Laxmina And Another vs State Of U.P.
2023 Latest Caselaw 24920 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:178976
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40241 of 2023
 

 
Applicant :- Laxmina And Another
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Ravindra Kumar Mishra
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.

Heard Mr. Ravindra Kumar Mishra, the learned counsel for applicants and the learned A.G.A. for State.

Perused the record.

This application for bail has been filed by applicants- Laxmina and Sanjay Bind seeking their enlargement on bail in Case Crime No. 142 of 2023, under Sections 498A, 304B IPC and 3/4 D.P. Act Police Station- Bardah, District Azamgarh during the pendency of trial.

Record shows that in respect of an incident which is alleged to have occurred on 23.4.2023, a belated F.I.R. dated 24.4.2023 was lodged by first informant- Sonu Bind and was registered as Case Crime No.142 of 2023, under Sections 498A, 304B IPC and 3/4 D.P. Act Police Station- Bardah, District Azamgarh. In the aforesaid F.I.R. four persons namely, Sanjay Bind and Laxmina (applicants herein), Ramjatan Bind (father-in-law), Suneeta (Nanad) have been nominated as named accused.

The gravamen of the allegations made in the F.I.R. is to the effect that marriage of Poonam was solemnized with Rakesh Bind in the year 2019. However, just after expiry of a period of more than three years from the date of marriage of sister of first informant, an unfortunate incident occurred on 23.4.2023, in which sister of first informant died.

At the very outset, learned counsel for applicants submits that though the applicants are named and charge sheeted accused, inasmuch as charge sheet has already been submitted on 7.6.2023, yet the applicants are liable to be enlarged on bail. Applicant-1 Laxmina is Jethani. Applciant-2 Sanjay Bind is Jeth of deceased. He has next invited the attention of Court to the proviso to Section 437 Cr.P.C. and on basis thereof he contends that since applicant-1 Laxmina is a lady therefore she is liable to be enlarged on bail. Moreover allegations made in F.I.R. regarding demand of additional dowry, commission of physical and mental cruelty upon deceased on account of non fulfillment of additional demand of dowry are false and concocted. Moreover, they are devoid of material particulars. Reference in this regard is made to the judgement of Supreme Court in Kahkashan Kausar @ Sonam and Others Vs. State of Bihar and Others, (2022) 6 SCC 599. On the basis of above, it is urged by learned counsel for applicant that same are liable to be ignored by this Court, at this stage.

It is next contended that co-accused Ramjatan Bind, father-in-law of deceased, has already been enlarged on bail by this Court vide order dated 14.9.2023, passed in Criminal Misc. Bail Application No. 38994 of 2023 (Ramjatan Bind Vs. State of U.P). For ready reference, same is extracted herein under:

"Matter is called out. None appears for the applicant to press the bail application. The names of the learned counsel for the applicant is shown in the cause list.

Learned counsel at the Bar has been requested to assist the Court in the matter. This Court in the light of the holding in Maneesh Pathak vs. State of U.P. passed in Criminal Misc. Bail Application No. 18536 of 2020 is not dismissing the case for non prosecution. Learned members at the Bar have volunteered to assist the Court pro bono in the highest tradition of the profession. The Court has appointed learned counsel as amicus curiae.

By means of the the bail application the applicant has prayed to be enlarged on bail in Case Crime No. 142 of 2023 at Police Station- Bardah, District- Azamgarh under Sections 498-A, 304-B IPC and Section 3/4 Dowry Prohibition Act. The applicant is in jail since 25.04.2023.

The bail application of the applicant was rejected by the learned trial court on 06.07.2023.

The following arguments made by learned counsel as amicus curiae for the applicant, which could not be satisfactorily refuted by learned AGA from the record, entitle the applicant for grant of bail:

1. The applicant is father in law of the deceased.

2. The applicant never harassed the deceased nor did he ever demand dowry.

3. The applicant never interfered in the marital life of the deceased.

4. The applicant is bereaved by the death of his daughter in law.

5. The deceased was a temperamental lady who was prone to extreme reactions over trivial issues.

6. On the fateful day, in a fit of rage, the deceased took the extreme step of ending her life after a minor altercation with a member of the household. She committed suicide by hanging.

7. Injuries depicted in the post mortem report consistent with hanging are:

(i). Ligature mark 28cm x 1 cm around the neck, 5 cm below from left ear lobule 3 cm from right ear lobule, gaping present 3 cm just below right lower baeder madile. Ligature mark obligue below chin above thyroid base groove brownish and parchment like on subcent anevse tissue hard white and glistering.

