HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 28 Case :- BAIL No. - 4895 of 2021 Applicant :- Mabiya Opposite Party :- State of U.P. Counsel for Applicant :- Manoj Kumar Singh,Anoop Kumar Counsel for Opposite Party :- G.A. (At Residence) Hon'ble Vikas Kunvar Srivastav,J.
The case is called out in e-court.
Learned counsel for the applicant, Sri Manoj Kumar Singh, Advocate appears through video conferencing in virtual hearing and learned A.G.A. for the State, Ms. Parul Kant, Advocate also appears through video conferencing in virtual hearing.
The present bail application is filed on behalf of the accused-applicant- Mabiya who is involved in Case Crime No.270/2019 under Sections 323, 504, 306 of I.P.C., registered at Police Station - Paliya, District- Kheri.
The occasion of present bail application has arisen on rejection of bail plea of applicant by learned Sessions Judge, Lakhimpur Kheri vide order dated 23.3.2021.
Learned A.G.A. is present to protest the bail-application, to whom the instructions are received.
Learned counsel for the bail applicant submitted that the present accused-applicant and the deceased both were the wives of the co-accused Lalla @ Firoz. The deceased was the first wife and the accused-applicant has contracted under the religious law and customs of which the parties to the case belong, as such the present accused-applicant (Mabiya) was legally wedded to the co-accused Lalla @ Firoz as second wife.
Learned counsel for the applicant reading over the F.I.R. submitted that the complainant of the case has informed the police about the unfortunate death of his sister (first wife of the co-accused, Lalla @ Firoz) complaining that was married 15 years back to the co-accused Lalla @ Firoz. After three years of first marriage, he again married to the present accused-applicant, (Mabia) and thereafter the first wife i.e., sister of the complainant was continuously being subjected to cruelty and misbehavior, by reason of which she committed suicide on 21.7.2019, administering some poisonous substance.
Learned counsel for the bail applicant submitted that after 15 years of married life which is a very long period during which no complaint as to the misbehavior or atrocities or cruelties done, if any, with the deceased by the co-accused husband or the present accused-applicant (the second wife of her husband) is reported anywhere.
Learned counsel for the bail applicant further submitted that even the contentions of the F.I.R with regard to committing suicide by the deceased administering poisonous substance is not supported with the post-mortem report, though visra is preserved for the chemical examination in Forensic Science Laboratory as cause of death could not be ascertained.
Learned counsel for the applicant further submitted that the F.I.R after the natural death, seems to have been lodged in annoyance against the sister's husband by the complainant and for no fault of the present accused-applicant she is languishing in jail since 20.2.2021.
Lastly, learned counsel for the bail applicant submitted that the co-accused, husband of the deceased, Moh. Kamar @ Lalla @ Firoz has already been granted bail by a co-ordinate Bench of this court vide order dated 19.5.2020 (annexed as Annexure No.4). On this ground, learned counsel for the bail applicant submitted that the present accused-applicant is also deserves to be granted bail subject to the terms and conditions from which the accused-applicant shall abide herself.
On the other hand, learned A.G.A submitted that the death of the deceased occurred in suspicious circumstances, the inquest report explicitly reveals the bluish nails of the fingers which is symptomatically suggested that the death was occurred by reason of administering some poisonous substance, however, result of chemical examination from the Forensic Science Laboratory of the preserved visra is still awaited, therefore, the accused-applicant cannot be claimed her innocence.
Learned counsel for the bail applicant in rebuttal submitted that all these are subject to the proof of intrinsic evidence which are to be led by the trial court and the accused-applicant having no criminal antecedent and no such complaint is reported at any time prior to her death, therefore, the accused-applicant at this stage deserves for grant of bail so as to put her defence before the trial court efficaciously.
Without making any comment as to the role, complicity and involvement of the present accused-applicant and also giving her benefit of parity as her husband, co-accused to whom the bail had already been granted by a co-ordinate bench of this Court, I find force in the submission of learned counsel for the bail applicant to release the bail applicant on bail.
Keeping into mind the valuable right of personal liberty and the fundamental principle not to disbelieve a person to be innocent unless held guilty and if he is not arraigned with the charge of an offence for which the law has put on him a reverse burden of proving his innocence as, held in the judgment of Hon'ble the Supreme Court in Dataram Singh Vs. State of U.P. and ors. reported in (2018) 3 SCC 22, I find force in the submission of learned counsel for the bail-applicant to enlarge him on bail.
Let applicant (Mabiya) involved in Case Crime No.270/2019 under Sections 323, 504, 306 of I.P.C., registered at Police Station - Paliya, District- Kheri be released on bail on his furnishing personal bond of Rs.1,00,000/- and two reliable sureties of the like amount to the satisfaction of the court concerned subject to following additional conditions, which are being imposed in the interest of justice:-
(i) The applicant shall file an undertaking to the effect that she shall not seek any adjournment on the dates 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 her counsel. In case of her absence, without sufficient cause, the trial court may proceed against her under Section 229-A of the Indian Penal Code.
(iii) In case, the applicant misuse the liberty of bail during trial and in order to secure her presence, proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against her, in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicants 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 her in accordance with law.
Order Date :- 18.5.2021/Gaurav/-