Allahabad High Court

Ramautar Nishad vs State Of U.P. on 26 May, 2023

Author:
Saurabh Shyam Shamshery

Bench:
Saurabh Shyam Shamshery

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Neutral Citation No. - 2023:AHC:117862

Court No. - 76

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 12682 of 2023

Applicant :- Ramautar Nishad

Opposite Party :- State of U.P.

Counsel for Applicant :- Ram Kishor Gupta,Shiv Shankar Gupta

Counsel for Opposite Party :- G.A.

Hon'ble Saurabh Shyam Shamshery,J.

Heard Sri Shiv Shankar Gupta, learned counsel for applicant and Sri Sunil Srivastava, learned A.G.A. for State.

Applicant has approached this Court by way of filing the present Criminal Misc. Bail Application under
Section 439
Cr.P.C. in Case Crime No.447 of 2022 under
Sections 498A
,
304B
I.P.C. and 3/4 of
Dowry Prohibition Act
, Police Station- Maudaha, District - Hamirpur after rejection of his Bail Application vide order dated 18.01.2023 passed by Additional District and Sessions Judge/ F.T.C.-I, Hamirpur.

The applicant before this Court is father-in-law of deceased, who died within about two years of her marriage under other than normal circumstances. According to post-mortem report, immediate cause of death was 'Asphyxia' as a result of ante-mortem burn injuries which were on all over body (about 97% to 98%) except left sole of left foot.

Learned counsel for applicant submits that an F.I.R. was lodged with the delay of two days, however, no averment or allegation was made regarding demand of dowry or that any cruelty was committed upon victim in regard to demand of dowry.

Learned counsel further submits that the prosecution case was improved and during investigation statements of relatives of victim were recorded wherein allegation of demand of dowry of Rs. 1,50,000/- and one buffalo and committing cruelty regarding demand of dowry were added.

Learned counsel further submits that allegations are omnibus and there is no specific allegation against applicant and similarly situated co-accused (mother-in-law of deceased) has already been granted bail by co-ordinate Bench of this Court by an order dated 13.03.2023 passed in case of Smt. Muliya Vs. State of U.P. (Criminal Misc. Bail Application No.-7291 of 2023). He also submits that applicant is behind the bars since 07.12.2022 and in case, he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.

Learned A.G.A. for State has opposed the bail and has referred the statements of father and mother of deceased recorded during investigation that within the period of two years of marriage, victim was repeatedly suffered cruelty at the hands of accused persons for additional demand of dowry of Rs.1,50,000/- and one Buffalo as well as that they were not happy when a girl child was born to victim. Prima facie it is a case of dowry death and evidence is cogent against applicant also. Learned A.G.A. for State has also submitted orders whereby bail has been granted to co-accused may have not assigned reasons in terms of judgment passed by Supreme Court in case of
Manoj Kumar Khokhar vs. State of Rajasthan and Anr.
(
2022)3 SCC 501 and Brijmani Devi vs. Pappu Kumar
(2022) 4 SCC 497, therefore, applicant may not be released on bail.

LAW ON BAIL - A SUMMARY

(A) The basic rule may perhaps be tersely put as bail, not jail.

(B) Power to grant bail under
Section 439
Cr.P.C., is of wide amplitude but not an unfettered discretion, which calls for exercise in a judicious manner and not as a matter of course or in whimsical manner.

(C) While passing an order on an application for grant of bail, there is no need to record elaborate details to give an impression that the case is one that would result in a conviction or, by contrast, in an acquittal. However, a Court cannot completely divorce its decision from material aspects of the case such as allegations made against accused; nature and gravity of accusation; having common object or intention; severity of punishment if allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of witnesses being influenced by accused; tampering of evidence; character, behaviour, means, position and standing of accused; likelihood of offence being repeated; the frivolity in the case of prosecution; criminal antecedents of accused and a prima facie satisfaction of Court in support of charge against accused. The Court may also take note of participation or part of an unlawful assembly as well as that circumstantial evidence not being a ground to grant bail, if the evidence/ material collected establishes prima facie a complete chain of events. Parity may not be an only ground but remains a relevant factor for consideration of application for bail.

(D) Over crowding of jail and gross delay in disposal of cases when undertrials are forced to remain in jail (not due to their fault) may give rise to possible situations that may justify invocation of
Article 21
of Constitution, may also be considered along with other factors.

(See,
State Of Rajasthan, Jaipur vs. Balchand @ Baliay
(AIR 1977 SC 2447 : 1978 SCR (1) 535;
Gurcharan Singh vs. State (Delhi Administration
), (1978) 1 SCC 118); State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC 21;
Prasanta Kumar Sarkar vs. Ashis Chatterjee and Anr
(2010)14 SCC 496;
Mahipal vs. Rajesh Kumar
, (2020) 2 SCC 118;
Ishwarji Mali vs. State of Gujarat and another
, 2022 SCC OnLine SC 55;
Manno Lal Jaiswal vs. The State of U.P. and others
, 2022 SCC OnLine SC 89;
Ashim vs. National Investigation Agency
(2022) 1 SCC 695;
Ms. Y vs. State of Rajasthan and Anr
:2022 SCC OnLine SC 458;
Manoj Kumar Khokhar vs. State of Rajasthan and Anr.
(2022)3 SCC 501; and,
Deepak Yadav vs. State of U.P. and Anr.
(2022)8 SCC 559)

In the present case, daughter-in-law of applicant does not survive more than two years of her marriage. She died due to excessive burn injuries (97 to 98%). In the F.I.R. certain allegations are not made, however, it is well settled position of law that first information report is not an encyclopedia.

There is substance in the argument of learned A.G.A. for State that statements recorded during investigation have specifically alleged about allegation of committing cruelty by applicant and co-accused in regard to demand of dowry which was continued even after a baby girl was born to victim, therefore, the Court cannot ignore said evidence, which appears to be cogent as well as taking note that though co-accused has been granted bail, however, reasons given in orders may not be in terms of
Manoj Kumar Khokhar
(Supra) and
Brijmani Devi
(Supra), therefore, no case of parity is made out.

Therefore, applicant who is is father-in-law, however, taking note of prima facie evidence on record against him, no case of bail is made out. Accordingly, bail application is rejected.

Order Date :- 26.5.2023

P. Pandey