Allowed

Arshad Kha v. State of U.P.

Allahabad HC22 Aug 2022BAIL/14448/2022

Case brief

AI extract

What is this about?

High Court allowed bail application of third degree accused in murder case involving assault with weapon. Court noted no evidence points to applicant as author of fatal injury and co-accused granted bail, imposing strict conditions on release.

What did the court decide?

Applicant released on bail furnishing personal bond and two sureties subject to specific court-imposed conditions regarding attendance and conduct.

Arshad Kha Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2022)

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Court No. - 66

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 14448 of 2022

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Applicant :- Arshad Kha Opposite Party :- State of U.P. Counsel for Applicant :- Bhavya Sahai Counsel for Opposite Party :- G.A.,Diwanshu Tiwari,Mithilesh Kumar Shukla

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Hon'ble Samit Gopal,J.

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Heard Sri Bhavya Sahai, learned counsel for the applicant, Sri Diwanshu Tiwari, learned counsel for the first informant and Sri Ankit Srivastava, learned counsel for the State and perused the material on record.

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This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Arshad Kha , seeking enlargement on bail during trial in connection with Case Crime No. 0222 of 2021, under Sections 147, 148, 149, 302, 323, 504, 506/34, 326 I.P.C., registered at Police Station Kotwali Chibramau, District Kannauj.

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Learned counsel for the applicant argued that the applicant is innocent and he has been falsely implicated in the present case. The first information report was lodged against seven named persons including the applicant and some unknown persons alleging that all the accused persons including applicant have assaulted the deceased with lathi , stick etc. resultantly, deceased sustained injuries and died during treatment. It is argued that as per postmortem report, the deceased has sustained one lacerated wound on medial end of right eyebrow with nasal region frontal and nasal bone of respected region fractured and two abrasions. There is no such evidence that which of the accused is author of fatal injury sustained by the deceased. Only general and omnibus role has been attributed to all the accused persons including the applicant. It is further argued that co-accused Rashid; Irshad Kha; Shibu @ Shadab; Shahnawaj @ Shanu have been granted bail by co-ordinate Benches of this Court vide orders dated 24.11.2021, 22.02.2022, 23.02.2022 and 04.03.2022 passed in Criminal Misc. Bail Application Nos. 43328 of 2021, 41542 of 2021, 45153 of 2021 and 46015 of 2021, the copy of the said orders is annexed as Annexure-3 to the affidavit. It is argued that the case of the applicant is identical to that of co-accused who have been granted bail. Co-

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accused Hasim has been granted bail by this Court vide order dated 25.03.2022 passed in Criminal Misc. Bail Application No. 46806 of 2021, the copy of the said order has been produced which is taken on record. The applicant has no criminal history as stated in para 10 and is in jail since 11.05.2021.

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Per contra , learned counsel for the first informant and learned counsel for the State have opposed the prayer for bail but could not dispute the aforesaid argument and also the fact that identically placed co-accused have been granted bail by this Court. It is argued that the first informant in his statement recorded under Section 161 Cr.P.C. assigned the role to the applicant of being armed with a wooden stick.

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After having heard the learned counsel for the parties and perusing the record, it is evident that common and general role has been assigned to all the named accused including the applicant and unknown persons of assault. The author of the fatal injury is not known. Co-accused Rashid, Irshad Kha, Shibu @ Shadab, Shahnawaj @ Shanu and Hasim have been granted bail.

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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.

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Let the applicant- Arshad Kha , 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:-

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i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.

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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.

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(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.

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(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. In case, the applicant misuses the liberty of

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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.

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(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 229A IPC.

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

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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.

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The bail application is allowed.

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Order Date :- 22.8.2022 AS Rathore

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(Samit Gopal,J.)

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Digitally signed by ABHISHEK SINGH RATHOR Date: 2022.08.23 14:48:24 IST Reason: Location: High Court of Judicature at Allahabad

Arshad Kha v. State of U.P.

Case brief

What is this about?

What did the court decide?

Arshad Kha v. State of U.P.

Case brief

What is this about?

What did the court decide?

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