High Court
Case Details
Neutral Citation No. - 2023:AHC:131750 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 25328 of 2023
Legal Reasoning
not point out any such circumstance necessitating the custodial arrest of the applicant during the pendency of trial, present case is a case of circumstantial evidence, therefore, there is no eye- witness of the occurrence, the parameters laid down by the Apex Court in Sharad Birdhichand Sarda (Supra) prima facie being not satisfied against the applicant upto this stage and the facts pertaining to the evidence on record referred to above, but without making any comments on the merits of the case, the applicant has made out a case for bail. 9. Accordingly, the bail application is Allowed. 10. Let the applicant-Smt. Arti Yadav, be released on bail in aforesaid case crime number on her furnishing a personal bond and two heavy 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 SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE 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. (ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC. (iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/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 HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC. (iv) 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 THE HIM/HER IN ACCORDANCE WITH LAW. (v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT. 11. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on her bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above. Order Date :- 4.7.2023 Imtiyaz Digitally signed by :- IMTIYAZ AHMAD High Court of Judicature at Allahabad
Arguments
Applicant :- Smt. Arti Yadav Opposite Party :- State of U.P. Counsel for Applicant :- Ugrasen Kumar Pandey,Susheel Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J. 1. Heard Mr. Ugrasen Kumar Pandey, the learned counsel for applicant and the learned A.G.A. for State. 2. Perused the record. 3. This application for bail has been filed by applicant Smt. Arti Yadav seeking her enlargement on bail in Sessions Trial No. 501 of 2023, arising out of Case Crime No. 302 of 2022, under Sections 302, 201 I.P.C., Police Station- Holagarh, District- Prayagraj during the pendency of trial. 4. Record shows that in respect of an incident which is alleged to have occurred on 21.12.2022 a delayed F.I.R. dated 31.12.2022 was lodged by the first informant Ramlakahan Yadav,(Father of the deceased) and was registered as Case Crime No. 302 of 2022 under Sections 302, 201 I.P.C., Police Station- Holagarh, District- Prayagraj. In the aforesaid F.I.R. an unknown person has been arraigned as solitary accused. 5. The gravamen of the allegations made in the F.I.R. is to the effect that Vijay Kumar son of the applicant had left home on 19.12.2022 but did not return home. Thereafter, it was discovered that the dead body of the son of the first informant was floating in the nala on 21.12.2022. 6. Learned counsel for applicant contends that applicant is innocent. Applicant is not named in the F.I.R. Applicant is the widow of the deceased i.e. daughter in law of the first informant. Present case is a case of circumstantial evidence, therefore, there is no eye-witness of the crime. Complicity of applicant in the crime in question has to be judged in the light of the parameters laid down by Apex Court for deciding the guilt of an accused in a case based upon circumstantial evidence in Sharad Birdhichand Sarda Vs. State of Maharashtra 1984 AIR 1622. However, upto this stage none of the parameters laid down in aforesaid judgment are satisfied against applicant. During the course of investigation one witness namely- Savita who was examined under Section 161 Cr.P.C. wherein she has stated that the applicant Smt. Arti Yadav alongwith Sumit Yadav carrying Vijay Kumar on a cycle. According to the learned counsel for applicant, applicant cannot be convicted simply on the basis of aforesaid evidence of last seen. He has referred to the judgment of the Supreme Court in Jaswant Gir Vs. State of Punjab (2005) 12 SCC 438. The only evidence that has emerged against applicant is the confessional statement of accused Smt. Arti Yadav i.e. applicant and Sumit Yadav, which is otherwise not admissible in evidence. Attention of the Court was then invited to the provisions contained in proviso to Section 437 Cr.P.C. and on basis thereof, he submits that since the applicant is a lady therefore, she is liable to be enlarged on bail. Even otherwise, the applicant is a woman of clean antecedents inasmuch as she has no criminal history to her credit except the present one. Applicant is in jail since 01.02.2023. As such, she has undergone five months of incarceration. Charge-sheet had already been submitted on 03.02.2023, therefore, the entire evidence sought to be relied upon by the prosecution against the applicant stands crystallized. Upto this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. On the cumulative strength of above, he, therefore, submits that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail she shall not misuse the liberty of bail and shall cooperate with the trial. 7. Per contra, the learned A.G.A. has opposed the prayer for bail. However, he could not dislodge the factual/legal submissions urged by the learned counsel for applicant with reference to the record at this stage. 8. Having heard, the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, complicity of accused and accusation made coupled with the fact that applicant is a lady, therefore, by virtue of the provisions contained in proviso to Section 437 Cr.P.C., applicant is liable to be enlarged on bail, police report in terms of Section 172(3) Cr.P.C. has already been submitted, as such the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, however the learned A.G.A. could