Allahabad High Court

Asharfi Lal vs State Of U.P. on 4 April, 2024

Author:
Rajeev Misra

Bench:
Rajeev Misra

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Neutral Citation No. - 2024:AHC:58304

Court No. - 77

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 39949 of 2023

Applicant :- Asharfi Lal

Opposite Party :- State of U.P.

Counsel for Applicant :- Sapan Kumar Singh

Counsel for Opposite Party :- Chandra Kant Tripathi,G.A.

Hon'ble Rajeev Misra,J.

Heard Mr. Sapan Kumar Singh, the learned counsel for applicant, the learned A.G.A. for State and Mr. Chandra Kant Tripathi, the learned counsel for opposite party-2.

Perused the record.

This application for bail has been filed by applicant Asharfi Lal seeking his enlargement on bail in Case Crime No. 196 of 2023, under
Sections 498A
,
304B
,
,
,
IPC and 3/4
D.P. Act
, Police Station- Rajghat, District- Gorakhpur during the pendency of trial. At the very outset, the learned counsel for applicant contends that wife of present applicant/mother-in-law of deceased has already been enlarged on bail vide order dated 17.11.2023, passed in Criminal Misc. Bail Application No. 42207 of 2023 (
Smt. Guddi Devi Vs. State of U.P.
). For ready reference, the same is reproduced herein under:

"Heard Mr. Sapan Kumar Singh, the learned counsel for applicant and the learned A.G.A. for State.

Perused the record.

This application for bail has been filed by applicant Smt. Guddi Devi seeking her enlargement on bail in Case Crime No. 196 of 2023, under
Sections 498A
,
304B
,
,
,
IPC and 3/4
D.P. Act
, Police Station- Rajghat, District- Gorakhpur during the pendency of trial.

Record shows that marriage of Chandan Verma, son of applicant was solemnized with Neha Verma on 13.12.2020. From the aforesaid wedlock, a male child was born. However, just after expiry of period of two years and four months from the date of marriage of the son of applicant, an unfortunate incident occurred on 5.5.2023, in which the daughter-in-law of the applicant namely, Neha has suffered injury.

It is the case of applicant that immediately after the daughter-in-law suffered injury in the occurrence which took place on 5.5.2023, she was rushed to the hospital. At the time of medical examination, it was detected that she was in family way but there was no pulse in the embryo. Thereafter the dead embryo was taken out from her body. Unfortunately, the victim succumbed to the injuries sustained by her on 15.5.2023. After the death of deceased i.e. on 10.5.2023, a belated F.I.R. dated 15.5.2023 was lodged by first informant, brother of the deceased and was registered as Case Crime No. 196 of 2023, under
Sections 498A
,
304B
,
,
,
IPC and 3/4
D.P. Act
, Police Station- Rajghat, District- Gorakhpur. In the aforesaid F.I.R. 9 persons namely, Chandan Verma, Asharfilal Verma, Guddi, Ratan Verma, Ragini, Gunja, Ananya, Verma, Suresh Verma, Kamal Verma have been nominated as named accused.

Learned counsel for applicant submits that that applicant is the mother in-law of deceased, a named as well as charge sheeted accused, inasmuch, charge sheet has already been submitted on 21.7.2023 against three of the named accused i.e mother-in-law (applicant herein), father-in-law and husband of deceased, whereas the other named accused have been exculpated. However, irrespective of above, applicant is liable to be enlarged on bail. No deliberate act of assault was committed upon deceased. In the opinion of the autopsy surgeon, the cause of death of deceased is ante-mortem head injury. However, the deceased sustained only 1 contusion. Allegations made in the F.I.R. with regard to demand of dowry and commission of cruelty upon deceased on account of non fulfilment of same are false and concocted. The same are devoid of material particulars. No attempt has been made by the first informant to establish the same in his statement under
section 161
Cr.P.C. either. He has then referred to the judgement of the Supreme Court in
Kahkashan Kausar @ Sonam and Others Vs. State of Bihar and Others
, (2022) 6 SCC 599. On the above premise, it is thus urged that since the allegations made in the F.I.R. regarding demand of additional dowry and commission of cruelty upon deceased on account of non-fulfilment of additional demand of dowry are devoid of material particulars, therefore, the same are liable to be ignored by this Court Court. It is lastly contended that since applicant is a lady therefore she is entitled to the benefit of provisions contained in proviso to
section 437
Cr.P.C. On the above conspectus, he submits that applicant is liable to be enlarged on bail.

