Wamik v. State of U.P

Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 47208 of 2023 Applicant :- Wamik Opposite Party :- State of U.P. Counsel for Applicant :- Kashi Naresh Mishra Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.

¶1List revised.

¶2Heard Sri Kashi Naresh Mishra, learned counsel for the applicant, Sri Sanjay Kumar Singh, learned counsel for the State and perused the material on record.

¶3This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Wamik, seeking enlargement on bail during trial in connection with Case Crime No. 436 of 2022, under Sections 304, 504, 506 I.P.C., registered at Police Station Roravar, District Aligarh.

¶4The FIR of the matter was lodged on 05.10.2022 by Asfaq against the applicant, Mustakeem Kachauri Wala and Mujakkir alleging therein that around six years back he had taken loan from the applicant of Rs. 10 lakhs out of which he had returned some money and had given some building material to him but he was demanding extra money after which he refused to return money after which he abused and threatened him. On 04.10.2022 his brother Ibrahim was sitting at the shop of Mathura Bai where the accused persons came and started to abuse him. His brother got terrified by the act of the accused persons. The accused persons again returned with country made pistol and threatened him after which he came to the house then he became ill after which he was taken to the hospital where the doctors declared him dead.

¶5Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the deceased Ibrahim died a natural death although the doctor found a lacerated wound and a contusion on his body but the same were without internal damage. The cause of death opined by the doctor due to shock hemorrhage as a result of antemortem injures. It is argued that in the FIR no role has been assigned to the applicant and co-accused of assault upon the deceased. It is further argued that co-accused Mustakim Kachavdi Wala and Muzakkir have been granted bail by co-ordinate Benches of this Court vide orders dated 19.09.2023 and 05.10.2023 passed in Crl. Misc. Bail Application Nos. 38703 of 2023 (Mustakim Kachavdi Wala Vs. State of U.P.) and 39789 of 2023 (Muzakkir Vs. State of U.P.), copy of the said orders are annexed as annexure 8 to the affidavit. He further argued that the applicant has no criminal history as stated in para 23 of the affidavit and is in jail since 12.10.2023.

¶6Per contra, learned counsel for the State opposed the prayer for bail.

¶7After having heard learned counsels for the parties and perusing the records, it is evident that as per the FIR there is no role of assault upon the deceased. Co-accused Mustakim Kachavdi Wala and Muzakkir have been granted bail.

¶8Looking to 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.

¶9Let the applicant Wamik, 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:-

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

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.

(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.

(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.

(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 may proceed against him under Section 229-A IPC.

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

¶10The 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.

¶11The bail application is allowed. Order Date :- 6.11.2023 M. ARIF (Samit Gopal, J.) High Court of Judicature at Allahabad