Allowed

Faizan v. State of U.P.

Allahabad HC10 Jul 2023BAIL/26972/2023

Case brief

AI extract

What is this about?

Allahabad High Court allowed bail for Faizan, a named accused in a murder case where he was assigned a minor role. Relying on the release of a co-accused on similar grounds and the crystallization of evidence after charge-sheet submission, the court fixed standard bail conditions.

What did the court decide?

Defendant released on bail with personal bond and two heavy sureties subject to specific conditions regarding attendance and cooperation with the trial.

Faizan Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2023)

¶1

Neutral Citation No. - 2023:AHC:135643

¶2

Court No. - 65

¶3

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 26972 of 2023

¶4

Applicant :- Faizan Opposite Party :- State of U.P. Counsel for Applicant :- Deepak Rana Counsel for Opposite Party :- G.A.

¶5

Hon'ble Rajeev Misra,J.

¶6

Heard Mr Deepak Ram, the learned counsel for applicant and the learned A.G.A for state.

¶7

This application for bail has been filed by applicant Faizan seeking his enlargement on bail in Case Crime No. 436 of 2022 under sections 302, 504, 34 I.P.C, P.S. Murandnagar, District-Ghaziabad during the pendency of trial.

¶8

Record shows that in respect of an incident which is alleged to have occurred on 11.7.2022 a belated FIR dated 12.7.2022 was lodged by first informant Farman and was registered as Case Crime No. 436 of 2022 under sections 302, 504, 34 I.P.C, P.S. Murandnagar, District-Ghaziabad. In the aforesaid FIR hree persons namely Faizan, Irshad and Nishar have been nominated as named accused.

¶9

The gravamen of the allegations made in the aforesaid FIR is to the effect that named accused with a common intention caused the death of Gufran, As per allegations made in the FIR applicant and co-accused Nishra have assigned the role of chatching hold whereas the role of causing fatal injuries to the deceased is assigned to named accused Irshad.

¶10

After aforesaid F.I.R was lodged, Investigating Officer proceeded with statutory investigation of above mentioned case crime number in terms of chapter XII Cr.P.C. Thereafter the inquest of the body of the diseased was conducted on the same date that is on 11.7.2022. In the opinion of witnesses of inquest (post-mortem), the nature of death of deceased was characterized as homicidal. The postmortem of the body of the deceased was conducted on 12.7.2022. In the opinion of autopsy surgeon the cause of death of deceased was shock and hemorrhage as a result of antemortem

¶11

injury. As per autopsy surgeon, following antemortem injuries were found on the body of deceased:

¶12

"Stab wound 3 x 1.5 cm cm on left side chest 6 cm below from nipple, 7 cm from midline chest cavity deep, internally sternum margin cut."

¶13

During course of investigation, Investigating Officer examined first informant Farman and other witnesses under section 161 Cr.P.C. Witness so examined have supported the FIR. On the basis of above and other material collected by Investigating Officer, during course of investigation, he came to the conclusion that complicity of named accused is established in the crime in question. He accordingly submitted the charge-sheet dated 24.8.2022.

¶14

Learned counsel for the applicant contends that from the material collected by investigating officer during course of investigation it is fully established that the author of the fatal injury to the deceased is named accused Irshad. The other two named accused namely Faizan and Nishar have been assigned the role of exhortation. It is next contended that named and chargesheeted coaccused Nishar has already been enlarged on bail by this court vide order dated 18.4.2023, passed in Criminal Misc. Bail Application No. 58696 of 2022 (Nishar Vs. State of U.P.). Same is on record at page 49 of the paper book. For ready reference, the same is reproduced here in under:

¶15

"Heard Sri Deepak Rana, learned counsel for the applicant, learned counsel for the State and perused the material on record.

¶16

This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Nishar, seeking enlargement on bail during trial in connection with Case Crime No. 436 of 2022, under sections 302, 504, 34 IPC, P.S. Muradnagar, District Ghaziabad.

