Koke vs State Of U.P.
2023 Latest Caselaw 21717 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:163966
 
Reserved on: 24.07.2023
 
Delivered on: 11.08.2023
 
Court No. - 65
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 32098 of 2023
 

 
Applicant :- Koke
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Surendra Mohan Mishra, Vishveshwar Mani Tripathi
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.

1. Heard the learned counsel for applicant and the learned A.G.A. for State.

2. Perused the record.

3. This application for bail has been filed by applicant-Koke seeking his enlargement on bail in Case Crime No. 5 of , under Sections 498A, 306 IPC and Sections 3/4 Dowry Prohibition Act, Police Station-Lotan, District-Siddharth Nagar, during the pendency of trial.

4. Record shows that in respect of an incident, which is alleged to have occurred on 08.01.2023, a delayed FIR dated 10.01.2023 was lodged by first informant-Govind Gupta (brother of the deceased) and was registered as Case Crime No. 5 of 2023, under Sections 498A, 306 IPC and Sections 3/4 Dowry Prohibition Act, Police Station-Lotan, District-Siddharth Nagar. In the aforesaid FIR, two persons namely Mahendra and Koke have been nominated as named accused, whereas 2 unknown persons have also been arraigned as accused.

5. The gravamen of the allegations made in the F.I.R. is to the effect that marriage of Mamta (sister of the first informant) was solemnized with applicant in the year, 2013. From the aforesaid wedlock, a daughter namely Khushi was born. However, the conduct of in-laws was not congenial to the sister of first informant. Physical and mental cruelty was regularly committed upon the deceased on account of deficient amount of dowry given at the time of marriage. Ultimately, the FIR records that a demand of Rs. 2,00,000/- was made. As the sister of the applicant could not withstand the pressure exerted by her in-laws in perpetual demand of Rs. 2,00,000/- towards additional dowry, she ultimately committed suicide.

6. After above-mentioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. The inquest (Panchayatnama) of the deceased was conducted. In the opinion of the witnesses of inquest (Panch witnesses), the nature of death of deceased was homicidal inasmuch as, the cause of death of deceased was opined to be strangulation. Subsequent to above, post mortem of the body of deceased was conducted. In the opinion of the Autopsy Surgeon, who conducted autopsy of the body of deceased, the cause of death of deceased was Asphyxia as a result of ante-mortem hanging. During course of investigation, Investigating Officer examined first informant and other witnesses who have supported the FIR. On the basis of above and other material collected by him, during course of investigation, he came to the conclusion that the complicity of named accused and others is established in the crime in question. He, accordingly, submitted the charge sheet dated 15.02.2023, under Sections 306, 498A IPC and Sections 3/4 D.P. Act, whereby 4 persons namelly - (1) Mahendra, (2) Koke (i.e. applicant herein), (3) Laxmi and (4) Fuljahriya have been charge sheeted.

7. Learned counsel for applicant contends that though applicant is the husband of the deceased, a named as well as charge sheeted accused yet he is liable to be enlarged on bail. According to the learned counsel for applicant, the deceased was a short tempered lady and she has taken an extreme step of terminating her life by committing suicide. Bona-fide of the applicant is explicit from the fact that the death of deceased is a suicidal death. In the opinion of Autopsy Surgeon, who conducted the autopsy of the body of deceased, the cause of death of deceased is Asphyxia as a result of anti-mortem hanging. Attention of the Court was then invited to the FIR and the statement of the first informant recorded under Section 161 Cr.P.C. On the basis of above, it is contended by the learned counsel for applicant that the allegations made in the FIR regarding demand of additional dowry and commission of physical and mental cruelty upon the deceased on account of non fulfilment of additional demand of dowry as well as the deficient amount of dowry having been given at the time of marriage of the deceased are vague and bald allegations. The same are not substantiated by material particulars even in the statement of the first informant recorded under Section 161 Cr.P.C. Referring to the judgement of Supreme Court in Kahkashan Kausar @ Sonam and Others Vs. State of Bihar and Others, (2022) 6 SCC 599, the learned counsel for applicant contends that in view of law laid down by the Apex Court in aforementioned judgment, the said allegations are liable to be ignored by this Court at this stage.

