Three bail applicants sought release in connection with assault and causing death by unlawful assembly. The high court allowed bail after noting that the aggressor remained unidentified, evidence was crystallized, and no circumstances necessitated continued custodial arrest.
Applicants released on bail furnished with personal bonds and sureties.
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Neutral Citation No. - 2023:AHC:165752
Court No. - 65
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 30202 of 2023
Applicant :- Sadik Nadeem @ Mohd. Nadeem Opposite Party :- State of U.P. Counsel for Applicant :- Gyanendra Prakash Srivastava Counsel for Opposite Party :- G.A.,Rahul Kumar Singh
With
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 30036 of 2023
Applicant :- Abusad Opposite Party :- State of U.P. Counsel for Applicant :- Gyanendra Prakash Srivastava Counsel for Opposite Party :- G.A.,Rahul Kumar Singh
With
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 30043 of 2023
Applicant :- Osama Opposite Party :- State of U.P. Counsel for Applicant :- Gyanendra Prakash Srivastava Counsel for Opposite Party :- G.A.,Rahul Kumar Singh
Hon'ble Rajeev Misra,J.
Supplementary affidavits filed by the learned counsel for applicants in Court today are taken on record.
Heard Mr. V.P. Srivastava, the learned senior counsel assisted by Mr. Gyanendra Prakash Srivastava, the learned counsel for applicants, the learned A.G.A. for State and Mr. Rahul Kumar Singh, the learned counsel representing first informant.
These applications for bail have been filed by applicants Sadik Nadeem @ Mohd. Nadeem, Abusad and Osama seeking their enlargement on bail in Case Crime No.173 of 2023, under Sections 147, 323, 352, 304 IPC, police station Kopaganj, district Mau, during the pendency of trial.
Perused the record.
Record shows that in respect of an incident which is alleged to have occurred on 10.06.2023, a delayed FIR dated 11.06.2023 was lodged by first informant, namely, Mohd. Akram and was registered as Case Crime No.0173 of 2023, under Sections 147, 323, 352, 308 IPC, police station Kopaganj, district Mau. In the aforesaid FIR, seven persons, namely, Jameel Ahmad, Osama, Mohd. Naeem, Mohd. Nadeem,
Samsul Hasan, Abusad and Jahid have been nominated as named accused.
As per the prosecution story as unfolded in the aforesaid FIR, it is alleged that in the occurrence which occurred on 10.06.2023, one Hafizzurrahman sustained injuries on his face and head and ultimately, the injured Hafizzurrahman succumbed to the injuries sustained by him.
In respect of the same incident, another FIR dated 11.06.2023 was lodged by first informant-Mohd. Jahid i.e. accused in earlier FIR and was registered as Case Crime No.0174 of 2023, under Sections 147, 323, 504, 506, 352 IPC, police station Kopaganj, district Mau. In the aforesaid FIR, seven persons, namely, Amir @ Munna, Guddu, Hafizzurrahman, Mohd. Akram, Ishtiyaq Ahmad, Vaseeq Ahmad and Jamshed have been nominated as named accused. According to the prosecution story as unfolded in the aforesaid FIR, two persons, namely, Jahid and Mohd. Naeem are alleged to have sustained injuries.
