Court No. - 51 A.F.R.
Case :- CRIMINAL APPEAL No. - 3495 of 2009 Appellant :- Anees Miya Respondent :- State Of U.P.
Counsel for Appellant :- Ashwini Kumar Awasthi,Manish Tiwary Counsel for Respondent :- Govt. Advocate
Hon'ble Vipin Sinha,J. Hon'ble Mahboob Ali,J.
Order on Second Bail Application
Heard Mr. Noor Mohammad learned counsel for the appellant and learned AGA for the State.
This is the second bail application moved on behalf of appellant Anees Miya in ST No.524 of 2008 in Case Crime No.1335 of 2007 u/s 304B, 498A IPC and Section 4 DP Act PS Baradari District Bareilly. The first bail application was rejected by another Bench of this Court vide order dated 21.2.2012.
The second bail application is being pressed solely on the ground of long incarceration of the appellant as the appellant is in jail since 17.7.2007.
We have perused the order dated 21.2.2012 by means of which the first bail application was rejected by another Bench of this Court. The said order is being reproduced hereunder:-
"Heard Sri Manish Tiwary, and Sri A.K.Awasthi, learned counsel for the appellant, learned A.G.A. for the State of U.P. and perused the lower court record.
From the perusal of the record it appears that the appellant Anees Miya is the husband of the deceased, the marriage of the deceased Smt. Sabra was solemnized about two and half year prior the alleged incident, after marriage the demand of dowry was raised, in dowry Rs. 50,000/- and a Bullet Motorcycle was demanded for which the deceased was subjected to cruelty. At the time of alleged incident, the deceased was having 1,1/2 year old male child in her lap. The deceased was expelled from her husband's house many times, about 2,1/2 years prior the alleged incident, she was expelled from her husband's house but about one week prior to the alleged incident the appellant gave assurance that he would not give any chance of complain, then the deceased was sent in the company of the appellant, on 16.7.2007 at about 10.00 a.m. by pouring kerosene oil, she was set on fire, when she set sitting on the chair.
According to the post mortem examination report, the deceased has sustained ante mortem burn injuries; the smell of kerosene was also coming out from the body. In support of the prosecution version 9 witness, and from the defence side five witness have been examined. According to the site plan half burnt chair was found at the place of the incident, the death of the deceased was unnatural, it has occurred within seven year of her marriage and without expressing any opinion on the merits of the case, the appellant is not entitled for bail.
Accordingly this bail application is rejected."
Perusal of record shows that deceased who happens to be the wife of the appellant was burnt to death and her charred body was found sitting on the chair which is highly improbable if it was a case of suicide.
Mr. Noor Mohammad learned counsel for the appellant has pressed the bail application with the contention that he is ready to argue the appeal finally and he further submits that in case the appeal is not being heard, he is entitled to bail solely on the ground of long period of detention. In support of his contention, he has placed reliance upon the judgments of the Apex Court in the cases of Manoj Mahle vs. State of Madhya Pradesh passed in Special Leave Petition (Criminal) No.41338 of 2017 (decided on 19.3.2018), Mehboob & Anr. vs. State of Uttarakhand passed in Criminal Appeal No.1504/2015 (decided on 10.5.2016) and Amit Bansal vs. State of UP passed in Criminal Appeal No.437 of 2018 (decided on 23.3.2018).
Learned AGA has opposed the prayer for bail with the contention that this is the second bail application and moreover the very fact that the charred body of the deceased was found sitting on the chair is highly improbable because if it is a case of suicide certainly the person would be running helter and skelter and under no circumstances the body can be found sitting on the chair. The contention of learned AGA is to the effect that the circumstance and the manner in which the charred body was found sitting on a chair could be possible only if the person is tied down to the chair and then put to the fire and thus, contention is that in the present case the husband had first tied the wife to the chair and thereafter put her to fire and this is the reason why the charred body was found sitting on the chair. However, the fact remains that the Hon'ble Apex Court in a number of cases has taken a consistent view that ignoring the facts and circumstances of the case mere long period of incarceration in jail by itself will not make out a case for grant of any indulgence.
There is good authority to held that mere long detention in jail does not entitle a convict on bail pending appeal. It has been held to this effect in Vijay Kumar vs. Narendra and others, 2002 (9) SCC 364, Ramesh Kumar Singh vs. Jhabbar Singh and others, 2004 SCC (Cri) 1067 and Girand Singh vs. State of U.P., 2010 (69) ACC 39 and also by us in Criminal Appeal No. 4599 of 2014, Chandra Bhan Yadav @ Baba Yadav vs. State of U.P. (decided on 27.10.2017).
