Court No. - 79
Reserved on 22.07.2021 Delivered on 27.07.2021
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45543 of 2019 Applicant :- Shiv Kumar Opposite Party :- State of U.P.
Counsel for Applicant :- Brij Gopal Yadav,Pt. S.P. Sharma,Rajendra Kumar Yadav Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Shyam Shamshery,J.
1. Applicant-Shiv Kumar, has 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 05.08.2019, passed by Additional Sessions Judge/F.T.C. (O.A.W.), Jhansi, in Case Crime No.278 of 2018, under Sections 498A, 304B, 302 IPC and 3/4 Dowry Prohibition Act, Police Station Mauranipur, District Jhansi.
2. Sister of deceased lodged FIR against applicant (husband), his father, mother and sister, alleging that her sister got married with applicant on 23.04.2017 and at the time of marriage Rs. 1 lakh was given towards dowry. It was alleged that applicant and his family members were not satisfied with dowry and they repeatedly demanded additional dowry of one Motorcycle from deceased. However, parents of deceased were unable to satisfy the demand. On 25.06.2018 deceased informed her on telephone that accused persons were committing cruelty on her, notwithstanding her pregnancy, in connection with demand of dowry and they would kill her. On 18.07.2018 it was informed that deceased was not well. When family members reached at the place of occurrence, they found her dead. According to post mortem report cause of death was sock and asphyxia due to ante mortem burn injuries.
3. Learned counsel for applicant submitted that deceased died while she was cooking food on stove. Family members of applicant got her admitted in hospital to save her life. FIR was lodged after about ten days from the date of occurrence. At the time of occurrence applicant was at Delhi and while he was returning back by train, he fell down and remained admitted in hospital, which was taken note by Investigating Officer and referred in case diary also. There are general allegations with regard to demand of dowry. The allegation that deceased was pregnant at the time of her death, remained unsupported by any medical report. There was no earlier complaint against applicant or other co-accused. It was not a case of homicide. Two co- accused, i.e., mother-in-law and father-in-law, have been granted bail by this Court vide orders dated 16.05.2019 and 22.08.2019 passed in Criminal Misc. Bail Applications No. 20573 of 2019 and 8573 of 2019, respectively. It is also submitted that applicant has no criminal history and is languishing in jail since 25.09.2018 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 prayer for bail and submits that allegations are of homicide. Deceased was harassed due to demand of dowry. However, it is not disputed on the basis of material available that applicant was not present at the place of incident and fall down from train while coming back to his house.
5. Heard Sri S.P. Sharma, learned counsel for applicant, learned A.G.A. for State and perused the record.
6(A) Law on bail is well settled that 'Bail is rule a 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.
(B) 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.
(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 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.
(D) 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.
7. In the present case deceased died within a period of one and half year of her marriage. FIR was lodged after about 10 days of occurrence. There are allegations, though general in nature, against applicant and his family members of committing cruelty in connection with demand of dowry. Deceased has died due to 100% superficial to deep burn injuries. Whether occurrence was accidental or homicide, it would be tested during trial. Prima facie there are documents on record which were recorded in the case diary also that applicant fell down from train while he was returning back to his house after he received information about the occurrence and he was remained admitted in hospital also. Co-accused, i.e., mother-in-law and father-in-law of deceased have been granted bail, therefore, this Court is of the view that a case of grant of bail is made out.
8. Let the applicant- Shiv Kumar 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 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. It is made clear that the observations made hereinabove are only for the purpose of adjudicating the present bail application.
12. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
13. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
14. 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 :- 27.07.2021 AK