High Court
Case Details
Neutral Citation No. - 2023:AHC:153552 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33210 of 2023
Legal Reasoning
Applicant :- Smt. Shyam Sundari Opposite Party :- State of U.P. Counsel for Applicant :- Krishan Mohan Pandey,Anand Mohan Pandey Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J. Heard Mr. Anand Mohan Pandey, the learned counsel for applicant and the learned A.G.A. for State. This application for bail has been filed by applicant-Smt. Shyam Sundari seeking her enlargement on bail in Case Crime No.172 of 2023, under Sections 498-A, 304-B, 201 IPC and Section 3/4 Dowry Prohibition Act, police station Bewar, district Mainpuri, during the pendency of trial. Perused the record. Record shows that in respect of an incident which is alleged to have occurred on 06.04.2023, a delayed F.I.R. dated 07.04.2023 was lodged by first informant-Vinay Kumar Dubey (father of the deceased) and was registered as Case Crime No.0172 of 2023, under Section 498-A, 304-B, 201, IPC and Section 3/4 Dowry Prohibition Act, police station Bewar, district Mainpuri. In the aforesaid F.I.R., five persons, namely, Vijay Awasthi (husband); Om Prakash (Jeth); Rinki (Jethani); Kunj Bihari Awasthi (father-in-law) and Smt. Shyam Sundari- applicant herein (mother-in-law) of the deceased have been nominated as named accused. It transpires from record that marriage of Vijay Awasthi, son of the applicant, was solemnized with Priyanka (deceased), the daughter of first informant, on 19.06.2020. From the aforesaid wedlock, a boy and a daughter were born. However, an unfortunate incident occurred on 06.04.2023 in which the daughter-in-law of the applicant died. However, the information of death of the deceased was given at the concerned police station. It is the case of the applicant that the victim was taken to hospital but she ultimately died. The body of the deceased was cremated in the knowledge of the parents of the deceased. Learned counsel for the applicant contends that though applicant is a named/charge-sheeted accused, inasmuch as, the charge-sheet has been submitted on 03.07.2023, yet she is liable to be enlarged on bail. The applicant is the mother-in- law of deceased aged about 65 years. A categorical averment to that effect has been made in paragraph 11 of the afÏdavit filed in support of bail application. On the above premise, he submits that in view of the provisions contained in proviso to section 437 CrPC, the applicant is liable to be enlarged on bail. Even otherwise, the applicant is a woman of clean antecedents having no criminal history to her credit except the present one. The applicant is in jail since 08.04.2023. As such she has undergone more than three and half months of incarceration. It is then contended by the learned counsel for applicant that the allegations made in the F.I.R. with regard to demand of additional dowry and thereafter cremating the dead body of the deceased on account of non-fulfillment of the demand of additional dowry are vague and bald as the same have neither been detailed in the F.I.R. nor in the statement of the first informant recorded under Section 161 CrPC. He thus submits that the said allegations made in the F.I.R. are therefore liable to be ignored by this Court at this stage. Even otherwise, the applicant cannot be said to be the beneficiary of the alleged demand of additional dowry. The police report in terms of Section 173 (2) CrPC has already been submitted. As such the entire evidence sought to be relied upon by the prosecution stands crystalized. However, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. Attention of the Court was also invited to the judgement of the Apex Court in the case of Sumit Subhashchandra Gangwal and another Vs. State of Maharashtra and another, 2023 Livelaw SC 373 (Paragraph 5). On the above premise, the learned counsel for applicant contends 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 co-operate with the trial.
Decision
Per contra, the learned A.G.A. has vehemently opposed the prayer for bail. He submits that since the applicant is a named as well as charge-sheeted accused therefore, she does not deserve any indulgence by this Court. The deceased was a young lady and mother of two children. The death of the deceased has occurred in suspicious circumstance. The dead body of the deceased was also disposed of without informing either her family members or the police station concerned, which is in clear violation of Sections 39 and 174 CrPC. He therefore contends that no sympathy be shown by this Court in favour of applicant. The death of the deceased has occurred within seven years of marriage and in her marital home therefore by virtue of the provisions contained in Section 106 and 113 B of the Evidence Act, the burden is upon the applicant not only to explain the manner of occurrence but also her innocence. The applicant has miserably failed to discharge the said burden. As such no good ground exists to enlarge the applicant on bail. However, the learned A.G.A. could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage Having heard the leaned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, nature and gravity of offence, evidence, complicity of the accused, accusation made and coupled with the fact that since the applicant is an old lady aged about 65 years and a categorical averment to that effect has been made in paragraph 11 of the afÏdavit filed in support of the bail application, which has not been contradicted by the learned A.G.A. as per the instructions received by him, the clean antecedents of the applicant, the period of incarceration undergone, in spite of the fact that police report under Section 173(2) CrPC has already been submitted, learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of the applicant during the pendency of trial, the judgement of the Apex Court in Sumit Subhashchandra Gangwal (supra), the allegations made in the F.I.R. with regard to demand of additional dowry are vague and bald, inasmuch as the same are devoid of material particulars, prima facie the same are liable to be ignored in view of the judgement of the Apex Court in Kahkashan Kausar @ Sonam & others (supra), but without making any comments on the merits of the case, the applicant has made out a case for bail. Accordingly, the bail application is allowed. Let the applicant Smt. Shyam Sundari, involved in aforesaid case crime number, be released on bail on her furnishing a personal bond with 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 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 her counsel. In case of her absence, without sufÏcient cause, the trial court may proceed against her under section 229-A I.P.C. (iii) 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. (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 sufÏcient 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. (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. 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 :- 31.7.2023. Rks. Digitally signed by :- RAJESH KUMAR SINGH High Court of Judicature at Allahabad