Allahabad High Court
Surendra vs State Of U.P. on 27 September, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:188374 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 36301 of 2023 Applicant :- Surendra Opposite Party :- State of U.P. Counsel for Applicant :- Jagdev Singh,Chandra Bhusan Kushwaha Counsel for Opposite Party :- G.A.,R.C. Maurya Connected with Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 9885 of 2023 Applicant :- Sheetal And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Pradhumn Kumar Pandey,Anoop Kumar Mishra Counsel for Opposite Party :- G.A.,R.C. Maurya And Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 10490 of 2023 Applicant :- 'B' Minor Opposite Party :- State of U.P. Counsel for Applicant :- Amit Rana Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Jagdev Singh, the learned counsel for applicant Surendra, Mr. Pradhumna Kumar Pandey, the learned counsel for applicants Sheetal and Lakshmi, Mr. Amit Rana, the learned counsel for applicant 'B' Minor, the learned A.G. A. for State and Mr. R.C. Maurya, the learned counsel representing first informant.
2. This Criminal Misc. Bail Application has been filed by the applicant Surendra seeking his enlargement on bail in Case Crime No. 557 of 2023, under Section 306 IPC, P.S. Kotwali City, District Biijnor during the pendency of trial.
3. Criminal Misc. Anticipatory Bail Application No. 9885 of 2023 has been filed by applicants Sheetal and Lakshmi seeking anticipatory bail in aforementioned case crime number, whereas Criminal Misc. Anticipatory Bail Application No. 10490 of 2023 filed by 'B' Minor has also been filed for anticipatory bail in above mentioned case crime number.
4. Record shows that in respect of an incident, which is alleged to have occurred on 12.6.2023, a delayed F.I.R. dated 13.6.2023 was lodged by first informant Phool Singh (grandfather of the deceased) and was registered as Case Crime No. 557 of 2023, under Section 306 IPC, P.S. Kotwali City, District Biijnor. In the aforesaid F.I.R., five persons namely Sheetal, Kajal, Ritika, Bittu and Surendra have been nominated as named accused.
5. The gravamen of the allegations made in the FIR is to the effect that deceased namely Manisha committed suicide on account of the conduct of named accused.
6. After above mentioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in termsof Chapter XII Cr. P. C. According to the learned A.G.A., the inquest of the deceased was conducted on 13.06.2023 itself. In the opinion of witnesses of inquest (panch witnesses), the nature of death of deceased was characterized as suicidal as the cause of death of the deceased was said to be hanging. Thereafter, the post mortem of the body of the deceased was conducted. In the opinion of Autopsy Surgeon, who conducted the autopsy of the body of deceased, cause of death of deceased was asphyxia due to ante mortem hanging. The Autopsy Surgeon found following ante mortem injury on the body of deceased:-
"1. A ligature mark size 25 cm on neck front to back & note on Rt. side behind the ear. Ligature mark 3 cm below, front Rt ear, 10 cm below Lt ear & 4 cm below from chin ligature mark width 1 cm."
7. During course of investigation, Investigating Officer examined following witnesses under Section 161 Cr. P. C.
1. Phool Singh, Fist Informant
2. Smt. Poonam
8. Investigating Officer further recovered diary of the deceased, photo copy of which is on record at page 29 of the paper book. The only relevant recital for the purpose of the present application for bail is to be found at page 30 of the paper book. On the basis of above and other material collected by the Investigating Officer during course of investigation, he came to the conclusion that complicity of all the named accused is established in the crime in question. Accordingly, Investigating Officer submitted the charge sheet dated 11.09.2023 as informed by the learned A.G.A.
9. Learned counsel for the applicant Surendra Singh submits that the applicant is a named/charge sheeted accused, yet the applicant is liable to be enlarged on bail. Applicant has been charge sheeted under Section 306 IPC. An offence under Section 306 IPC has to be examined on a conjoint reading of Section 306 IPC and Section 107 IPC. However, upto this stage, no such material has emerged on the basis of which it can be definitely concluded that the applicant has abetted, instigated or conspired in the commission of the crime in question. He, further, submits that there is nothing on record to show that the deceased committed suicide on account of an immediate act of applicant nor instigation can be inferred against applicant from his conduct. To buttress his submission, attention of the Court was invited to the recital contained at page 30 of the paper book (diary of the deceased). Reference has also been made to the following judgments of this Court/Supreme Court;-
(i). Sarvesh Vs. State of U.P. 2018 ADJ Online 0163,
(ii). Kanchan Sharma Vs. State of U.P. and Another 2021 SCC OnLine SC 737,
(iii). Mirza Iqbal alias Golu and Another Vs. State of U.P. and Another 2021 SCC OnLine SC 1251,
(iv) Mariano Anto Bruno and Another Vs. Inspector of Police 2022 SCC OnLine SC 1387,
(v) Kashibai and Others Vs. State of Karnataka, 2023 SCC OnLine SC 575.
