Advocates:
['DHIRENDRA KUMAR SRIVASTAVA', '', 'ARAF KHAN', 'LIHAZUR RAHMAN KHAN', 'RAMANUJ TRIPATHI', 'APUL MISRA', 'JANARDAN PRASAD TRIPATHI', 'G A', '', 'DHEERAJ KUMAR TIWARI']

Court No. - 79

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 31543 of 2019

Applicant :- Wakeel

Opposite Party :- State of U.P.

Counsel for Applicant :- Dhirendra Kumar Srivastava,Apul Misra,Araf

Khan,Janardan Prasad Tripathi,Lihazur Rahman Khan,Ramanuj Tripathi

Counsel for Opposite Party :- G.A.,Dheeraj Kumar Tiwari

Hon'ble Saurabh Shyam Shamshery,J.

1. Heard Sri Janardan Prasad Tripathi, learned counsel for applicant and learned

A.G.A. for State.

2. Applicant-Wakeel, has approached this Court by way of filing the present

Criminal Misc. Bail Application under Section 439 Cr.P.C. after rejection of his

Bail Application vide order dated 05.04.2019, passed by Sessions Judge,

Aligarh, in Case Crime No.362 of 2015 (Session Trial No. 44 of 2016), under

Sections 147, 148, 149, 302 I.P.C., Police Station Dehli Gate, District Aligarh.

3. Learned counsel for applicant submitted that FIR was lodged against six

persons alleging that two of them have fired on two deceased. Three co-accused

have already been granted bail by this Court and even co-accused, Bhoora, who

has been assigned similar role of firing, has been granted bail by this Court. It is

further pointed out that both the deceased were known criminal and they have a

long criminal history. Prosecution story, as stated in FIR, appears to be

improbable considering that a day before the marriage when guests were

present, deceased could not lock his house and gone away. It was a case of blind

murder. Alleged eye witnesses are relative and were not the chance witnesses.

Lastly, it is submitted that applicant is languishing in jail since 01.08.2015 and

in case, he is released on bail, he will not misuse the liberty of bail and will

cooperate in trial.

4. Learned A.G.A. appearing for State has opposed the prayer for bail. However,

it is not disputed that similarly situated co-accused and two other co-accused

have been granted bail by this Court.

5(A) Law on bail is well settled that 'Bail is rule and Jail is exception'. Bail

should not be granted or rejected in a mechanical manner as it concerns liberty

of a person. At the time of considering an application for bail, the Court must

take into account certain factors such as existence of a prima facie case against

the accused, gravity of the allegations, severity of punishment, position and

status of the accused, likelihood of the accused fleeing from justice and

repeating the offence, reasonable apprehension of tampering with the witnesses

and obstructing the Courts as well as criminal antecedents of the accused.

(B) It is also well settled that the Court while considering an application for bail

must not go into deep merits of the matter such as question of credibility and

reliability of prosecution witnesses which can only be tested during the trial.

Even ground of parity is one of the above mentioned aspects which are

essentially required to be considered. It is also well settled that the grant or

refusal of bail is entirely within the discretion of the judge hearing the matter

and though that discretion is unfettered, it must be exercised judiciously and in a

humane manner, compassionately and not in whimsical manner.

(C) The Court should record the reasons which have weighed with the count for

the exercise of its discretionary power for an order granting or rejecting bail.

Conditions for the grant of bail ought not to be so strict as to be incapable of

compliance, thereby making the grant of bail illusory.

(D) The Court while granting bail in the case involving sexual offence against a

woman should not mandate such bail conditions, which is/are against the

mandate of "fair justice" to victim such as to make any form of compromise or

marriage with the accused etc. and shall take into consideration the directions

passed by Supreme Court in Aparna Bhat and others vs. State of Madhya

Pradesh and another, reported in 2021 SCC Online SC 230, in this regard.

6. Considerin