Allowed

Naushad v. State of Up.

Allahabad HC4 Apr 2022BAIL/2939/2022

Case brief

AI extract

What is this about?

Criminal Misc. Bail Application filed by Naushad in a dacoity case involving death. He sought bail on the ground that five co-accused, including those with similar roles, had already been granted bail by the same court. The High Court, without commenting on merits, found it a fit case for bail.

What did the court decide?

Applicant Naushad released on bail on personal bond with two sureties subject to specific conditions regarding presence and conduct.

Naushad Vs State of Up. — Murder and Culpable Homicide | Allahabad HC (2022)

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Court No. - 66

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2939 of 2022

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Applicant :- Naushad Opposite Party :- State Of Up. Counsel for Applicant :- Hasan Abbas,Pradeep Kumar Jaiswar Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Hasan Abbas, learned counsel for applicant and learned A.G.A. for State.

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This application for bail has been filed by applicant Naushad seeking his enlargement on bail in Case Crime No. 833 of 2016, under Section 396 IPC, P.S. Kotwali Dehat, District Etah, during pendency of trial.

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Perused the record.

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Record shows that in respect of an incident, which is alleged to have occurred on 11.11.2016, a prompt F.I.R. dated 11.1.20216 was lodged by first informant Hundilal and was registered as Case Crime No. 833 of 2016, under Section 396 IPC, P.S. Kotwali Dehat, District Etah. In the aforesaid F.I.R., one unknown person has been nominated as solitary accused.

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According to the prosecution story as unfolded in the F.I.R., it is alleged that on 10/11.11.2016 in the night first informant along with his family was sleeping. Some persons at around 3 a.m. started taking away his buffaloes. Hearing the sound they woke up and chased the thieves and raised alarm. The thieves were chased and finding themselves encircled, they fired gun shots on account of which Yashoda, daughter of first informant sustained gun shot injury in her stomach. Subsequently, she succumbed to the injuries sustained by her during treatment.

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Subsequent to aforementioned F.I.R., Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr. P. C. On the basis of the statements of the witnesses examined under Section 161 Cr,. P. C. and other material collected by him during course of investigation, Investigating Officer submitted the charge sheet, whereby 9 persons namely Firoz, Kalwa, Islam, Bhambhu, Naushad, Sanjay, Ishu, Bhoora and Faheem have been charge sheeted under Sections 302, 393 IPC.

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At the very outset, learned counsel for applicant contends that charge sheeted accused Faheem has been enlarged on bail, vide order dated 26.5.2017 passed in Criminal Misc. Bail Application No. 19031 of 2017 (Faheem Vs. State of U.P.). The copy of bail order is on record at page 71 of the paper book. Co-accused Islam has been enlarged on bail, vide order dated 17.7.2017 passed in Criminal Misc. Bail Application No. 24470 of 2017. Copy of bail order is on record at page 73. Co-accused Firoz, Sanjay and Bhoora have already been enlarged on bail by this Court, vide order dated 19.7.2017 passed in Criminal Misc. Bail Application No. 25004 of 2017 (Firoz and two others Vs. State of U.P.). Copy of the aforesaid order has been produced in Court today which is taken on record. For ready reference, same is reproduced herein under:-

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"Heard learned counsel for applicants, learned A.G.A. and perused the record.

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This bail application has been preferred by the accused-applicants, Firoz, Sanjay & Bhura, who are involved in Case Crime No.833 of 2016, under Section 396 I.P.C. P.S.-Kotwali Dehat, District-Etah.

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Learned counsel for the applicant in support of his prayer for bail submits that the applicant is innocent and has been falsely implicated in the present case. It is further submitted that co-accused Faeem having similar role to that of applicants have already been granted bail by this court vide order dated 26.5.2017, therefore, the applicants are also entitled to be released on bail on the ground of parity. The applicants have no criminal history.

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On behalf of State bail has been opposed but learned A.G.A. conceded on the point of parity.

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In view of the facts and circumstances of the case and the submissions made by learned counsel for both sides and going through the record, without commenting on the merits of the case, I find it a fit case for bail.

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Let applicant, Firoz, Sanjay & Bhura, be released on bail in the aforesaid case crime number on their furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned with the following conditions:

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(i). The applicants shall file an undertaking to the effect that they shall not seek any adjournment on the dates fixed for evidence, if 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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(ii). The applicants shall remain present before the trial court on each date fixed, either personally or through their counsel. In case of their absence, without sufficient cause, the trial court may proceed against them under Section 229-A of the Indian Penal Code;

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(iii). In case, the applicants misuse the liberty of bail and in order to secure their 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.

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(iv) The applicants 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 default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of their bail and proceed against them in accordance with law."

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On the aforesaid premise, learned counsel for applicant contends that case of the present applicant is similar and identical to aforesaid charge sheeted co-accused, who have already been enlarged on bail. There is no such distinguishing feature on the basis of which case of present applicant can be distinguished from aforementioned co-accused so as to deny him bail. As such, applicant is also liable to be enlarged on bail on the ground of parity.

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It is also submitted that out of nine charge sheeted accused, five have already been enlarged on bail.

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It is also submitted that applicant is a man of clean antecedents, inasmuch he has no criminal history to his credit except the present one. Applicant is in jail since 31.7.2021. As such, he has undergone more than 8 months of incarceration. In case, applicant is enlarged on bail, he shall not misuse liberty of bail and shall co-operate with the trial.

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Per contra, the learned A.G.A. has opposed this application for bail. Learned A.G.A. contends that since applicant is a charge sheeted accused for an offence under Section 396 IPC, he does not deserve any sympathy of this Court. However, he could not dispute the factual and legal submissions urged by learned counsel for applicant.

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Having heard learned counsel for applicant, learned A.G.A. for the state, upon perusal of material brought on record, nature of offence, evidence, complicity of the accused and accusation made, but without expressing any opinion on merits of the case, the applicant has made out a case for bail. Accordingly, bail application is allowed.

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Let the applicant Naushad, involved in aforesaid case crime number, be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of

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the court concerned with the following conditions which are being imposed in the interest of justice :-

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(i) 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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(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 I.P.C..

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(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., 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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(iv) 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.

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(v) The trial court may make all possible efforts/endeavour and try to conclude the trial within a period of one year after the release of the applicant.

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However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.

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Order Date :- 4.4.2022 HSM

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Digitally signed by HARI SHANKER MISHRA Date: 2022.04.05 14:09:38 IST Reason: Location: High Court of Judicature at Allahabad

Naushad v. State of Up.

Case brief

What is this about?

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Naushad v. State of Up.

Case brief

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