Allahabad High Court
Om Prakash Chaudhary vs State Of U.P. on 8 July, 2021
Author: Rahul Chaturvedi
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 67 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 48408 of 2020 Applicant :- Om Prakash Chaudhary Opposite Party :- State of U.P. Counsel for Applicant :- Swetashwa Agarwal Counsel for Opposite Party :- G.A. Hon'ble Rahul Chaturvedi,J.
Heard learned counsel for the applicant, learned counsel for the complainant as well as learned A.G.A for the State and perused the record.
By means of this application, the applicant who is involved in case crime no.44 of 2020, under Section 306 IPC, Police Station-Arniyan, District-Bulandshahr is seeking enlargement on bail during the trial.
Learned counsel for the applicant has drawn the attention of the Court to the FIR allegedly lodged by one Mahendra Chaudhary, father of the deceased against the applicant and one Reeta Devi. The next contention is that the applicant is the husband of the deceased Neha(20). She got married with the applicant on 05.05.2017. Learned counsel for the applicant has drawn the attention of the Court to the startling feature of the FIR. On account of scanty dowry, the deceased was subject matter of mental harassment and torture but what additional amount of dowry/articles were demanded from the deceased, the FIR is completely silent on this account. It was urged by the counsel that in the absence of this vital information, it is difficult to envisage the alleged dowry related harassment of alleged torture by the applicant. Learned counsel for the applicant has further contended that there is an allegation of unnatural death(by throttling) of the deceased. Learned counsel for the applicant has drawn the attention of the Court to the inquest report whereby her bangles, finger ring etc were found intact and there was no external injury over her person, casting doubt that she was throttled by the applicant or other family members. Learned counsel for the applicant next submits that doctor has opined that the deceased has died due to asphyxia as a result of throttling. But surprisingly, her hyoid bone is found intact. The seat of ligature mark too is uneven and not a typical case of throttling and lastly it has been submitted that three witnesses have been examined by the prosecution during trial out of which two witnesses have turned hostile. Thus, on this, it is urged by learned counsel for the applicant that applicant who is husband and is languishing in jail since 25.03.2019, has got a scanty chance of conviction.
Learned A.G.A opposed the prayer for bail but has contended that it is not a thumb rule that in every case of throttling, hyoid bone should be found intact. In exceptional circumstances, it may or it may not happen. While deciding this bail application, this debatable question on the medical jurisprudence could be ignored.
Keeping in view the nature of the offence, evidence, and the presumption of under section 113A of Evidence Act, it is presumptive and rebuttable assumption against the husband and the factors narrated by the counsel have somehow succeeded creating doubt about the prosecution story against the applicant and complicity of the accused and submissions of learned counsel for the parties, I am of the view that the applicant has made out a case for bail.
Let the applicant, Om Prakash Chaudhary, who is involved in the aforesaid case be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.
(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE 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 COUNSEL. IN CASE OF HIS ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM UNDER SECTION 229-A IPC.
(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., 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, 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 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.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.
Since the bail application has been decided under extra-ordinary circumstances, thus in the interest of justice following additional conditions are being imposed just to facilitate the applicant to be released on bail forthwith. Needless to mention that these additional conditions are imposed to cope with emergent condition-:
1. The applicant shall be enlarged on bail on execution of personal bond without sureties till normal functioning of the courts is restored. The accused will furnish sureties to the satisfaction of the court below within a month after normal functioning of the courts are restored.
2. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
3. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
4. 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 :- 8.7.2021 Sumit S