Court No. - 83
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 20325 of 2021 Applicant :- Smt. Geeta Devi And Another S Opposite Party :- State of U.P.
Counsel for Applicant :- Ali Hasan,Istiyaq Ali Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Ali Hasan, learned counsel for the applicants virtually and learned AGA for the State.
2. Applicants- Smt. Geeta Devi and Bhavesh Kumar Bind have approached this Court by way of filing the present Criminal Misc. Bail Application under Section 439 Cr.P.C. after rejection of his Bail Application vide order dated 22.2.2021 and 1.3.2021 respectively, passed by Sessions Judge, Jaunpur, in Case Crime No. 15 of 2021, under Sections 498-A, 304-B IPC and 3/4 Dowry Prohibition Act, P.S. Barsathi, district Jaunpur.
3. Learned counsel for the applicants submits that the applicant no.1 and the applicant no.2 were related as Chachiya Saas and maternal Devar respectively to the deceased Sapna Devi. It is the specific case of the applicants that they were living separately in a separate house from the family members of the deceased Sapna Devi. The applicants have no concerned with the day to day life of the deceased and her family members. There is no specific allegation against the applicant in the FIR or in the statement recorded during investigation. The applicant no.1 is a lady aged about 55 years whereas the applicant no.2 is aged about 19 years who is looking after the agricultural work. The allegation of demand of dowry against the applicants are vague and without any basis. The cause of death is reported to be Asphyxia due to ante-mortem hanging. Lastly, it is submitted that the applicants have no criminal history and is languishing in jail since 30.01.2021 and in case, he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.
4. Per contra learned A.G.A. appearing for State has opposed the bail and submits that within a period of three years of her marriage the deceased died otherwise than in natural circumstances. The applicants are closely related to the husband of the deceased and were living near the house of the deceased. However, it is not rebutted that there is no direct evidence against the applicants to connect them with the crime.
5. Law on bail is well settled that 'Bail is a rule and Jail is an exception'. Bail should not be granted or rejected in a mechanical manner as it concerns liberty of a person. At the time of considering an application for bail, the Court must take into account certain factors such as existence of a prima facie case against the accused, gravity of the allegations, severity of punishment, position and status of the accused, likelihood of the accused fleeing from justice and repeating the offence, reasonable apprehension of tampering with the witnesses and obstructing the Courts as well as criminal antecedents of the accused. It is also well settled that the Court while considering an application for bail must not go into deep merits of the matter such as question of credibility and reliability of prosecution witnesses which can only be tested during the trial. Even ground of parity is one of the above mentioned aspects which are essentially required to be considered. It is also well settled that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner, compassionately and not in whimsical manner. The Court should record the reasons which have weighed with the count for the exercise of its discretionary power for an order granting or rejecting bail. Conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory. The Court while granting bail in the case involving sexual offence against a woman should not mandate such bail conditions, which is/are against the mandate of "fair justice" to victim such as to make any form of compromise or marriage with the accused etc. and shall take into consideration the directions passed by Supreme Court in Aparna Bhat and others vs. State of Madhya Pradesh and another, 2021 SCC Online SC 230, in this regard.
6. Considering the rival submissions, material available on record, the period of detention already undergone, the unlikelihood of early conclusion of trial, absence of any convincing material to indicate the possibility of tempering with the evidence, relevant factors mentioned above, particularly that the applicant no.1 is a lady who is related to the deceased as her Chachiya Saas and the applicant no.2 is a boy of 19 years, who is son of the applicant no.1. The cause of death is reported to be Asphyxia due to ante-mortem hanging. Prima facie, the applicants are living in a separate house and prima facie had no interference with day to day life of the deceased and her family members. The allegation of demand of dowry against the applicants are prima facie vague in nature; they are in jail since 30.01.2021; as also considering the prevailing situation due to surge in COVID-19 cases, this Court is of the view that a case of grant of bail is made out.
7. Let the applicants- Smt.Geeta Devi and Bhavesh Kumar Bind be released on bail in the aforesaid case crime number on their furnishing personal bonds 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 applicants will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
(ii) The applicants will abide the orders of Court, will attend the Court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicants shall file an undertaking to the effect that he 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.
(iv) The applicants will not misuse the liberty of bail in any manner whatsoever. In case, the applicant misuses the liberty of bail during trial and in order to secure their presence proclamation under Section 82 Cr.P.C., may be issued and if applicants fail to appear before the Court on the date fixed in such proclamation, then, the Trial Court shall initiate proceedings against him, in accordance with law, under section 174-A I.P.C.
(V) The applicants 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 applicants are 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 them in accordance with law and the Trial Court may proceed against him under Section 229- A IPC.
(vi) The Trial Court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.
8. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
9. The bail application is allowed.
10. It is made clear that the observations made hereinabove are only for the purpose of adjudicating the present bail application.
11. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
12. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
13. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 19.5.2021 pks Digitally signed by Justice Saurabh Shyam Shamshery Date: 2021.05.19 17:19:18 IST Reason: Document Owner Location: High Court of Judicature at Allahabad