Allahabad High Court
Deepu S/O Asharfi (Second Bail) vs State Of U.P. Thru. Prin. Secy. ... on 11 October, 2023
Bench: Brij Raj Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:66085
Court No. - 27
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 7562 of 2022
Applicant :- Deepu S/O Asharfi (Second Bail)
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko.
Counsel for Applicant :- Vivek Chandra
Counsel for Opposite Party :- G.A.
Hon'ble Brij Raj Singh,J.
1. Heard learned counsel for the applicant and Mohd. Ashif Khan learned A.G.A. for the State.
2. The present second bail application has been filed by the applicant with a prayer to enlarge him on bail in Case Crime No. 145 of 2019 under Sections 498A, 304B IPC and Section 3/4 of Dowry Prohibition Act, Police Station Thangaon, District Sitapur.
3.It has been submitted by learned counsel for the applicant that this is second bail application and the first bail application bearing no.2463 of 2021 was rejected on 14.03.2022 by this Court. After rejection of first bail application, four more witnesses have been examined i.e. C.O. (P.W.-2), Dr. Manoj Kumar Sinigh (P.W.-3) , Shailendra Bhushan Verma Tehsildar (P.W.-4) and Rajesh Kumar (P.W.-5) have been examined before the trial court. It has been submitted by learned counsel for the applicant that the fact witness Rajesh Singh (P.W.-5) has not supported the prosecution case. He deposed before the Court that quarrel never took place before husband and wife and both were happy with their marriage, however, relation was not cordial later on. He deposed before the court that the applicant was going to his 'Sasural' and the deceased also wanted to go there with him, perhaps this might be the reason to commit suicide. He further deposed before the court that the deceased was never beaten by the applicant.Learned counsel for the applicant has submitted that P.W.-2, P.W.-3 and P.W.-4 are the formal witnesses and the fact witness Informant, mother of the deceased (P.W.-1) and Rajesh Kumar (P.W.-5) have been examined.He has submitted that mother of the deceased (P.W.-1) was examined before the trial court and she has not supported the prosecution case. However, her statement was considered by this Court at the time of rejection of first bail application of the applicant. He further submitted that the applicant is in jail for the last more than four years. He has further submitted that deceased committed suicide by hanging and there is no internal or external injury was found on the body of the deceased.The cause of death is antimortum hanging. He has also submitted that general allegation of dowry demand has been lavelled against the applicant. He further submitted that delay in trial is also ground for granting bail. In support of his argument, he has relied upon a judgment of Hon'ble Apex Court in the case of Union of India vs. K.A. Najeeb reported in AIR 2021 Supreme Court 712. Para 16 of the judgment is being reproduced herein below:-
"This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India, it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail."
5. Learned counsel for the applicant has submitted that the applicant has no previous criminal history and he is in jail since 08.07.2019.
4. Learned A.G.A. though opposed the prayer for bail but could not dispute the fact that the fact witnessRajesh Kumar (P.W.-5) has also not supported the prosecution case and he has also not disputed the fact that the applicant is in jail for the last more than four years. .
5. Without expressing any opinion on the merits of the case and after hearing learned counsel for the parties and looking into overall facts and circumstances of the case as well as the argument that fact witnessRajesh Kumar (P.W.-5) has also not supported the prosecution case, argument of period of incarceration of four years and three months in the light of judgment passed by Hon'ble Supreme Court in K.A. Najeeb (supra) and the arugument that minimum punishment prescribed under section 304B IPC is 7 years and the applicant is already undergone more than four year in jail, therefore, I am of the opinion that the applicant is entitled to be released on bail.
6. Let the applicant, namely, Deepu, be released on bail in the above case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of Court concerned with 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 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 of the Indian Penal Code.
(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. 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 him, 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 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.
It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The Trial Court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything in this order.
Order Date :- 11.10.2023
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