(ii). No abnormality was detected in the hyoid bone.

8. The applicant did not abet or instigate the deceased to commit suicide.

9. The applicant does not have any criminal history apart from this case.

10. The applicant is not a flight risk. The applicant being a law abiding citizen has always cooperated with the investigation and undertakes to join the trial proceedings. There is no possibility of his influencing witnesses, tampering with the evidence or reoffending.

In the light of the preceding discussion and without making any observations on the merits of the case, the bail application is allowed.

Let the applicant- Ramjatan Bind be released on bail in the aforesaid case crime number, on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court below. The following conditions be imposed in the interest of justice:-

(i) The applicant will not tamper with the evidence or influence any witness during the trial.

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

The Court has been informed that the lawyers in district- Azamgarh are striking work. Liberty of citizens is too sacrosanct and cannot be held to ransom by striking lawyers.

The District Legal Services Authority (DLSA), Azamgarh shall ensure that appropriate legal aid is made available to the applicant for purposes of submitting sureties and completion of other formalities for being set forth at liberty.

Registry is directed to send a copy of this order to the District Legal Services Authority (DLSA), Azamgarh for onward communication to the applicant who is in jail, and for assisting the applicant in the manner stated above. "

On the aforesaid premise, learned counsel for applicant contends that case of present applicant is similar and identical to that of aforesaid co-accused. There is no such distinguishing feature on the basis of which case of present applicant can be so distinguished from aforesaid co-accused so as to deny bail to present applicants. It is thus contended that in view of above and for the facts and reasons recorded in the order dated 14.9.2023, present applicants are also liable to be enlarged on bail on the ground of parity.

With reference to the material on record he submits that the deceased was a short tempered lady. She has taken the extreme step of committing suicide by hanging herself. Bonafide of applicants is explicit from the fact that the except for the ligature mark, no other ante-mortem injury was found on the body of deceased. As such the death of the deceased is suicidal.

It is next contended that applicants are of clean antecedents inasmuch as they have no criminal history to their credit except the present one. Applicants are in jail since 2.5.2023. As such, they have undergone more than 4 months of incarceration. 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 prosecution against applicants stands crystalized. However, up to this stage, there is no such incriminating circumstance has emerged necessitating the custodial arrest of applicant during the course of trial. it is thus urged that applicants are liable to be enlarged on bail. In case applicants are enlarged on bail they shall not misuse the liberty of bail and shall co-operate with the trial.

Per contra, the learned A.G.A. has opposed the present application for bail. He submits that since applicants are named as well as charge sheeted accused, therefore they do not deserve any indulgence by this Court. Death of deceased has occurred within four years of her marriage and at her marital home. As such, burden is upon applicants not only to explain the manner of occurrence but also their innocence in terms of Section 106 and 113B of the Evidence Act. However, the applciants have failed to discharge the said burden up to this stage. It is thus urged that no sympathy be shown by this Court in favour of applicants. However, they could not dislodge the factual and legal submissions urged by the learned counsel for applicant, with reference to the record at this stage.

Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicant, accusation made coupled with the fact that applicant-1 Laxmina is the Jethani of the deceased, she being a lady, as such by virtue of the provisions contained in proviso to Section 437 Cr.P.C. she is liable to be enlarged on bail, co-accused Ramjatan (father-in-law) of deceased has already been enlarged on bail, the case of present applicant is similar and identical to aforesaid co-accused, prima facie the death of deceased is suicidal death as per opinion of autopsy surgeon, the bonafide of applicant is explict from the fact that except from the ligature mark, no other injury was found, the allegations made in the F.I.R. regarding commission of physical and mental cruelty upon demand of dowry are liable to be ignored by this Court at this stage, in view of judgment of Supreme Court in Kahkashan Kausar @ Sonam and Others (2022) 6 SCC 599, police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant, as such, the entire evidence sought to be relied upon by prosecution against applicants stands crystalized, inspite of above, the learned A.G.A. could not point out any such circumstance from the record necessitating custodial arrest of applicant during pendency of trial, Judgement of Suprme Court in Sumit Subhaschandra Gangwal and another Vs. The State of Maharashtra and Another, 2023 Live Law (SC) 373, the period of incarceration undergone, the clean antecedents of applicant but without making any comment on the merits of the case, applicant has made out a case for bail.

Let the applicants Laxmina and Sanjay Bind, be released on bail in the aforesaid case crime number on 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 :- 15.9.2023

Arshad