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2020 DIGILAW 1034 (ALL)

Mohd. Shamim v. State of U. P.

2020-07-24

MANISH MATHUR

body2020
JUDGMENT : 1. Heard Mr. Brijesh Kumar, learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State, through video conferencing in view of COVID-19 Pandemic and perused the record. Despite notice and revision of list, no-one has put in appearance on behalf of complainant. 2. This first bail application has been filed with regard to Case Crime No.91/2019, under Sections 302/34 I.P.C. registered in Police Station Itaunja, District Lucknow. 3. Learned counsel for applicant submits that the applicant has been falsely implicated in the charge of having caused death of Kadeer Khan @ Guddu, husband of co-accused Smt. Shabnam. It has been submitted that the applicant has been taken into custody only on the basis of doubt and suspicion and there is not even any circumstantial evidence against the applicant. Learned counsel has further submitted that the applicant is not named in the F.I.R. and was taken into custody on the basis of investigation whereunder also the only case indicated against him is of frequent phone calls between applicant and co-accused Smt. Shabnam whereby an inference has been drawn by the investigating authority of an illicit relationship between the two leading to death of husband of co-accused Smt. Shabnam. It has been submitted that there is no cogent material or evidence to support the prosecution case. Learned counsel submits that the applicant has been in jail since 02.04.2019 and as yet only charges have been framed without any evidence being led. 4. Learned Additional Government Advocate appearing on behalf of State has opposed the bail application with the submission that the applicant was taken into custody in view of the frequent telephone conversation between him and co-accused Smt. Shabnam. He has also submitted that there is recovery of the murder weapon at the instance of applicant although there is no independent witness of the same. 5. Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, reported in (2012) 1 SCC 40 has specifically held that bail is to be a norm and an under-trial is not required to be in jail for ever pending trial. Relevant paragraphs of the judgment are as under :- "21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. Relevant paragraphs of the judgment are as under :- "21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty." "27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution." 6. Looking to the nature of allegations levelled against the applicant and submission made in the bail application, without expressing any opinion on the merits of case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, particularly since no reasonable apprehension of tampering with the witnesses has been alleged, prima facie, this Court finds, the applicant is entitled to be released on bail in this case. 7. Accordingly bail application is allowed. 8. Let applicant Mohd. Shamim, involved in the aforesaid case crime be released on bail on his 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 shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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. (ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code. (ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code. (iii) 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. is issued and the 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 of the Indian Penal Code. (iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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.