Sheebu v. State of U.P

Court No. - 68 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 52875 of 2023 Applicant :- Sheebu Opposite Party :- State of U.P. Counsel for Applicant :- Bal Ram Gupta Counsel for Opposite Party :- G.A. Hon'ble Dr. Gautam Chowdhary,J.

¶1Heard learned counsel for the applicant, learned A.G.A for the State and perused the record.

¶2The first information report of the present matter was lodged on

27.05.2023 by Sanish against Salman @ Kana, his unknown brother, Aatif, Jeetu @ Kadar Khan and 4-5 unknown persons alleging therein that on 26.05.2023 at 09.30 p.m. the accused persons called his brother Saif @ Bholu and fired upon him with firearms. On hearing the noise he ran there to save him and took his brother for treatment in the hospital where his treatment is going on.

¶3Learned counsel for the applicant submits that applicant is not named in the F.I.R. Learned counsel for the applicant further submits that first informant has specifically assigned the role of firing upon Saif @ Bholu (deceased) by Salman @ Kana, Aatif Ilahi and Dayan in which he has further stated that Salman @ Kana fired on his brother Saif in his abdomen and Aatif and Dayan also fired upon him. It is argued that there is no overt act assigned to the applicant in the statement of the first informant recorded under Section 161 Cr.P.C. Learned counsel for the applicant further submits that general role has been assigned to the applicant in the statement of first informant recorded under Section 161 Cr.P.C., whereas role of firing has been assigned to the co-accused Salman @ Kana, Aatif Ilahi and Dayan. It is argued that as such case of the applicant is distinguishable with that of co-accused namely Salman @ Kana, Aatif Ilahi and Dayan. Learned counsel for the applicant further submits that one co-accused, namely, Mohd. Aman Khan, against whom general role has been assigned and whose presence is shown in CCTV footage at the place of incident, has already been enlarged on bail by a coordinate Bench of this Court vide order dated 19.10.2023 passed in Criminal Misc. Bail Application No. 44668 of 2023, whereas presence of applicant has not been proved from the said CCTV footage and the case of applicant is not on the worse footing than that of the co-accused, Mohd. Aman Khan, has already been granted bail, thus applicant is claiming parity. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been mentioned. It has also been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. He next submits that applicant is languishing in jail since 18.07.2023, having no criminal history.

¶4Per contra, learned A.G.A. has opposed the prayer for bail of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserve any indulgence, but he does not dispute that similarly circumstanced co-accused has already been granted bail.

¶5After perusing the record in the light of the submissions made at the bar and after taking an overall view of all 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, without expressing any opinion on merits of the case, this Court is of the view, that the applicant may be enlarged on bail.

¶6Let applicant-Sheebu, involved in Case Crime No. 19 of 2023, under Sections 147, 148, 149, 302, 120-B, 323, 504, 506 I.P.C., Police Station Moolganj, District Kanpur Nagar, be enlarged on bail on furnishing a personal bond and two heavy local sureties each of the like amount to the satisfaction of the court concerned subject to the following conditions:-

(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.

¶7The 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 in accordance with law.

¶8The bail application is allowed. Order Date :- 8.12.2023 Mustaqeem. High Court of Judicature at Allahabad