Allahabad High Court

Kunj Vihari Awasthi vs State Of U.P. on 16 May, 2024

Author: Saurabh Shyam Shamshery

Bench: Saurabh Shyam Shamshery





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:88488
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35142 of 2023
 

 
Applicant :- Kunj Vihari Awasthi
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Anand Mohan Pandey,Krishan Mohan Pandey
 
Counsel for Opposite Party :- Arun Kr. Soni,G.A.
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. Heard Sri Anand Mohan Pandey, learned counsel for applicant, Sri D.P.S. Chauhan, learned AGA for State and Sri Arun Kumar Soni, Advocate for Informant.

2. Applicant-Kunj Vihari Awasthi has approached this Court by way of filing present bail application seeking enlargement on bail in Case Crime No. 172 of 2023, under Sections 498A, 304B, 201 IPC and 3/4 Dowry Prohibition Act, Police Station Bewar, District Mainpuri.

3. Applicant before this Court is father-in-law of deceased, who died within about two years and nine months of her marriage. She was cremated without being any information given to Police though she died under other than normal circumstances as such, cause of death is not on record. FIR was lodged on next day with allegation against five persons including applicant that they demanded additional dowry of Rs. 5 lacs.

4. Learned counsel for applicant submits that after investigation charge sheet was filed against applicant, his son and his wife (father-in-law, husband and mother-in-law of deceased respectively). He further submits that in FIR and statements recorded during investigation major role is assigned to husband of deceased. Learned counsel refers the reasons assigned by a Coordinate Bench of this Court while granting bail to co-accused, Smt. Shyam Sundari (mother-in-law of deceased) vide order dated 31.07.2023 and for reference the same is reproduced hereinafter:

?Having heard the leaned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, nature and gravity of offence, evidence, complicity of the accused, accusation made and coupled with the fact that since the applicant is an old lady aged about 65 years and a categorical averment to that effect has been made in paragraph 11 of the affidavit filed in support of the bail application, which has not been contradicted by the learned A.G.A. as per the instructions received by him, the clean antecedents of the applicant, the period of incarceration undergone, in spite of the fact that police report under Section 173(2) CrPC has already been submitted, learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of the applicant during the pendency of trial, the judgement of the Apex Court in Sumit Subhashchandra Gangwal (supra), the allegations made in the F.I.R. with regard to demand of additional dowry are vague and bald, inasmuch as the same are devoid of material particulars, prima facie the same are liable to be ignored in view of the judgement of the Apex Court in Kahkashan Kausar @ Sonam & others (supra), but without making any comments on the merits of the case, the applicant has made out a case for bail.?

5. Learned AGA appearing for State and learned counsel appearing for Informant have not denied that co-accused (mother-in-law of deceased) has already been granted bail. However, they referred few paragraphs of counter affidavit filed on behalf of Informant that cremation of deceased was conducted without any information to complainant side. They also submit that it was duty of accused side to report the unnatural death of deceased which was not done and as such genesis of occurrence was withheld.

6. In the present case, as referred above, daughter-in-law of applicant died within about two years and nine months of her marriage under other than normal circumstances. Genesis of occurrence was suppressed as deceased was cremated without any information given to Police. Presence and permission of complainant side at the time of cremation is highly disputed by Informant by way of filing a counter affidavit.

7. Court takes note that applicant, father-in-law of deceased, is an old aged person and on similar circumstances co-accused, i.e., mother-in-law of deceased, has already been granted bail by a reasoned order, referred above. Said order has still not been challenged before Supreme Court as such it has attained finality at this stage.

8. Court also takes note that it may be a case where genesis of occurrence has been withheld, however, it will be a subject matter of trial and at this stage no circumstance exist before this Court to take a contrary view to the reason assigned by Coordinate Bench, as referred above, while granting bail to co-accused. Therefore, I am of the considered view that applicant is entitled for bail.

9. However, it is made clear that case of husband of deceased is distinguished and said accused will be under legal obligation to annex both orders, i.e., order passed in the case of co-accused and this order, in his bail application, if filed.

10. Court is also aware of the judgment passed by a Division Bench of this Court in Nanha vs. State of U.P., 1992 SCC OnLine All 871 and takes note of para 61 of said judgment that to ensure fairness in administration of justice, all orders passed in the cases of co-accused before filing of bail application must be placed on record and it will be upto concerned Court to take cognizance of it in accordance with law.

11. The applicant is directed to remain present on each and every date as and when required by Trial Court during trial and in case any application for exemption on vague ground is filed, the same shall be a ground for Trial Court to cancel bail immediately.

12. Let the applicant-Kunj Vihari Awasthi 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.

(ii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment or exemption from appearance on the date fixed in trial. 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.

(iii) The applicant will not misuse the liberty of bail in any manner whatsoever. 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 I.P.C.

(iv) The Trial Court may make all possible efforts/endeavour and try to conclude the trial expeditiously, preferably within a period of six months after release of applicant, if there is no other legal impediment.

13. The identity, status and residential proof of sureties will be verified by Court concerned and in case of breach of any of the conditions mentioned above, Court concerned will be at liberty to cancel the bail and send the applicant to prison.

14. The bail application is allowed.

15. It is made clear that the observations made hereinabove are only for the purpose of adjudicating the present bail application.

Order Date :- 16.5.2024