Allahabad High Court
Amir vs State Of U.P. on 8 July, 2021
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 7 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 18138 of 2021 Applicant :- Amir Opposite Party :- State of U.P. Counsel for Applicant :- Bhishm Pal Singh Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1.Heard Mr. Bhishm Pal Singh learned counsel for applicant and learned AGA representing State.
2. Perused the record.
3. This third bail application has been filed by applicant-Amir seeking his enlargement on bail in Case Crime No. 344 of 2018 under Sections 498A, 304B I.P.C. and Section 3/4 D. P. Act, P.S.-Brahmpuri, District-Meerut, during pendency of the trial.
4. First bail application of applicant-Amir was rejected by a detailed order dated 14.12.2019. Subsequently, applicant filed second Bail Application, which also came to be rejected vide order dated 14.09.2020. For ready reference, order dated 24.09.2020, wherein order dated 24.12.2019 is also quoted, is reproduced herein under :-
"Heard Mr. A.C. Srivastava, Advocate holding brief of Mr. Chandra Bir Singh, learned counsel for applicant, learned A.G.A. for State and Mr. Rakesh Kumar Tripathi, learned counsel for informant and perused the material on record.
This second bail application has been filed by the applicant- Amir for seeking his enlargement on bail in Case Crime No.344 of 2018, under sections 304-B, 498-A & 323 I.P.C. and 3/4 D.P. Act, Police Station- Brahampuri, District- Meerut, during the pendency of trial.
The first bail application of applicant was rejected by this Court by a detailed order dated 14.12.2019, which reads as under:-
"Heard Mr. Nazrul Islam Jafri, learned counsel for the applicant, the learned A.G.A. for the State and Mr. Rakesh Kumar Tripathi and Ms. Anupama Tripathi, Advocates, who have put in appearance on behalf of the complainant by filing their vakalatnama in Court today, which is taken on record.
This bail application has been filed by the applicant Amir, seeking his enlargement on bail in S.T. No. 697 of 2018 (State of U.P. Vs. Amir and another) arising out of Case Crime No. 344 of 2018 under Sections 498A, 304B, 323 IPC and 3/4 D.P. Act, P.S. Brahampuri, District Meerut during the pendency of the trial.
From the record, it appears that the marriage of the applicant was solemnized with Diljahan on 15.10.2015. However, just after the expiry of a period of two years and six months from the date of marriage of the applicant, an unfortunate incident occurred on 3.5.2018, in which the wife of the applicant died as she committed suicide by hanging herself. The information regarding the aforesaid incident was flashed on the police radio set. The inquest of the body of the deceased was conducted on 3.5.2018. In the opinion of the panch witnesses, the cause of death of the deceased was said to be suicidal. Post mortem of the body of the deceased was conducted on 4.5.2018. The Doctor, who conducted the autopsy on the body of the deceased opined that the cause of death of the deceased was asphyxia as a result of anti mortem hanging. Except for the ligature mark, no other external ante-mortem injury was found on the body of the deceased.
The F.I.R. in respect of the aforesaid incident was lodged on 3.5.2018 by the father of the deceased, which was registered as Case Crime No. 0344 of 2018 under Sections 498A, 304B, 323 IPC and 3/4 D.P. Act, P.S. Brahampuri, District Meerut . In the aforesaid F.I.R., seven persons namely, Amir (husband), Salim (father-in-law) Saira @ Bhuri (mother-in-law), Salman (Devar), Tamanna (Nand), Tauseef (Jeth), Sazmeen (Jethani) were nominated as the named accused. The police on the basis of the material collected during the course of investigation, submitted the first charge sheet dated 25.7.2018 against three of the named accused namely, Amir (husband), Saira (mother-in-law) and Salman (Devar) and thereafter the supplementary charge sheet was filed against the three of the other named accused namely, Salim (father-in-law), Tauseef (Jeth) and Sazmeen (Jethani). One of the named accused namely, Tamanna has been excluded.
Learned counsel for the applicant submits that the applicant is the husband of the deceased. However, the applicant is innocent. He is in jail since 7.9.2018. The applicant has no criminal antecedents to his credit except the present one. He further submits that absence of any ante mortem external injury on the body of the deceased clearly speaks of the bonafide of the applicant. Apart from the above, prior to the incident in question, there is nothing on the record to show that any physical or mental cruelty was exerted by the present applicant. The deceased was having some property dispute with her brother and in pressure of the same she has taken the extreme step of committing suicide by hanging herself. General and omnibus allegations have been made in the F.I.R. regarding the demand of dowry. It is thus urged that the applicant is liable to be enlarged on bail.
Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that applicant is the husband of the deceased. The occurrence has taken place in the house of the applicant within seven years from the date of marriage. Therefore, the applicant is under a burden to explain the manner of the occurrence and also the cause of occurrence in terms of Section 106 and 113 B of the Indian Evidence Act. However, the said burden remains undischarged up to this stage. It is thus urged that no case for grant of bail is made out and the bail application of the applicant is liable to be rejected.
Having considered the submissions made by the learned counsel for the applicants, the learned A.G.A. for the State and upon perusal of the material brought on the record and the complicity of the applicants but without making any comments on the merits of the case, I do not find any good reason to exercise my discretion in favour of the accused applicant. Thus, the bail application of the present applicants stands rejected.
However, the trial court is expected to gear up the trial of the aforesaid case and conclude the same within a period of six months from the date of production of a certified copy of this order, in accordance with law, without granting any unnecessary adjournment to either of the parties, provided the applicant fully cooperates in conclusion of the trial, if there is no other legal impediment.
Office is directed to transmit a certified copy of this order to the court concerned within a fortnight."
Learned counsel for applicant contends that this Court while rejecting the first bail application of applicant clearly observes that the trial be concluded within a period of six months. However, on date a period of one year and nine months have rolled by since the order dated 14.12.2018 but till date only three prosecutions witnesses of fact, namely, P.W.1, P.W.2 and P.W.3 have been examined before the court below, whereas the cross-examination of P.W.3 alone has been concluded.
It is next contended that in the bail application of the mother-in-law filed before this Court, which was registered as Crl. Misc. Bail Application No.28692 of 2018, which is on record as SA-1 to the supplementary affidavit, therefore this Court directed that the trial be concluded within a period of one year vide order dated 31.07.2018. He therefore, contends that in spite of the aforesaid direction, the trial has not yet concluded. It is urged that applicant is liable to be enlarged on bail.
Per contra, learned A.G.A. and learned counsel for informant have opposed the present bail application. They contend that the directions contained in the orders dated 14.12.2019 and 31.07.2018 (Annexure-1 to the affidavit filed in support of the bail application as well as annexure SA-1 to the supplementary affidavit) cannot be construed mechanically. They submit that in case the direction issued by this Court to conclude the trial within a specified period has not been complied with the same and the trial has not been concluded, then the same shall not automatically result in the enlargement of applicant on bail. They submit that applicant is the husband of the deceased, but the applicant has not been able to discharge the burden under Section 113B of Indian Evidence Act upto this stage. On the aforesaid premise, it is vehemently contended that the applicant is not liable to be enlarged on bail at this stage.
Having heard learned counsel for the parties and upon consideration of the material on record and keeping in view the nature of offence, evidence and complicity of the accused, I do not find any new or good ground to release the applicant on bail.
Consequently, the second bail application is rejected."
5. Learned counsel for applicant contends that applicant is the husband of deceased. He is however, innocent. It is then contended that applicant is in jail since 07.09.2018. As such on date applicant has undergone incarceration for a period of more than two years and 10 months. He has referred to earlier order dated 14.12.2019 passed by this court wherein it is mentioned that deceased died on account of having committed suicide. He also submits that, except for the ligature mark, no other external ante-mortem injury was found on the body of the deceased. On the aforesaid premise it urged that applicant is liable to be enlarged on bail.
6. Per contra, the learned AGA opposed the prayer for bail. He submits that the incident has taken place just after two years and six months of marriage. However, he could not dispute the fact that except for the ligature mark, no other external ante-mortem injury was found on the body of the deceased also the fact that applicant is in jain since 07.09.202018.
7. Having heard learned counsel for applicant, learned A.G.A. for State and upon perusal of material brought on record, evidence, complicity of the accused, accusations made and considering the fact that applicant has undergone incarceration of more than two years and 10 months, without expressing any opinion on merits of the case, I am of the view that the applicant has made out a case for bail.
8. Accordingly, present bail application is allowed.
Let the applicant-Amir be released on bail in the aforesaid case crime number on 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 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 I.P.C..
(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 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 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.
9. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his 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 :- 8.7.2021 YK