High Court
Case Details
Court No. - 80 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 12401 of 2021 Applicant :- Saleem Opposite Party :- State of U.P. Counsel for Applicant :- Shams Uz Zaman,Awadhesh Prasad Counsel for Opposite Party :- G.A.,Amir Khan With Case :- CRIMINAL MISC. BAIL APPLICATION No. - 12391 of 2021 Applicant :- Momina Opposite Party :- State of U.P. Counsel for Applicant :- Shams Uz Zaman Counsel for Opposite Party :- G.A.,Amir Khan Hon'ble Sanjay Kumar Pachori,J. List has been revised.
Facts
Heard Sri Awadhesh Prasad and Sri Shams Uz Zaman, learned counsel for the applicants, Sri Manoj Kumar Dwivedi, learned AGA for the State and perused the material on record. No one is present on behalf of the first informant although the name of Sri Amir Khan is printed in the cause list. As the matter relates to similar case crime therefore, both the aforesaid bail applications are heard and decided by this common order. The present bail applications have been filed by the applicants- Saleem, (father-in-law of the deceased) and Momina (mother- in-law of the deceased) under Section 439 of the Code of Criminal Procedure with a prayer to release them on bail in Case Crime No. 811 of 2020, for offence punishable under Sections 498A, 304B, 323, 504, 506, 302 IPC and Section 3/4 Dowry Prohibition Act, registered at Police Station-Loni, District Ghaziabaad, during pendency of the trial after rejecting the bail applications by learned Sessions Judge, Ghaziabad vide order dated 05.02.2021. Brief facts of the case are that the First Information Report dated 29.09.2020 has been lodged by the father of the deceased against the applicants and other co-accused persons stating that the marriage of the daughter of the first informant was solemnized with co-accused Arif according to Muslim rites and rituals on 21.11.2018 and in this marriage the first informant spent Rs.30,00,000/- but the husband of the deceased, the applicants and the other relatives of the deceased were not satisfied with the dowry given by the first informant and demanded additional dowry being one Creta Vehicle, due to which they tortured and committed marpeet with the deceased. After six months of the marriage the husband of the deceased throttled the neck of his daughter and attempted to murder her but anyhow she save herself. Thereafter, the deceased narrated all incidents to the first informant and her family members. After that the husband of the deceased has apologised for his behaviour and promised that he will not torture her daughter again. On the promise of the husband of the deceased the first informant sent her daughter to her matrimonial home but after that incident the husband and the in-laws of the deceased has raised additional demand of dowry. On 28.09.2020 at about 8.15 pm when the first informant talked to his daughter on phone he heard the abusing language from co-accused Abdulla. After that phone call was cut. At about 11.00 PM he was informed that his daughter was murdered and when he reached there he saw that the body of his daughter was lying the courtyard and he also saw the various injuries on her body and blood had spread on the wall and courtyard and some one told him that they changed the cloths of the deceased and all the accused persons fled away from the house. Before lodging of the of the FIR of the present case inquest of the dead body of the deceased has been conducted on 29.09.2020 at 11.00 AM on the basis of the information received by the police. In the inquest report contusion and swelling was found on the left side of the forearm, abrasion on the lower side of chin, abrasion on the neck and chest and injury was also found on the collorbone of the deceased. The first information report has been lodged on 29.09.2020 at 15:10 hours. As per post mortem report the doctor has opined that the cause of death is asphyxia as a result of throttling. After recording the statement of the family members of the first informant chargesheet has been submitted against the husband and the applicants. The applicants were arrested on 02.10.2020 and 28.11.2020 respectively.
Legal Reasoning
After considering the facts of the present case it prima facie appears that; (a). The applicants are father-in-law and mother-in-law of the deceased. (b). Only general role has been assigned to the applicants and no specific role for demanding dowry has been assigned to the applicants. (c). As per FIR version, after six months of the marriage, the husband of the deceased has throttled the neck of the deceased and has attempted to commit murder. (d). After the husband of the deceased apologised and promised, that he will not torture her again, the first informant sent the deceased with the co-accused Arif. It is a settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, his role and involvement in the offence, his involvement in other cases and reasonable apprehension of the witnesses being tampered with. Taking into account the totality of facts and keeping in mind, the ratio of the Apex Court's judgment in the case of State of Rajasthan v. Balchand @ Baliay (1977) 4 SCC 308, Gudikanti Narasimhulu And Ors., v. Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, Ram Govind Upadhyay v. Sudarshan Singh & Ors., (2002) 3 SCC 598, Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr., (2010) 14 SCC 496 and Mahipal v. Rajesh Kumar & Anr., (2020) 2 SCC 118, the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present bail application is allowed. Let applicants- Saleem and Momina be released on bail in the aforesaid case crime number on their furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions: (i) The applicants 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 them from disclosing such facts to the court or to any police officer or tamper with the evidence. (ii) The applicants shall not pressurize/intimidate the prosecution witnesses. (iii) The applicants 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 of Cr.P.C. (iv) The applicants shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in the trial court. (v) The applicants shall remain present before the trial court on each date fixed, either personally or through their counsel. (vi) The applicants shall not indulge in any criminal activity or commission of any crime after being released on bail. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that absence of the applicants are 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 in accordance with law. The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously in accordance with law after the release of the applicants, if there is no other legal impediment. It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order. Order Date :- 10.2.2022 Nitendra Digitally signed by NITENDRA TIWARI Date: 2022.02.15 10:13:18 IST Reason: Location: High Court of Judicature at Allahabad
Arguments
Learned counsel for the applicants submits that the applicants are innocent and have been falsely implicated in the present case due to ulterior motive. The applicants are the father-in-law and the mother-in-law of the deceased and are old persons and they are living separately from the deceased and her husband. Learned counsel for the applicants further submitted that only general role has been assigned to the applicants and no specific role has been assigned for demanding dowry or torture the deceased against the applicants. There is nothing on record, at this stage, to directly connect the applicants to the crime. As per FIR version the allegations are primarily against their son. Per contra, learned A.G.A. has supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the applicants and submits that the allegations involved are very serious in nature but he could not point out any material to the contrary. He further submits that in case the applicants are released on bail, they will again indulge in similar activities and will misuse the liberty of bail.