Court No. - 83
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 14203 of 2021
Applicant :- Smt. Varsha
Opposite Party :- State of U.P.
Counsel for Applicant :- Rahul Singh,Vijay Bahadur Shivhare
Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Shyam Shamshery,J.
This vacation Bench is hearing cases through virtual mode due to surge in Covid-19 cases.
Heard Shri Vijay Bahadur Shivhare, learned counsel for the applicant, learned A.G.A. through video conferencing and perused the record.
The applicant has approached this Court by way of filing the present Criminal Misc. Bail Application seeking enlargement on bail in Case Crime No. 522 of 2020, under Section 304 IPC, Police Station - Rath, District - Hamirpur after rejection of her Bail Application, vide order dated 9.2.2021 passed by Sessions Judge, Hamirpur.
Learned counsel for the applicant submits that applicant is the wife of deceased. It is alleged that there are scuffle between the applicant and her husband (deceased) in which, applicant assaulted her husband by Silbatta two times on head which resulted into death of deceased. He pointed out that applicant had love marriage with the deceased and during investigation, it has come that there were frequent altercation between the applicant and her husband. Applicant in her statement has stated that her husband used to beat her on the suspicion of her illicit relationship with some other person and on the day of occurrence, husband of applicant was beating her and in retaliation, applicant assaulter her husband which resulted into his death. Learned counsel further submits that it is a case of sudden provocation without any intention. Applicant is lady, aged about 28 years having no criminal history is languishing in jail since 11.11.2020 and there is no likelihood of early disposal of trial and the applicant undertakes that if he is enlarged on bail, he will never misuse his liberty, will not commit any offence during bail and will co-operate in the trial.
Learned A.G.A. has vehemently opposed the prayer of bail and submits that it is a case where applicant has assaulted her husband repeatedly with the Silbatta which ultimately resulted into his death. On the basis of evidence collected, it is a case where there was intention to cause death or to cause such injuries as is likely to cause.
Law on bail is well settled that 'Bail is rule and Jail is 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. 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. 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. 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, reported in 2021 SCC Online SC 230.
Considering the rival submissions, 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 prima facie it is a case where there was differences between the husband and wife within their short period of marriage which is about four months; that prima facie, it is a case where husband of the applicant used to fight and beat applicant and in retaliation she caused death of her husband; that prima facie it does not to be a case where death is caused with intention or causing such injuries as is likely to cause death. Applicant is lady aged about 28 years having no criminal history is languishing in jail since 11.11.2020 and keeping in view the prevailing situation due to surge in Covid-19 cases, this Court is of the view that a case of grant of bail is made out.
Let applicant - Smt. Varsha 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 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 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 they 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 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 Trial Court absence of applicant is deliberate or without sufficient cause, then it shall be open for Trial Court to treat such default as abuse of liberty of bail and proceed against her in accordance with law and Trial Court may proceed against her under Section 229-A IPC.
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 :- 19.5.2021 Rishabh
[Saurabh Shyam Shamshery, J.]