Allahabad High Court
Jitendra Kumar vs State Of U.P. on 3 November, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 54731 of 2019
Applicant :- Jitendra Kumar
Opposite Party :- State of U.P.
Counsel for Applicant :- Radha Mohan Pandey,Abhishek Gupta
Counsel for Opposite Party :- G.A.
Hon'ble Manish Mathur,J.
1. Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State and perused the record.
2. Second bail application has been filed with regard to Case Crime No. 220 of 2013 under Sections 498A, 304B, 201 IPC & 3/4 Dowry Prohibition Act, P.S. Jarcha, District Gautam Buddha Nagar which first bail application having been dismissed vide order dated 8th April, 2019 by Hon'ble Mr. Justice Sudhir Agarwal as infructuous. Since His Lordship has demitted office, this bail application has been listed before this Court as per roster.
3. As per contents of F.I.R, the applicant is husband of the deceased who was the daughter of informant. Marriage is said to have taken place on 6th March, 2010 whereafter the deceased was continuously harassed for dowry demand and was ultimately murdered on 4th August, 2013.
4. Learned counsel for applicant submits that applicant is husband of deceased who is said to have been murdered on account of dowry demand. It is submitted that applicant is in jail since 4th December, 2013 continuously but till date except for framing of charges in the year 2016, evidence has not yet started since earlier co-accused Rajendra was absconding and non bailable warrants had been issued. Learned cousnel has drawn attention to the certified copies of order sheet brought on record by means of supplementary affidavit which indicates various dates having been fixed during trial but also indicates that despite absconding Rajendra having now appeared, no prosecution witness is coming forward due to which the trial has not proceeded.
5. It is further submitted that the applicant has been falsely implicated in the charges levelled against him only on account of the fact that the deceased in fact was a head strong lady who committed suicide since she was incensed with the fact that applicant sought to take a loan from her family due to their precarious financial condition.
6. Learned A.G.A. appearing on behalf of State upon instructions has opposed bail application but does not dispute aforesaid fact.
7. The scope of consideration of second bail application has already been enunciated by Hon'ble Supreme Court in the case of Ram Govind Upadhyay v. Sudarshan Singh reported in (2002)3 SCC 598 holding that in regard to cases where earlier bail applications have been rejected there is a further onus on the court to consider the subsequent application for grant of bail by noticing the grounds on which earlier bail applications have been rejected and after such consideration if the court is of the opinion that bail has to be granted then the said court will have to give specific reasons why in spite of such earlier rejection the subsequent application for bail should be granted.
8. 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."
9. Considering the aforesaid fact that the applicant has been incarcerated for almost 9 years without evidence having been started, this this Court finds the applicant fit to be enlarged bail.
10. The presumption under Section 113 of the Evidence Act has been sought to be explained by the applicant to the effect that the applicant was in poor financial condition and was required to take loan from the family members of the deceased due to which she felt humiliated which has occasioned in suicide. The said aspect of matter is required to be seen during trial.
9. Accordingly bail application is allowed.
10. Let applicant Jitendra Kumar 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 :- 3.11.2022
Prabhat
