Akil v. State of U.P

Order Date :- 4.7.2023 "

¶9Other named co-accused Shakil and Bilal have also been enlarged on bail by this Court vide order dated 04.08.2023 passed in Criminal Misc. Bail Application No. 26827 of 2023 (Shakeel and another Vs. State of U.P.). For ready reference, the order dated 04.08.2023 is reproduced hereinin-under: "

वररममनदमणणणकपककररजममनरपमररनमपत,

आववदकगरशककलएववबबलमल

ककओरसवमम0 अ0 सव0 6

सन2023,

अनरगर धमरम302, 364, 201 भा0द0ं वव0,oथानाoफु गाना,oजजलाoमुजफफरनगरoममoजमानतoपरoमुकoकरनेoहेतु पसतुतoवकयाoगयाoह।ै आवेदकगणoके oववदानoअजधवका,oपररवादीoके oववदानoअजधवकाoएवंoववदानoअपर शासकीयoअजधवकाoकोoसुनाoतथाoपतावलीoकाoपररषीलनoवकया। आवेदकगणoके oववदानoअजधवकाoकाoकथनoहoै वकoआवेदकगणoकोoइसoपकरणoमम गलतoएवंoफजरoतरीके oसेoझूठाoफॅ सायाoगयाoहै,oउनहोनेoकजथतoअपराधoकाररत नहीoवकयाoह,ै oघटनाoकीoपथमoसूचनाoररपोटरoववलमबoसेoदजरoकरायीoगयीoहै जजसकाo कोईoसपषीकरणoनहीo वदयाo गयाo है, oचषमदीदoसाकीo वादीo काo सगा चचाजातoभाईoहै,oमुलजजमानोoदाराoरातo10oबजेoमृतकoकाoअपहरणoकरके oले जातेoहहएoदेखनाoबतायाoगयाoहै,oजबवकoघटनाoकीoरातoचांदoकीo28oतारीखoथी जोoअंधेरीoरातoथी,oऐसेoममoवकसीoकोoपहचाननाoमुबषकलoहै,oआवेदकoके oपासoसे उसेo घटनाo ममo संजल्o करनेo वालीo कोईoवसतoु बरामदoनहीo हहयीo है, oजोo भी बरामदगीoहहयीoहoै वहoसहoअवभयकगणoमनववर,oसनववरoएवंoनदीमoके oपासoसेु ह महयीo ह।ै oउनकाo यहoभीo कथनoहoै वकo इसoपकरणoमo सहoअवभयकु ाo शीमती मफरजानाoकीoजमानत,oजमानतoआवेदनoपतoसं0o21240oसनo2023oमoइस नयायालयoकीoअनयoनयायपीठoके oआदेषoवद0o4-7-2023oदाराoसवीकारoकीoजा ह मचुकीo ह,ै oआवेदकगणoवनदरषoहo तथाo वेo इसoपकरणoमo वद0o29-1-2023 oसे कारागारoममoवनरदoह,ह oइसजलएoआवेदकगणoकोoजमानतoपरoछोडoवदयाoजाय। पररवादीo के o ववदान o अजधवकाo एवंo ववदान o अपर o शासकीय o अजधवकाo ने आवेदकगणoके oववदानoअजधवकाoके oतकरoकाoपबलoववरोधoकरतेoहहएoतकर oपसतुत वकयाo वकo आवेदकगण/अवभयकु गणoदाराo काररतoअपराधoसजं ेयoएवंo गमभीर पकृ वतo काo ह,ै oइसजलए o आवेदकगण o कोo जमानत o पर o न o छोडाo जाय। आवेदकगणoके oववदानoअजधवकाoके oतकरoके oपररपेकयoमoम पतावलीoपरoउपलबध सारवानoतथयोoएवंoपररबसथवतयोoकाoसमगoरपoसेoअवलोकनoकरनेoके oबाद, सबूतोoकीoपकृ वतoऔरoवकसीoभीoठोसoववरोधातमकoसामगीoकीoअनुपबसथवतoएवं उपलबधoसामगीoसेoछेडछाडoकीoसंभावनाoनoहोनेoके oतथयoकोoदेखतेoहहएoमेरी रायoममoआवेदकगणoकोoजमानतoपरoमुकoकरनेoकाoउपयकु oआधारoह।ै अतःoवादoके oगुणoदोषoपरoवबनाoकोईoवटपपणीoवकएoहहएoआवेदकगणoकोoउपरोक ववणरतoअपराधoममo संबंजधतoनयायालयoकीo सनतुवषo परoवयवकगतoबंध-पतoएवं अजधकoधनरावषoके oदो-दोoसथानीयoपवतभूoपसतुतoकरनेoपरoवनमनजलजखतoशतर के oसाथoजमानतoपरoछोडoवदयाoजाय। 1-oआवेदकगणoवववेचनाo याo परीकणoके o दौरानoअवभयोजनoसाकयोo के o साथ मछेड?छाडoनहीoकरगे। 2-oआवेदकगण o अवभयोजन o सावकयोo व o पीवडत/वषकायतकतारo को डरायमगे/धमकायमगेoनही। 3-oआवेदकगणoनयायालयoके oआदेषोoकाoपालनoकरगम े,oवहoपरीकणoके oदौरान वबनाoकोईoअनावषयकoसथगनoजलएoवनयतoवतजथoपरoनयायालयoमoम उपबसथतoहोगे तथाoपरीकणoममoईमानदारीoसेoसहयोगoकरगम े। 4-

