Allahabad High Court
Tabassum vs State Of U.P. on 22 September, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:184290 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35175 of 2023 Applicant :- Tabassum Opposite Party :- State of U.P. Counsel for Applicant :- A.C.Srivastava,Vinod Kumar Tripathi Counsel for Opposite Party :- G.A.,Sunil Kumar Yadav,Yashpal Yadav Connected with Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35196 of 2023 Applicant :- Soniya Opposite Party :- State of U.P. Counsel for Applicant :- A.C.Srivastava,Vinod Kumar Tripathi Counsel for Opposite Party :- G.A.,Sunil Kumar Yadav,Yashpal Yadav Hon'ble Rajeev Misra,J.
1. Heard Mr. A.C. Srivastava, the learned counsel for applicants, the learned A.G.A. for State and Mr. Sunil Kumar Yadav, the learned counsel representing first informant.
2. Perused the record.
3. These applications for bail have been filed by applicants-Tabassum and Soniya, seeking their enlargement on bail in Case Crime No. 291 of 2023, under Sections 147, 148, 149, 302 IPC, Police Station-Budhana, District-Muzaffar Nagar during the pendency of trial.
4. Record shows that in respect of an incident, which is alleged to have occurred on 28.06.2023, a prompt FIR dated 28.06.2023 was lodged by first informant-Sahid (husband of the deceased) and was registered as Case Crime No. 291 of 2023, under Sections 147, 148, 149, 302 IPC, Police Station-Budhana, District-Muzaffar Nagar. In the aforesaid FIR, 13 persons namely - (1) Farman, (2) Nauman, (3) Sadab, (4) Salman, (5) Dhaara, (6) Naushad, (7) Laik, (8) Farman, (9) Sona, (10) Salma, (11) Bhuri, (12) Soniya, and (13) Tabassum have been nominated as named accused.
5. Learned counsel for applicant contends that though applicants are named/sheeted accused inasmuch as the charge sheet has been submitted against applicants and other co-accused on 16.09.2023 yet the applicants are liable to be enlarged on bail.
6. At the very outset, the learned counsel for applicants submits that co-accused Saniya @ Bhuri and Salma have already been enlarged on bail by this Court vide order dated 29.08.2023 passed in Criminal Misc. Bail Application No. 38051 of 2023 (Saniya @ Bhuri and Another Vs. State of U.P.). For ready reference, the order dated 29.08.2023 is reproduced hereinunder:-
"1. Sri Yashpal, Advocate prays that two days before he has been filed his power on behalf of the informant but his name could not be shown in the cause list.
2. Heard Sri A.C. Srivastava, learned counsel for the applicants and Sri Ajeet Kumar Madhesiya, learned AGA for the State-respondent.
3. The instant application has been filed seeking release of the applicants on bail in Case Crime No. 291 of 2023, under Sections 147, 148, 149, 302 IPC, Police Station Budhana, District Muzaffar Nagar, during pendency of the trial in the court below.
4. FIR of the present case was lodged against the applicants and 11 others and according to the FIR, applicants alongwith 11 other accused persons made assault upon the wife of the informant through danda and balkati.
5. It is further mentioned in the FIR that co-accused Farman caused fire arm injury to the wife of the informant and thereafter other accused persons also caused injury to her through balkati and knife and due to the assault made by them wife of the informant died at spot.
6. Learned counsel for the applicants submitted that the entire allegations made against the applicants are totally false and baseless and applicants are wives of brothers of deceased and only due to this reason, they have been made accused in the present matter alongwith other male family members of the family.
7. He further submitted that although in the FIR and in the statement of the informant general allegations were made against all the accused persons except co-accused Farman who caused fire arm injury to the deceased but when the statement of sister of the informant Shaista, another eye-witness was recorded during investigation then she specifically stated that all the ladies were not having any weapon in their hands and they only exhorted the other accused persons and thereafter other accused persons who were male family members of the applicants assaulted the deceased and she further specifically stated that co-accused Farman opened fire upon the deceased and Noman through balkati caused injuries on her neck and other accused persons also caused injuries through lathi.
8. He further submitted that from the statement of eye witness Shaista it appears that no weapon has been assigned to the applicants and only role of exhortation has been assigned to them.
9. He further submitted that applicants are ladies and there was absolutely no occasion for them to participate in the incident and it appears that only due to the wives of other accused persons, they have been made accused in the present matter.
10. He further submitted that applicants are having no criminal history and they are in jail in the present matter since 28.6.2023, therefore, they may be released on bail.
10. Per contra, learned AGA as well as learned counsel for the informant opposed the prayer for bail and submitted that it is a case of brutal murder in which the family members of the deceased committed her murder only due to the reason that she performed love marriage with the informant and actually, it is a case of honour killing.
12. Learned counsel for the informant further submitted that although eye witness-Shaista specifically stated that applicants were not having any weapon but they were present at spot and role of exhortation has been assigned to them and therefore, it cannot be said that they did not participate in the incident and therefore, considering the totality of the circumstances, particularly, number of injuries sustained by deceased, applicants should also not be released on bail.