Reference may be made to the judgment of the Apex Court rendered in the case of Rajesh Ranjan Yadav vs. CBI through its Director reported in 2007 (1) SCC 70 wherein the Apex Court has held as under:
"..........None of the decisions cited can be said to have laid down any absolute and unconditional rule about when bail should be granted by the Court and when it should not. It all depends on the facts and circumstances of each case and it cannot be said there is any absolute rule that the mere fact that the accused has undergone a long period of incarceration by itself would entitle him to be enlarged on bail.
"..........While it is true that Article 21 is of great importance because it enshrines the fundamental right to individual liberty, but at the same time a balance has to be struck between the right to individual liberty and the interest of society. No right can be absolute, and reasonable restrictions can be placed on them. While it is true that one of the considerations in deciding whether to grant bail to an accused or not is whether he has been in jail for a long time, the Court has also to take into consideration other facts and circumstances, such as the interest of the society.
In the case of Amar Nath Yadav vs. State of U.P 2009 Ald 251 the Bench has held that "in my considered opinion, on the basis of the long incarceration in jail also, the applicant can not be admitted to bail in this heinous crime."
In this context, reference may be made to the judgment rendered in the case of Pramod Kumar Saxena vs Union of India and others, 2008 (63) ACC 115 in which the Hon'ble Apex Court has held that mere long period of incarceration in jail would not be per se illegal. If the accused has committed an offence, he has to remain behind bars. Such detention in jail even as an under-trial prisoner would not be violative of Article 21 of the Constitution.
The appellant has been convicted and sentenced to undergo life imprisonment under Section 304B IPC and has been further convicted and sentenced to undergo two years rigorous imprisonment under Section 498A IPC and to pay fine of rupees two thousand and in default of payment of fine, to further undergo one month rigorous imprisonment. The appellant has also been convicted and sentenced to undergo one year rigorous imprisonment under Section 4 D.P. Act and to pay fine of rupees ten thousand and in default of payment of fine, to further undergo six months rigorous imprisonment.
Perusal of the order as extracted herein above makes it clear that it is a case of death of a wife under unnatural circumstances within seven years of her marriage (within two and an half years).
Perusal of the record shows that in the statement under Section 313 Cr.P.C. the husband has taken a stand that "wah apne bachche wa bhai rahees ke sath aur bhaiyon wa maan baap ke paas gaya tha. pichhe uski patni jali jo khana bana rahi thi aur ghar me akeli thi. Jalne ki baat phailne par wah pahuncha tha. Uske bhai Rahees ne aspatal me bharti karaya tha. Wah bhi saath gaya tha. Wah majra dekhkar behosh ho gaya tha". However, the evidence totally belies the said contention of the appellant husband. There is a consistent view of PW-1 Smt. Shabina and PW-2 Furqan that charred body was found sitting on the chair. It has also come on record that the deceased has left behind a child of one and a half years (at the time of incident) and thus, it has been contended by learned AGA that there was no occasion for the wife to commit suicide leaving behind a minor child. Learned AGA has contended that it would be possible only if the person tied down to a chair and then put to fire. Learned AGA has also drawn attention of this Court to the findings recorded by the court concerned to the effect that "abhiyukt ki or se yah spasth nahi kiya gaya ki ghar me mitti ka tel kahan se aaya. Bachav paksh ne apne samarthan me kai gawah prastut kiye hain kintu kisi bhi gawah ne yah nahi bataya ki mitti ke tel girne se hadsa kis prakar hua and uske ghar me mitti ka tel kyon aur kaise rakha tha." Reliance has also been placed on the statement of DW-2 Naees Miyan who in his statement has stated that "ghatna ke samay wah mumbai se yahan aatya tha and Anees Miyan ne uski dao ki thi, maan baap ki Anees Miyan se narazagi thi kyonki usne apni marzi se shadi ki thi. Usne dawat me maan baap ko shamil karne ke liye kaha aur wah Anees wa uska beta umra dedh warsh ko lekar gaye. Tabhi shor macha ki Anees ki biwi aaga me jal gayi wah aur anees ulte ghar ko bhage ghar me anees ki aurat kichen ke pass behosh padi thi, use aspatal le gaye aur Anees isko dekhkar behosh ho gaya aur usko dil ka daura par gaya."The court concerned has observed that "yadi aisa tha to dono pati patni ek dusre se atyadhik prem hoga aur aisi istithi me aatmahatya ki koi sambhawna nahi hai". The court has also given reasons for imposing life sentence. It has also come on record that along with the dead body the remains of the chair and the jerrycan were also recovered from the spot.
Mr. Noor Mohammad learned counsel for the appellant has not opposed the fact that the charred body of the wife was found sitting on the chair.
Reference may also be made to the judgment of the Apex Court rendered in the case of Kalyan Chandra Sarkar vs. Rajesh Ranjan reported in 2004(7) SCC 528.
Turning to the submissions based on the long period of detention and absence of criminal history which are good grounds to be considered in a second application for bail pending appeal. It is also true that the applicant does not have any criminal history.