आववदकगरजममनरपरररहमहकनवकवबमदजममनरककसवरवतरमकम

दमरपयकगनहहकरमगवऔरबकसदभदअपरमजधकगबरबवजधममजलपनहहहहगवन

ककईअपरमजधककमतयकरमगव। 5-

आववदकगरपतयकयमअपतयकरपसवमममलवकवरथयहसवपररबचरबकसद

भदवयबकयमपमजलसअजधकमररयहककककईपलकभनयमधमककनहहदवे वगवनहद

उनसवककईवमयदमकरमगव,

जजसकवकमररउनहमनयमयमलयममरथयहककउजमगर

करनवसवबवरररहनमपड़व।

उपरककशररममसवबकसदकवउलवघनकवमममलवमम,

परदकरनयमयमलयआववदक

ककजममनरबनयममनमसमररदकरनवककसवरवतहह। बद0: 4-8-2023 "

¶10On the above premise, the learned counsel for applicant contends that the case of present applicants is similar and identical to that of bailed out co-accused. He also contends that there is no such distinguishing feature on the basis of which case of present applicants can be so distinguished from the aforesaid bailed out co-accused so as to deny him bail. On the above premise, the learned counsel for applicant contends that in view of above and for the facts and reasons recorded in the bails orders dated

04.07.203 and 04.08.2023 of bailed out co-accused, applicants are also liable to be enlarged on bail on the ground of parity.

11.Even otherwise, applicants are men of clean antecedents inasmuch as they have no criminal history to their credit except the present one. Applicants are in custody since 23.02.2023. As such, they have undergone more than eight months of incarceration. Police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted against applicants, therefore the entire evidence sought to be relied upon by the prosecution against applicants stands crystallised. Upto this stage, no such incriminating circumstance has emerged necessitating the custodial arrest of applicants during the pendency of trial. On the above premise, the learned counsel for applicants thus submits that applicants are liable to be enlarged on bail. In case applicants are enlarged on bail, they shall not misuse the liberty of bail and shall co-operate with the trial.

¶12Per contra, the learned A.G.A. for State and the learned seniour counsel for first informant have vehemently opposed the prayer for bail. They submit that since applicant Akil is a named and charge-sheeted accused therefore he does deserve any indulgence by this Court. It is then contended by learned seniour counsel for first informant that case of applicant Nadeem is distinguishable form co-accused Akil as on the pointing of applicant Nadeem beheaded dead body of the deceased was recoveed. Criminality committed by applicants is joint and common. As such, same is incapable of being separated or segregated. As such no sympathey be shown by this court in favor of applicants.

¶13Having heard the learned counsel for applicants, the learned A.G.A. for State, the learned senior counsel for first informant upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant this Court finds that case of applicant Akil is similar and identical to aforementioned bail out co-accused, no recovery on the pointing of applicant Akil has been made, period of incarceration undergone, clean antecedent of applicant Akil, the police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant, therefore, the entire evidence sought to relied upon by the prosecution against applicant stands crystallised, yet in spite of above, the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, therefore, irrespective of the objections raised by learned A.G.A. and the learned Senior Counsel for first informant in opposition to the present applications for bail of applicant Akil but without expressing any opinion on the merits of the case, applicant Akil has made out a case for bail.

¶14Accordingly, present application for bail of applicant Akil is allowed.

¶15Let the applicant-Akil involved in aforesaid case crime number 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:-

(i) Applicant will not tamper with prosecution evidence.

(ii) 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.

(iii) Applicant will not indulge in any unlawful activities.

