Kalam v. State of U.P

Court No. - 76 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 26963 of 2023 Applicant :- Kalam Opposite Party :- State of U.P. Counsel for Applicant :- Sanjay Kr. Srivastava Counsel for Opposite Party :- G.A.,Nitin Sharma Hon'ble Vikram D. Chauhan,J.

¶1Learned A.G.A. submits that instructions have been received and has no objection in case the bail application is heard on merits.

¶2Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

¶3It is submitted by learned counsel for the applicant that as per the allegations in the first information report it is alleged that the applicant has assaulted the injured persons with firearm. The injuries sustained by the injured Fukran and Salman are caused by hard and blunt object. There is no injury of firearm. In fact the applicant's side one Salman has sustained firearm injury on the chest. The dispute arose between the parties where both the sides have resorted to firing. During investigation, video has been recovered by the police in which the applicant has been shown to have been firing. Since the applicant's side suffered firearm injury therefore, in order to deter the other side for further causing injury to the applicant's side the firing has been resorted. However, no person has been injured in the aforesaid firing. The applicant has explained criminal history in paragraph 2 of the supplementary affidavit. Applicant is languishing in jail since 25.5.2023 and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in the trial.

¶4Sri Pawan Sut, Advocate holding brief of Sri Nitin Sharma, learned counsel for the informant opposed the prayer for bail. He submits that the applicant's video has been recovered in which it was seen that the applicant is firing. However, he does not dispute the fact that no firearm injury has been caused to the injured. He also could not dispute the fact that from the applicant's side one Salman has received firearm injury and the first information report has been lodged by the applicant's side in which informant's side has been enlarged on bail.

¶5Learned A.G.A. for the State opposed the prayer for bail but does not dispute factual matrix of the case. 5A. Learned AGA has pointed out the criminal antecedents of the Applicant. No material or circumstance has been brought to the notice of this court with regard to tampering of evidence or intimidating of witness in previous criminal cases. In Ash Mohammad v. Shiv Raj Singh, (2012) 9 SCC 446, the Apex Court in para 30 has observed: "We may hasten to add that when we state that the accused is a history-sheeter we may not be understood to have said that a history-sheeter is never entitled to bail. But, it is a significant factor to be taken note of regard being had to the nature of crime in respect of which he has been booked."

¶6In the case of Prabhakar Tewari Vs. State of U.P. and another, 2020 (11) SCC 648, the Hon'ble Supreme Court has observed that pendency of several criminal cases against an accused may itself cannot be a basis for refusal of bail.

¶7In so far as criminal antecedents of the applicant is concerned, it is not the case of the State that applicant might tamper with or otherwise adversely influence the investigation, or that he might intimidate witnesses before or during the trial. The State has also not placed any material that applicant in past attempted to evade the process of law. If the accused is otherwise found to be entitled to bail, he cannot be denied bail only on the ground of criminal history, no exceptional circumstances on basis of criminal antecedents have been shown to deny bail to accused, hence, the Court does not feel it proper to deny bail to the applicant just on the ground that he had criminal antecedent.

¶8The principle that Bail is a rule and Jail is an exception has been well recognised by Apex Court more specifically on the touch stone of Article 21 of the Constitution. The said principle has been reiterated by the Apex Court in Satyendra Kumar Antil Vs Central Bureau of Investigation and another, 2022 (10) SCC

¶51Learned AGA has not shown any exceptional circumstances which would warrant denial of bail to the applicant.

¶9No material, facts or circumstances has been shown by learned AGA that the accused may tamper with the evidence or witnesses or the accused is of such character that his mere presence at large would intimidate the witnesses or that accused will use his liberty to subvert justice or tamper with the evidence.

¶10It is settled principle of law that the object of bail is to secure the attendance of the accused at the trial. No material particulars or circumstances suggestive of the applicant fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like have been shown by learned AGA for the State.

¶11Learned AGA for the State has not shown any material or circumstances that the accused/applicant is not entitled to bail in larger interests of the public or State. 11A. In the present case, it is to be seen that the injured has not suffered any firearm injury. The video of firing by the applicant has been recovered during investigation. However, since no one ha been injured and the dispute has arisen between the parties where both the parties were resorted to firing, no firearm injury being caused to the informant's side is indicative of the fact that there is no intention to commit culpable homicide.

¶12Considering the facts and circumstances of the case, nature of offence, evidence, complicity of the accused, submissions of learned counsel for the parties and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.

¶13Let the applicant Kalam involved in Case Crime No.119 of 2023, under Sections 307, 352, 452, 323 I.P.C. and Section 3/25 Arms Act, Police Station Kharkhauda, District Meerut be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:- i. The applicant will not tamper with the evidence during the trial. ii. The applicant will not pressurize/intimidate the prosecution witness. iii. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted and/or the applicant shall make himself available for interrogation by a police officer as and when required. iv. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected. v. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence. vi. The applicant shall not leave India without the previous permission of the Court. vii. In the event, the applicant changes his residential address, the applicant shall inform the court concerned about new residential address in writing.

¶14In case of breach of any of the above condition, the prosecution shall be at liberty to move bail cancellation application before this Court. Order Date :- 24.11.2023 Bhaskar High Court of Judicature at Allahabad