[email protected] Jony vs State Of U.P.
2022 Latest Caselaw 660 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 55909 of 2021
 

 
Applicant :- [email protected] Jony
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Sunil Vashisth
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Shri Sunil Vashisth, learned counsel for the applicant and learned A.G.A. for the State and perused the material on record.

The present bail application has been filed on behalf of applicant [email protected] Jony under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 147 of 2020 for offence punishable under Sections 498A, 304B of the Indian Penal Code and Section 3/4 Dowry Prohibition Act, registered at Police Station Badgaon , District Saharanpur, during pendency of the trial, after rejecting the bail application of the applicant by the Sessions Judge, Saharanpur vide order dated 21.10.2021.

Brief facts of the case are that the First Information Report dated 24.04.2021 has been lodged against the applicant, co-accused Sanju and Smt.Samo by the brother of the deceased stating therein that first informant solemnized marriage of his sister with co-accused Sanju about two years prior to the incident in which, sufficient dowry was given but the applicant (brother-in-law), her mother-in-law and her husband were not satisfied with the aforesaid dowry and they started to harass, humiliate and torture the deceased for bringing more dowry. On objection being raised by her, they used to assault the deceased. On 24.04.2020 at about 5.30 P.M. first informant received an information intimating that the applicant and other co-accused persons murdered her sister. Hearing this, he reached to her matrimonial house and found that the dead body of the deceased was lying there and applicant and other co-accused persons were absconding.

After lodging the first information report, Inquest of the deceased was conducted on 24.04.2020 at 1.10 P.M. on the place of incident. As per inquest report, abrasions were found on the both side front of neck of the deceased, abrasion on let ankle, and contusion on the front of left palm and on base of right thumb of the deceased. Except these injuries no other injuries were found on the person of the deceased. Post- mortem of the deceased was conducted on 25.04.2020 at 2.40 P.M wherein cause of death is shown Asphyxia as a result of throttling. Time of death is about one day. 150 gram semi digestive food was found in the stomach of the deceased.

After recording the statement of prosecution witnesses and completing the investigation, charge sheet has been filed on 20.05.2020 against the applicant and other co-accused persons. The applicant was arrested on 25.04.2020.

Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. It is further submitted that the applicant is brother-in-law (Dever) of the deceased. It is further submitted that as per F.I.R., marriage of sister of first informant was solemnized two years prior to the alleged incident with the co-accused Sanju. It is further submitted that as per allegation made in the F.I.R., no additional demand of dowry was raised. It is further submitted that general allegations of harassment, torture and humiliation have been levelled against the applicant . It is further submitted that no specific role /involvement in the commission of alleged offence has been attributed to the applicant. It is further submitted that injuries shown in the Post-mortem reveal that cause of death is Asphyxia as a result of throttling. It is further submitted that co-accused Sanju is in judicial custody.

He has next argued that the applicant has no criminal history to his credit. if the applicant is released on bail, he shall not misuse the liberty of bail. The applicant is not convicted in cognizable offence by any court.

Per contra, learned AGA has supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the applicant and submits that the allegations involved are very serious in nature and the delay in lodging the FIR cannot be said to be fatal to the case at this juncture while considering the application of bail. But he could not point out any material to the contrary. He further submits that in case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.

After considering the facts of the present case it prima facie appears that;

(a) applicant is brother-in-law of the deceased;

(b) marriage of the sister of first informant was solemnized with the co-accused Sanju, who is in judicial custody.

(c) cause of death is Asphyxia as a result of throttling. ;

(d) general allegation of harassment, torture and humiliation have been levelled against the applicant and the co-accused Sanju is in judicial custody;

(e) no specific role and involvement in the commission of offence has been attributed to the applicant.

It is a settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, his role and involvement in the offence, his involvement in other cases and reasonable apprehension of the witnesses being tampered with.

Taking into account the totality of facts and keeping in mind, the ratio of the Apex Court's judgment in the case of State of Rajasthan v. Balchand @ Baliay (1977) 4 SCC 308, Gudikanti Narasimhulu And Ors., v. Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, Ram Govind Upadhyay v. Sudarshan Singh & Ors., (2002) 3 SCC 598, Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr., (2010) 14 SCC 496 and Mahipal v. Rajesh Kumar & Anr., (2020) 2 SCC 118, the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present bail application is allowed.

Let applicant, [email protected] Jony be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:

(i) The applicant 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 him from disclosing such facts to the court or to any police officer or tamper with the evidence.

(ii) The applicant shall not pressurize/intimidate the prosecution witnesses.

(iii) 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 of Cr.P.C.

(iv) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in the trial court.

(v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel.

(vi) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that 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 in accordance with law.

The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously in accordance with law after the release of the applicant, if there is no other legal impediment.

It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.

The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.

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 :- 7.4.2022

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