Smt. Pooja vs State Of U.P.
2023 Latest Caselaw 12847 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 76
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 58717 of 2022
 

 
Applicant :- Smt. Pooja
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Lal Mani Tripathi
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Saurabh Shyam Shamshery,J.

Applicant- Smt. Pooja has approached this Court for bail in Case Crime No. 380 of 2021 under Sections 302 and 328 I.P.C., Police Station- Sadar Bazar, District- Saharanpur.

Applicant before this Court is wife of deceased. Initially information was given by applicant that her husband died, however, later on brother of deceased lodged FIR against applicant and her paramour Deepak for eliminating deceased in a planned manner to remove the hurdle in their love affair.

Sri Lal Mani Tripathi, learned counsel for applicant submits that according to post mortem report, immediate cause of death was not ascertained, therefore, viscera was preserved and it was sent for forensic investigation; according to its report, tranquilizer (alprazolam) and ethyl alcohol poison was detected; learned counsel further submits that co-accused/paramour Deepak has already been granted bail by coordinate Bench of this Court by an order dated 29.08.2022, however, he fairly submits that reasons given in bail order are not accompanied 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; learned counsel further submits that there is no evidence that applicant has actively participated in crime as well as it is possible that deceased died due to excessive intake of liquor; lastly he submits that applicant has three children out of her wedlock and one child is residing along with her in jail; therefore, applicant, who is in jail since 21.08.2021 may be released on bail during trial.

While opposing bail, Sri Rishi Chaddha, learned AGA appearing for State submits that it was a case of planned murder by applicant and co-accused to eliminate their obstacle against their love affair; applicant has tried to mislead the prosecution and later on F.I.R. was lodged by brother of deceased wherein it was found that applicant and co-accused/paramour of applicant were involved in the crime; however, it is not disputed that co-accused Deepak has already been granted bail by coordinate Bench of this Court.

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, applicant is wife of deceased. It is alleged that she along with her paramour/co-accused has caused death of her husband/deceased. According to post mortem report, cause of death was not ascertained, therefore, viscera was preserved and according to its report, tranquilizer (alprazolam) and ethyl alcohol was found. Co-accused/paramour of applicant Deepak has already been granted bail by coordinate Bench of this Court and considering that applicant is in jail since 21.08.2021 and trial is proceeding in snail's speed as well as taking note that a minor child is with mother (applicant) inside the jail. The adverse atmosphere of jail will definitely affect the mind of a minor child, therefore, in the interest of child as well as applicant, being a woman, is also entitled for benefit of Proviso to Section 437 Cr.P.C. and taking note nature of evidence against applicant, she has made out a case for bail.

Let the applicant- Smt. Pooja 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 applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.

(ii) The applicant shall file an undertaking to the effect that he 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 applicant will not misuse the liberty of bail in any manner whatsoever. 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., may be issued and if 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 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 applicant, if there is no other legal impediment.

(v) Applicant has to appear on each and every date before learned trial Court and any application for exemption of his appearance on vague ground could be a ground for cancellation of bail by learned trial Court immediately.

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 applicant to prison.

The bail application is allowed.

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

Order Date :- 26.4.2023

Nirmal Sinha