Allahabad High Court
Pavnesh @ Kunj Bihari vs State Of U.P. on 3 December, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 49671 of 2022
Applicant :- Pavnesh @ Kunj Bihari
Opposite Party :- State of U.P.
Counsel for Applicant :- Alok Tripathi
Counsel for Opposite Party :- G.A.
Hon'ble Manish Mathur,J.
1. Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State and perused the record.
2. This first bail application has been filed with regard to Sessions Trial No.529 of 2022 arising out of Case Crime No.1162 of 2021, under Section 306 IPC, registered at Police Station Sector 20 NOIDA, District Gautam Budh Nagar.
3. Applicant is husband of deceased and as per FIR lodged through Section 156(3) Cr.P.C. was allegedly married to the deceased in the year 2010. It is stated that the deceased was continuously harassed by applicant during the course of marriage but the couple also had two children aged about 9 and 7 years. Allegations of extra marital affair have also been made against the applicant with the allegation that due to unfulfillment of financial demand by the applicant, he along with his family members caused the death of daughter of informant on 05.12.2020. Although FIR has been lodged under section 302, 498-A, 506 IPC but charge-sheet has subsequently been submitted under section 306 IPC.
4. Learned counsel for applicant submits that the applicant has been falsely implicated in the charges levelled against him only on account of the fact that he is husband of deceased. It is submitted that marriage having taken place ten years prior to the date of incident with couple having two children, there was no occasion for the applicant to have made any dowry demand. It is submitted that there is no cogent explanation for considerable delay in lodging the FIR since the date of incident is said to be 05.12.2020 with FIR being lodged only on 16.10.2021. It is further submitted that even otherwise allegation under section 306 IPC are not made out since ingredients of section 107 IPC are missing as per statement of applicant's son recorded under section 161 Cr.P.C. It is further submitted that even the statements of neighbours recorded under section 161 Cr.P.C. indicate that the essential ingredients of section 107 IPC are missing. It is submitted that applicant is in jail since 02.02.2022 with only charge-sheet having been filed.
5. Learned Additional Government Advocate appearing on behalf of State has opposed the bail application with the submission that there are injuries on the body of deceased but does not dispute the fact that charge-sheet has been filed under section 306 IPC as well as the statement of son of applicant.
6. Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, reported in (2012) 1 SCC 40 has specifically held that bail is to be a norm and an under-trial is not required to be in jail for ever pending trial. Relevant paragraphs of the judgment are as under :-
"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty."
"27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."
7. Considering the submissions advanced by learned counsel for parties and upon perusal of material available on record, it appears that although FIR has been lodged under sections 498A and 302 IPC but charge-sheet has been filed under section 306 IPC but as per statements of applicant's son and neighbours recorded under section 161 Cr.P.C., essential ingredients of section 107 IPC appear to be missing although the same is subject to corroboration by evidence at the stage of trial. Post-mortem report also does not appear to support the charge-sheet.
8. Looking to the nature of allegations levelled against the applicant and submission made in the bail application, without expressing any opinion on the merits of case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, particularly since no reasonable apprehension of tampering with the witnesses has been alleged, prima facie, this Court finds, the applicant is entitled to be released on bail in this case.
9. Accordingly bail application is allowed.
10. Let applicant, Pavnesh @ Kunj Bihari, involved in the aforesaid case crime be released on bail on his 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 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 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 of the Indian Penal Code.
(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. 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 him, 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 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.
Order Date :- 3.12.2022
Subodh/-
