Shahbaz v. State of U.P

Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29317 of 2023 Applicant :- Shahbaz Opposite Party :- State of U.P. Counsel for Applicant :- Amit Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.

¶1List revised.

¶2Heard Sri Amit Kumar Srivastava, learned counsel for the applicant, Sri Virendra Pratap 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 Shahbaz, seeking enlargement on bail during trial in connection with Case Crime No. 476 of 2022, under Sections 302, 201, 120-B, 34 I.P.C., registered at Police Station Meerganj, District Bareilly.

¶4The FIR of the matter was lodged on 16.11.2022 by Smt. Mukhtari Begum against unknown person alleging therein that she lives with her son in a rented house. On 09.11.2022 at about 12:00 pm her son Mufeed went from the house with Shahbaz the applicant but did not return back.

¶5Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the dead body of the deceased was recovered on 16.11.2022. It is argued that as per the FIR the deceased was stated to have gone from the house on 09.11.2022 with the applicant after which after a week, the dead body of the deceased was recovered. It is argued that there is evidence whatsoever to show in between the deceased was accompanying with the applicant. It is argued that Salman Varsi is shown as alleged eye witness of the incident who has been interrogated after a month of going the deceased with the applicant who states both the persons going together and being together. It is argued that even therein the version of the deceased being with the applicant soon before death is not stated. It is argued that co-accused Bhura Khan and Mohammad Islam Khan have been granted bail by different Benches of this Court vide orders dated

17.05.2023 and 26.04.2023 passed in Crl. Misc. Bail Application Nos. 12448 of 2023 (Bhura Khan Vs. State of U.P.) and 13674 of 2023 (Mohammad Islam Khan Vs. State of U.P.), copy of the orders are annexed as annexure 10 to the affidavit. It is argued that the present case is a case of circumstantial evidence. The links of chain of circumstances are missing. The implication of the applicant is on the basis of suspicion only. He further argued that the applicant has no criminal history as stated in para 32 of the affidavit and is in jail since 18.11.2022.

¶6Per contra, learned counsel for the State opposed the prayer for bail but could not dispute the fact that co-accused Bhura Khan and Mohammad Islam Khan have been granted bail.

¶7After having heard learned counsels for the parties and perusing the records, it is evident that the case is a case of circumstantial evidence. The links of chain of circumstances are missing. The evidence against the applicant is of taking the deceased from the house and after a week the dead body of the deceased was recovered. Co-accused Bhura Khan and Mohammad Islam Khan 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 Shahbaz, 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 :- 13.12.2023 M. ARIF (Samit Gopal, J.) High Court of Judicature at Allahabad