Allahabad High Court
Shajiya vs State Of U.P. on 26 April, 2023
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 76
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 5356 of 2023
Applicant :- Shajiya
Opposite Party :- State of U.P.
Counsel for Applicant :- Aishwarya Pratap Singh
Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Shyam Shamshery,J.
Applicant- Shajiya has approached this Court for bail in Case Crime No. 176 of 202 under Sections 302, 323, 504 and 34 of I.P.C., Police Station- Kwarsi, District- Aligarh.
In the present case, applicant before this Court is mother of deceased, a girl aged about 16 years. It was alleged that applicant has illicit relationship with co-accused and on day of occurrence, co-accused not only assaulted but pushed deceased from roof and she fell down and died. According to post mortem report, there were ante mortem injuries on head.
Sri Aishwarya Pratap Singh, learned counsel for applicant submits that applicant is a woman who is in jail since 02.03.2022; during trial, PW-1 (informant/son in law of applicant) has supported the case of prosecution in examination-in-chief, however, in cross examination, he has denied the prosecution story in toto and PW-2 (daughter of applicant/elder sister of deceased) has not supported the prosecution case even in his examination in chief and has been declared hostile; he also submits that main accused Arif, (paramour of applicant), has already been granted bail by coordinate Bench of this Court, though reasons given therein 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, therefore, applicant, who is in jail since 02.03.2022 may be released on bail during trial.
Sri Chandan Agrawal, learned AGA appearing for State has opposed the prayer for bail but has not disputed above referred facts and nature of evidence before Trial 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 mother of deceased (a girl aged about 16 years) and allegations are that her paramour (co-accused Arif) has not only assaulted her but has thrown her from roof and she died immediately. However, there is substance in the argument of learned counsel for applicant that considering nature of evidence before Trial Court where the PW-2 (daughter of applicant) has not supported the case of prosecution and has been declared hostile as well as PW-1 (son in law of applicant) has supported the case of prosecution in examination-in-chief, however, in cross-examination, he has denied the prosecution case in its entirety. Therefore, considering that co-accused Arif has also been granted bail by co-ordinate Bench of this Court and material witnesses have been examined, the applicant, being a woman, is entitled for benefit of Proviso to Section 437 Cr.P.C. and has made out a case for bail.
Let the applicant- Shajiya 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 she 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 her 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 her, 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
