Allahabad High Court
Smt. Meena vs State Of U.P. And Another on 1 November, 2022
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 73 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 7701 of 2022 Applicant :- Smt. Meena Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rajat Kumar Shukla Counsel for Opposite Party :- G.A.,Kamlesh Kumar Dwivedi Hon'ble Raj Beer Singh,J.
1. Heard learned counsel for the applicant, learned counsel for the informant, learned A.G.A. for the State and perused the entire record.
2. The present application has been moved seeking anticipatory bail in Case No.2685 of 2019, arising out of Case Crime No.528 of 2017, under Sections 302, 120-B I.P.C., Police Station Sikohabad, District Firozabad with the prayer that in the event of arrest, applicant may be released on bail.
3. According to prosecution version, there was some dispute between the informant's son Raghuvendra (deceased) and his wife Kavita. On 04.06.2017 at 8.00 AM while the informant was on his duty in police station, he received information that his son Raghuvendra is not picking up his phone. The informant along with his companion constable Anil Kumar, Virendra Singh and Anand reached at his house and found that his son was lying in hanged condition. The son of informant was taken to hospital, where he was declared dead. Later on one Jeetu @ Jitendra has informed the informant that on 15.04.2017, co-accused Jaipal and his brother Naresh Kumar took him to the house of in-laws of Raghuvendra at village Kirada and there accused Kavita, her father Deshraj Singh, brother Monu and accused Jitendra and Meena (applicant) were present and that Kavita has stated that a lesson has to be taught to Raghuvendra and he has to be done away. Said Jeetu has objected the same but he was threatened by co-accused Jaipal. The informant has further alleged that on 02.06.2017 accused Jaipal has taken his daughter Pushplata to his village Pali Khera and that on 13.06.2017 accused Jaipal and his brother Naresh were missing from their home and that on the morning of 04.06.2017 accused Jaipal and Naresh Kumar have again left their home and when they returned back at 4.00 PM, their faces were lying covered with cloth and they have told the daughter of informant that they were called by Raghvendra (deceased). This fact was told by informant's daughter Puspalata to the informant. It was alleged by the informant that he believes that his son has been murdered by above stated accused persons after hatching a conspiracy.
4. It appears from record that after investigation police have submitted final report with conclusion that deceased Raghuvendra has committed suicide and that first information report has been lodged with intention to exert undue pressure upon the accused persons. The informant has filed protest petition against the final report and thereafter applicant and co-accused persons have been summoned vide order dated 7.11.2019 passed by the C.J.M., Firozabad for offence under Section 302/120-B IPC.
5. Learned counsel for the applicant submitted that though the applicant and co-accused persons have been summoned under section 302/120-B IPC but the attending facts and circumstances of the case clearly show that it was a case of suicide and that no offence under Section 302 IPC is made out. Learned counsel has referred the case of Santoshi @ Santosh Kumar vs. State of U.P. (Criminal Misc. Anticipatory Bail Application U/s 438 CrPC No-5775 of 2020), decided on 18.11.2020, wherein, co-ordinate Bench of this Court has granted anticipatory bail to the accused for offences under Sections 302, 328, 420 IPC. Learned counsel has further referred the case of Sumedh Singh Saini Vs. State of Punjab and another (Criminal Appeal No.827of 2020), decided by Hon'ble Apex Court on 03.12.2020, wherein, anticipatory bail was granted to the accused by the Hon'ble Apex Court for offences under Section 302 IPC. Learned counsel for the applicant has further referred the case of Gurubaksh Singh Sibbia V State of Punjab AIR 1980 SC 1632.
6. Learned counsel for the complainant has submitted that in view of provisions of Section 438(5)(b) CrPC, an application for anticipatory bail for offence under Section 302 IPC is not maintainable, as the offence under section 302 IPC entails punishment up to death sentence and thus, the instant application for anticipatory bail is not maintainable.
