Smt. Abha Alias Asha Devi Tiwari ... vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 725 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 12
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 1383 of 2022
 

 
Applicant :- Smt. Abha Alias Asha Devi Tiwari And 3 Others
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home
 
Counsel for Applicant :- Manjusha Kapil,Kamlesh Singh,Sushil Kumar
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Karunesh Singh Pawar,J.

The present bail application under Section 438 Cr.P.C. has been filed for grant of anticipatory bail as the applicant is apprehending their arrest in connection with Case Crime No. 0022 of 2021, under Sections 498-A, 323, 504 I.P.C. and Section 3/4 Dowry Prohibition Act, Police Station Mahila Thana, District Ambedkar Nagar.

Heard learned counsel for the applicants and learned A.G.A. for the respondent/State as well as perused the record.

Vide order dated 25.8.2022, the applicant was granted interim protection by coordinate Bench of this Court. Gist of the issue involved in the present matter is given in the said order, which is extracted below :-

"Heard Ms. Manjusha Kapil, learned counsel for the applicants and Sri Hari Shankar Bajpayee, learned A.G.A. for the State and perused the material on record.

The present bail application has been filed on behalf of applicants Smt. Abha @ Asha Devi Tiwari, Mahendra Tiwari, Smt. Kanchan and Bhola Nath Tiwari, under Section 438 of the Code of Criminal Procedure, with a prayer to release them on anticipatory bail in Case Crime No. 0022 of 2021 for offence punishable under Section 498-A, 323, 504 of the Indian Penal Code and Section 3/4 of Dowry Prohibition Act, registered at Police Station- Mahila Thana, District- Ambedkar Nagar.

Learned counsel for the applicants submits that the applicants are innocent and have been falsely implicated in the present case due to ulterior motive as well as on the basis of matrimonial dispute. The applicants are relative of the husband of the victim. It is further submitted that general allegation of cruelty and demand of dowry has been levelled against the applicants. It is further submitted that the marriage of the victim was solemnized on 15.05.2019 with the co-accused Pradeep Tiwari and thereafter the husband of the victim took the victim with him to Bangalore.

Learned counsel for the applicants relied upon the judgment of the Apex Court in Preeti Gupta v. State of Jharkhand, (2010) 7 SCC 667, where it was held that the courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegation of the complaint are required to be scrutinized with great care and circumspection.

It is further submitted that the applicants are no more required for custodial interrogation. The applicants have no criminal history and he has not undergone any imprisonment after conviction by any court of law in relation to any cognizable offence previously. It is further contended that the applicants are ready to participate in the investigation.

Learned A.G.A. has opposed the prayer for anticipatory bail of the applicants.

It is settled position of law that the anticipatory bail being an extraordinary privilege should be granted only in exceptional cases. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied, where the Court is prima facie of the view that the applicants have falsely roped in the crime and would not misuse his liberty.

Considering the facts and circumstances of the case and the law laid down by the Hon'ble Apex Court in the case of Sushila Aggarwal Vs. State (NCT of Delhi)-2020 SCC Online SC 98, ground for grant of ad interim anticipatory bail is made out.

Learned A.G.A. may file counter affidavit within two weeks.

Rejoinder affidavit, if any, may be filed within one week thereafter.

Put up this case as fresh for final hearing on 16.09.2022.

In case of arrest, the applicants, Smt. Abha @ Asha Devi Tiwari, Mahendra Tiwari, Smt. Kanchan and Bhola Nath Tiwari are directed to be enlarged on anticipatory bail till the hearing of the present application in above case crime number, on his furnishing personal bond of Rs. 25,000/- and two sureties each of like amount before the Station House Officer of Police Station/Court concerned with the following conditions:-

(i) The applicants shall make himself available for interrogation by the police officer as and when required, if investigation is in progress;

(ii) The applicants 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 such person from disclosing such facts to the Court or to any police officer;

(iii) The applicants shall not leave the country without the previous permission of the Court and if he has passport, the same shall be deposited by them before the S.S.P./S.P. concerned/Court concerned;

(iv) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant along-with a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked;

(v) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

The Investigating Officer will continue with the investigation, if it is in progress and will not be affected by this order. "

Learned counsel for the applicants submits that the dispute between the parties is matrimonial in nature. The applicants are Jeth, Jethani, Saas and Sasur of the complainant. He submits that general allegations have been leveled against the entire family members including the applicants. Applicants have nothing to do in the matter. The applicants have no previous criminal antecedents and they have cooperated in the investigation. Charge-sheet in the matter has been filed. Learned counsel for the applicants undertakes that the applicants shall cooperate in the trial.

Learned A.G.A. has opposed the bail prayer, however, could not dispute that the applicants have no previous criminal antecedents and they have cooperated in the investigation.

On due consideration to the arguments advanced, perusal of the record, the fact that the applicants have no previous criminal antecedents, they have cooperated in the investigation and the applicants are relatives of the husband of the complainant, so also the undertaking that they shall cooperate in the trial, it would be expedient in the interest of justice that the liberty of the applicants may be protected in view of dictum of Apex Court in re: Sushila Aggarwal Vs. State (NCT of Delhi)-2020 SCC online SC 98.

In view of the above and the fact that charge-sheet in the matter has been filed as also keeping in view the judgement of Sushila Aggarwal (supra), the accused applicants are directed to surrender before trial court, if they are summoned to face trial for offence in question. The accused applicants shall be released on bail by the trial court on furnishing a personal bond and two sureties of the like amount to the satisfaction of the trial court with the following conditions:-

(i) The applicants 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 or tamper with the evidence;

(ii) The applicants shall not leave India without the previous permission of the court;

(iii)The applicants shall not pressurize/ intimidate the prosecution witness;

(iv)The applicants shall appear before the trial court on each date fixed unless personal presence is exempted;

(v) In case of breach of any of the above conditions the court below shall have the liberty to cancel the bail;

Any other reasonable restrictions/conditions which the trial court may deem fit and proper can be imposed.

It is made clear that the observations made in granting bail to the applicant shall not in any way affect the trial Judge in forming his independent opinion based on the testimony of the witnesses.

In view of the aforesaid, the application is allowed.

Order Date :- 9.1.2023

Madhu