Court No. - 67
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 32678 of 2021 Applicant :- Kishan Opposite Party :- State of U.P.
Counsel for Applicant :- Sunil Vashisth Counsel for Opposite Party :- G.A.,Sweety Srivastava
Hon'ble Rahul Chaturvedi,J.
Heard Sri Sunil Vashisth, learned counsel for the applicant, Mrs. Sweety Srivastava, learned counsel for the complainant and the learned AGA appearing on behalf of the State.
The applicant, who is the husband, is facing prosecution in connection with Case Crime No. 722 of 2020 under Sections 304-B, 323, 498-A IPC and 3/4 Dowry Prohibition Act, P.S. Indirapuram District Ghaziabad and in jail since 12.05.2020.
At the outset, Sri Sunil Vashisth, learned counsel for the applicant submits that the contesting parties belong to the lower middle strata of the society and they are, in fact, the roadside vegetable vendors. It is submitted that the deceased has committed suicide by hanging herself within one and a years of marriage. It is argued that the postmortem report reveals that there is singular ligature mark around her neck. It is further argued that there is no whisper of any additional dowry demand in the text of the FIR. This fact has come up only in the statement under Section 161 Cr.P.C. of Naresh Kumar, the brother of the victim that Rs. five lac has been asked as an additional dowry. Learned Counsel for the applicant submits that the basic ingredients of Section 304 IPC are not attracted. It is submitted that the victim was a short tempered woman. The applicant has been falsely implicated in the present case. In the last, the submission is that the allegation of demand of additional dowry is baseless and afterthought.
Mrs. Sweety Srivastava, learned counsel for the complainant and the learned AGA have vehemently opposed the prayer for bail and submit that the applicant is the husband, and his wife, the deceased has met an unnatural death within seven years of marriage, within the four walls of her matrimonial home. They submit that looking to the fact that the applicant being the husband bears the highest order of responsibility in a case of dowry death. However, they do not dispute the fact that the allegation of additional demand of dowry does not find place in the FIR itself.
I have perused the record. A perusal of the postmortem report shows that except singular ligature mark, there is no injury on her person. The demand of additional dowry appears to be afterthought.
Keeping in view the nature of the offence, evidence, complicity of the accused and submissions of learned counsel for the parties, I am of the view that the applicant has made out a case for bail.
Let the applicant, Kishan, who is involved in Case Crime No. 722 of 2020 under Sections 304-B, 323, 498-A IPC AND 3/4 Dowry Prohibition Act, P.S. Indirapuram District Ghaziabad be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.
(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT 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 HER COUNSEL. IN CASE OF HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE 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 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 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.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.
Since the bail application has been decided under extra-ordinary circumstances, thus in the interest of justice following additional conditions are being imposed just to facilitate the applicant to be released on bail forthwith. Needless to mention that these additional conditions are imposed to cope with emergent condition-:
1. The applicant shall be enlarged on bail on execution of personal bond without sureties till normal functioning of the courts is restored. The accused will furnish sureties to the satisfaction of the court below within a month after normal functioning of the courts are restored.
2. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
3. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
4. 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 :- 29.10.2021/Deepak