Mohd. Athar Vs State of U.P. Thru. Prin. Secy. Home Deptt. Lko.

Neutral Citation No. - 2025:AHC-LKO:25451

Court No. - 13

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 392 of 2024

Applicant :- Mohd. Athar Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. Counsel for Applicant :- Salma Bano,Ajeet Pratap Singh,Devendra Kumar Rawat,Mohd Hatim,Shresth Agarwal,Shubham Chaurasiya,Syed Mehfuzur Rehman,Zia Ul Qayuim Counsel for Opposite Party :- G.A.,Ankit Pandey,Nikhil Dwivedi,Raghvendra Pandey,Rahul Kumar

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Hon'ble Manish Mathur,J.

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Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State, Mr. Raghvendra Pandey, learned counsel for complainant and perused the record.

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This first bail application has been filed with regard to Case Crime No.113 of 2023 under Sections 307, 506 IPC & Section 3/25 Arms Act, P.S. Hasanganj, District Lucknow.

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As per contents of FIR, the incident is said to have taken place on 05.08.2023 at about 09:00 PM when the applicant alongwith co-accused allegedly opened fire upon the informant resulting in serious injuries.

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It is submitted that applicant has been falsely implicated in the charges levelled against him which would be evident from the fact that in his statement recorded under Section 161 Cr.P.C., the informant has not at all indicated the role of firing upon the applicant with the only role attributed being that of exhortation. It is, therefore, submitted that injury report does not corroborate charges levelled against the applicant who is under incarceration since 08.08.2023. Learned counsel for applicant has drawn attention to bail order pertaining to coaccused Mohd. Tarikh @ Haroon in Criminal Misc. Bail Application No. 201 of 2024 in which certified copy of the order sheet of case crime No.113 of 2023 had been submitted to indicate that the informant himself has not been appearing before trial court on at least five days.

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Learned A.G.A. appearing on behalf of the State and learned counsel for complainant have opposed the bail application with the submission with learned counsel for complainant submitting that allegations levelled in the FIR clearly indicate the sections imputed against applicant. It is submitted that applicant in fact is extending threats to the informant even while under custody

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due to which a police gunner has been provided to the complainant.

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Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation , reported in (2012) 1 SCC 40 has specifically held that bail is to be a norm and an under-trial is not required to be in jail for ever pending trial. Relevant paragraphs of the judgment are as under :-

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"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty."

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"27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."

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Upon consideration of submissions advanced by learned counsel for parties, prima facie, subject to evidence being led in trial, at this stage it appears that although in the FIR, a general role of opening fire upon the informant has been stated but in his statement under Section 161 Cr.P.C., the only role attributable to the applicant is that of exhortation without any role of firing upon the informant. Paragraph 8 of bail order granted in Criminal Misc. Bail Application No.201 of 2024 also indicates the fact that it is the informant himself who is not appearing before the Court concerned on at least five occasions despite summons have been issued on very date. Previous criminal history of the applicant has been explained. The applicant is under incarceration since 08.08.2023 and trial appears to be getting delayed on account of the non-cooperative attitude of the informant himself. The Trial Court is, however, directed to conclude the trial expeditiously.

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Considering the submissions of learned counsel for the parties, nature of accusation and severity of punishment in case of conviction, nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment and considering larger mandate of the Article 21 of the Constitution of India and, without expressing any view on the merits of the case, I find it to be a fit case of bail.

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Let applicant, Mohd. Athar, involved in the aforesaid case

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crime be released on bail on his 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 shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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 of the Indian Penal Code.

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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. is issued and the 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 of the Indian Penal Code.

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(iv) The applicant 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, 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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Order Date :- 2.5.2025 prabhat

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Digitally signed by :- PRABHAT KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Mohd. Athar v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko.

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