court are only for the purpose of disposal of this bail application and shall not be construed as an expression on the merits of the case.
Order Date :- 8.4.2022 Praveen
Digitally signed by PRAVEEN KUMAR Date: 2022.04.08 16:27:53 IST Reason: Location: High Court of Judicature at Allahabad
3 issues framed by the court
Whether the applicant is entitled to bail in a non-bailable offence involving murder given the role assigned to him and the bail granted to identically placed co-accused.
Whether the applicant's criminal history is relevant for granting bail in the present case considering his assigned role.
Whether adequate conditions can be imposed to secure the applicant's presence during trial to justify granting bail.
Junaid Kamal @ Junna
Mohd. Faiz Alam Khan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