On the above premise, Mr. V.P. Srivastava, the learned senior counsel for applicants contends that since cross-first information reports have been lodged from both the sides and injuries have been sustained by different persons from both the sides, as such, the occurrence is admitted to the parties. On the above premise, he submits that the only issue which is required to be decided is as to who is the aggressor. However, up to this stage, no such evidence has emerged on the record on the basis of which it can be conclusively concluded as to who is the aggressor in the crime in question. Moreover, the author of the fatal head injury sustained by the deceased has also not been identified in the statement of the witnesses examined under Section 161 CrPC. Such a question can more appropriately be decided only during the course of trial. The present case is a case of grave and sudden provocation covered under the fourth exception to Section 300 IPC therefore, applicants are liable to be enlarged on bail. According to the learned senior counsel, as many as seven persons have been nominated as accused but the Investigating Officer has exculpated two of the named accused, namely, Jameel Ahmad and Shamshul Hasan. This also goes to show the false implication of the applicants in the present case. Even otherwise, the applicants are men of clean antecedents having no criminal history to their credit except the present one. The applicants are in jail since 13.06.2023. As such they have undergone more than two months of incarceration. The police report under Section 173 (2) CrPC has already been submitted. As such the entire evidence sought to be relied upon by the prosecution against applicants stands crystalized. Up to this stage, no such circumstance has emerged necessitating the custodial arrest of the applicants during the pendency of trial. He therefore submits that applicants are liable to be enlarged on bail. In case the applicants are enlarged on bail, they shall not misuse the liberty of bail and shall cooperate with the trial.
Per contra, the learned A.G.A. and the learned counsel representing
first informant have vehemently opposed the prayer for bail. They submit that since the applicants are named as well as charge-sheeted accused therefore, they do not deserve any indulgence by this Court. On account of the act of applicants and other two charge-sheeted accused one person, namely, Hafizzurrahman sustained injuries on his face as well as on head. The said injury ultimately turned out to be fatal. According to the learned counsel representing first informant no one has received grievous or fatal injuries from the side of the accused. Moreover, the medico legal report/injury report with regard to the injured from the side of the accused was prepared one month after the date of occurrence and, therefore, the same is not a credible piece of evidence.. It is thus urged that considering the nature and gravity of the offence and coupled with the fact that crime committed by the accused is joint and common therefore incapable of being separated or segregated, as such no sympathy be shown by this Court in favour of applicants.
Having heard the learned senior counsel for applicants, the learned A.G.A. for State, the learned counsel representing first informant, upon perusal of material brought on record, nature and gravity of offence, evidence, complicity of the accused, accusation made and coupled with the fact that the occurrence giving rise to the present criminal proceeding is admitted to the parties, inasmuch as, cross-first information reports have been lodged from both the sides, there are injured from both the sides, up to this stage the author of the fatal head injury sustained by the deceased has not been identified even though there are as many as many as seven named accused and five chargesheeted accused, up to this stage no such circumstance has emerged on record on the basis of which it can be conclusively concluded as to who is the aggressor, thus the primary issue as to who is the aggressor can more appropriately be answered only during the course of trial, the police report under Section 173 (2) CrPC has already been submitted as such the entire evidence sought to be relied upon by the prosecution against applicants stands crystalized, however in spite of above the learned A.G.A. nor the learned counsel representing first informant could point out any such circumstance from the record necessitating the custodial arrest of the applicants during the pendency of trial, the clean antecedents of the applicants, the period of incarceration undergone, but without making any comments on the merits of the case, the applicants have made out a case for bail.
Accordingly, the bail applications are allowed .
Let the applicants Sadik Nadeem @ Mohd. Nadeem, Abusad and Osama , involved in aforesaid case crime number, be released on bail on their furnishing personal bonds with 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 :-
(i) The applicants shall file an undertaking to the effect that they 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.
(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 I.P.C.
(iii) In case, the applicants misuse the liberty of bail during trial and in order to secure their presence proclamation under section 82 Cr.P.C., may be issued and if 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 174A I.P.C.
(iv) The applicants 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 applicants 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.
(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 applicants.
However, it is made clear that any wilful violation of above conditions by the applicants, shall have serious repercussion on their 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.
Order Date :- 17.8.2023. Rks.
Digitally signed by :- RAJESH KUMAR SINGH High Court of Judicature at Allahabad
2 issues framed by the court
Whether the applicants are liable to be enlarged on bail pending trial given the nature of offence, unidentied aggressor, and clean antecedents?
Whether the order framed sufficient conditions to ensure the appearance of the accused in the trial court?
8 provisions across 2 enactments
Sadik Nadeem @ Mohd. Nadeem
Abusad
Osama
State of U.P.
Rajeev Misra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
