Mohammad Saleem vs State Of U.P.
2022 Latest Caselaw 4196 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 7921 of 2022
 

 
Applicant :- Mohammad Saleem
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Manish Pandey
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Shri Manish Pandey, learned counsel for the applicant, Shri Vishwa Deepak Mishra, learned A.G.A. for the State and perused the material on record.

The present bail application has been filed on behalf of applicant Mohammad Saleem under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 738 of 2021 for offence punishable under Sections 498A, 323, 326A of the Indian Penal Code, Section 3/4 Dowry Prohibition Act and Section 3, 4 of Muslim Women (Protection of Rights on Marriage) Act, registered at Police Station Katghar, District Moradabad, during pendency of the trial, after rejecting the bail application of the applicant by Incharge Sessions Judge, Moradabad vide order dated 27.1.2022.

Brief facts of the case are that the First Information Report dated 25.12.2021 has been lodged by the victim against the applicant and four other family members of the applicant stating therein that marriage of the victim Smt. Rukaiya Parveen was solemnized with the applicant four years prior to lodging of the first information report. After the marriage, the applicant and other named co-accused persons demanded one motorcycle and Rs. 1,00,000/- as additional dowry. When the victim denied to fulfill their demand, they used to beat her with kicks and fist. In the meantime, two children of the victim were born. One month prior to lodging of the first information report when she was working in the kitchen, applicant poured boiled oil upon her due to which her hands and feet were severely scorched, but the matter was amicably settled. On 22.12.2021 at about 11.00 a.m. when she was working in her matrimonial house, the applicant had given Triple Talaq to the victim on the instigation of his family members and thrown her out of the house in the clothes she was wearing. When the victim went to lodge the report, the report has not been lodged by the concerned police station.

After lodging of the first information report, medical examination of the victim was conducted on 25.12.2021 at 1.15 p.m. As per MLC, one dark black colour 2.5 cm x 1.5 cm on posterior aspect of right palm and one dark black colour 3.9 cm x 2.5 cm on ulterior aspect of right foot 8 cm away from right ankle joint were found. Doctor has opined that the injuries were simple in nature and with regard to duration of injuries, he opined that no opinion can be given. After recording the statements of the first informant and other prosecution witnesses, charge sheet has been submitted against the applicant, Smt. Shahjahan and Smt. Shahana, mother-in-law and sister-in-law respectively on 29.1.2022. The Investigating Officer has exonerated two named persons Fahim and Smt. Rahmat. The applicant was arrested on 10.1.2022.

Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. It is further submitted that as per allegation of first information report, the applicant and other co-accused persons poured boiled oil upon the body of the victim, but the injuries were found only patches of burn on right palm and right foot 8 cm away from right ankle joint. As per MLC, no opinion with regard to duration of injuries has been given. It is further submitted that general allegation of demand of dowry has been levelled against the applicant. The applicant has not given Triple Talaq to the victim. It is further submitted that the first information report has been lodged after 30 days of the pouring boiled oil upon the victim.

He has next argued that the applicant has no previous criminal history and if the applicant is released on bail, he shall not misuse the liberty of bail.

Per contra, learned A.G.A. 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) As per Medico Legal Report, only patches of burn on right palm and right foot 8 cm away from right ankle joint was found. ;

(b) No opinion with regard to duration of injuries has been given by the doctor.

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, Mohammad Saleem 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 that 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 :- 26.5.2022

T. Sinha