Smt. Tara Devi vs State Of U.P.
2023 Latest Caselaw 10400 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 76
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 170 of 2023
 

 
Applicant :- Smt. Tara Devi
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Yadavendra Dwivedi
 
Counsel for Opposite Party :- G.A.
 
and
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 291 of 2023
 

 
Applicant :- Rajesh @ Kallu
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Yadavendra Dwivedi
 
Counsel for Opposite Party :- G.A.
 
Hon'ble Saurabh Shyam Shamshery,J.

By consent of parties, both applications are being decided together.

Applicants - Smt. Tara Devi and Rajesh @ Kallu have approached this Court for bail in Case Crime No. 501 of 2021 under Sections 147, 342, 302 I.P.C., Police Station- Shivali, District- Ramabai Nagar (Kanpur Dehat).

Contents of present F.I.R. are that father of deceased made a complaint against 9 named accused including applicants that there were prior enmity between present applicant Rajesh @ Kallu and deceased as it was alleged that due to deceased, contractorship of applicant Rajesh @ Kallu came to an end and therefore, accused persons took deceased to their house and assaulted him. Post mortem report opines that cause of death is asphyxia due to ante-mortem hanging and there were eight injuries which are opined to be caused by hard and blunt object.

Sri Yadavendra Dwivedi, learned counsel appearing for applicants in both cases submits that applicant Smt. Tara Devi is a woman and there is no evidence against her that she is actively participated in crime; the alleged allegation that she was in illicit relationship with deceased is also not corroborated by any evidence collected during investigation; according to prosecution story, deceased was assaulted by accused person and was confined in a room, where he committed suicide.

So far as other applicant Rajesh @ Kallu is concerned, learned counsel submits that applicant is also similar to other co-accused Kishan Lal Verma, Chhote Lal and Kunwar Lal who have been granted bail by this coordinate Benches of this Court. therefore, both applicants who are in jail since 22.10.2021 may be released on bail.

Per contra, Sri Rishi Chaddha, learned A.G.A. for State has opposed the prayer for bail of both applicants and have submitted that even against Smt. Tara Devi, there are very serious allegations that she was in illicit relationship with deceased and that she also participated in occurrence as well as that motive is assigned to applicant Rajesh @ Kallu that he came to know that deceased was having illicit relationship with his wife as well as due to deceased, he has lost his contractorship; he further submits that bail orders of co-accused granted by coordinate Benches of this Court are not accompanied with reasons as required in terms of judgments of Supreme Court in Manoj Kumar Khokhar vs. State of Rajasthan and Anr. (2022) 3 SCC 501 and Brijmani Devi vs. Pappu Kumar, (2022) 4 SCC 497; therefore, both applicants may not be granted bail.

LAW ON BAIL - A SUMMARY

(A) The basic rule may perhaps be tersely put as bail, not jail.

(B) Power to grant bail under Section 439 Cr.P.C., is of wide amplitude but not an unfettered discretion, which calls for exercise in a judicious manner and not as a matter of course or in whimsical manner.

(C) While passing an order on an application for grant of bail, there is no need to record elaborate details to give an impression that the case is one that would result in a conviction or, by contrast, in an acquittal. However, a Court cannot completely divorce its decision from material aspects of the case such as allegations made against accused; nature and gravity of accusation; having common object or intention; severity of punishment if allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of witnesses being influenced by accused; tampering of evidence; character, behaviour, means, position and standing of accused; likelihood of offence being repeated; the frivolity in the case of prosecution; criminal antecedents of accused and a prima facie satisfaction of Court in support of charge against accused. The Court may also take note of participation or part of an unlawful assembly as well as that circumstantial evidence not being a ground to grant bail, if the evidence/ material collected establishes prima facie a complete chain of events. Parity may not be an only ground but remains a relevant factor for consideration of application for bail.

(D) Over crowding of jail and gross delay in disposal of cases when undertrials are forced to remain in jail (not due to their fault) may give rise to possible situations that may justify invocation of Article 21 of Constitution, may also be considered along with other factors.

