Allahabad High Court

Akash vs State Of U.P. on 2 February, 2024

Author:
Rajeev Misra

Bench:
Rajeev Misra

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Neutral Citation No. - 2024:AHC:18182

Court No. - 5

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 55994 of 2023

Applicant :- Akash

Opposite Party :- State of U.P.

Counsel for Applicant :- Om Prakash

Counsel for Opposite Party :- G.A.

Hon'ble Rajeev Misra,J.

Heard Mr. Om Prakash, the learned counsel for applicant and the learned A.G.A. for State.

Perused the record.

This bail application has been filed by applicant Akash seeking his enlargement on bail in Case Crime No. 101 of 2023, under
Section 498A
,
304B
,
IPC and
Section 3
/
D.P. Act, Police Station- Moth, District Jhansi, during the pendency of trial.

Record shows that in respect of an incident which is alleged to have occurred on 5.5.2023, a belated F.I.R dated 6.5.2023 was lodged by first informant Smt. Nilam, mother of the deceased and was registered as Case Crime No. 101 of 2023, under
Section 498
,
IPC and
Section 3
/
D.P. Act, P.S.- Moth, District- Jhansi. In the aforesaid F.I.R., four persons namely, Akash (husband), Sisa (mother-in-law), Patal (Devar), Vikal (Devar) have been nominated as named accused.

Learned counsel for applicant contends that mother-in-law of the deceased i.e. mother of the present applicant has already been enlarged on bail vide order dated 26.10.2023, passed in Criminal Misc. Bail Application No. 44943 of 2023 (
Smt. Seesa @ Seema Vs. State of U.P
). For ready reference same is reproduced herein under:

"Heard Mr. Om Prakash, the learned counsel for applicant and the learned A.G.A. for State.

This application for bail has been filed by applicant Smt Seesa Alias Seema seeking her enlargement on bail in Case Crime No. 101 of 2023 under
section 498A
,
304B
,
IPC and
Section 3
/
D.P. Act, Police Station- Moth, District-Jhansi, during the pendency of trial.

Record shows that in respect of an incident which is alleged to have occurred on 5.5.2023, a belated FIR dated 6.5.2023 was lodged by first informant Neelam and was registered as Case Crime No. 101 of 2023 under
section 498A
,
304B
,
IPC and
Section 3
/
D.P. Act, Police Station- Moth, District-Jhansi. In the aforesaid FIR, four persons namely, Akash (husband), Sisa (mother-in-law), Patal (Devar) Vikas (devar) have been nominated as named accused.

Learned counsel for applicant submits that applicant is named as well as charge sheeted accused, inasmuch as charge sheet has already been submitted against applicant and husband of deceased on 1.8.2023, yet applicant is liable to be enlarged on bail. He has next invited the attention of Court to the provisions contained in proviso to
Section 437
Cr.P.C. and on basis thereof he contends that since applicant is a lady she is liable to be enlarged on bail. The bonafide of applicant is explicit from the fact that the autopsy surgeon who conducted autopsy of the body of deceased did not find any other external ante-mortem injury on her body except the ligature mark. Applicant cannot be said to be the benificiary of alleged demand of dowry. The deceased was a short tempered lady and she has taken extreme step of committing suicide by hanging herself.

Even otherwise, applicant is a woman of clean antecedents inasmuch as she has no criminal history to her credit except the present one. Applicant is in jail since 22.6.2023. As such, she has undergone more than four months of incarceration. Police report in terms of
Section 173 (2)
Cr.P.C. has already been submitted against applicant, as such, the entire evidence sought to be relied upon by prosecution against applicants stands crystalized, However, upto this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial.? It is thus urged that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with trial.

Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a named as well as charge sheeted accused, therefore she does not deserve any indulgence by this Court. However, he could not dislodge the factual and legal submissions urged by learned counsel for applicant, with reference to the record at this stage.

Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicant, accusation made coupled with the fact that applicant is mother-in-law of the deceased, applicant being a lady, is entitled to the benefit of the provisions contained in proviso to
Section 437
Cr.P.C, bonafide of applicant is explicit from the fact that except for the ligature mark no other ante-mortem injury was found on the body of deceased, prima facie the death of deceased is a suicidal death, applicant cannot be said to be the beneficiary of alleged demand of dowry, the clean antecedents of applicant, the period of incarceration undergone, police report in terms of
Section 173 (2)
Cr.P.C. having been submitted, therefore, the entire evidence sought to be relied upon by prosecution stands crystalized, yet inspite of the above the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the course of trial, therefore, irrespective of the objection raised by the learned A.G.A. in opposition to the present application for bail, but without making any comment on the merits of the case, applicant has made out a case for bail.

Accordingly, the bail application is Allowed.

Let the applicant Smt Seesa Alias Seema, be released on bail in the aforesaid case crime number on her 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/SHE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE 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/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A
IPC
.

(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A
IPC
.

(iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) 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 THE HIM/HER IN ACCORDANCE WITH LAW.

(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.

However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above. "

It is then contended by learned counsel for applicant that though the applicant is husband of deceased, named and charge-sheeted accused, inasmuch Police report in terms of Section 173(2) has already been submitted on 22.6.2023, yet the applicant is liable to be enlarged on bail. As per opinion of autopsy surgeon, the nature of death of deceased is a suicidal death, inasmuch as the deceased died as she committed suicide by hanging herself. Bonafide of the applicant is explicit from the fact that except for the ligature mark, no other external ante-mortem injury was found on the body of deceased.

Attention of the Court was then invited to the averments made in paragraph 20 of the bail application and on basis thereof, he submits that in view of precarious condition of applicant, it cannot be said that the applicant shall even abet in the commission of crime. The marriage of applicant was solemnized with the deceased in the year 22.6.2017 i.e. five years ten months and three days, prior to the date of occurrence. On the aforesaid premise, it is contended that allegations made in the F.I.R. regarding alleged demand of dowry and commission of cruelty upon deceased on account of non fulfilment alleged demand of dowry are not only false but also concocted.

According to learned counsel for applicant, since the Police report in terms of
Section 173 (2)
Cr.P.C. having been submitted, therefore, the entire evidence sought to be relied upon by prosecution stands crystalized. However, upto this stage, no such circumstance hasemerged necessitating the custodial arrest of applciant, during the pendency of trial.

Even otherwise, applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in jail since 7.5.2023. As such, he has undergone more than three months of incarceration. It is thus urged that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with trial.

Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is the husband of the deceased a named as well as charge sheeted accused, therefore he does not deserve any indulgence by this Court. The occurrence giving rise to present criminal proceedings has occurred in the house of applicant. Since the applicant is an inmate of the house in which the occurrence has occurred, therefore, the burden is upon the applicant to not only explain the manner of occurrence, but also the innocence in terms of
Section 106
and
113 B
of the Evidence Act. However, the applicant has miserably failed to discharge the said burden. As such, no indulgence be granted by this Court in favour of applicant. However, he could not dislodge the factual and legal submissions urged by learned counsel for applicant, with reference to the record at this stage.

Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicant, accusation made coupled with the fact that the occurrence giving rise to present criminal proceedings has occurred after expiry of period of five years and ten months from the date of marriage of applicant with the deceased, prima facie the death of the deceased is a suicidal death, inasmuch as the autopsy surgeon did not find any external ante-mortem injury on the body of deceased, same speaks the bonafide of the applicant, in view of averments made in paragraph 20 of the bail application, the condition of applicant is precarious. therefore, it cannot be presumed that applicant shall abet in the crime in question, police report in terms of
Section 173 (2)
Cr.P.C. has already been submitted against applicant, as such, the entire evidence sought to be relied upon by prosecution against applicants stands crystalized, inspite of above, learned A.G.A. could not point out any such circumstance from the record necessitating custodial arrest of applicant during pendency of trial, the period of incarceration undergone, the clean antecedents of applicant therefore irrespective of the objections raised by learned A.G.A. but without making any comment on the merits of the case, applicant has made out a case for bail.

Accordingly, the bail application is Allowed.

Let the applicant Akash, be released on bail in the aforesaid case crime number on 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/SHE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE 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/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A
IPC
.

(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A
IPC
.

(iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) 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 THE HIM/HER IN ACCORDANCE WITH LAW.

(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.

However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.

Order Date :- 2.2.2024

Arshad