Criminal court allowed a repeat bail application for an accused charged with dowry death (Section 304B IPC) after nearly four years of incarceration. The court held that despite the heinous nature of the offence, the delay in concluding the trial mandated release on bail.
Applicant released on bail by furnishing a personal bond and two sureties in a specific amount.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Neutral Citation No. - 2023:AHC:193990
Court No. - 65
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 37359 of 2023
Applicant :- Sarvesh Opposite Party :- State of U.P. Counsel for Applicant :- Samarath Singh,Avnish Kumar Rai,Vipan Kumar Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
"Heard learned counsel for applicant(s), learned A.G.A. and perused the record.
This bail application has been preferred by the accusedapplicant(s), Sarvesh , who is involved in St No. 347 of 2019, Case Crime No. 98 of 2019, under Sections 323, 498-A, 304-B, IPC and Section 3/4 Dowry Prohibition Act, P.S.- Kakvan, DistrictKanpur Nagar.
The FIR version in brief is that the sister of the informant Neetu was married 5 years back with Sarvesh son of Dayaram, resident of village Udaybhanpur, Police Station Kakvan, District Kanpur Nagar. On 18.8.2019 at 2 O'clock he got a telephonic message from his sister that her husband had beaten her. On this information, he along with his brother in law Shiv Singh and his friend Anuj reached to the in-laws house of his sister at 5 O'clock and came to know that his sister died due to hanging. He also came to known from the persons of the village that his sister was also tortured for demand of dowry by the inmates of in-laws house. On this information, a case crime No. 98 of 2019, under Sections 323, 498-A, 304-B, IPC and Section 3/4 Dowry Prohibition Act has been lodged against Sarvesh, Daya Ram, Bishambher and Ram Kumar in Police Station Kakvan, DistrictKanpur Nagar.
Learned counsel for the applicant(s) in support of his prayer for bail submits that the applicant(s) is innocent and he has been falsely implicated in the present case with intention to harass and blackmail the applicant, deceased had committed suicide. No demand of alleged dowry was made by any member of inlaws. It is further submitted that the applicant is languishing in jail since 23.8.2019.
Learned A.G.A. vehemently opposed the prayer for bail and submitted that the applicant is the husband of deceased and his duty was to protect his wife.
Admittedly, death of deceased is unnatural death in the matrimonial house within seven years of the marriage and there is allegations of demand of dowry soon before her death. In autopsy report, cause of death is Asphyxia as a result of ante mortem hanging. Death of deceased took place in the matrimonial house. It is the applicant to explain how the unnatural death took place.
Keeping in view the gravity of offences, facts and circumstances of the case, it is not a fit case to grant bail to the applicant.
Bail application is accordingly rejected.
Order Date :- 24.11.2020 "
accused yet he is liable to be enlarged on bail. After completion of statutory investigation in terms of Chapter XII Cr.P.C., Investigating Officer submitted the charge sheet dated 22.10.2019 whereby applicant alone was charge-sheeted under Sections 323 498A, 304B I.P.C. and Sections 3/4 Dowry Prohibition Act. 6. Learned counsel for applicant contends that after submission of aforementioned charge sheet, cognizance was taken upon same by the concerned Magistrate. Since the case was exclusively triable by the court of sessions, resultantly, concerned Magistrate committed the case to Court of Sessions. As a consequence of above, Sessions Trial No.347 of 2019 (State Vs. Sarvesh) came to be registered. Applicant is however co-operating with the trial. Upto this stage, statement of only one prosecution witness has been recorded as P.W.-1 Shaguna, mother of the deceased. The statement of P.W.-2 is still going on. All the prosecution witnesses have not yet been examined even when the the concerned Magistrate had committed the case to the court of sessions in the year 2019. In spite of the fact that a period of four years has rolled by from the date of committal of case to the Sessions Court, aforementioned sessions trial has not been concluded. It is then urged that right to speedy trial is now recognised as a fundamental right of an accused. To buttress his submission, he has relied upon the judgement of Apex Court in A.R. Antulay Vs. R. S. Nayak (1992) 1 SCC 225 . On the basis thereof he submits that since the applicant is in jail therefore it cannot be said the applicant is responsible for the delay in conclusion of trial. With reference to above he submits that since an accused has the right to speedy trial and the said right of the accused/applicant stands infringed on account of lackadaisical approach of the prosecution in pursuing the trial, therefore, applicant is liable to be enlarged on bail.
A.G.A. for State, the learned counsel representing first informant, upon consideration of material on record, evidence, nature and gravity of offence, accusations made as well as complicity of applicant coupled with the fact that charge sheet has been submitted against applicant on 22.10.2019, thereafter, case was committed to the court of sessions, as a result Sessions Trial No. 347 of 2019 (State Vs. Sarvesh) came to be registered, statement of only of the prosecution witnesses namely Shaguna has been recorded as P.W.-1, on date the statement of first informant P.W.-2, Anil is being recorded, as such there is delay in conclusion of trial, by virtue of law laid down by Apex Court in A.R. Antulay (supra) right to speedy trial is a fundamental right of an accused. Since the applicant is in jail therefore it cannot be said the applicant is responsible for the delay in conclusion of trial, since an accused has the right to speedy trial and the said right of the accused/applicant stands infringed on account of lackadaisical approach of the prosecution, in view of the nature of death of the deceased, the applicant is not liable to be awarded the maximum sentence under Section 304B I.P.C., police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallised yet in spite of above, the learned A.G.A. could not point out any such such incriminating circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial,the clean antecedents of applicant, the period of incarceration undergone, therefore, irrespective of the objections raised by the learned A.G.A. in opposition to present application for bail but without expressing any opinion on the merits of the case, applicant has made out a case for bail.
(i) Applicant will not tamper with prosecution evidence.
(ii) Applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) Applicant will not indulge in any unlawful activities.
(iv) Applicant will not misuse the liberty of bail in any manner whatsoever.
Order Date :- 9.10.2023 YK
Digitally signed by :- YASHWANT KUMAR High Court of Judicature at Allahabad
2 issues framed by the court
Whether the applicant detained under dowry death charges is eligible for bail after four years due to delay in trial.
Whether the prosecution discharged their burden to justify continued custody despite the charge-sheet being filed and submitted.
Colour shows how this judgement treated each authority
A.R. Antulay Vs. R. S. NayakRelied on¶19
A.R. Antulay Vs. R. S. Nayak (1992) 1 SCC 225 · Who else cites this
6 provisions across 3 enactments
Sarvesh
State of U.P.
Rajeev Misra
Yashwant Kumar
As recorded by the court registry
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