The refusal of bail to the applicant was based on the nature and gravity of the offence, the likelihood of the applicant influencing witnesses, and the settled legal principles for granting bail in heinous offences.

JUDGMENT

CRL.M.A. 10361/2023 (for exemption)

1. Allowed subject to all just exceptions.

2. The application stands disposed of.

BAIL APPLN. 1269/2023

3. The present application has been filed by the applicant under Section 439 of the Code of Criminal Procedure, 1973, seeking regular bail in FIR No. 549/2017 dated 13.07.2017 registered under Section(s) 302/120B/212/34 IPC and Section 27 of the Arms Act, 1959 at PS: New Usmanpur.

4. As per FIR, on 12.07.2017 at about 7:15 PM the complainant, brother of the deceased, went outside to call the deceased when he was sitting near the khokha near Fire Station wall with his friends, when two motorcycles stopped near him, out of which, one of the co-accused, sitting behind on the motorcycle driven by the applicant herein, shot the deceased and one of his friends and then fled from the scene. The deceased was then taken to the Jag Parvesh Chander Hospital, where attempt was made to resuscitate him but he was declared dead, whereafter the present FIR was registered.

5. During the course of investigation, the applicant and other co-accused were arrested on 20.07.2017. After filing of the chargesheet in October, 2017 charges were framed on 18.01.2018. Presently, the trial is at stage of prosecution evidence.

6. Notice was issued and Status Report and Nominal Roll were called for.

7. Learned counsel for the applicant submits that the applicant has faced incarceration for almost 6 years and 18 out of the 40 witnesses are yet to be examined, the trial is likely to take long during which the applicant should languish behind bars. He further submits that the alleged murder weapon has already been recovered from the co-accused and no further recovery has to be made from the applicant. He also contends that the material eyewitness namely Rizwan has also turned hostile, and further that due to the differences in the testimonies of the brother of the deceased Yasin and Guddu, there are serious loopholes in the case set up by the prosecution.

8. Lastly, learned counsel for the applicant submits that the applicant has been released on interim bail on previous occasions, and on each such occasion, the applicant has not misused the liberty granted to him and has duly surrendered on time. Learned counsel has relied on the judgements in Kali Ram v. State of H.P., (1973) 2 SCC 808; Gangadhar Behera v. State of Orissa, (2002) 8 SCC 381; Prabhakar Tiwari v. State of U.P, 2020 (11) SCC 648; Jabbar Ali v. State of Assam, 2022 SCC OnLine SC 1440; Satender Kumar Antil v. CBI, (2022) 10 SCC 51; Mohd. Tahir v. State, 2022 SCC OnLine Del 154, and Mohd. Hakim v. State (NCT of Delhi), 2021 SCC OnLine Del 4623, to support his arguments.

9. As per Nominal Roll, the applicant has been in custody only for a period of 5 years and 13 days as on 27.05.2023 and there are 5 other FIRs against the applicant involving Section(s) 307, 379, 302 IPC and provisions of the Arms Act wherein though, he has been acquitted in 3 cases, trial is pending in 2 remaining cases. It is further stated therein that the overall jail conduct of the applicant has been unsatisfactory as he has been punished on 2 occasions on account of recovery of tobacco and for quarrelling and abusing co-inmates.

10. Learned APP for the State, relying upon the Status Report, submits that during investigation, the accused persons, including the applicant disclosed their motive for murder. He opposes the grant of bail on the ground that the applicant is a habitual offender as he is involved in 2 other FIRs.

11. Learned APP for the State has handed over the MLC dated 12.07.2017 which mentions the name of the deceased's brother as Yasin who took the deceased to the hospital and the testimony of the said Yasin recorded before the learned Trial Court. The same is taken on record and is not disputed by the learned counsel for the applicant.

12. This Court has heard learned counsel for the applicant and learned APP for the State and gone through the relevant docum