Amarawai Alias Amarawati vs State Of U.P.
2023 Latest Caselaw 415 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 66
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 20419 of 2020
 

 
Applicant :- Amarawai Alias Amarawati
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Anuruddh Chaturvedi
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.

Heard Mr. Anoop Trivedi, the learned Senior Counsel assisted by Mr. Anuruddh Chaturvedi, the learned counsel for applicant and the learned A.G.A. for State.

This is a repeat application for bail filed by applicant- Amarawai Alias Amarawati seeking her enlargement on bail in Case Crime No. 256 of 2018, under sections 498A, 304B IPC and 3/4 D.P. Act, Police Station- Pipraich, District Gorakhpur during the pendency of trial i.e. Sessions Trial No. 480 of 2018 (State Vs. Ajai Yadav & Ors), under Sections 498A, 304B I.P.C. and Section 3/4 D.P. Act, Police Station Pipraich, District Gorakhpur now pending in the court of Additional District & Sessions Judge/F.T.C. Gorakhpur.

First bail application of applicant was rejected by this Court vide order dated 06.11.2019. For ready reference the same is reproduced hereinbelow:

"Heard learned counsel for the applicant, learned AGA for the State and perused the material on record.

By means of this application, the applicant who is involved in Case Crime No. 256 of 2018, under Section 498-A, 304-B I.P.C. & 3/4 Dowry Prohibition Act, 1961, P.S.- Pipraich, District- Gorakhpur, is seeking enlargement on bail during the trial.

It is submitted by learned counsel for the applicant that the applicant Amrawai @ Amarawati Devi, is mother-in-law of the deceased Suman Yadav, who committed suicide in her matrimonial home. The F.I.R. in this case has been lodged by deceased's father containing absolutely false and concocted allegations against the entire family that they were demanding additional dowry from the deceased and her parents and on account of non-fulfilment of the aforesaid demand of dowry, she was tortured and maltreated and eventually strangulated to death by them in her matrimonial home. He lastly submitted that the applicant who is aged about 54 years having no criminal antecedent and is in jail since 24.9.2018, is entitled to be enlarged on bail.

Prayer for bail has been opposed by the learned AGA on the ground that the post-mortem report shows that she was strangulated to death. He further submitted that the deceased having died within seven years of marriage and her death being unnatural, a very heavy burden is cast upon the applicant and her family members to explain the circumstances under which the deceased died. The applicant having failed to come up with any satisfactory explanation for the unnatural death of the deceased, hence no case for enlarging the applicant on bail is made out.

After having heard the submissions advanced by learned counsel for the parties and perused the material brought on record, I am not inclined to enlarge the applicant on bail at this stage of trial. The prayer for bail is refused.

However considering the peculiar facts and circumstances of the case, the trial court is directed the conclude the trial of the applicant within a period of four months from the date of production of certified copy of this order without granting unnecessary adjournments to either of the parties. In case the trial of the applicant is not concluded within the period stipulated hereinabove, the applicant may move fresh bail application before this Court.

Subject to aforesaid direction, this bail application stands finally disposed of."

Mr. Anoop Trivedi, learned Senior Counsel for the applicant has submitted that the applicant is lady and is in custody since 24.09.2018. As such she has undergone more than fouryears and three months of incarceration. Learned Senior Counsel has then invited the attention of Court to the provisions contained in proviso to Section 437 Cr.P.C. and on basis thereof he submits that since the applicant is a lady, she is liable to be enlarged on bail. With reference to the material on record, learned Senior Counsel submits that the first bail application of applicant was rejected vide order dated 06.11.2019 with the direction that the trial court shall endeavour to conclude the trial within a period of four months from the date of production of a certified copy of the order. However, in spite of the fact that a period of four years and three months has rolled by since then the trial has not yet concluded. He further submits that up to this stage, only three prosecution witnesses have been examined. Referring to the order sheet of the Sessions Trial which is on record as well as the certified copy of the order sheet which has been placed before this Court, he submits that delay in conclusion of trial cannot be attributed to the applicant. Referring to the judgment rendered by Apex Court in R.S. Nayak Vs. A.R. Antulay (1992) 1 SCC 279, he submits that right to speedy trial is a fundamental right of an accused. On the cumulative strength of above, learned Senior Counsel submits that the applicant though a named and charge sheeted accused is liable to be enlarged on bail. In case the applicant is enlarged on bail she shall not misuse the liberty of bail and shall co-operate with the trial.

Per contra, the learned A.G.A has opposed this application for bail. He submits that since applicant is a named as well as charge sheeted accused, therefore, she does not deserve any indulgence by this Court. He further submits that the deceased was a young lady (daughter in law of the applicant) who has died in suspicious and mysterious circumstances in the house of the applicant. The statutory presumption under Section 113B of the Indian Evidence Act has not been rebutted by the applicant up to this stage nor the applicant has discharged the burden in terms of Section 106 of the Evidence Act up to this stage. Learned A.G.A. thus contends that no sympathy be shown by this Court in favour of applicant.

Having heard the learned Senior Counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, as well as complicity of applicant, accusation made and coupled with the fact that the applicant is a lady who is languishing in jail since 24.09.2018 as such she has undergone four years and three months of incarceration, the observations made by this Court in the order dated 06.11.2019, the delay in conclusion of the trial being not attributable to the applicant, the provision contained in Section 437 Cr.P.C. but without making any comment on the merits of the case, applicant has made out a case for bail.

Accordingly, the bail application is Allowed.

Let the applicant Amarawai Alias Amarawati, be released on bail in aforesaid case crime number on her 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/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.

However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her 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 :- 5.1.2023

Arun K. Singh