Allahabad High Court
Shamshad vs State Of U.P. on 12 December, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43948 of 2022
Applicant :- Shamshad
Opposite Party :- State of U.P.
Counsel for Applicant :- Yogesh Kumar Srivastava,Noor Muhammad
Counsel for Opposite Party :- G.A.,Raj Kumar Gautam,Ravi Pandey,Vimlesh Gautam
Hon'ble Manish Mathur,J.
1. Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State as well as learned counsel for informant and perused the record.
2. This first bail application has been filed with regard to Case Crime No.269 of 2022, under Sections 498A, 304B, 506 IPC and Section 3/4 Dowry Prohibition Act, registered at Police Station Sikandrarau, District Hathras.
3. Applicant is the brother-in-law of deceased and as per contents of FIR, marriage between his brother and deceased had taken place on 04.03.2020. It is alleged that the deceased was continuously harassed for dowry demand and upon its unfulfillment, was murdered on 06.05.2022.
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 brother of husband of deceased. It is submitted that in fact the deceased was in a critical medical condition and had been admitted in the hospital by her husband and sister. Document indicating admission of the deceased in the hospital concerned under signatures of her husband and sister have been adverted to corroborate the submission. Attention has also been drawn to the order dated 12.08.2022 by the Sub Divisional Magistrate concerned indicating the fact that the application had been given for conducting post-mortem of the deceased but since she had already been buried, her father and other family members had objected to post-mortem being conducted due to which the direction for conduct of postmortem of deceased was recalled. As such, it is submitted that the allegation against the applicant are clearly not made out. It is further being submitted that co-accused Muveen Khan (father-in-law) and Noorjann (mother-in-law) have already been admitted to bail by coordinate benches of this Court passed in Criminal Miscellaneous Criminal Bail Applications No. 44440 of 2022 and 44906 of 2022. It is submitted that the applicant is in jail since 16.07.2022 with evidence of P.W.1 already underway and as such there is no occasion for the applicant to tamper with any evidence and that the liberty of bail would not be misused.
5. Learned Additional Government Advocate appearing on behalf of State and learned counsel for informant have opposed bail application with the submission that a bare perusal of FIR along with statement of informant recorded under section 161 Cr.P.C. clearly makes out a cognizable offence against the 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 submissions advanced by learned counsel for parties and upon perusal of material available on record, it appears that although allegations of dowry death have been made in the FIR and in the statement of informant but there appears to be documentary evidence on record indicating critical illness of the deceased due to which she appears to have been admitted in hospital by her husband and her sister. Document pertaining to opposition of informant and his family members to conduct post-mortem of deceased are also on record. However that the aforesaid documents being evidence is subject to corroboration at trial. Co-accused Muveen Khan (father-in-law) and Noorjann (mother-in-law) have already been admitted to bail by coordinate benches of this Court as indicated aforesaid.
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, Shamshad, 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
Subodh/-
