Allahabad High Court
Raghvendra S/O Sri Kaushal Kishor vs State Of U.P. Thru. Its Prin. Secy. ... on 18 July, 2023
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:46986
Court No. - 11
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 5665 of 2022
Applicant :- Raghvendra S/O Sri Kaushal Kishor
Opposite Party :- State Of U.P. Thru. Its Prin. Secy. Home
Counsel for Applicant :- Arun Sinha,Ram Chandra Singh,Umang Agarwal
Counsel for Opposite Party :- G.A.,Amitabh Agarwal,Shailendra Singh Rajawat
Hon'ble Pankaj Bhatia,J.
1. Heard learned counsel for the applicant, learned Counsel for the complainant, learned A.G.A for the State of U.P. and perused the record.
2. The present bail application has been filed on behalf of the applicant in Case Crime No.316 of 2020, under Sections 498-A and 304-B I.P.C. Section 3/4 Dowry Prohibition Act, Police Station-Kotwali Nagar, District-Sitapur, with the prayer to enlarge him on bail.
3. The F.I.R. in question was lodged alleging that the daughter of the informant was married on 29.05.2015 with Hitendra Trivedi, who is the brother of the present applicant. It was alleged that the family members were not happy with the dowry and were demanding more dowry time and again and they used to harass the daughter of the informant. It was stated that on 08.06.2020 also the family members of the applicant harassed her and caused injury to the daughter of the informant, which was duly informed to the police authorities. It was also stated that on 11.06.2020, the informant was informed that his daughter has been killed.
4. Learned Counsel for the applicant argues that the applicant is the Brother in law (Jeth) of the deceased, who stays separately alongwith his wife, who is a Siksha Mitra attached with Prathmik Vidyalaya has been enlarged on bail by this Court vide order dated 29.04.2022 passed in Criminal Misc. Bail Application No.267 of 2021 mainly on the ground that applicant therein, namely-Smt. Shubha was a female and was entitled to the benefit of Section 437 Cr.P.C.. He further argues that the present applicant is not entitled for bail on the ground of parity, however, the applicant is entitled to be enlarged on bail, considering the fact that the applicant is living separately away from the In-laws of the victim. He further argues that the applicant is in custody since 28.09.2020 and almost three years have elapsed and only one witness has been examined out of the total 14 witnesses proposed to be examined by the prosecution and thus, there is no likelihood of trial to be concluded in the near future. He also argues that delay in trial is itself a ground for grant of bail to the applicant as it is well settled that delayed trial vitiates the rights of the applicant enshrined under Article 21 of the Constitution of India. He further argues that the applicant has two minor children and he has no criminal antecedent, thus, he should be enlarged on bail.
5. Learned A.G.A. and learned Counsel for the complainant have strongly opposed the prayer for grant of bail to the applicant by arguing that this Court on occasion has directed that the trial court should proceed for recording the statement of the witnesses of fact and in pursuance to the said direction, one witness is in the process of examination. They further argued that the daughter of the deceased, who was aged about four years had given a specific statement that the family members were attacking her mother, the said statement is on record as Annexure No.8 to this bail application. They further drew my attention to the postmortem report which records as many as 10 injuries including abraded contusion present over the neck of the deceased. The postmortem report opined the cause of death as asphyxia as result of antemortem strangulation. In light of the said submissions, they argued that considering that the marriage was of less than seven years and there being witness who has given statement under Section 161 Cr.P.C. against the applicant, the bail application of the applicant should be rejected. They further argued that the submission of learned Counsel for the applicant that the applicant was living separately is false and this fact was also considered by this Court while enlarging Smt.Shubha on bail.
6. Considering the statement made at the Bar, the admitted facts are that the applicant is the brother of the husband of the deceased (Jeth), the applicant is in custody since 28.09.2020 and he does not have any criminal antecedent and only witness out of total 14 witnesses has been examined. Without going into the other contentions at this stage, it is essential to note that the Supreme Court had the occasion to consider the law with regard to grant of bails, although, the Supreme Court was dealing with the case arising out of N.D.P.S. Act, the Supreme Court made observations that pre-trial detention or in the presence of tardy pace of trial, would prima facie violates the rights of the accused enshrined under Article 21 of the Constitution of India. This Court referred to the earlier judgments of the Supreme Court in the case of Hussainara Khatoon vs. Home Secy. State of Bihar reported in (1980) 1 SCC 81, Kadra Pahadiya & Others vs. State of Bihar reported in (1981) 3 SCC 671, Abdul Rehman Antulay v. R.S. Nayak reported in (1992) 1 SCC 225 wherein the Supreme Court proposed that the right of speedy trial was part of the Fundamental Rights enshrined under Article 21 of the Constitution of India. This Court also noticed the directions given in the case of Union of India v. K.A. Najeeb reported in (2022) 3 SCC 713 as well as in the case of Satendra Kumar Antil vs. Central Bureau of Investigation & Anr. reported in (2021) 10 SCC 773 wherein the Supreme Court held that prolonged pre-trial detention without there being any progress of trial would prima facie violate Article 21 of the Constitution of India. In the present case, it is admitted that the trial has not proceeded and only one witness has been examined out of 14 witnesses proposed to be examined. The applicant is in custody for almost three years and has no criminal antecedent and there is nothing on record to demonstrate that, if the applicant is enlarged on bail, he can adversely affect the trial proceedings, as such, the applicant is enlarged on bail.
7. Let the applicant-Raghvendra S/O Sri Kaushal Kishor, who is involved in aforementioned case crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions.
(i) The applicant shall file an undertaking to the effect that he 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 counsel. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A IPC.
(iii) 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 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 him in accordance with law.
8. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
(Pankaj Bhatia, J.)
Order Date :- 18.7.2023
Piyush/-
