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2009 DIGILAW 3147 (ALL)

NUSRAT v. STATE OF U. P.

2009-09-16

VIJAY KUMAR VERMA

body2009
JUDGMENT VIJAY KUMAR VERMA, J. 1. Prayer for bail in this application under section 439 of the Code of Criminal Procedure (in short 'the Cr.P.C.') has been made on behalf of applicant Nusarat, s/o Ali Hasan, who along with other accused is facing trial in ST. No. 169 of 2008 (State v. Nusarat & others) arising out of Case Crime No. 129 of 2007, under section 302, IPC, P.S. Dhaulana, District Ghaziabad. 2. An FIR was lodged on 6.9.2007 at 2.30 p.m by Anees Ahamad, s/o Gulam Mohammad, at P.S. Dhaulana, District Ghaziabad, where a case under section 302, IPC was registered at Crime No. 129 of 2007 against Nusarat (applicant herein), Isha, Nagga and Inshaf Ali The allegations made in the FIR (Annexure-1), in brief, are that on 6.9.2007 at about 1.00 p.m., the accused Nusarat, Isha, Nagga and Inshaf Ali committed the murder of Sarvar (brother of the complainant) by causing injuries by means of firearms. 3. I have heard arguments at length of Sri S.M. Fazal, Advocate, appearing for the applicant and AGA for the State. 4. The first and foremost submission made by learned Counsel for the applicant was that the co-accused Isha has been granted bail by lower Court, vide order dated 20.1.2009, passed in bail application No. 37 of 2009 and hence, on the basis of the principle of parity, the applicant also is entitled to be released on bail, because the role of all the accused persons in the alleged incident was identical and all the accused persons are alleged to have fired on the deceased. 5. Next submission made by learned Counsel was that the complainant Anees Ahamad has been examined as P.W. 1 in S.T. No. 169 of 2008 in the Court of Additional Sessions Judge Hapur (Ghaziabad), but he has not supported the case of prosecution and has turned hostile. For this submission, my attention was drawn towards the copy of statement (Annexure-4) of Anees, which has been recorded in S.T. No. 169 of 2008. 6. It was also submitted by learned Counsel that Smt. Raheesa also has been examined in trial Court in aforesaid session trial, but since she had seen the incident from great distance, hence her statement does not carry any weight. 7. 6. It was also submitted by learned Counsel that Smt. Raheesa also has been examined in trial Court in aforesaid session trial, but since she had seen the incident from great distance, hence her statement does not carry any weight. 7. Further submission made by learned Counsel was that the deceased was hardened criminal and his murder was committed at some other place by unknown persons, but due to enmity, the applicant and other accused have been falsely roped in this case. 8. It was also submitted by learned Counsel that the applicant is languishing in jail since 15.9.2009 and hence, on the basis of long detention period in jail, they deserve bail now, as due to delay in trial, his fundamental rights of speedy trial envisaged under Article 21 of the Constitution is being violated. . 9. The bail application was vehemently opposed by the learned AGA contending that the applicant also had caused injuries to the deceased by firing on him and hence in this heinous crime of taking away the life of an innocent person without any lawful excuse, the applicant does not deserves bail. 10. On the matter of granting bail on the basis of the principle of parity, it was contended by learned AGA that parity cannot be the sole ground for bail. For this contention, reliance has been placed on Shahnawaz @ Shanu v. State of U.P. 11. I have given my thoughtful consideration to the aforesaid submissions made by the learned Counsel for parties and carefully gone through the entire material on record. It is true that the complainant Anees Ahamad has not supported the case of prosecution in his statement (annexure-4) recorded as P.W.1 in S.T.N. 169 of 2008, but on this ground, the applicant cannot be released on bail because another eye-witness Smt. Raheesa, mother the deceased, has fully supported the case of prosecution in her statement recorded as P.W. 3 in aforesaid Session Trial. Copy of the statement of Smt. Raheesa has been filed with supplementary affidavit dated 12.8.2009. Other eye-witnesses also have supported the case of prosecution in their statements recorded under section 161, Cr.P.C. who have. yet to be examined in trial Court. Post mortem report of dead body of the deceased shows that ante mortem firearm injuries were found on the person of deceased at the time of post mortem examination. Other eye-witnesses also have supported the case of prosecution in their statements recorded under section 161, Cr.P.C. who have. yet to be examined in trial Court. Post mortem report of dead body of the deceased shows that ante mortem firearm injuries were found on the person of deceased at the time of post mortem examination. The applicant is named in the FIR and his active participation in the incident by causing injuries to the deceased is prima facie established on the basis of the statement of Smt. Raheesa recorded in aforesaid Session Trial and other witnesses, who were interrogated by the investigating officer during investigation. As held by this Court in Shahnawaz @ Shanu v. State (supra), the principle of parity is not the sole ground for bail. Therefore, having regard to all these facts, but without expressing any opinion about merit of the case, in this heinous crime of taking away the life of an innocent person without any lawful excuse, the applicant does not deserve bail. 12. In my considered opinion, the applicants can not be admitted to bail on the basis of the period of detention in jail also. In this regard, reference may be made to the case of Pramod Kumar Saxena v. Union of India and others in which the Hon'ble Apex Court has held that mere long period of incarceration in jail would not be per-se illegal. If the accused has committed offence, he has to remain behind the bars. Such detention in jail even as an under trial prisoner would not be violative of Article 21 of the Constitution. 13. Consequently, the bail application is hereby rejected. 14. The Trial Court concerned is directed to conclude the trial of the applicants within a period of six months applying the provisions of section 309, Cr.P.C. and avoiding unnecessary adjournments. 15. SSP Ghaziabad also is directed to depute special messenger to procure the attendance of rest witnesses after obtaining their summons from the Court concerned and it must be ensured that all the rest witnesses are produced for evidence in the Session Trial No. 169 of 2008 without causing any delay. 16. The Office is directed to send a copy of this order within a week to the Trial Court concerned and SSP Ghaziabad for necessary action. Bail Rejected.