High Court
Case Details
Court No. - 71 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41943 of 2021 Applicant :- Shahjaha Bibi Opposite Party :- State of U.P. Counsel for Applicant :- Pavan Kumar Mishra,S. Kamal Akhtar Khan,Shailendra Kumar Yadav,Sharafat Ali Siddiqui Counsel for Opposite Party :- G.A. Hon'ble Manish Mathur,J.
Legal Reasoning
10. Looking to the nature of allegations levelled against the applicant and submission made in the bail application, without expressing any opinion on the merits of case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, particularly since no reasonable apprehension of tampering with the witnesses has been alleged, prima facie, this Court finds, the applicant is entitled to be released on bail in this case. 11. Accordingly bail application is allowed. 12. Let applicant Shahjaha Bibi involved in the aforesaid case crime be released on bail on her 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 shall file an undertaking to the effect that she shall not seek any adjournment on the dates 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 counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code. (iii) 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. is issued and the 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 of the Indian Penal Code. (iv) 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, 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. Order Date :- 22.9.2022 Prabhat Digitally signed by PRABHAT KUMAR Date: 2022.09.22 19:38:33 IST Reason: Location: High Court of Judicature at Allahabad
Arguments
1. Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State and perused the record. 2. Second bail application has been filed with regard to Case Crime No. 171 of 2020 under Sections 498-A, 304B IPC and Section 3/4 Dowry Prohibition Act, P.S. Jaitpura, District Varanasi with first bail application having been rejected vide order dated 9th February, 2021 by Hon'ble Justice Dinesh Kumar Singh-I who has subsequently demitted office and therefore the matter has been placed before this Bench as per roster. 3. As per F.I.R. lodged by Abdul Ajeej, father of the deceased, his daughter was married to co-accused Mohd. Imran on 19.6.2020. At the time of marriage, Rs. 5,00,000/- were spent and one month after the marriage co-accused Imran who is husband, and accused-applicant (mother-in-law) and other co- accused named in the F.I.R. started harassing her for additional dowry and for non-fulfillment of the same, all of them together had strangulated his daughter to death. In post-mortem report, cause of death could not be ascertained. Deceased was found to have suffered some contusions on neck and it is further recorded that other features cannot be delineated due to decomposition and peeling of skin. 4. Learned counsel for applicant submits that first bail application has been rejected primarily on the ground that applicant being mother-in-law was unable to discharge the burden cast upon her. It is submitted that at the time of rejection of first bail application, the viscera report was still awaited but has subsequently been received which has been brought on record as annexure No.3 to the affidavit filed in support of application, as per which death has occurred due to intake of aluminium phosphide. It is submitted that the aforesaid nature of death does not indicate any force on the part of applicant since the post mortem report does not indicate any anti mortem injuries on the body of deceased. It is also submitted that aforesaid subsequent event clearly indicates non culpability of applicant. 5. Learned A.G.A. appearing on behalf of State has opposed bail application with the submission that condition for rejection of first bail order still stands with the applicant being mother-in- law as yet not having been able to discharge her burden. 6. Considering submissions advanced by learned counsel for parties and upon perusal of material on record, prima facie subject to evidence led in trial, it appears that at the time of rejection of first bail application, viscera report had not been received and the rejection order is primarily based on the applicant not having been able to discharge her burden. 7. A perusal of the viscera report makes it evident that death has occasioned due to intake of aluminum phosphide. Hon'ble the Supreme Court in the case of Jaipal versus State of Haryana reported in (2003) 1 SCC 169 has upon medical expert advice opined that aluminum phosphide can either be taken forcefully or voluntarily and can not be administered deceitfully. In the present case, it appears that there is no injury on the body of the deceased with the only anti mortem injury being a contusion on the neck. It has also been submitted that there are 18 prosecution witnesses and as yet that evidence of P.W.1 is still continuing and therefore there is no occasion for early conclusion of trial. 8. The scope of consideration of second bail application has already been enunciated by Hon'ble Supreme Court in the case of Ram Govind Upadhyay v. Sudarshan Singh reported in (2002)3 SCC 598 holding that in regard to cases where earlier bail applications have been rejected there is a further onus on the court to consider the subsequent application for grant of bail by noticing the grounds on which earlier bail applications have been rejected and after such consideration if the court is of the opinion that bail has to be granted then the said court will have to give specific reasons why in spite of such earlier rejection the subsequent application for bail should be granted. 9. Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, reported in (2012) 1 SCC 40 has specifically held that bail is to be a norm and an under-trial is not required to be in jail for ever pending trial. Relevant paragraphs of the judgment are as under :- "21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty." "27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."