There is, however, consistent authority that mere period of long detention post conviction does not entitle an accused to bail pending appeal. In this connection the decision of a Division Bench of this Court in the case of Girand Singh vs. State of U.P, reported in 2010 (69) ACC 39 may be quoted with profit. Paragraphs 8, 9, 10, 14, 17 and 18 of the report are relevant, which are as under:
"8. Now we come to the second limb of the argument advanced on behalf of the applicant,which emphasizes and attempts to justify the release on bail merely on the ground of increased period of detention. According to the learned AGA, the cases of Babu Singh and Kashmira Singh relied upon by the learned counsel for the appellant are clearly distinguishable for various reasons. According to him, the basic reasonings, which persuaded the Apex Court to recommend the grant of bail on the basis of period of detention was because the Apex Court used to reject the bail application as a matter of practice where the conviction had already been recorded. Such a practice was found to be unjustified in the light of the fact that it had become unlikely to decide the appeals within a measurable distance of time. According to the learned AGA, Special Leave Petitions are admitted in the Apex Court only when in the estimate of the Hon'ble Apex Court there is a fair possibility to allow appeal. Only in those cases where the accused succeeds to establish a prima facie case in his favour and is able to demonstrate a reasonable prospect of his acquittal in future after final hearing that the SLPs. are admitted. That is the reason why the Hon'ble Apex Court deprecated the rejection of bail after conviction as a matter of routine or as a matter of practice even after admitting the SLP. Such a practice looked unjustified to the Apex Court only because it noticed the ironical paradox between two situations- one which admits the SLP after holding that the accused has a prima facie case in his favour and another which rejects his bail as a matter of practice due to paucity of time to hear the appeal finally.The learned AGA has drawn our attention to certain portions of both the judgments.
9. In Kashmira Singh's case the Hon'ble Apex Court observed as follows:-
"(2) The appellant contends in this application that pending the hearing of the appeal he should be released on bail. Now, the practice in this Court as also in many of the High Courts has been not to release on bail a person who has been sentenced to life imprisonment for an offence under Section 302 of the Indian Penal Code. The question is whether this practice should be departed from and if so, in what circumstances. It is obvious that no practice howsoever sanctified by usage and hallowed by time can be allowed to prevail if it operates to cause injustice. Every practice of the Court must find its ultimate justification in the interest of justice. The practice not to release on bail a person who has been sentenced to life imprisonment was evolved in the High Courts and in this Court on the basis that once a person has been found guilty and sentenced to life imprisonment, he should not be let loose, so long as his conviction and sentence are not set aside, but the underlying postulate of this practice was that the appeal of such person would be disposed of within a measurable distance of time, so that if he is ultimately found to be innocent, he would not have to remain in jail for an unduly long period. The rationale of this practice can have no application where the Court is not in a position to dispose of the appeal for five or six years. It would indeed be a travesty of justice to keep a person in jail for a period of five or six years for an offence which is ultimately found not to have been committed by him. Can the Court ever compensate him for his incarceration which is found to be unjustified? Would it be just at all for the Court to tell a person: "We have admitted your appeal because we think you have a prima facie case, but unfortunately we have no time to hear your appeal for quite a few years and, therefore, until we hear your appeal, you must remain in jail, even though you may be innocent?" What confidence would such administration of justice inspire in the mind of the public? It may quite conceivably happen, and it has in fact happened in a few cases in this Court, that a person may serve out his full term of imprisonment before his appeal is taken up for hearing. Would a judge not be overwhelmed with a feeling of contrition while acquitting such a person after hearing the appeal? Would it not be an affront to his sense of justice? Of what avail would the acquittal be to such a person who has already served out his term of imprisonment or at any rate a major part of it? It is, therefore, absolutely essential that the practice which this Court has been following in the past must be reconsidered and so long as this Court is not in a position to hear the appeal of an accused within a reasonable period of time, the Court should ordinarily, unless there are cogent grounds for acting otherwise, release the accused on bail in cases where special leave has been granted to the accused to appeal against his conviction and sentence."
10. In Babu Singh's case, the Hon'ble Apex Court has placed its reliance again on Kashmira Singh's case and quoted in paragraph 24 of its judgment the entire observations given in Kashmira's Singh case, which have been quoted above. In paragraph 24 of Babu Singh's case it has been observed that-
"Yet another factor which heavily tips the scales of justice in favour of release pendente lite is the thought best expressed by Justice Bhagwati speaking for the Court in Kashmira Singh versus The State of Punjab".
Then the above quoted paragraph of Kashmira Singh's case has been quoted as follows:-
"The appellant contends......................against his conviction and sentence."