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 28.6.2023. 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 applicant 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 and the learned counsel for first informant have opposed this application for bail. They submit that since applicant is a named as well as charge sheeted accused, therefore he does not deserve any indulgence by this Court. Attention of the Court was invited to the post mortem report of the deceased and much emphasis was laid to injury No.3 found on the body of deceased. They contend that no explanation has come forward with regard to the manner in which the deceased sustained aforesaid injury. The occurrence has taken place just after expiry of two years and four months from the date of marriage and in the marital home of deceased. As such, the death of deceased is a dowry death. In view of above, the burden is upon the applicant herself, as she is the mother-in-law of deceased and inmate of the house not only explain the manner of occurrence in terms of Section 106 but also her innocence under
section 113
of the Evidence Act. However, the applicant has miserably failed to discharge the said burden, upto this stage. As such, no sympathy be shown by this Court in favour of applicant. However, they could not dislodge the factual and legal submissions urged by the 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 offense as well as complicity of applicant, accusation made coupled with the fact that since applicant is a lady, she is therefore entitled to the benefit of the provisions contained in proviso to
section 437
Cr.P.C, the period of incarceration undergone, the clean antecedents of applicant, 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 the prosecution against applicant stands crystalized, yet inspite of above, the learned A.G.A. could not point out any such circumstance from the? record necessitating custodial arrest of applicant during the pendency of trial, the judgement of the Supreme court in Subhaschandra Gangwal and another Vs. The state of maharashtra and Another, 2023 Live law (SC) 373, applicant is the mother in law of deceased, prima facie, she cannot be said to be the benificiary of the alleged demand of dowry, the husband of the deceased i.e. the son of applicant is already in jail, therefore irrespective of the objections 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, the applicant has made out a case for bail.

Accordingly the bail application is allowed.

Let the applicant Smt. Guddi Devi 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. "

Learned counsel for applicant submits that since the applicant is an old and infirm person, therefore, applicant is liable to be enlarged on bail, in view of the provisions contained in
Section 437
Cr.P.C. To buttress his submission he has relied upon the document occurring at page 9 of the Supplementary Affidavit, filed in Court today. With reference to above, it is urged by learned counsel for applicant that since applicant is unable to move, therefore, applicant shall fall in the definition of an inferm person and is liable to be enlarged on bail.

Learned counsel for applicant next contends that case of present applicant is similar and identical to co-accused Smt. Guddi Devi wife of applicant. There is no such distinguishing feature on the basis of which case of present applicant can be distinguished from aforesaid co-accused so as to deny him bail. He, therefore, contends that in view of above and for the facts and reasons recorded mentioned in the order dated 17.11.2023, applicant is also liable to be extended the benefit of bail on the ground of parity.

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 28.6.2023. As such, he has undergone two months of incarceration. It is also urged that husband of the deceased i.e. son of applicant is already undergoing 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 the prosecution against applicant 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 he does not deserve any indulgence by this Court. The deceased is the daughter-in-law of present applicant and died at her matrimonial home after approximately two years and six months from the date of her marriage. Since the applicant is the father-in-law of decesaed and also an inmate of the house in which the occurrence has occurred, therefore, 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 upto this state. 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 the 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 co-accused Guddi Devi has already been enlarged on bail, the learned A.G.A. and the learned counsel representing first informant could not point out any such circumstance so as to distinguish the case of present applicant from aforesaid bailed out co-accused as as to deny him bail. As per the document occurring at page 9 of the supplementary affidavit, applicant is suffering from physical infirmity, as such, he is entitled to the benifit of
Section 437
Cr.P.C. The 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, the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicant during pendency of trial.
In view of above and the period of incarceration undergone by applicant as well as the judgement of Supreme Court in
Sumit Subhaschandra Gangwal and another Vs. The State of Maharashtra and Another
, 2023 Live Law (SC) 373 (paragraph 5), the clean antecedents of applicant, therefore irrespective of the objections raised by the 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 Asharfi Lal, 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 :- 4.4.2024

Arshad