Dhamandi vs State Of U.P.
2022 Latest Caselaw 3688 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 20601 of 2022
 

 
Applicant :- Ghamandi
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Umesh Kumar
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Shri Umesh Kumar, 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 the applicant Ghamandi under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 365 of 2021 for offence punishable under Sections 147, 302, 34 of Indian Penal Code registered at Police Station Dholna District Kashganj during pendency of the trial, after rejecting the bail application of the applicant by the Sessions Judge, Kasganj vide order dated 14.02.2022.

Brief facts of the case are that the First Information Report dated 18.10.2021 at about 1:45 pm has been lodged by the son of the deceased Bachcho Singh against the applicant and six other family members of the applicant stating therein that marriage of the first informant was performed with the daughter of the applicant six years back to the present incident having no issue from their wedlock. Moreover, she went with another man about three months back and complaint in this regard has been furnished to his in-laws and this regard, first informant and his father were called by his in-laws on 17.10.2021, first informant and his father reached at the matrimonial house on 17.10.2021 where Panchayat were assembled on 17.10.2021 at about 7:00 p.m. to resolve issue of disappearance of his wife on that day while heated altercation was going on, in the mean time, applicant along with six named persons came and badly attacked on the first informant and his father by fists and kicks which hit at the abdomen of his father, who sustained grievous injuries and on way to the hospital, his father died and dead body of his father is kept in the mortuary in District Hospital, Kasganj.

After lodging the first information report, inquest report of the deceased was conducted on 18.10.221 at 2:40 p.m. mortuary at District Hospital, Kasganh, Post mortem report of the deceased was conducted on 10.10.2021, as per post mortem report, one contusion of size 3 cm x 2 cm on the left side of face just to let eye, abrasion of size 3 cm x 5 cm on the right side of head just above right eye brow. After recording the statements of prosecution witnesses, charge sheet has been filed against the applicant and 5 other named persons on 12.12.2021. However, investigating officer exonerated one named accused, Uma Devi. The applicant was arrested on 23.11.2021.

Learned counsel for the applicant submits that the applicant, aged about 85 years is innocent and has been falsely implicated in the present case due to ulterior motive. It is further submitted that the applicant is the father- in-law of the first informant. It is further submitted that the son of the present applicant lodged a F.I.R. dated 5.12.2021 on the basis of an application under section 156 (3) Cr.P.C. as case crime no. 448 of 2021 under section 498A, 323, 504, 304, 201 I.P.C. and Section 3/4 Dowry Prohibition Act stating therein that the marriage of his sister was solemnized in the year 2015 and on 15.07.2021, first informant and his family members murdered his sister and her dead body has not been recovered as yet. It is further submitted that general allegation of marpeet has been assigned. It is further submitted that no specific role or involvement has been attributed to the applicant. It is further submitted that Co - accused Dan Sahay, Hari Mohan, Mahendra Singh and Pooran Singh have similar role, have already been granted by Coordinate Bench of this Court in Criminal Misc. Bail Application No. 8187 of 2022, 10106 of 2022and 10611 of 2022 vide orders dated 20.04.2022, 04.04.2022 and 17.05.2022 respectively.

He has next argued that the applicant has explained criminal history of one case in which, he was enlarged on bail by the court below. 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 the father- in-law aged about 85 years of the first informant;

(b) general allegation of marpeet has been assigned.

(c) no specific role or involvement has been attributed to the applicant;

(d) a F.I.R. dated 05.12.2021 as case crime no. 448 of 2021 under section 498A, 323, 504, 304, 201 I.P.C. and Section 3/4 D.P.C. Act has been lodged by son of the applicant against the first informant for the incident taken place on 15.07.2021.

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, Ghamandi 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 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 :- 23.5.2022

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