¶17

The submission advanced by learned counsel for the applicant is that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. In the present case only two witnesses have been examined, one is real brother of the deceased and the other is Mama of the deceased and no other person seen the alleged incident whereas the incident took place at 5.20 P.M. in a shop. No motive has been assigned to the applicant for the alleged incident. Only role of exhortation is assigned to the applicant. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been mentioned. It has also

¶18

been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It is further contended by learned counsel for the applicant that the applicant is languishing in jail since 12.07.2022 having no criminal history.

¶19

Per contra, learned AGA for the State has opposed the prayer for bail.

¶20

After perusing the record in the light of the submissions made at the bar and after taking an overall view of all 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.

¶21

Let the applicant- Nishar, be released on bail in the aforesaid case crime number on furnishing a personal bond and two heavy 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:-

¶22

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

¶23

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.

¶24

(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.

¶25

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

¶26

(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

¶27

may proceed against him under Section 229-A IPC.

¶28

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

¶29

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.

¶30

The bail application is allowed. "

¶31

On the above premise it is submitted by the learned counsel for applicant that case of present applicant is similar and identical to that of aforesaid co-accused. He therefore submits that in view of the above and for the facts and reasons mentioned in the above order, applicant is also liable to be enlarged on bail. There is no such distinguishing feature on the basis of which case of present applicant can be so distinguished from aforesaid co-accused so as to deny him bail. It is thus urged that applicant is also liable to be enlarged on bail on the ground of parity.

¶32

It is further contended that applicant has criminal history of one case registered against him which has been explained in paragraph 4 of the supplementary affidavit filed in support of present applications for bail. According to learned counsel, applicant is in jail since 12.7.2022. As such he has undergone almost 1 year of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. Therefore the entire evidence sought to be relied upon by the prosecution against the applicant stands crystallised. However up to this stage no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. He therefore submits that application is liable to be enlarged on bail. In case applicant is enlarged on bail, he shall not misuse the liberty of bail and shall cooperate with the trial.

¶33

Per contra, the learned A.G.A. has opposed the present application for bail. He submits that since applicant is a named and chargesheeted accused, therefore he does not deserve any indulgence by this court. Criminality committed by named and charge sheeted accused is common. As such, same is incapable of separation or segregation. He therefore submits that present application for bail is liable to be rejected. However the learned A.G.A could not dislodge the factual and legal submissions urged by the learned counsel for applicant, with reference to the record, at this stage.

¶34

Having heard the learned counsel for applicant, the learned A.G.A.

¶35

for State, upon perusal of material brought on record, evidence, nature and gravity of offence as well as the complicity of applicant and accusation made coupled with the fact that applicant is not the author of fatal injuries sustained by deceased as the said injury have caused by co-accused Irshad, role of present applicant and co-accused Nishar is similar. Co-accused Nishar has already been enlarged on bail, there is no such distinguishing feature on the basis of which case of present applicant can be so distinguished from aforesaid co-accused, so as to deny him bail, the period of incarceration undergone, the police report in terms of Section 173 (2) has already been submitted, as such the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized, up to this stage no such circumstance has emerged necessitating the custodial arrest of applicant, but without making any comment on the merits of the case applicant has made out a case for bail on the ground of parity.

¶36

Accordingly the bail application is allowed.

¶37

Let the applicant Faizan , 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:-

¶38

(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE 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.

¶39

(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.

¶40

(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

¶41

(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

¶42

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 THE HIM/HER IN ACCORDANCE WITH LAW.

¶43

(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.

¶44

However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her 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.

¶45

Order Date :- 10.7.2023 Arshad

¶46

Digitally signed by :- ARSHAD MAHMOOD High Court of Judicature at Allahabad

Faizan v. State of U.P.

Case brief

What is this about?

What did the court decide?

Faizan v. State of U.P.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Arjun and 2 Others Vs State of U.P.

Bal Mukund Vs State of U.P. and 3 Others

Bhurey Singh Vs State of U.P.

Vivek Vs State of U.P.

Devendra Kumar Vs State of U.P.

Amit Kumar Vs State of U.P.