Court No. - 19
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35688 of 2021 Applicant :- Om Narayan Shukla Opposite Party :- State of U.P. Counsel for Applicant :- Anil Babu Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Shyam Shamshery,J.
1. This is the second bail application. The first bail application was dismissed as withdrawn on 26.7.2021.
2. Heard Anil Babu, learned counsel for the applicant, Akhilesh Kumar Mishra, learned A.G.A. and perused the record.
3. The applicant has approached this Court by way of filing the present Criminal Misc. Bail Application seeking enlargement on bail in Case Crime No.127/2020, under Sections 498-A, 304-B of I.P.C. and 3/4 Dowry Prohibition Act, Police Station- Sirsa kalar, District-Jalaun after rejection of his Bail Application vide order dated 8.4.2021 passed by learned Sessions Judge, Jalaun, Orai.
4. Learned counsel for the applicant submitted that applicant is related to the deceased as father-in-law. Presently he is aged about 68 years and is suffering from various old age ailments. He has specifically contended that on the date of incident, the applicant was staying at Auraiya whereas the alleged occurrence took place at Jalaun. He has relied upon certain medical prescriptions in support of his submissions that even on the date of occurrence he went to the Hospital at Auraiya as an outdoor patient. He has also submitted that initially an F.I.R. was lodged against the husband of the deceased, applicant and his wife. However, after investigation, charge-sheet was filed only against the applicant and his son (husband of the deceased). The allegations made against the applicant in the F.I.R. are vague in nature and there is no specific allegations against the petitioner. The dead body of the deceased was found at the shop and not at the house, where the deceased and her husband were residing normally at Jalaun. He has also submitted that there is an evidence that the marriage of the deceased was solemnized on 6.12.2013 and not on 6.12.2014 as alleged in the F.I.R., therefore, it may not be a case which may fall under Section 304-B I.P.C. The applicant has no other reported criminal antecedent and he is languishing in jail since 1.3.2021, there is no likelihood of early disposal of trial and the applicant undertakes that if enlarged on bail, he will never misuse his liberty and will co-operate in the trial.
5. Akhilesh Kumar Mishra, learned A.G.A. has vehemently opposed the bail application and submitted that it is a case of strangulation and the dead body of the deceased was found inside her shop which is adjacent to the shop of the son of the applicant (husband of the deceased). The distance between Auraiya and Jalaun is not more, therefore, it is possible that the applicant was present at the time of occurrence as alleged in the F.I.R. He further submitted that dispute regarding the date of marriage of deceased and that applicant was not present at the place of occurrence falls within area of defence, which cannot be considered at the stage of bail application.
6 (A). 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 the criminal antecedents of the accused.
(B). It is also well settled that the Court while considering an application for bail must not go into deep into 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.
(C). 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 court 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.
(D). The Court while granting bail in the cases involving sexual offence against a woman should not mandate 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.
7. Considering the rival submission, 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 tampering with the evidence, relevant factors mentioned above, particularly that applicant is related to the deceased as father-in-law, presently he is aged about 68 years and is suffering from various old age ailments, he is in jail since 1.3.2021 and also considering that the name of the wife of the applicant though mentioned in the F.I.R. but exonerated after investigation and no charge-sheet has been filed against her. It is a case of antemortem strangulation however, considering the material on record, alleged dispute of date of marriage of the deceased as well as the submission in regard to alleged presence of the applicant at Auraiya, at the time of occurrence also, the applicant is entitled to be released on bail in this case.
8. Let the applicant Om Narayan Shukla, involved in aforesaid case crime number be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-
(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 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 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 his 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, 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 him 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.
9. 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.
10. The bail application is allowed.
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.
14. The observations made hereinabove are only for the purpose of adjudicating the present bail application.
Order Date:-29.10.2021 SB