13. I have heard learned counsel for the parties and perused the record of the case.
14. From the perusal of the record, it appears that accused persons are family members of the deceased and they were not happy with the deceased as she performed love marriage with the informant but from the FIR and from the statement of the informant recorded under section 161 Cr.P.C. it appears that on the basis of general allegations as many as 13 persons have been made accused in the present matter and out of 13 persons four were ladies including applicants.
15. Further from the statement of the eye-witness Shaista, sister in law of the deceased (sister of the informant) recorded under section 161 Cr.P.C. it appears that she specifically stated that all the ladies including applicants were standing at the spot without having any weapon in their hands and co-accused Farman opened fire upon the deceased and thereafter Noman caused balkati injury on the neck of the deceased and thereafter other accused persons who were having, lathies assaulted the deceased.
16. It is further mentioned by her that all the ladies who are total four in numbers made exhortation and therefore, from the statement of the eye witness-Shaista, it appears that neither any weapon have been attributed to the applicants nor any role of causing injury has been assigned to them and only role of exhortation has been assigned to both the applicants and two other ladies.
17. Further during argument learned AGA provided the case diary of the case and from parcha no. 5 of the case diary dated 10.7.2023 it appears that during investigation, Investigating Officer procured a CCTV footage from the camera of one Arif which was installed at his home and from perusal of the CCTV footage, it appears that after the incident co-accused Farman was going alongwith countrymade pistol and from the CCTV footage, it also reflects that the co-accused Noman was also having balkati on his shoulder and except these two accused persons, there is no other accused person could be visible in the CCTV footage.
18. Although, from the cctv footage, at this stage, no definite finding could be recorded with regard to the presence of the applicants at spot but as applicants are ladies and no weapon has been assigned to them by the eye witness and only role of exhortation has been assigned to them, therefore, in my view, applicants are entitled to be released on bail.
19. Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed.
20. Let the applicants-Saniya @ Bhuri and Salma, be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-
(i) The applicants shall appear before the trial court on the dates fixed, unless their personal presence is exempted.
(ii) The applicants shall not directly or indirectly, make 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 any police officer or tamper with the evidence.
(iii) The applicants shall not indulge in any criminal and anti-social activity.
21. In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the bail of the applicants.
22. It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial."
10. On the above premise, it is urged by the learned counsel for applicant that the case of present applicants are similar and identical to aforementioned named/charge sheeted but bailed out co-accused. There is no such distinguishing feature on the basis of which, the case of present applicants could be so distinguished from aforementioned bailed out co-accused so as to deny them bail. He, therefore, submits that in view of above and for the facts and reasons recorded in the bail orders dated 29.08.2023 of aforementioned co-accused, applicants are also liable to be enlarged on bail on the ground of parity.
11. Even otherwise, applicants are women of clean antecedents having no criminal history to their credit except the present one. Applicants are in jail since 28.06.2023. As such, he has undergone more than 2 and 1/2 months of incarceration. The police report in terms of Section 173(2) 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, up to this stage, no such circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of trial. Even otherwise, since the applicants are ladies, they are entitled to the benefit of the provisions contained in proviso to Section 437 Cr.P.C. On the above premise, it is thus urged that applicants are liable to be enlarged on bail. In case, the applicants are enlarged on bail, they shall not misuse the liberty of bail and shall co-operate with the trial.
12. Per contra, the learned A.G.A. for State and the learned counsel representing first informant have opposed the prayer for bail. They submit that since applicants are named/charge sheeted accused, therefore, they do not deserve any indulgence by this Court. However, the learned A.G.A. and the learned counsel representing first informant could not dislodge the factual and legal submissions urged by the learned counsel for applicants with reference to the record at this stage.
13. Having heard, the learned counsel for applicants, the learned A.G.A. for State, the learned counsel representing first informant, upon perusal of record, evidence, nature and gravity of offence, accusations made and complicity of accused coupled with the fact that similarly situate and circumstanced co-accused have already been enlarged on bail by this Court, the learned A.G.A. and the learned counsel representing first informant could not point out any such circumstance from the record distinguishing the case of present applicants from aforementioned bailed out co-accused so as to deny them bail, applicants are ladies, therefore, they are entitled to the benefit of the provisions contained in proviso to Section 437 Cr.P.C., the clean antecedents of applicants, the period of incarceration undergone, in spite of the fact that the police report in terms of Section 173(2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, yet the learned A.G.A. and the learned counsel representing first informant could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, the judgment of the Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5), therefore, irrespective of the objections raised by the learned A.G.A. and the learned counsel representing first informant in opposition to the present application for bail, but without making any comments on the merits of the case, applicants have made out a case for bail.
14. Accordingly, the bail application is allowed.
15. Let the applicants-Tabassum and Soniya, be released on bail in the aforesaid case crime number on their 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 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.
16. However, it is made clear that any wilful violation of above conditions by the applicants, shall have serious repercussion on their 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 :- 22.9.2023 Vinay