Shabana Bano vs State Of U.P.
2022 Latest Caselaw 20644 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 71
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 54513 of 2019
 

 
Applicant :- Shabana Bano
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Satyendra Narayan Singh,Pankaj Kumar Mishra
 
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 Case Crime No. 90 of 2018 under Sections 498A, 304B IPC and 3/4 Dowry Prohibition Act, Police Station Bakevar, District Etawah.

3. Applicant is sister-in-law of deceased and as per contents of FIR, the deceased was married to her brother on 17th November, 2016 whereafter she was continuously harassed for dowry and upon its unfulfilment, was burnt to death by applicant and co-accused on Ist February, 2018. Specific allegation has been made against the applicant in the F.I.R.

4. Learned counsel for applicant submits that the applicant has been falsely implicated in the charges levelled against her only on account of the fact that she is a family member of the husband of deceased. It is submitted that only general allegations pertaining to dowry demand have been made in the F.I.R. and it is only in the alleged dying declaration of deceased Rubina said to have been recorded on Ist February, 2018 that specific allegation has been levelled against the applicant of having set fire to the deceased. It is submitted that as per medical report, the deceased has suffered 95% burns and was not in a fit condition to record dying declaration which could be evident from the fact that although in the dying declaration she has clearly stated that her first husband Mustaq son of Sultan had passed away in an accident but the said person was clearly alive and was in fact involved in a litigation with the deceased for restitution of conjugal rights registered as Case No. 189 of 2016 in family court concerned, certified copy of which has been brought on record as Annexure No.9 to bail application. It is further submitted that there is no document on record whereby the attending doctor has certified the deceased to be in a fit condition to record her dying declaration. It is submitted that co-accused Naseem Ali has also been admitted to bail by co-ordinate Bench of this Court in Criminal Misc. Bail Application No. 6022 of 2021 on the ground of unreliability of dying declaration. It is further submitted that applicant is under custody since 23rd March, 2018 and as yet evidence of only three prosecution witnesses could be completed although there are total of twenty three prosecution witnesses and as such there is no scope of early conclusion of trial. Applicant is also seeking benefit of Section 437 IPC.

5. Learned A.G.A. appearing on behalf of State has opposed bail application with the submission that applicant has been taken into custody primarily on the basis of dying declaration in which the applicant has clearly been indicated as having set fire to the deceased. However other questions of fact have not been denied.

6. Considering submissions advanced by learned counsel for parties and upon perusal of material on record, prima facie subject to evidence led in trial, it appears that although general allegations of dowry demand have been made in the F.I.R. pertaining to the applicant but it is in the dying declaration that applicant was clearly indicated as having set fire to deceased. There does not appear to be any document on record indicating the status of mind of deceased at the time when dying declaration was recorded. Learned counsel for applicant has drawn attention to documentary evidence to indicate discrepancies in the dying declaration as indicated herein above pertaining to first husband of deceased. Co-accused Naseem Ali who has been accused of pouring kerosene upon the deceased has already been admitted to bail as indicated herein above primarily casting doubt on the dying declaration. The applicant does not have any previous criminal history and is in jail since 23rd March, 2018 with only three prosecution witnesses having been completed out of total of twenty three prosecution witnesses. As such there does not appear to be any hope of early conclusion of trial.

7. In Union of India v. K. A. Najeeb reported in (2021) 3 Supreme Court Cases 713 Hon'ble the Supreme Court has considered the aspect of liberty guaranteed by Part III of the Constitution and elucidates that it could cover within its protected ambit not only due procedure and fairness but also access to justice and speedy trial. It has been held that ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. It has also been held that once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for significant period of time, the courts would ordinarily be obligated to enlarge them on bail. The relevant portion of judgment is as follows:-

"15. This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India (1994) 6 SCC 731, it was held that under trials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, the Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the Courts would ordinarily be obligated to enlarge them on bail."

"17. It is thus clear to us that the presence of statutory restrictions like Section 43-D (5) of the UAPA per se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, the Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D (5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial."

"18. Adverting to the case at hand, we are conscious of the fact that the charges levelled against the Respondent are grave and a serious threat to societal harmony. Had it been a case at the threshold, we would have outrightly turned down the Respondent's prayer. However, keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with no other option except to grant bail. An attempt has been made to strike a balance between the Appellant's right to lead evidence of its choice and establish the charges beyond any doubt and simultaneously the Respondent's rights guaranteed under Part III of our Constitution have been well protected."

8. 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."

9. 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 Shabana Bano 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 :- 12.12.2022

Prabhat