10. Even otherwise, applicant is a man of clean antecedents, inasmuch as he has no criminal history to his credit except the present one. Applicant is in jail since 18.06.2023. As such, he has undergone more than 3 months of incarceration. The police report in terms of Section173 (2) Cr. P. C. i.e. charge sheet has already been submitted against all the named accused including applicant. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, upto this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. He, therefore, contends that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.
11. Mr. Pradhumna Kumar Pandey, the learned counsel for applicants Sheetal and Lakshmi and Mr. Amit Rana, the learned counsel for applicant 'B' Minor have adopted the arguments made by Mr. Jagdev Singh, the learned counsel for applicant Surendra. They further submit that all the three applicants who have sought anticipatory bail are unmarried, young ladies and therefore, by reason of the provisions contained in proviso to Section 437 Cr. P. C., aforesaid three applicants is liable to be enlarged on anticipatory bail.
12. Per contra, the learned A.G.A. and Mr. R.C. Maurya, the learned counsel for first informant have opposed the prayer for bail. They submit that since the applicants are named/charge sheeted accused inasmuch as the charge sheet has been submitted against applicants Surendra, Sheetal and Lakshmi, therefore, they do not deserve any indulgence by this Court. Referring to the judgement of the Supreme in P. Chidambaram Vs. Direcctorate of Enforcement, AIR 2019 SC, 4198, he submits that no exceptional circumstance has emerged on the record so as to grant anticipatory bail to applicants Sheetal and Lakshmi. In respect of the anticipatory bail of the minor, the learned A.G.A. contends that since the applicant is a juvenile, therefore, by reason of law laid down by this Court in Shahaab Ali (Minor) Vs. State of U.P., 2020 (2) ADJ 130, the anticipatory bail application is not maintainable and therefore, liable to be rejected.
13. In rejoinder, the learned counsel for applicants have rejoined their earlier submission urged by them in support of the bail application as well as in the applications for anticipatory bail. The learned counsel for applicant Sheetal and Lakshmi submits that though charge sheet has been submitted against applicants, but in view of the law laid down by the Apex Court to the Constitution Bench judgement in Sushila Agarawal and others Vs. State (N.C.T. of Delhi) and another, (2020) 5 SCC 1 and application for anticipatory bail is still maintainable. Mr. Amit Rana, the learned counsel for applicant 'B' Minor submits that the earlier law laid down by this Court in the case of Shahaab Ali (Minor) (Supra) has now been declared not to be a good law by a Division Bench of this Court in Mohammad Zaid Vs. State of U.P. and another, 2023 SCC OnLine All 230.
14. Having heard the learned counsel for applicant Surendra, the learned A.G.A. for state, upon perusal of material brought on record, nature and gravity of offence, evidence, complicity of the accused, accusation made and coupled with the fact that the period of incarceration, chatge sheet has been submitted against all the applicants including the applicant Surendra, clean antecedents of the applicant, therefore, irrespective of the objections raised by the learned A.G.A. in opposition to the bail application of applicant Surendra, but without making any comments on the merits of the case, the applicant has made out a case for bail.
15. Accordingly, the bail application is allowed.
16. Let the applicant Surendra involved in aforesaid case crime number, be released on bail on his furnishing a personal bond with 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.
17. 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.
18. Having heard the learned counsel for applicants-Sheetal, Lakshmi and B-Minor, the learned A.G.A. for state, the learned counsel representing first informant, upon perusal of material brought on record, nature and gravity of offence, evidence, complicity of the accused, accusations made, coupled with the facts and reasons noted above and considering the fact that all the three applicants are young unmarried ladies, therefore, they are liable to be enlarged on anticipatory bail by virtue of the provisions contained in proviso to Section 437 Cr. P. C., the police report in terms of Section 173(2) Cr.P.C. i.e. charge sheet has already been submitted against all the applicants, therefore, the entire evidence sought to be relied upon by the prosecution against applicants stands crystallized, yet in spite of above, 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 applicants 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), even though, the notice of present applications for anticipatory bail was served upon the learned G.A., yet no objection has been filed, the clean antecedents of applicants, 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 anticipatory bail, but without making any comments on the merits of the case, applicants have made out a case for grant of anticipatory bail.
19. Accordingly, both the anticipatory bail applications are allowed.
20. In view of above, in the event of arrest, applicants Sheetal, Lakshmi and 'B' Minor shall be released on anticipatory bail on their furnishing a personal bond of Rs.50,000/- with two sureties each in the like amount to the satisfaction of the Station House Officer of the police station/concerned Court with the following conditions:-
(i) The applicants shall make themselves available for interrogation by the police officer as and when required;
(ii) The applicants 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 from disclosing such facts to the Court or to any police officer;
(iii) The applicants shall not leave India without the previous permission of the Court and if they have passport, the same shall be deposited by him before the S.S.P./S.P. concerned.
21. In default of any of the conditions, the Govt. Advocate is at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicants.
Order Date :- 27.9.2023 HSM