7. After considering the case laws referred above it appears that if no prima facie case under Section 302 IPC is made out, in that contingency, the anticipatory bail application would be maintainable, even if section 302 IPC has been applied in the case. The provisions of Section 438(5)(b) bar grant of anticipatory bail in the offences, in which death sentence can be awarded. Thus, if no such case is made out, the anticipatory bail application would be maintainable..
8. Regarding merits of the case, learned counsel submitted that alleged incident has been shown of 04.06.2017 and at the time of alleged incident, the informant was posted at police station Sikohabad, District Firozabad but after the incident the informant did not lodge any first information report, rather on 04.06.2017 the informant has submitted an application, which was recorded at serial no. 28 in the General Diary on 04.05.2017, wherein, informant has stated that his son (deceased) was mentally disturbed and he was talking about committing suicide and that his dead-body was found in hanged condition. After about 42 days of the incident, the informant has lodged first information report of this case at police station Sikohabad, District Firozabad, where informant was posted. This long delay in lodging first information report and conduct of the informant raises serious doubt about the authenticity of his version. The conduct of alleged witnesses namely, Eidal and Banwari as well as Jeetu and Pushpalata is not natural. All these witnesses are related to the complainant and thus, they are interested witnesses. They have not disclosed anything regarding the incident for more than one month. The statement of Pushplata is hearsay. Referring to statements of alleged eye-witnesses Eidal and Banwari, it was submitted that the statements of witnesses are thoroughly improbable and it appears that they have been introduced after one month of incident with intention to create evidence. Learned counsel has also pointed out that on 08.10.2018 informant has submitted an application to the in-charge of P.S. Sikohabad, wherein, he has stated that he does not want any action in the case lodged by him and the case be closed but thereafter he has filed protest petition against the final report. The entire family of applicant was named in the first information report, without assigning any specific role. All the accused persons were named merely on the basis of suspicion.
9. Learned counsel further argued that in the post-mortem report, except ligature mark, no other injury was shown on the body of deceased. The thyroid and hyoid bone and trachea were found not fractured. In the post-mortem report cause of death of deceased has been shown asphyxia due to shock and coma. It was submitted that all these characteristics show that deceased has committed suicide. It was also pointed out that during investigation, the investigating officer was directed by the prosecution officer to record statement of the Autopsy surgeon regarding cause of death of deceased but the investigating officer did not record any such statement. Learned counsel for applicant submitted that in view of all these facts and circumstances, it is clear that deceased has committed suicide and that no prima facie case under section 302 IPC is made out.
10. Regarding issuance of process under Section 82 CrPC, learned counsel for the applicant submitted that as the process under Section 82 CrPC has been issued against applicant and co-accused after filing of this application for anticipatory bail and thus, in view of law laid down in case of Siddharth Kappor Vs. State of UP (Crl Misc Anticipatory B.A No. 4040 of 2022), decided on 20.07.2022, the application for anticipatory bail is maintainable.
11. Learned AGA and learned counsel for the informant has opposed the prayer for bail. Learned counsel for the informant submitted that applicant-accused is named in the first information report. The delay in lodging the first information report has been explained in the first information report itself. Statements of alleged witnesses, namely Eidal and Banwari as well as Jeetu and Pushpalata were referred and it was submitted that in view of their statements, it is clear that applicant and co-accused persons were involved in incident. Eidal and Banwari are eye-witness of the incident. It was submitted that deceased Raghvendra has performed love marriage with accused Kavita and there was some dispute between them and that deceased has been done to death due that reason by the accused persons. It is further submitted that as process under Section 82 CrPC has been issued against applicant, thus, the instant application for anticipatory bail is not maintainable. In this connection, learned counsel for the complainant has referred the case of Lavesh Vs State (NCT of Delhi) 2012 4 Crimes (SC) 66.
