Sabir Hussain vs State of U.P.

P.K. Jain, J.—Heard Sri D.S. Mishra, learned Counsel for the applicant and Sri A.K. Jain, learned Additional Government Advocate.

This second bail application on behalf of the applicant is being pressed on ground that co-accused Laiq assigned the similar role has been granted bail by Hon''ble M.L. Singhal, J. vide order dated 19.11.98. It is further submitted that it is a case u/s 396, I.P.C. The accused had enmity with the complainant side and no precaution to conceal identity was taken which is not natural. Learned Additional Government Advocate submits that both these grounds were considered while rejecting the first bail application. It is further submitted that before Hon''ble M.L. Singhal, J. it appears that correct facts were not placed. Laiq co-accused was granted bail on ground of his case being identical to co-accused Nawab, Nanhu, Rafiq, Liyakat, Nazir, Naseer Ahmad and Raees whereas in fact the case of co-accused Laiq was not identical to those accused who were granted bail earlier.

The question of parity with co-accused Laiq was considered at the time of hearing of the first bail application. There is substance in the submission of the learned Additional Government Advocate that while pressing bail application of Laiq co-accused either misrepresentation was made that his case was identical to Nawab and others who were granted bail vide order dated 8.6.98 by Hon''ble M.L. Singhal. J. or correct facts were not placed before the Hon''ble Judge. From the perusal of the FIR it appears that all the accused armed with fire-arms etc. are said to have entered in the house of the first informant and are said to have participated in commission of dacoity. In second part of the first information report it is specifically stated that while going with the looted property Sabir (the present applicant) exhorted ''SALE HAMSE TAKKAR LENE KA AAJ TUMHE MAJA CHAKHATE HAI.'' Thereafter, it is alleged that Sabir put the barrel of the gun on the eye of one of the deceased and fired shot. Co-accused Ishaq also fired from his country-made pistol on the chest of the deceased (husband of the first informant). Laiq is then assigned the role of firing from pistol after putting its barrel on the chest of Mohd. Saffi son of the first informant Others accused were not assigned this specific role as was assigned to accused Sabir, Ishaq and Laiq. Therefore, the case of accused Sabir, Ishaq and Mohd. Saffi cannot be said to be identical with the remaining co-accused. However, it appears that when bail application of Laiq was pressed before the Hon''ble Judge the argument was that co-accused Nawab and others (not Sabir and Ishaq) assigned almost identical role have been granted bail. The fact that the case of Laiq was not identical on facts with those who were granted bail vide order dated 8.6.98 does not appear to have been brought to the notice of the Court and there appears to be misrepresentation at the time of pressing of the bail application of the applicant Laiq.

As regards other contention there is no doubt that enmity is not disputed and the accused are also not said to have taken precaution to conceal their identity. But if an accused is dare-devil and prefers to go for commission of crime without concealing his identity, that cannot give him a licence for indulging in such activity. According to the FIR, it is the applicant who, in order to take revenge of earlier murder, may be exhorted as stated above and further actively participated in firing from point blank range along with co-accused Ishaq and Laiq.

In view of the above facts and circumstances, the applicant does not deserve to be released on bail. His bail application is therefore, rejected.