Allahabad High Court
Naeem @ Naheem vs State Of U.P. on 28 March, 2023
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 76 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 36008 of 2022 Applicant :- Naeem @ Naheem Opposite Party :- State of U.P. Counsel for Applicant :- Raja Ullah Khan Counsel for Opposite Party :- G.A. Hon'ble Saurabh Shyam Shamshery,J.
Applicant - Naeem @ Naheem has approached this Court for bail in Case Crime No. 424 of 2021 under Sections 498-A, 304-B, 323 I.P.C. and 3/4 of Dowry Prohibition Act, Police Station- Mirzapur, District- Shahjahanpur.
Complainant is brother of deceased. It was alleged that his sister was married to present applicant about 4 years ago and dowry was given according to his capacity, however, the applicant and co-accused persons have started committing cruelty on deceased in regard to demand of dowry and it was further alleged that on 16.12.2021, the applicant and co-accused have caused death of deceased.
Sri Raja Ullah Khan, learned counsel for applicant submits that applicant belongs to a very poor family and runs his livelihood by begging, no complaint whatsoever in regard to demand of dowry was made during period of four years of marriage; the cause of death was opined as asphyxia due to ante mortem hanging; the allegation in regard to demand of dowry of Rs. 50,000/- is vague and remains unsubstantiated during investigation; therefore, applicant, who is in jail since 25.12.2021 may be released on bail during trial.
While opposing prayer for bail, Sri Sunil Srivastava, learned AGA appearing for State submits that deceased has received four ante mortem injuries also (one abraded contusion and three contusion) which indicates that deceased has struggled before death; therefore, applicant may not be granted bail.
LAW ON BAIL - A SUMMARY (A) The basic rule may perhaps be tersely put as bail, not jail.
(B) Power to grant bail under Section 439 Cr.P.C., is of wide amplitude but not an unfettered discretion, which calls for exercise in a judicious manner and not as a matter of course or in whimsical manner.
(C) While passing an order on an application for grant of bail, there is no need to record elaborate details to give an impression that the case is one that would result in a conviction or, by contrast, in an acquittal. However, a Court cannot completely divorce its decision from material aspects of the case such as allegations made against accused; nature and gravity of accusation; having common object or intention; severity of punishment if allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of witnesses being influenced by accused; tampering of evidence; character, behaviour, means, position and standing of accused; likelihood of offence being repeated; the frivolity in the case of prosecution; criminal antecedents of accused and a prima facie satisfaction of Court in support of charge against accused. The Court may also take note of participation or part of an unlawful assembly as well as that circumstantial evidence not being a ground to grant bail, if the evidence/ material collected establishes prima facie a complete chain of events. Parity may not be an only ground but remains a relevant factor for consideration of application for bail.
(D) Over crowding of jail and gross delay in disposal of cases when undertrials are forced to remain in jail (not due to their fault) may give rise to possible situations that may justify invocation of Article 21 of Constitution, may also be considered along with other factors.
(See, State Of Rajasthan, Jaipur vs. Balchand @ Baliay (AIR 1977 SC 2447 : 1978 SCR (1) 535; Gurcharan Singh vs. State (Delhi Administration), (1978) 1 SCC 118); State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC 21; Prasanta Kumar Sarkar vs. Ashis Chatterjee and Anr (2010)14 SCC 496; Mahipal vs. Rajesh Kumar, (2020) 2 SCC 118; Ishwarji Mali vs. State of Gujarat and another, 2022 SCC OnLine SC 55; Manno Lal Jaiswal vs. The State of U.P. and others, 2022 SCC OnLine SC 89; Ashim vs. National Investigation Agency (2022) 1 SCC 695; Ms. Y vs. State of Rajasthan and Anr :2022 SCC OnLine SC 458; Manoj Kumar Khokhar vs. State of Rajasthan and Anr. (2022)3 SCC 501; and, Deepak Yadav vs. State of U.P. and Anr. (2022)8 SCC 559) In the present case, applicant is husband of deceased whose wife has died otherwise than normal circumstances within four years of marriage. The cause of death is asphyxia due to ante mortem hanging, however, considering the evidence on record as well as status of applicant and his family being destitute and that no complaint was made during period of four years of marriage as well as that allegations of demand of dowry appear to be general and vague as well as taking note that trial is proceeding in a snail pace, therefore, I find that it is a fit case to grant bail to applicant.
Let the applicant- Naeem @ Naheem 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
(ii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment or exemption from appearance on the date fixed in trial. 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.
(iii) 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.
(iv) The Trial Court may make all possible efforts/endeavour and try to conclude the trial expeditiously, preferably within a period of six months after release of applicant, if there is no other legal impediment.
(v) Applicant has to appear on each and every date before learned trial Court and any application for exemption of his appearance on vague ground could be a ground for cancellation of bail by learned trial Court immediately without even issuing notice.
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.
The bail application is allowed.
It is made clear that the observations made hereinabove are only for the purpose of adjudicating the present bail application.
Order Date :- 28.3.2023 Nirmal Sinha