According to the learned AGA, this is not at all the practice of this High Court to reject the bail application after conviction as a matter of routine. He also emphasized that the appeals in the High Court are admitted as a matter of right and not because the accused has demonstrated a good prima facie case in his favour or after finding a reasonable prospect of his acquittal. In fact the considerations to admit appeal after conviction in the High Court are entirely different from the considerations of admitting SLPs. in the Supreme Court. In the High Court the matter of bail in appeal is adjudicated after going through the entire merits of the case and bails are allowed or rejected not out of any practice but on the basis of merits of the case. If the accused appellant succeeds to establish a prima facie case in his favour or to show serious infirmity in the judgment of conviction passed against him or if he succeeds to demonstrate a fair likelihood of his acquittal after hearing he is always granted bail. The bail of the accused is rejected only when he fails to point out any serious infirmity in the prosecution case or in the judgment of conviction and fails to establish any prima facie case in his favour or if otherwise there are other special reasons to reject his bail.
14 . Learned counsel for the accused appellant has placed his reliance on Smt. Akhtari Bi's case (supra). First of all the period of 5 years in jail is not complete in the present case. Secondly, even in Smt. Akhtari Bi's case, the Hon'ble Apex Court has observed that-
" There may be cases where even after the lapse of 5 years the convicts may, under the special circumstances of the case, be held not entitled to bail pending the disposal of the appeals filed by them."
17. The Apex Court after considering the cases of Smt. Akhatri Bi and Kashmira Singh and several others on this point observed as follows:-
" But, however, it is significant to note that all these decisions only lay down broad guidelines which the courts must bear in mind while dealing with an application for grant of bail to an appellant before the Court. None of the decisions lay down any invariable rule for grant of bail on completion of a specified period of detention in custody. Indeed in a discretionary matter, like grant or refusal of bail, it would be impossible to lay down any invariable rule or evolve a strait jacket formula. The Court must exercise its discretion having regard to all the relevant facts and circumstances. What the relevant facts and circumstances are, which the Court must keep in mind, has been laid down over the years by the courts in this country in large number of decisions which are well known. It is, therefore, futile to attempt to lay down any invariable rule or formula in such matters."
It further observed that-
" We agree with the submission urged before us that the directions contained in the aforesaid judgment of the High Court are only in the nature of guidelines and the High Court should not be understood to have laid down an invariable rule to be observed with mathematical precision."
18. It is manifestly clear from the above observations that the detention period alone can not become a straight jacket formula to entitle any accused to bail. (emphasis by us).
"It is manifestly clear from the above observations that the detention period alone can not become a straight jacket formula to entitle any accused to bail.
Learned AGA has further brought to our notice two Division Bench cases of this High Court i.e. Criminal Appeal No. 6555 of 2006, Anees versus State of U.P. decided on 18.10.2008 and Criminal Misc. Second Bail Application No. 49193 of 2008 in Criminal Appeal No. 6794 of 2007, Jaivir Singh and others versus State of U.P. decided on 17th September, 2008. In Anees's case a similar argument was advanced on behalf of the accused that in view of staggering pendency of the appeals the appellant can not have his appeal heard in next 100 years and for this reason also he should be granted bail. The Division Bench after considering all the relevant case laws including the case of Siddarth Vasisth alias Manu Sharma versus State (NCT) JT 2008(6) SC-467 and Smt. Akhtari Bi's case observed as follows:-
"I have carefully gone through Siddharth Vashishta's case (supra) It is nowhere held by the Hon'ble Apex Court that merely on the basis of the period of detention in jail after conviction, all the accused be released on bail without looking to the merit of the case and nature of the offence. The afore-cited observations made by the Hon'ble Apex Court in Siddarth Vasistha's case (supra) should not be misunderstood to mean that after conviction, the appellant-accused in all cases be released on bail merely by saying that the appeal would not be heard and disposed of within a' measurable distance of time.' Had the Hon'ble Apex Court intended to lay down that after conviction, all the accused would be released on bail merely on the basis of the period of detention in jail, then it could very well say that after conviction, all the accused be released on bail without going into merit of the case and nature of the offence, as the hearing of the appeals would take long time."
Likewise the decisions of the Supreme Court in Ramji Prasad vs. Rattan Kumar Jaiswal, (2002) 9 SCC 366 and Vijay Kumar vs. Narendra and others, (2002) 9 SCC 364 are apposite on the point. The authorities are unwavering pillars for the proposition that mere long detention of the conviction is not a good ground for bail in renewed plea."
In view of the facts and circumstances of the case where the wife was burnt to death within two and an half years of her marriage and her charred body was found sitting on the chair, no case for grant of any indulgence is made out. The application for bail is hereby rejected.
However, keeping in view the period of incarceration of the appellant, hearing of the appeal is expedited under Chapter-VIII Rule 33A of the Rules of Court.
Let the paper book be prepared within two months from today and thereafter appeal be listed for hearing before appropriate Bench.
Order Date :- 25.4.2018 SP