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HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 16.07.2021
Delivered on 20.07.2021
Court No. – 79
Case :- CRIMINAL MISC. BAIL APPLICATION No. – 50760 of 2019
Applicant :- Pankaj Yadav
Opposite Party :- State of U.P.
Counsel for Applicant :- Arun Kumar Singh,Mohd. Aqueel Khan
Counsel for Opposite Party :- G.A.
Hon’ble Saurabh Shyam Shamshery,J.
1. Applicant-Pankaj Yadav, 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 16.07.2019, passed by Sessions Judge, Mahoba, in Case Crime No.06 of 2019, under Sections 498A, 304B, 504, 506 I.P.C. and 3/4 Dowry Prohibition Act, Police Station Khanna, District Mahoba.
2. Applicant is the husband of deceased, who died due to asphyxia as a result of anti-mortem hanging within three years of her marriage. Informant (father of deceased) informed the police about the suicide committed by her daughter in his house on 20.08.2018 which was entered in GD Entry. In pursuance of information inquest report was prepared and post-mortem was also conducted. After a period of more than one month the father of deceased filed an application before Magistrate against applicant and three other co-accused alleging that accused persons have committed cruelty with her daughter in connection with demand of dowry, who committed suicide at her parental house on 18.08.2018. It was also alleged that on 15.08.2018 all the accused persons came to his house and demanded dowry. Magistrate passed an order for registration of FIR and accordingly FIR was lodged on 13.01.2019.
3. Sri Mohd. Aqueel Khan, learned counsel for applicant, submits that it is a case where wife of applicant committed suicide at her parental house. No prompt FIR was lodged. Even the application before Magistrate concerned was filed after more than one month of incident alleging general allegations. Wife of applicant was mostly stayed at her parental house and even she filed a case under Section 125 Cr.P.C. on 12.06.2018 demanding maintenance, which indicates that she was living at her parental house. Statements recorded during investigation have also alleged general role of applicant. There is not a single averment that applicant has committed cruelty with deceased in connection with demand of dowry. About 11 persons of village have submitted affidavit that allegations against applicant and his family members are false. After investigation charge sheet has already been filed. There is no likelihood that in case of bail applicant would avoid the due process of law. Lastly, it is submitted that applicant has no criminal history and is languishing in jail since 20.03.2019 and in case, he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.
4. Per contra, learned A.G.A. appearing for State, vehemently opposed the prayer for bail and submits that prima facie ingredients of aforesaid Sections of IPC are satisfied in the present case. However, it is not disputed that Informant approached Magistrate for lodging FIR after more than one month and also that charge sheet has already been filed.
5(A) 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 liberty of a person. At the time of considering an application for bail, the Court must take into account certain factors such as existence of a prima facie case against the accused, gravity of the allegations, severity of punishment, position and status of the accused, likelihood of the accused fleeing from justice and repeating the offence, reasonable apprehension of tampering with the witnesses and obstructing the Courts as well as criminal antecedents of the accused.
(B) It is also well settled that the Court while considering an application for bail must not go into deep 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. 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.
(C) The Court should record the reasons which have weighed with the count for the exercise of its discretionary power for an order granting or rejecting bail. 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.
(D) The Court while granting bail in the case involving sexual offence against a woman should not mandate such bail conditions, which is/are against the mandate of “fair justice” to victim such as to make any form of compromise or marriage with the accused etc. and shall take into consideration the directions passed by Supreme Court in Aparna Bhat and others vs. State of Madhya Pradesh and another, reported in 2021 SCC Online SC 230, in this regard.
6. Considering the rival submissions, 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 tempering with the evidence, relevant factors mentioned above, particularly that deceased was staying at her parental house; she filed a case under Section 125 Cr.P.C. alleging that she has been thrown away from her matrimonial house and needs maintenance for survival; FIR was not lodged promptly; even the Informant approached Magistrate after a period of more than one month; prima facie allegations against applicant are general in nature; applicant has no criminal history, he is languishing in jail since 20.03.2019, as also considering the prevailing situation due to COVID-19, this Court is of the view that a case of grant of bail is made out.
7. Let the applicant- Pankaj Yadav 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 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 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 and the 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 the 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. It is made clear that the observations made hereinabove are only for the purpose of adjudicating the present bail application.
11. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
12. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
13. 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 :- 20.07.2021