Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 19011 of 2021 Applicant :- Nanhi @ Kishwari Begum Opposite Party :- State of U.P.
Counsel for Applicant :- Mohammed Iftekhar,Mohammad Hisham Qadeer Counsel for Opposite Party :- G.A.,Bhuwan Raj,Rajnish Dubey
Hon'ble Samit Gopal,J.
Heard Sri Mohammed Iftekhar, learned counsel for the applicant, Sri Pankaj Kumar, Advocate holding brief of Sri Bhuwan Raj, learned counsel for the first informant and Sri V. B. Upadhyay learned A.G.A. for the State and perused the material on record.
In pursuance of the order dated 15.07.2021, a report of the Jailor Central Jail, Naini, Prayagraj has been produced by the learned A.G.A. which has been perused by the Court. In the report, it is stated that the applicant is suffering from high blood pressure, thyroid and weakness and the perusal of the same goes to show that the applicant is being provided medical treatment at the recommended hospitals and her medical condition is stated to be normal.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Nanhi @ Kishwari Begum, seeking enlargement on bail during trial in connection with Case Crime No. 0082 of 2020, under Sections 498-A, 304-B I.P.C. and Section 3/4 of Dowry Prohibition Act, 1961, registered at Police Station Nawabganj, District Prayagraj.
Learned counsel for the applicant argued that the applicant is the mother-in-law of the deceased. It is argued that in the first information report, general and omnibus allegations have been levelled against all the accused persons. It is argued that as many as six persons have been arrayed as accused including the applicant in the first information report. Learned counsel has argued that the cause of death of the deceased is opined by the doctor as Asphyxia as a result of hanging and the doctor has found only a single ligature mark on the body of the deceased without any other injury on her body. It is argued that charge-sheet in the matter has been submitted and after the submission of charge-sheet which is dated 21.04.2020, on 08.10.2020 the statement of the first informant under Section 164 Cr.P.C. has been recorded wherein, he states that the husband of the deceased namely Sarfaraz @ Sebu and the applicant were demanding dowry from the deceased. It is argued that the husband of the deceased is in jail. It is further argued that since the applicant is a lady, she is entitled to benefit of Section 437 Cr.P.C.
It has been assured on behalf of the applicant that she is ready to cooperate with the process of law and shall faithfully make herself available before the court whenever required. It has also been pointed out that the applicant is not having any criminal history as stated in para 41 of the affidavit and he is in jail since 16.02.2020 and there is no likelihood of early conclusion of trial and hence, the applicant may be released on bail during pendency of trial.
Learned counsel for the first informant vehemently opposed the prayer for bail. It is argued that although the cognizance on the charge-sheet was taken on 14.05.2020 by the concerned court but the matter was taken up for further investigation, the same continued and in process of the same, the statement of the first informant under Section 164 Cr.P.C. was recorded. It is argued that in the said statement, the applicant has been assigned the role of demand of dowry along with the husband of the deceased. It is further argued that marriage of the deceased with her husband was solemnized on 17.06.2019 whereas her death took place on 13.02.2020 which is after eight months of marriage only for which there are allegations in the first information report and in the statement of the first informant recorded under Section 164 Cr.P.C., of the applicant being involved in the matter. It is argued that the involvement of the applicant is there since beginning.
Learned A.G.A. has also opposed the prayer for bail and adopted the arguments of learned counsel for the first informant and argued that the prayer for bail be rejected.
After having heard the learned counsel for the parties and perusing the record, it is apparent that the applicant is a lady. The two co-accuseds namely Rifat Bano and Alfiya Bano have been granted bail by the court below. The husband of the deceased is in jail. The cause of death is a single ligature mark on the body of the deceased which has been opined to be as a result of hanging.
Looking to the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.
Let the applicant- Nanhi @ Kishwari Begum, 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) The applicant 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 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.
(iv) The applicant 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 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 I.P.C.
(v) 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 and the trial court may proceed against her 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.
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.
The bail application is allowed.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
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 :- 30.7.2021 AS Rathore (Samit Gopal,J.)