12. I have considered rival submissions and perused the record.
13. The following basic features emerge from the facts of the matter;-
(i) That on 04.06.2017 the deceased was found in hanged condition by the informant at his house and after that information was given to the police by the informant, which was recorded in general diary, wherein, the informant has mentioned that his son was mentally disturbed and he was talking about committing suicide and that on 04.06.2017 he was found in hanged condition. Thereafter, inquest and post-mortem proceedings were conducted but at that time, the informant did not lodge any case, whereas, he was posted in the same police station.
(ii) After 42 days of incident, informant has lodged first information report of this case on the basis of information received from alleged witnesses Jeetu @ Jitendra and his daughter Pusplata but the said witnesses did not disclose these facts for about one month.
(iii) In post-mortem report of deceased, thyroid, hyoid bone and Trachea were found intact and the cause of death of deceased has been shown asphyxia due to shock and Coma. There was no injury on the body of deceased. In view of these characteristics, there is serious doubt about the fact that death of deceased is homicidal.
(iv) After investigation police have found that it is case of suicide and submitted final report with conclusion that the informant has lodged the case with malafide intention. Thereafter, accused persons were summoned on the basis of protest petition of informant.
(v) On 26.07.2017 one Banwarilal and Eidal Singh have submitted affidavits to the SSP, Firozabad, alleging that on 04.06.2017 when they were passing near the house of informant, they heard cries from the house of informant and when they went there, they saw that accused Jaipal Singh and Naresh Kumar, along with five unknown persons, have hanged the deceased Raghvendra and when they objected, the said accused persons told that they are police officials and that deceased is their relative and threatened the said witnesses and due to fear, said witnesses came from there. The conduct of these witnesses by not informing the informant or police and delay in recording their statements, speaks a lot.
(vi) The accused-applicant Smt. Meena is not named in statements of said eye-witnesses Banwarilal and Eidal. The involvement of applicant has been shown merely on the basis of statement of Jeetu @ Jitendra, who stated that on 15.05.2017 the accused persons were talking to do away the deceased. The statement of Pushplata is hearsay and does not lead to any conclusion.
(vii) In view of law laid down in case of Sidharth Kappor (Supra) and Manish Yadav Vs State of UP (Criminal Misc. Anticipatory Bail Application U/s 438 Cr.P.C. No. -4645 of 2022), decided on 14.07.2022 by co-ordinate Bench of this Court, it is clear that if process under Section 82 CrPC has been issued during pendency of anticipatory bail application, in that contingency the anticipatory bail would be maintainable.
14. It may be stated that in case of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, it has been held by Hon'ble Supreme Court that while deciding anticipatory bail, Court must consider nature and gravity of accusation, antecedent of accused, possibility of accused to flee from justice and that Court must evaluate entire available material against the accused carefully and that the exact role of the accused has also to be taken into consideration.
15. Considering submissions of learned counsel for the parties, nature of accusations, the role assigned to the applicant and all attending facts and circumstances of the case, particularly the fact that applicant is not named by the alleged eye-witnesses Eidal and Banwari, without expressing any opinion on merits of case, the applicant is entitled for anticipatory bail.
16. The anticipatory bail application is allowed.
17. It is directed that in the event of arrest, applicant-accused Smt. Meena shall be released on anticipatory bail, in the aforesaid case crime number on her furnishing a personal bond of Rs.100,000/- with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-
(i) The applicant shall not tamper with the evidence during the trial.
(ii) The applicant shall not pressurize/ intimidate the prosecution witness.
(iii) The applicant shall appear before the trial court on the date fixed, unless personal presence is exempted.
(iv) The applicant shall not commit an offence similar to the offence of which she is accused, or suspected, of the commission of which she is suspected.
(v) The applicant shall not directly or indirectly make any 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 to any police officer or tamper with the evidence.
In default of any of the conditions mentioned above, the investigating officer / prosecution shall be at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicant.
Order Date :- 1.11.2022 Neeraj