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

¶16The 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 of applicant and send him to prison

¶17So far as bail application of applicant Nadeem is concerned, the court finds that case of present applicant is distinguishable from applicant Akil as well as aforementioned bailed out co-accused. The beheaded dead body of the deceased was recovered on the pointing of the applicant Nadeem from the Canal which was concealed in a plastic bag. The aforesaid incriminating circumstance clearly belies the innocence of the applicant Nadeem therefore irrespective of the submissions urged by learned counsel for applicant in support of bail application of applicant Nadeem this Court does not find any good or sufficient ground to enlarge the applicant on bail.

¶18As a result, the present application for bail of applicant Nadeem fails and is liable to be rejected.

¶19It is accordingly rejected. Order Date :- 28.10.2023 YK High Court of Judicature at Allahabad

Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 37532 of 2023 Applicant :- Akil Opposite Party :- State of U.P. Counsel for Applicant :- Ashfaq Ahmed Ansari Counsel for Opposite Party :- G.A.,Ambreen Masroor and Case :- CRIMINAL MISC. BAIL APPLICATION No. - 36687 of 2023 Applicant :- Nadeem Opposite Party :- State of U.P. Counsel for Applicant :- Ashfaq Ahmed Ansari Counsel for Opposite Party :- G.A.,Ambreen Masroor Hon'ble Rajeev Misra,J. 1. Heard Mr. Ashfaq Ahmed Ansari, the learned counsel for applicants-Akil and Nadeem, the learned A.G.A. for State and Mr. N. I. Jafri, the learned Senior Counsel assisted by Asif Ahmad Advocate holding brief of Mr. Ambreen Masroor , the learned counsel representing first informant. 2. Perused the record. 3. These applications for bail have been filed by applicants--Akil and Nadeem seeking their enlargement on bail in Case Crime No. 06 of 2023 under Sections 302, 364, 201 I.P.C., Police Station- Phugana District- Muzaffar Nagar during the pendency of trial. 4. Record shows that in respect of an incident which is alleged to have occurred 22.01.2023, a delayed F.I.R dated 28.01.2023 was lodged by first informant Usman (father of the deceased) and was registered as Case Crime No. 06 of 2023 under Section 364 I.P.C., Police Station-Phugana District- Muzaffar Nagar. In the aforesaid F.I.R. seven persons namely Sanabbar, Manabbar, Akil, Shakil, Bilal, Pharjana, Mohseen have been nominated as named accused. 5. The gravamen of the allegations made in the F.I.R. is to the effect that Saquib son of first informant went missing from 22.01.2023. The F.I.R. further records that as per disclosure made by Abdul son of Yunus and Harun to the first informant named accused forcibly kidnapped the son of the first informant on 22.01.2023 at around 1.00 PM. 6. After aforementioned F.I.R. was registered, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. The Investigating Officer recorded the statement of first informant and other witnesses namely, Anis, Safiq, Adil, Abdul, Harun under Sectiion 161 Cr.P.C. Complicity of the applicant in the crime in question appeared in the statement of Anis wherein it was alleged that applicant was last seen in the company of other persons near canal. On the basis of above, applicant was arrested on 30.01.2023. On the pointing of applicant the beheaded body of the deceased was retrieved from the canal which was concealed in a plastic bag. The retrieved dead body was identified as the dead body of the deceased by applicant and the family members of the deceased. 7. Thereafter, inquest (panchayatnama) of the body of deceased was conducted on 30.01.2023. In the opinion of the witnesses of inquest (panch witnesses), the nature of death of deceased was categorized as homicidal and cause of death of deceased was beheading the deceased. Subsequent to above, the post-mortem of the body of the deceased was conducted. In the opinion of Autopsy Surgeon, who conducted autopsy of the body of deceased. the cause of death of deceased could not be ascertained therefore viscera was preserved. Learned A.GA. contends that F.S.L. report has not yet been received him him. On the basis of above and other material collected by Investigating Oficer, he came to the conclusion that complicity of six persons namely Sanabbar, Manabbar, Akil, Bilal, Farman (all named accused and not named accused Nadeem is established in the crime in question. 8. At the very outset, the learned counsel for applicant submits that co-accused Smt. Farzana has been enlarged on bail by this Court vide order dated 04.07.2023 passed in Criminal Misc. Bail Application No. 21.240 of 2023 (Smt. Farzana Vs. State of U.P.). For ready reference, the order dated 04.07.2023 is reproduced hereinin-under: "1. Supplementary affidavit filed today on behalf of the applicant is taken on record. 2. Heard Sri Ashfaq Ahmed Ansari, learned counsel for the applican