Javed v. State of U.P

Reserved on 17.11.2023 Delivered on 20.11.2023 Case :-CRIMINAL MISC. BAIL APPLICATION No. -49005 of 2023 Applicant :-Javed Opposite Party :-State of U.P. Counsel for Applicant :-Virendra Singh Tomar,Rajiv Sisodia Counsel for Opposite Party :-G.A. Hon'ble Siddharth,J. Heard Sri Rajiv Sisodia, learned counsel for the applicant as well as the learned AGA for the State and perused the material placed on record. The instant bail application has been filed on behalf of the applicant, Javed, with a prayer to release him on bail in Case No.4183 of 2023, Crime No. 102 of 2023, under Sections 302, 120-B IPC, Police Station Naugava Sadat, District-Amroha, during pendency of trial. There is allegation in FIR that brother of the informant used to quarrel with his wife, Zareena. Zareena quarrelled with her brother and went to Tamilnadu with her son, Vaseem. While leaving the house, she threatened her husband of life. On 10.3.2023, son of the informant informed that dead body of her brother, Saleem, is lying in the Jungle. She expressed apprehension against the named accused, Ayyub, Junaid, Faheem and wife of the deceased, Zareena that her brother was done to death on the instigation of co-accused, Zareena by three named accused, namely, Ayyub, Junaid and Faheem. Subsequently in her statement under Section 161 Cr.P.C. informant named the applicant also, who is one of the co-accused and stated that initially she implicated Ayyub, Faheem, Junaid and her sister-in-law, Zareena, but later she came to know that alongwith named co-accused, the applicant is involved in the murder of her brother. Hence applicant has been implicated in this case. Learned counsel for the applicant has submitted that the applicant has been falsely implicated in this case. Mobile phones were recovered from co-accused, Faheem and Junaid and from the applicant, Javed. Faheem admitted committing the alleged offence under the influence of co-accused, Zareena. In the C.D.R. report, there is conversation between Saleem and Faheem. The applicant has only talked to co-accused, Faheem and not to co-accused, Junaid and Saleem. During investigation, the Investigating Officer has exonerated co-accused, Ayyub and Zareena and implicated the applicant. He has submitted that applicant and co-accused, Junaid, are doing work of purchasing old clothes and supplying cotton waste factory and hence they used to talk on mobile phone. The applicant has no criminal history and he has been falsely implicated in this case due to ulterior motives. Per contra learned A.G.A. has opposed the prayer for bail of the applicant and submitted that call details of the applicant with co-accused proved that he was also involved in this case. After hearing rival contentions, this Court finds that except the call details of the applicant with two co-accused, namely, Junaid and Faheem, there is no evidence against him nor he is alleged to have any motive to cause the alleged offence. Last seen evidence is against named co-accused and not the applicant. Having considered the submissions of the parties noted above, finding force in the submissions made by the learned counsel for the applicant; keeping in view uncertainty regarding conclusion of trial; one sided investigation by police, ignoring the case of accused side; applicant being under-trial having fundamental right to speedy; larger mandate of the Article 21 of the Constitution of India, considering the dictum of Apex Court in the case of Satendra Kumar Antil Vs. C.B.I. & Another, passed in S.L.P.(Crl.) No. 5191 of 2021, judgement dated 11.7.2022 and considering 5-6 times overcrowding in jails over and above their capacity by under trials and without expressing any opinion on the merits of the case, let the applicant involved in the aforesaid 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 that :-

(i) The applicant shall not tamper with the evidence or threaten the witnesses.

(ii) 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.

(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code.

(iv) In case the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fail to appear before the Court on the date fixed in such 2 of 3 proclamation then the Trial Court shall initiate proceedings against him in accordance with law under Section 174-A of the Indian Penal Code.

(v) 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. In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail. Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted. Order Date :- 20.11.2023 Ruchi Agrahari 3 of 3 High Court of Judicature at Allahabad