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2009 Supreme(All) 3051
2009 (67) ACC 165
HIGH COURT OF JUDICATURE AT ALLAHABAD
Vijay Kumar Verma, J.
Sazid - Petitioner
Vs.
State Of U.P. - Respondent
CRIMINAL MISC. BAIL APPLICATION No. - 28677 of 2008
Decided on : 2.9.2009
M.N.Shukla for the Petitioner
Govt. Advocate, B.R. Mishra, F.N. Dubey for the Respondent
The seriousness of the crime and the lack of evidence supporting the applicant's innocence were central to the court's decision in rejecting the bail application.
Headnote:
Bail Application - Murder - Indian Penal Code (IPC) Section 302, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Section 3(2)5 - The court discussed the allegations made in the FIR, the post-mortem report, witness statements, criminal history of the applicant, and the principle of parity. The court emphasized the lack of evidence supporting the applicant's innocence and the seriousness of the crime, ultimately rejecting the bail application.
Fact of the Case:
The applicant was accused of carrying and murdering the complainant's son. The witness statements and post-mortem report indicated the involvement of the applicant in the murder.
Finding of the Court:
The court found that the applicant did not provide any explanation for his actions and that the lack of evidence supporting his innocence, combined with the seriousness of the crime, led to the rejection of the bail application.
Issues: The issues revolved around the lack of evidence supporting the applicant's innocence, the seriousness of the crime, the criminal history of the applicant, and the principle of parity.
Ratio Decidendi: The court emphasized the importance of evidence and the seriousness of the crime in considering bail applications. It also highlighted the principle that mere long incarceration in jail would not be per-se illegal if the accused has committed the offense.
Final Decision: The bail application was rejected, and the trial court was directed to conclude the trial within six months, with the special messenger to procure the attendance of rest witnesses without causing any delay.
Hon'ble Vijay Kumar Verma, J.
Applicant's counsel has filed rejoinder affidavit, which is taken on record.
2. Heard further arguments of Sri B.R. Mishra, Advocate, appearing for the applicant, Sri M.N. Shukla, learned counsel for the complainant and AGA for the State.
3. The allegations made in the FIR lodged on 09.01.2007 by Shyam Lal at P.S. Shahpur, district Muzaffar Nagar, at case crime no. 07 of 2007, under section 302 IPC and 3(2)5 SC/ST Act, in brief, are that the accused Sazid had carried Kuldeep, son of the complainant, on 08.01.2007 at about 7:30 p.m. from his house and his murder was committed in the same night, whose dead body was found lying on 09.01.2007 in the morning in primary school. Information regarding committing the murder of deceased is said to have been given to the complainant by the witnesses Jamilu and Mahboob. The murder is said to have been committed by Rahamat and his brother-in-law (sala) Sajid (applicant herein).
4. According to the post-mortem report (annexure-2), the deceased had died as a result of firearm injuries.
5. The first and foremost submission made by learned counsel for the applicant is that no person had seen the applicant and other accused committing the murder of deceased Kuldeep and even the alleged eye-witnesses Mahboob and Jamilu had only heard the sound of fire and seen the dead body of deceased, but they had not seen the accused persons committing the murder of deceased.
6. It is further submitted by learned counsel that the witness Mahboob has been examined in trial court in S.T. No. 801 of 2007, but he has not supported the case of prosecution and turned hostile. Further submission in this context is that the witness Om Pal Singh also has been examined in the aforesaid sessions trial, but he also has not supported the case of prosecution and has turned hostile. For this submission, my attention has been drawn towards the statement of Mahboob, which has been filed as annexure 4 with the bail application and statement of Om Pal Singh, annexure 1 to the rejoinder affidavit dated 02.09.2009.
7. It is also submitted by learned counsel for the applicant that FIR is said to have been lodged on 09.01.2007 at 8:45 a.m. but from the statement of Om Pal Singh, this fact is borne out that the FIR was lodged on 09.01.2007 at about 2:00 p.m.
8. Regarding criminal history of the applicant, which has shown in paragraph 6 of the counter affidavit, it is submitted by learned counsel for the applicant that the applicant is not accused in case crime no. 189 of 2008, under sections 147, 148, 149, 302 and 120-B IPC, P.S. Shahpur, District Muzaffar Nagar and this case has been wrongly shown in the criminal history.
9. Next submission made by learned counsel is that the applicant is languishing in jail since 09.10.2007 and hence on the basis of long incarceration in jail, he is entitled to be released on bail, as due to delay in trial, his fundamental right of speedy trial envisaged under article 21 of the constitution is being violated.
10. Further submission made by learned counsel for the applicant is that the co-accused Rahmat has been granted bail by another Bench of this Court vide order dated 27.03.2009 passed in Criminal Miscellaneous Bail Application No. 1293 of 2009 and hence on the basis of principle of parity, the applicant also is entitled to be released on bail.
11. On the matter of granting bail on the ground of the principle of parity, it is submitted by learned AGA that parity cannot be the sole ground for bail. Reliance has been placed on Shahnawaz @ Shanu Vs. State of U.P. 2009 (66) ACC 189.
12. The bail application has been vehemently opposed on merit by learned counsel for the complainant and AGA contending that the applicant had carried the deceased from his house on 08.01.2007 at 7:30 p.m. and thereafter his murder was committed in the same night and dead body was found lying on 09.01.2007 in the morning in primary school and hence in this heinous crime of taking