8. It is further submitted by the learned counsel for applicant that up to this stage, no such material has been gathered by the Investigating Officer on the basis of which, it can be definitely concluded that applicant has abetted, instigated or conspired in the commission of the crime in question. No such circumstance has emerged either to conclude that the deceased committed suicide on account of an immediate act of applicant. In short, the submission is that offence complained of has to be examined in the light of the provisions contained in Section 306 IPC read with Section 107 IPC. Prima-facie, no offence under Section 306 IPC is made out against applicant. To buttress his submission, the learned counsel for applicant has relied upon the following judgments:-

(i). Sarvesh Vs. State of U.P. 2018 ADJ Online 0163,

(ii). Kanchan Sharma Vs. State of U.P. and Another 2021 SCC OnLine SC 737,

(iii). Mirza Iqbal alias Golu and Another Vs. State of U.P. and Another 2021 SCC OnLine SC 1251,

(iv) Mariano Anto Bruno and Another Vs. Inspector of Police 2022 SCC OnLine SC 1387,

(v) Kashibai and Others Vs. State of Karnataka, 2023 SCC OnLine SC 575

9. It is further contended by the learned counsel for applicant that co-accused Fuljhariya has already been enlarged on bail by this Court, vide order dated 24.07.2023 passed in Criminal Misc. Bail Application No. 16676 of 2023 (Fuljhariya Vs. State of U.P.). For ready reference, the order dated 24.07.2023 is re-produced herein under:-

"1. Heard learned counsel for the applicant, learned A.G.A for the State, learned counsel for the informant and perused the record.

2. It has been argued by learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the present case. Learned counsel further submits that similarly situated co-accused namely, Laxmi has already been enlarged on bail by co-ordinate Bench of this Court vide order dated 21.04.2023 passed in Criminal Misc. Bail Application No.16756 of 2023, copy of which order has been produced before this Court and is taken on record. It is thus contended that the applicant is also entitled for bail on the ground of parity. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been mentioned. It has also been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. He next submits that applicant is languishing in jail since 23.01.2022 having no criminal history.

3. Per contra, learned A.G.A. as well as learned counsel for the informant have opposed the prayer for bail of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserve any indulgence. In case the applicant is released on bail he will misuse the liberty of bail, however, could not dispute the submissions of learned counsel for the applicant with regard to parity.

4. Considering the entire facts and circumstances of the case, submissions of learned counsel for the parties, nature of evidence, and all attending facts and circumstances of the case, without expressing any opinion on merits of the case, this Court is of the view that the applicant has made out a case for bail. Hence the bail application is allowed.

5. Let applicant Fuljihariya involved in Case Crime No. 05 of 2023 under Sections 498A, 306 I.P.C., and Section 3/4 of Dowry Prohibition Act, Police Station Lotan, District Siddharth Nagar, be released on bail on furnishing a personal bond and two heavy local sureties each of the like amount to the satisfaction of the court concerned subject to the following conditions:-

I. The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and 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 her counsel. In case of her absence, without sufficient cause, the trial court may proceed against her under Section 229-A of the Indian Penal Code.

III. In case, the applicant misuses the liberty of bail and in order to secure her 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 her, 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 default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.

In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

6. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted."

10. Another co-accused Laxmi has also been enlarged on bail by this Court, vide order dated 21.04.2023 passed in Criminal Misc. Bail Application No. 16756 of 2023 (Laxmi Vs. State of U.P.). The same reads as under:-

"Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

The present bail application has been filed on behalf of applicant in Case Crime No. 5 of 2023, under Sections 498-A, 306 of IPC and Section 3/4 of Dowry Prohibition Act, Police Station Lotan, District Siddharth Nagar with the prayer to enlarge the applicant on bail.

