Shahnawaz v. State of U.P

Court No. - 37 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9278 of 2023 Applicant :- Shahnawaz Opposite Party :- State of U.P. Counsel for Applicant :- Anil Kumar Mishra Counsel for Opposite Party :- G.A. Hon'ble Ajay Bhanot,J. By means of the second bail application the applicant has prayed to be enlarged on bail in Case Crime No.164 of 2021 at Police Station-Kotwali Nagar, District-Saharanpur under Sections 364, 302, 201, 34 IPC. The applicant is in jail since 28.07.2021. The first bail application of the applicant was rejected by this Court on 12.07.2022. An application has been filed on behalf of the applicant which discloses that the applicant wishes to gather evidence and establish his effective defence. The applicant has been impeded in creating the defence strategy and gather such evidence on account of continued incarceration. The following arguments made by Shri Avinash Pandey, learned counsel holding brief of Shri Anil Kumar Mishra, learned counsel on behalf of the applicant, which could not be satisfactorily refuted by Shri Chandan Agarwal, learned AGA from the record, entitle the applicant for grant of bail:

¶1The applicant is not a flight risk. The applicant is a law abiding citizen who cooperated in the investigation and has joined the trial proceedings. The applicant never tampered with the evidence nor did he influence any witness.

¶2All the material witnesses including the victim have been examined.

¶3Continued incarceration of the applicant will disable him from framing an effective defence strategy, gathering evidence in his support thereof and tendering the same before the learned trial court to absolve himself.

¶4The applicant does not have any criminal history apart from the instant case.

¶5The applicant is not a flight risk. The applicant being a law abiding citizen has always cooperated with the investigation and undertakes to cooperate with the court proceedings. There is no possibility of his influencing witnesses, tampering with the evidence or reoffending. This Court in Prabhat Gangwar v. State of U.P. (Criminal Misc. Bail Application No.2586 of 2023) while considering the grant of enlarging an accused on bail for preparing his defence and gathering evidence to tender the same before the learned trial court for establishing his innocence held: "Nature and gravity of the offence is certainly liable to be considered by the court while considering grant of bail. The Court has also to factor the likelihood of whether the accused committed the offence while deciding a bail application. The court also has to determine in the facts of the case whether the accused needs to be set at liberty to frame his defence and gather evidence to refute the prosecution case and establish his innocence. The bail court has to examine whether continued incarceration would disable the accused from tendering an effective defence of his case. This is a demand of processual fairness in criminal jurisprudence. Setting an accused at liberty at large on this ground cannot be applied mechanically in all cases. The issue has to be considered in the facts and circumstances of each case while doing so. All relevant facts including the evidences in the record, the conduct of the accused during the investigation as well as trial have to be adverted to before a decision is made in this regard." Considering the aforesaid parameters in light of the above facts of this case, I am of the opinion that the applicant is entitled for bail. In wake of the preceding discussion and without making any observations on the merits of the case, the bail application is allowed. Let the applicant-Shahnawaz 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 below. The following conditions be imposed in the interest of justice:-

(i) The applicant will not tamper with the evidence or influence any witness during the trial.

(ii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted. However, the applicant undertakes to cooperate in the trial proceedings. It is further directed that in case the learned trial court finds that the applicant is delaying the trial or is not cooperating the trial proceedings, the learned trial court may record a finding to this effect and proceed to cancel the bail without recourse to this Court. Order Date :- 23.11.2023 Ashish Tripathi High Court of Judicature at Allahabad