Court No. - 73
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 5320 of 2021
Applicant :- Saeeda Nikhat
Opposite Party :- State of U.P. and Another Counsel for Applicant :- Manish Tandon Counsel for Opposite Party :- G.A.
Hon'ble Siddharth,J.
Heard Sri Manish Tandon, learned counsel for the applicant and learned A.G.A for the State.
Supplementary affidavit filed by counsel for the applicant today is taken on record.
The instant anticipatory bail application has been filed on behalf of the applicant, Saeeda Nikhat, with a prayer to release her on bail in Case Crime No. 328 of 2020, under Section- 306 I.P.C., Police Station- Anwarganj, District- Kanpur Nagar, during pendency of trial.
Prior notice of this bail application was served in the office of Government Advocate and as per Chapter XVIII, Rule 18 of the Allahabad High Court Rules and as per direction dated 20.11.2020 of this Court in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 8072 of 2020, Govind Mishra @ Chhotu Versus State of U.P., hence, this anticipatory bail application is being heard. Grant of further time to the learned A.G.A as per Section 438 (3) Cr.P.C. (U.P. Amendment) is not required.
The allegation in the FIR is that brother of the informant, Sahibe Alam @ Jeeshan, was married to Gulvis, daughter of Gulam Sadiq on 08.02.2018. The wife of the brother of the informant used to physically and mentally torture his brother since the very beginning by pressurising him to take separate house. His brother being fed up with his wife took a flat in Uddeshya Apartment in Baans Mandi, Kanpur Nagar on a rent of Rs. 10,000/- per month but the conduct of his wife did not changed. His brother made complaint of his wife to his father-in-law but instead of talking to his daughter he started blackmailing his brother for money. When his brother refused to give money his mother-in-law made an application before police station- Becanganj, Kanpur Nagar as a result of which his brother went into depression and family members of his matrimonial home used to threaten him of false implication in a case. Being fed up with his wife he took divorce from his wife on 20.07.2019 but after three months his wife came back stating that his brother and parents do not give her food and started living with his brother. Thereafter, she started blackmailing him and her parents used to come and beat his brother and demand money. He sold his shop and the entire money was taken by them and being physically and mentally tortured he committed suicide on 10.08.2020 for which the accused persons are responsible.
Counsel for the applicant submits that the applicant was granted interim anticipatory bail by this Court earlier till submission of police report under Section 173(2) Cr.P.C., vide Crl. Misc. Anticipatory Bail Application No. 6894 of 2020. Since charge sheet has been submitted against the applicant and other accused persons on 17.10.2020, hence, she is before this Court against seeking anticipatory bail till the conclusion of trial. In the supplementary affidavit filed today averment has been made that the case of the applicant is covered by paragraph 41(1)(4)(5) and (10) and not barred by paragraph 43 of the judgment in the case of Crl. Misc. Anticipatory Bail Application No. 2110 of 2021, Shivam Vs. State of U.P. and Another.
He has referred to the statements of the witnesses recorded by the Investigating Officer. The informant has supported the allegations in the FIR. However, the owner of the building, wherein the deceased was residing with his wife, Sri Fasi Akhtar and Shabi Akhtar, stated that the deceased and his wife used to frequently fight, but being dispute between couple they never tried to know the cause of the same. Danish, owner of the flat no. 403, which was rented out to the deceased stated that he has heard that being fed up with the harassment by his wife the deceased committed suicide. He further stated that he had not seen the couple fighting nor the deceased committing suicide. The mother of the deceased supported the allegations made in the FIR. The brother and sisters of the informant also supported the allegations made in the FIR. The counsel for the applicant submits that the informant, his mother and sisters will support the allegations in the FIR since they are interested witnesses. On account of dispute with them the deceased and his wife left the joint family house. Even if it is assumed that the wife of the deceased used to mentally and physically harass and torture him and the demand of money was made by the applicant from her son-in-law, the ingredients for constituting offence under Section 306 IPC are not made out. He has relied upon the judgment of the Apex Court in the case of M. Mohan vs. State, 2011 AIR SCW 1601 and has stated that there has to be clear men-rea to implicate a person under Section 306 IPC. In the present case, there is no such allegation that the applicant instigated or intentionally aided the deceased to commit suicide. Abetment involves a mental process of instigating a person to commit suicide. The independent witness have not stated that the applicant used to come to the house of the deceased. Only the interesting witnesses have made such an allegation. Being mother-in- law, applicant cannot be expected to instigate her son-in-law to commit suicide and leave her daughter helpless.
Learned A.G.A. has opposed the prayer for anticipatory bail of the applicant. He has submitted that in view of the seriousness of the allegations made against the applicant, she is not entitled to grant of anticipatory bail. The apprehension of the applicant is not founded on any material on record. Only on the basis of imaginary fear, anticipatory bail cannot be granted.
After considering the rival submissions, this Court finds that there is a case registered against the applicant and Investigating Officer has submitted charge sheet against her. It cannot be definitely said when the police may apprehend her. After the lodging of F.I.R, the arrest can be made by the police at will. There is no definite period fixed for the police to arrest an accused against whom an F.I.R has been lodged. The courts have repeatedly held that arrest should be the last option for the police and it should be restricted to those exceptional cases where arresting the accused is imperative or his custodial interrogation is required. Irrational and indiscriminate arrests are gross violation of human rights. In the case of Joginder Kumar v. State of Uttar Pradesh AIR 1994 SC 1349, the Apex Court has referred to the third report of National Police Commission wherein it is mentioned that arrests by the police in India is one of the chief source of corruption in the police. The report suggested that, by and large, nearly 60 percent of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2 percent of expenditure of the jails. Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative. According to the peculiar facts and circumstances of the case, the arrest of an accused should be made.
Hence without expressing any opinion on the merits of the case and considering the nature of accusations and antecedents of applicant and also the second surge in the cases of novel coronavirus and possibility of further surge of the pandemic, she is directed to be enlarged on anticipatory bail as per the Constitution Bench judgment of the Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98.The future contingencies regarding anticipatory bail being granted to applicant shall also be taken care of as per the aforesaid judgment of the Apex Court.
In the event of arrest, the applicant shall be released on anticipatory bail. Let the applicant involved in the aforesaid crime be released on anticipatory bail on furnishing a personal bond with two sureties each in the like amount to the satisfaction of the trial court concerned with the following conditions:-
1. The applicant shall not leave the country during the currency of trial without prior permission from the concerned trial Court.
2. The applicant shall surrender her passport, if any, to the concerned Court forthwith. Her passport will remain in custody of the concerned Court.
3. That the applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade her from disclosing such facts to the Court or to any police officer;
4. The applicant shall file an undertaking to the effect that she shall not seek any adjournment on the dates fixed for evidence and 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 to ensure presence of the applicant.
5. In case, the applicant misuses the liberty of bail, the Court concerned may take appropriate action in accordance with law and judgment of Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98 and the Government Advocate/informant/complainant can file bail cancellation application.
6. The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court, default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of her bail and proceed against her in accordance with law.
7. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
8. 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 :- 8.4.2021 Rohit