(See, State Of Rajasthan, Jaipur vs. Balchand @ Baliay (AIR 1977 SC 2447 : 1978 SCR (1) 535; Gurcharan Singh vs. State (Delhi Administration), (1978) 1 SCC 118); State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC 21; Prasanta Kumar Sarkar vs. Ashis Chatterjee and Anr (2010)14 SCC 496; Mahipal vs. Rajesh Kumar, (2020) 2 SCC 118; Ishwarji Mali vs. State of Gujarat and another, 2022 SCC OnLine SC 55; Manno Lal Jaiswal vs. The State of U.P. and others, 2022 SCC OnLine SC 89; Ashim vs. National Investigation Agency (2022) 1 SCC 695; Ms. Y vs. State of Rajasthan and Anr :2022 SCC OnLine SC 458; Manoj Kumar Khokhar vs. State of Rajasthan and Anr. (2022)3 SCC 501; and, Deepak Yadav vs. State of U.P. and Anr. (2022)8 SCC 559)

In the present case, prosecution story develops like that applicant Rajesh @ Kallu has dual motive to cause death to deceased, firstly his wife was in illicit relationship with deceased as well as due to deceased, he has lost contractorship as well as there are last seen evidence also.

There is merit in argument of learned A.G.A. for State that orders whereby coordinate Benches have granted bail to co-accused are without any specific reason as required in terms of judgments of Supreme Court in Manoj Kumar Khokhar and Brijmani Devi (supras).

In the above background, the Court has considered the rival submissions. Post mortem report indicates that there are 8 ante mortem injuries which include lacerated wound and multiple abraded contusions and contusion. The cause of death is opined to be asphyxia due to ante mortem hanging. The evidence collected during investigation prima facie does not disclose any overt act attributed to applicant Smt. Tara Devi as well as allegations that she was in illicit relationship with deceased does not appear to be prima facie corroborated with evidence so collected during investigation.

In these circumstances, taking note of Proviso to Section 437 Cr.P.C., the applicant Smt. Tara Devi, being a woman, is in jail since 22.10.2021 as well as trial is proceeding in snail's speed, therefore, applicant Smt. Tara Devi has made out a case for bail.

So far as other applicant Rajesh @ Kallu is concerned, despite that possible motive has been assigned to him, however, considering the nature of evidence as well as that cause of death is asphyxia due to ante mortem hanging and taking note of nature of injuries caused to deceased as well as that similarly situated co-accused persons have been granted bail, though not by reasoned order as required by Supreme Court in Manoj Kumar Khokhar and Brijmani Devi (supras) and considering all aspects of this case, applicant Rajesh @ Kallu has also made out a case for bail.

Let the applicants- Smt. Tara Devi and Rajesh @ Kallu be released on bail in the aforesaid case crime number on 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 applicants will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.

(ii) The applicants shall file an undertaking to the effect that they shall not seek any adjournment or exemption from appearance on the date fixed in trial. 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.

(iii) The applicants will not misuse the liberty of bail in any manner whatsoever. In case, the applicants misuse the liberty of bail during trial and in order to secure their presence proclamation under Section 82 Cr.P.C., may be issued and if applicants fail to appear before the Court on the date fixed in such proclamation, then, the Trial Court shall initiate proceedings against them, in accordance with law, under section 174-A I.P.C.

(iv) The Trial Court may make all possible efforts/endeavour and try to conclude the trial expeditiously, preferably within a period of six months after release of applicants, if there is no other legal impediment.

(v) Applicants have to appear on each and every date before learned trial Court and any application for exemption of their appearance on vague ground could be a ground for cancellation of bail by learned trial Court immediately without even issuing notice.

The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicants to prison.

The bail applications are allowed.

It is made clear that the observations made hereinabove are only for the purpose of adjudicating the present bail application.

Order Date :- 10.4.2023

Nirmal Sinha