Allowed

Rajdev Upadhyay v. State of U.P. Thru. Prin. Secy. Home, Lko.

Allahabad HC25 Jan 2023/104/2023

Case brief

AI extract

What is this about?

Court granted bail to applicant Rajdev Upadhyay charged under dowry and death-related offences. Bail allowed considering informant's traumatic mental state and hostile revelations absolving applicant of cruelty, subject to standard bail conditions.

What did the court decide?

Application allowed; Applicant released on bail with personal bond of Rs.50,000 and two sureties of similar amount.

Rajdev Upadhyay Vs State of U.P. Thru. Prin. Secy. Home… — Dowry and Cruelty | Allahabad HC (2023)

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Court No. - 11

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 104 of 2023

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Applicant :- Rajdev Upadhyay Opposite Party :- State Of U.P. Thru. Prin. Secy. Home, Lko. Counsel for Applicant :- Bhup Chandra Singh Counsel for Opposite Party :- G.A.

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Hon'ble Rajesh Singh Chauhan,J.

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Heard learned counsel for the applicant and the learned Additional Government Advocate for the State.

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Learned Additional Government Advocate has filed counter affidavit, today in the Court, the same is taken on record.

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As per learned counsel for the applicant, the present applicant (Rajdev Upadhyay) is languishing in jail since 08.07.2022 in Case Crime No.0230 of 2022, under Sections 498-A & 304-B I.P.C. and Section 3/4 of Dowry Prohibition Act, Police StationChanda, District-Sultanpur.

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Attention has been drawn towards the impugned First Information Report (in short F.I.R.) which has been lodged after the delay of three days without explaining such delay. In the said F.I.R., the allegations of demanding dowry and cruelty have been levelled against all the family members including the present applicant. The present applicant has been falsely implicated in this case as he has not committed any offence as alleged. As a matter of fact, his relation with his wife was cordial and he has not tortured her in the last three years of his marriage. The present applicant is having two minor children.

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Learned counsel for the applicant has further drawn attention of this Court towards Annexure No.4 of this bail application which is an affidavit given by the informant before the Circle OfficerChanda, District-Sultanpur in the crime case in question indicating therein that on the basis of ill advise she lodged an F.I.R. against her son-in-law and his family members. At that point of time, she was under trauma and depression on account of the sad demise of her daughter. Therefore, without verifying the allegations against her son-in-law and family members the F.I.R. was lodged but as soon as she became normal and came to know through reliable sources about the incident in question, then she has been informed that the death of her daughter was an incident wherein her son-in-law and his family members are not responsible. She has stated in the affidavit that her daughter

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never complained against her son-in-law or his family members for demanding of dowry and cruelty. Thereafter, attention has been drawn towards Annexure No.5 of this bail application, which is an order dated 01.11.2022 passed by this Court in Criminal Misc. Writ Petition No.6606 of 2022, wherein on the basis of the statement of the Investigating Officer to the effect that nothing incriminating material has been found against the family members of the present applicant the final report has been filed., that writ petition was dismissed being infructuous.

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Learned counsel for the applicant has drawn further attention of this Court towards towards Annexure No.6 of this bail application, which is the chief-examination and crossexamination of the informant as PW-1 before the learned trial court, wherein in the chief examination as well as in her crossexamination she has clearly indicated that the impugned F.I.R. was lodged on ill advise as she had no complaint against her son-in-law or his family members as they had not demanded any dowry or tortured her daughter. She has stated that mental condition of her daughter was not good and on account of such mental imbalance she used to go out from the house and used to roam around at any place. On the date of incident, she suddenly moved out from the house to any unknown place and she might have sustained the injuries on account of incident with any vehicle or train. She has disputed her earlier statement recorded under Section 161 Cr.P.C. and the F.I.R. version.

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Therefore, learned counsel for the applicant has stated that when the informant/ complainant, who is mother of his wife, has herself given affidavit to the Circle Officer-Chanda, later on her chief-examination and cross-examination has stated that the entire prosecution story is false as she has no grievance against her son-in-law and his family members and her daughter is suffering from mental ailment, therefore, the present applicant may be enlarged on bail. If he is released on bail, he would be able to look after his two minor children to whom no one is in the family to look after them properly. Since he has already lost his wife and he is in jail, therefore, his children are in abandoned position however his family members are looking after them. The charge-sheet has been filed against him and he undertakes that he shall not misuse the liberty of bail and shall co-operate in the trial proceedings properly and shall abide by all terms and conditions of bail order.

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Per contra, Sri Rajesh Kumar Singh, learned Additional Government Advocate has opposed the prayer for bail of the present applicant and has submitted that since the victim (since deceased) who is the wife of the present applicant died within three years of marriage under mysterious circumstances,

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therefore, burden of proof is found on the present applicant who is husband to controvert the allegations of cruelty and demand of dowry.

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Sri Singh has further submitted that even if the informant/ complainant the mother of the victim (since deceased) has turned hostile, her hostility may not be a reason to acquit the present applicant inasmuch as the final order may be passed by the learned court below after appreciating the entire material available on record and the statement of other witnesses. He has also stated that the affidavit (Annexure No.4) is not a part of the case diary.

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Without entering into merits of the issue, considering the arguments of learned counsel for the parties, the contents and allegations of the F.I.R., the chief examination and the crossexamination of the informant/ complainant recorded before the learned trial court wherein she has categorically stated that the impugned F.I.R. has been lodged on ill advise of other persons when she was not in normal condition and she was in trauma and shock knowing the fact that her daughter has died, her further statement that her daughter has never complained against her son-in-law or his family members for demanding the dowry and torture, the mental condition of her daughter was not normal, two minor children of the present applicant are not being looked after properly as he has already lost his wife and the undertaking of the present applicant that he shall not misuse the liberty of bail and shall abide by all terms and conditions of the bail order and shall co-operate in the trial proceedings properly, this Court is of the view that the present applicant may be released on bail.

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Let the present applicant (Rajdev Upadhyay) be released on bail in the aforesaid case crime number on his furnishing a personal bond of Rs.50,000/- with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-

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(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.

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(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.

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(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.

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(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.

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Before parting with, it is expected that the trial shall be concluded with expedition, strictly in accordance with law, without adjourning the case for any unnecessary reason. Further, the learned trial court may take all coercive measures, as per law, if either of the parties do not co-operate in the trial proceedings properly.

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It is made clear that the observations made here-in-above by this order shall not effect the trial in any manner.

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In view of the aforesaid terms, this bail application is allowed.

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Order Date :- 25.1.2023 [Rajesh Singh Chauhan,J.] Suresh/

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Digitally signed by :- SURESH CHANDRA High Court of Judicature at Allahabad, Lucknow Bench

Rajdev Upadhyay v. State of U.P. Thru. Prin. Secy. Home, Lko.

Case brief

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Rajdev Upadhyay v. State of U.P. Thru. Prin. Secy. Home, Lko.

Case brief

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