Allahabad High Court
Atul Gaurh vs State Of U.P. on 2 November, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 26706 of 2020
Applicant :- Atul Gaurh
Opposite Party :- State of U.P.
Counsel for Applicant :- Virendra Singh,Ajeet Kumar Shukla,Karuna Nand Tiwari,Pramod Bhardwaj
Counsel for Opposite Party :- G.A.
Hon'ble Manish Mathur,J.
1. Supplementary affidavit filed today is taken on record.
1A.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.133 of 2019 under Sections 498A, 304B, 504, 506 IPC and 3/4 Dowry Prohibition Act, P.S. Thuthibari, District Maharajganj.
3. As per contents of FIR, the informant's daughter had married the applicant thirteen months prior to the date of incident whereafter continuous harassment was caused to her on account of dowry demand. It has been stated that being tired of such harassment, the informant's daughter started living with her father but was even thereafter continuously harassed by the applicant on telephone due to which she ultimately committed suicide on 19th September, 2019.
4. Learned counsel for applicant submits that the applicant has been falsely implicated of the charges levelled against him only on account of fact that he is husband of deceased. It is submitted that even as per the F.IR., the deceased was living with her father in her maternal home since four months prior to the date of incident and as such imputation of Sections 498-A and 304B IPC are clearly not made out particularly since no imputation under section 306 IPC has been attributed to the applicant. It is submitted that during course of trial, informant as P.W.1 did not support prosecution story and was consequently declared hostile. Certified copy of the deposition has been brought on record by means of supplementary affidavit dated 28.7.2021. It is stated that the applicant is in jail since 24th July, 2019 and as yet only four prosecution witnesses have been examined while there are total of 24 prosecution witnesses and as such there is no hope of early conclusion of trial.
5. Learned A.G.A. appearing on behalf of State has opposed bail application with the submission that the applicant is husband of deceased and therefore presumption under Section 113-B of Evidence Act would even otherwise be required to be discharged.
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 from reading of the F.I.R. that the deceased was living with her father in her maternal home four months prior to the date of incident. Although allegations of dowry demand have been alleged in the F.I.R. but it has been alleged that the applicant's wife committed suicide while in her maternal home after a telephonic talk with her husband. The aspect of matter as to whether Sections 498-A and 304-B IPC would be made out or those Section 306 IPC is as yet a mater to be established in trial with evidence. The applicant is in jail since 24th July, 2019 and as yet 16 prosecution witnesses remain to be examined. Clearly there is no hope of any early 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 Atul Gaurh 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 :- 2.11.2022
Prabhat
