Mohd. Aman Khan v. State of U.P

Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44668 of 2023 Applicant :- Mohd. Aman Khan Opposite Party :- State of U.P. Counsel for Applicant :- Qazi Vakil Ahmad Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.

¶1Heard Sri Qazi Vakil Ahmad, learned counsel for the applicant and Sri Birendra Pratap Singh, learned counsel for the State and perused the material on record.

¶2This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant-Mohd. Aman Khan, seeking enlargement on bail during trial in connection with Case Crime No. 19 of 2023, under Sections 147, 148, 149, 504, 506, 302/34, 323, 120-B I.P.C., Police Station Moolganj, District Kanpur Nagar.

¶3The first information report of the present matter was lodged on 27.05.2023 by Sanish against Salman @ Kana, his unknown brother, Aatif, Jeetu @ Kadar Khand and 4-5 unknown persons alleging therein that on 26.05.2023 at 9.30 om the accused persons called his brother Saif @ Bholu and fired upon him with firearms. On hearing the noise the he ran there to save him. He has taken his brother for treatment in the hospital where his treatment is going on.

¶4Learned counsel for the applicant argued that the first informant has specifically assigned the role of firing upon Saif @ Bholu the 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 as such the case of the applicant is distinguishable with that of co-accused namely Salman @ Kana, Aatif Ilahi and Dayan. It is argued that there is no overt act assigned to the applicant in the statement of the fist informant recorded u/s 161 Cr.P.C. The applicant has no criminal history as stated in para 30 of the affidavit and is in jail since

07.06.2023.

¶5Per contra, learned counsel for the State opposed the prayer for bail.

¶6After having heard learned counsel for the parties and perusing the record, it is evident that common and general role has been assigned to the applicant in the statement of the fist informant recorded u/s 161 Cr.P.C. whereas role of firing has been assigned to co-accused Salman @ Kana, Aatif Ilahi and Dayan. The case of the applicant is distinguishable with that of co-accused namely Salman @ Kana, Aatif Ilahi and Dayan.

¶7Looking 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.

¶8Let the applicant-Mohd. Aman Khan, 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.

¶9The 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.

¶10The bail application is allowed. Order Date :- 19.10.2023 AS Rathore (Samit Gopal,J.) High Court of Judicature at Allahabad