It has been argued by learned counsel for the applicant that applicant is innocent and she has been falsely implicated in the present case. It is submitted that applicant is sister in law (Jethani) of the deceased Mamta. The marriage of the deceased Mamta was performed in the year 2013. It is submitted that thereafter till the date of incident dated 08.01.2023 no complaint was ever made by the parents or by the deceased against the applicant with regard to demand of dowry or tutoring by the applicant. It is submitted that only general allegations are made against her. The cause of death was ascertained as asphyxia due to ante mortem hanging and no other injuries were found on the person of the deceased. Applicant was living separately from the deceased. It is further submitted that applicant is languishing in jail since 07.02.2023 having no criminal history and that in case she is released on bail, she will not misuse the liberty of bail and will cooperate in trial.

Per contra, the learned Additional Government Advocate has opposed the prayer for grant of bail but he could not dispute the aforesaid aspect of the matter.

Considering the entire facts and circumstances of the case, submissions of learned counsel for the parties, nature of evidence and all attending facts and circumstances of the case, without expressing any opinion on merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.

Let the applicant Laxmi in the aforesaid crime be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of court concerned subject to the following conditions:

(1). The applicant will not tamper with the prosecution evidence during the trial.

(2). The applicant will not influence any witness.

(3). The applicant will appear before the trial Court on the date fixed, unless personal presence is exempted.

(4). The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court to any police officer or tamper with the evidence.

In case of breach of any of the above condition, the prosecution shall be at liberty to move an application before this Court seeking cancellation of the bail."

11. On the above premise, it is urged by the learned counsel for applicant that the case of present applicant and the bailed out co-accused is similar. They have been charge sheeted under the same Sections and on the same evidence. As such, there is no distinguishing feature so as to distinguish the case of present applicant from aforesaid bailed out co-accused so as to deny him bail. He, therefore, contends that in view of above and for the facts and reason recorded in the bail order of co-accused, even though applicant is the husband of deceased yet he is liable to be enlarged on bail on the ground of parity.

12. Even otherwise, applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. The occurrence giving rise to present criminal proceedings has occurred after an expiry of a period of more than 9 years from the date of marriage of applicant with the deceased. Applicant is in jail since 23.01.2023. As such, he has undergone more than 6 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. Up to this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. He, therefore, contends that no useful purpose shall be served in prolonging the custodial arrest of applicant. It is thus urged that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

13. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. Applicant is the husband of the deceased and prima-facie the evidence on record goes to establish his complicity in the crime in question. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

14. Having heard the learned counsel for applicant, the learned AGA for State, upon perusal of record, evidence, complicity of applicant, accusations made, the nature and gravity of offence and coupled with the fact that applicant is the husband of the deceased but considering the precarious condition of the applicant inasmuch as he has a small daughter prima-facie, the applicant would not ensure the death of his wife, up to this stage, the ingredients of Section 107 IPC are not made out against applicant nor there is any such material to show that the deceased committed suicide on account of any immediate act of applicant, the police report in terms of Section 173(2) Cr.P.C. has already been submitted, as such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, in spite of above, the learned A.G.A. could not point out from the record necessitating the custodial arrest of applicant during the pendency of trial, the judgment of the Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5), the clean antecedents of applicant, the period of incarceration undergone and similarly situate and circumstanced, co-accused have already been enlarged on bail but without making any comments on the merits of the case, applicant has made out a case for bail.

15. Accordingly, present application for bail is allowed.

16. Let the applicant-Koke, be released on bail in aforesaid case crime number on his furnishing a personal bond and two heavy 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/SHE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE 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/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.

(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/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 HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

(iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) 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 THE HIM/HER IN ACCORDANCE WITH LAW.

(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.

17. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.

Order Date :- 11.08.2023

Vinay