Allahabad High Court
Ajay Chauhan @ Mithilesh vs State Of U.P. on 15 December, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 25478 of 2022
Applicant :- Ajay Chauhan @ Mithilesh
Opposite Party :- State of U.P.
Counsel for Applicant :- Pradeep Kumar,Piyush Patel
Counsel for Opposite Party :- G.A.,Bibhuti Narayan Singh,Gaurav Chauhan,Sriram Dhar Dubey
Hon'ble Manish Mathur,J.
1. Heard learned counsel for applicant, Mr. Shri Ramdhar Dubey learned counsel for informant, learned Additional Government Advocate appearing on behalf of State and perused the record.
2. This first bail application has been filed with regard to Session Trial No. 491 of 2021, Case Crime No. 284 of 2021 under Sections 498-A, 304-B IPC and 3/4 Dowry Prohibition Act, P.S. Kotwali, District Maharajganj.
3. Applicant is husband of deceased and as per contents of FIR marriage between applicant and daughter of first informant has taken place 14 months prior to the date of incident whereafter she was continuously harassed for dowry and upon its unfulfilment allegedly murdered on 19th June, 2021.
4. Learned counsel for applicant submits that the applicant has been falsely implicated in the charges levelled against him only on account of fact that he is husband of deceased. It is submitted that although in the F.I.R. as well as in the statement of first informant under Section 161 Cr.P.C. allegations of dowry harassment have been alleged against the applicant and family members but the same is not borne out by the post mortem report which only indicates a single ligature mark around the neck which in the opinion of doctor has not been caused by hanging and in fact has been inflicted post mortem. Viscera report has been adverted to submit that death has occasioned due to intake of aluminium phosphide but forcible ingestion of same is not corroborated by the post mortem report which does not indicate any external injury on the body of deceased. Presumption under Section 113 of Evidence Act has been sought to be dispelled with the submission that the deceased used to pressurize the applicant to take her with him at his place of work which on being refused, she voluntarily consumed the aforesaid pesticide. It is submitted that applicant is under incarceration since 22nd June, 2021 and as yet only two prosecution witnesses have been examined out of total 37 prosecution witnesses.
5. Learned A.G.A. appearing on behalf of State as well as learned counsel for informant have opposed bail application with the submission that dowry harassment against applicant is clearly made out not only in the F.I.R. but also in the statement of first informant and other eye witnesses under Section 161 Cr.P.C. although it is admitted that death has occasioned due to intake of aluminium phosphide.
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 dowry harassment allegations have been levelled against the applicant but death has occasioned due to intake of aluminium phosphide which does not appear at this stage to be forcefully ingested since there is no anti mortem injury on the body of deceased except for a ligature mark around the neck which in the opinion of doctor is post mortem. The applicant is under incarceration since 22nd June, 2021 with only two prosecution witnesses having been examined out of total 37 prosecution witnesses. As such there is no hope of early conclusion of trial. However the trial court is directed to expedite the conclusion of trial.
7. 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."
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 Ajay Chauhan @ Mithilesh 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 :- 15.12.2022
Prabhat
