Allahabad High Court
Ahlkar vs State Of U.P. on 10 September, 2020
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 42 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 16354 of 2020 Applicant :- Ahlkar Opposite Party :- State of U.P. Counsel for Applicant :- Upendra Upadhyay Counsel for Opposite Party :- G.A.,Narendra Singh,Sanjay Kumar Yadav Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Upendra Upadhyay, learned counsel for applicant and learned A.G.A. for State.
2. Applicant-Ahlkar has approached this Court by way of filing the present Criminal Misc. Bail Application under Section 439 Cr.P.C. after rejection of his Bail Application vide order dated 28.02.2020 passed by Special Judge (E.C. Act) Etah in Case Crime No. 280 of 2019, under Sections 304B, 498A, 323 IPC and 3/4 Dowry Prohibition Act, Police Station Jaithra, District Etah.
3. Learned counsel for the applicant submits that applicant is the father-in-law of deceased. The mother-in-law has already been granted bail by Trial Court and Dever has also been enlarged on bail by this Court vide order dated 22.06.2020 passed in Criminal Misc. Bail Application No. 15787 of 2020. Husband of deceased himself admitted deceased on 31.07.2019 in Apex Multi Speciality Hospital, Agra and also paid bill of hospital. Applicant is residing in a separate portion of house. Cause of death is septicemia due to partial hanging. Anti mortem injuries are not attributed to any struggle due to forced hanging. There are vague and general allegations of demand of dowry. Counsel for applicant also submits that applicant is 60 years old, has no criminal history and he is languishing in jail since 07.12.2019 and in case, he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.
4. Learned A.G.A. appearing for State has opposed the bail application relying on the contents of FIR and states that a strong case has been made out against applicant.
5. Law on bail is well settled that 'Bail is rule and jail is exception'. Bail should not be granted or rejected in a mechanical manner as it concerns the liberty of a person. At the time of considering an application for bail, the Court must take into account certain factors such as the existence of a prima facie case against the accused, the gravity of the allegations, position and status of the accused, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of tampering with the witnesses and obstructing the Courts as well as the criminal antecedents of the accused. It is also well settled that the Court while considering an application for bail must not go into deep into merits of the matter such as question of credibility and reliability of prosecution witnesses which can only be tested during the trial. Even ground of parity is one of the above mentioned aspects which are essentially required to be considered while considering application for bail. It is also well settled that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner, compassionately and not in whimsical manner. Conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.
6. Considering the rival submission, material available on record, the period of detention already undergone, the unlikelihood of early conclusion of trial, absence of any convincing material to indicate the possibility of tampering with the evidence, relevant factors mentioned above, particularly that mother-in-law and dever of deceased have already been granted bail by Trial Court and this Court respectively, applicant is the father-in-law aged about 60 years old having no criminal history, he is living in a separate portion of house, allegation of demand of dowry is vague and general in nature, in-laws of deceased have tried to give treatment to deceased, anti mortem injuries are prima facie not attributed to any struggle due to forced hanging, this Court is of the view that a case of grant of bail is made out. However, it is made clear that above mentioned observations are only for the purpose of consideration of present bail application.
7. Let applicant-Ahlkar 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 Court concerned with the following conditions which are being imposed in the interest of justice:-
i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) The applicant will abide the orders of Court, will attend the Court on every date and will not delay the disposal of trial in any manner whatsoever.
iii) 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.
iv) The applicant will not misuse the liberty of bail in any manner whatsoever. 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.
v) The applicant shall remain present, in person, before 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 Trial Court absence of applicant is deliberate or without sufficient cause, then it shall be open for Trial Court to treat such default as abuse of liberty of bail and proceed against him in accordance with law and Trial Court may proceed against him under Section 229-A IPC.
vi) The Trial Court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of applicant.
8. The identity, status and residential proof of sureties will be verified by Court concerned and in case of breach of any of the conditions mentioned above, Court concerned will be at liberty to cancel the bail and send the applicant to prison.
9. The bail application is allowed.
10. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
11. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
12. 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 :- 10.9.2020 AK