Allowed

Smt. Hemlata Alias Nanhi v. State of U.P.

Allahabad HC6 Oct 2023BAIL/39272/2023

Case brief

AI extract

What is this about?

The Allahabad High Court disposed of bail applications filed by taxpayers who were summoned as additional accused persons in a dowry death case (Sections 498-A, 304-B IPC). Finding no material necessitating custody, the Court granted bail subject to standard conditions.

What did the court decide?

Release on personal bond and two sureties each upon satisfaction of the Court.

Smt. Hemlata Alias Nanhi Vs State of U.P. — Criminal Trial and Appeal | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:204493

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Court No. - 65

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 39272 of 2023

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Applicant :- Smt. Hemlata Alias Nanhi Opposite Party :- State of U.P. Counsel for Applicant :- Shobhit Pathak,Anuj Dutt Mishra Counsel for Opposite Party :- G.A.,Ajay Kumar Srivastava,Rajesh Rai

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Connected with

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 39275 of 2023

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Applicant :- Karan Singh Opposite Party :- State of U.P. Counsel for Applicant :- Shobhit Pathak,Anuj Dutt Mishra Counsel for Opposite Party :- G.A.,Ajay Kumar Srivastava,Rajesh Rai

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Connected with

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38534 of 2023

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Applicant :- Hori Lal Opposite Party :- State of U.P. Counsel for Applicant :- Baij Nath Pal Counsel for Opposite Party :- G.A.,Rajesh Rai

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Hon'ble Rajeev Misra,J.

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Heard Mr. Shobhit Pathak, the learned counsel for applicantSmt. Hemlata Alias Nanhi and Karan Singh, Mr. U.S. Verma, Advocate, holding brief of Mr. Baij Nath Pal, the learned counsel for applicant-Hori Lal and the learned A.G.A. for State.

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Perused the record.

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These applications for bail have been filed by applicants-Smt. Hemlata Alias Nanhi, Karan Singh and Hori Lal, seeking their enlargement on bail in Case Crime No. 102 of 2019, under

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Sections 498-A, 304-B, 323, 504, 506 IPC ad Sections 3/4 Dowry Prohibition Act, Police Station-Bilari, District-Moradabad during the pendency of trial i.e. Sessions Trial No. 378 of 2019 (State Vs. Nekpal and Others) now pending in the court of Additional District and Sessions Judge, Court No.-2, Moradabad.

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Record shows that in respect of an incident, which is alleged to have occurred on 19.03.2019, a prompt FIR dated 19.03.2019 was lodged by first informant-Rampal and was registered as Case Crime No. 102 of 2019, under Sections 498-A, 304-B, 323, 504, 506 IPC ad Sections 3/4 Dowry Prohibition Act, Police StationBilari, District-Moradabad. In the aforesaid FIR, 9 persons namely - (1) Nekpal, (2) Moolchandra, (3) Smt. Bhagirathi, (4) Hori Lal, (5) Karan Singh, (6) Upendra Pal, (7) Nemwati, (8) Smt. Nanhi and (9) Bhograj have been nominated as named accused.

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The gravamen of the allegations made in the FIR is to the effect that first informant namely Rampal solemnized the marriage of his daughter Seema with Nekpal Singh on 08.03.2018. At the time of marriage, sufficient amount of goods and dowry were given. However, the son-in-law of the first informant and other family members of the son-in-law of first informant were dissatisfied with the same. Subsequently, additional demand of dowry and an Alto Car was made. Ultimately, named accused cause the death of the daughter of the first informant.

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After above-mentioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. The post mortem of the body of deceased was conducted. In the opinion of the Autopsy Surgeon, who conducted the autopsy of the body of deceased, the cause of death of deceased was Asphyxia as a result of antemortem hanging. The Autopsy Surgeon found following antemortem injuries on the body of deceased:-

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"1. LIGATURE MARK 13CM X 1CM OVER FRONT OF NECK AND LEFT SIDE OF THE NECK .5CM BELOW LEFT EAR AND 4CM BELOW THE CHIN. OBLIQLY PLACED OVER THE NECK. BASE OF GROOVE IS BROWN HARD AND PARCHMENT LIKE, ON DISSECTION, SUBCUTANEOUS TISSUE UNDER NEATH LIGATURE MARK IS WHITE AND GLISTENING.

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2. CONTUSION 3X1.5CM ON RT. SIDE OF FACE JUST BELOW THE RT. ANGLE OF RT. EYE.

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3. CONTUSION 1CM X.5CM ON RT. SIDE OF CHIN JUST BELOW RT. ANGLE OF MOUTH.

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4. CONTUSION 2CM X .2CM ON RT. SIDE OF FACE, 4CM ABOVE RT. ANGLE OF MOUTH."

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During course of investigation, Investigating Officer examined first informant and other witnesses under Section 161 Cr.P.C. Witnesses so examined have substantially supported the FIR. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of only 3 of the named accused namely- (1) Nekpal, (2) Moolchandra and (3) Smt. Bhagirathi is established in the crime in question. Investigating Officer, accordingly, submitted the charge sheet dated 22.05.2019 whereby aforementiioned named accused have been charge sheeted whereas the other named accused have been exculpated.

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After submission of aforementioned charge sheet, cognizance was taken upon same by the concerned Magistrate. As offence complained of is exclusively triable by court of Sessions, consequently, concerned Magistrate committed the case to the court of Sessions. Resultantly, Sessions Trial No. 378 of 2019 (State Vs. Nekpal and Others) came to be registered in the court of Additional District and Sessions Judge, Court No.-2, Moradabad. Charges were framed against the charge sheeted accused, who denied the same and pleaded innocence. Resultantly, the trial procedure commenced. Up to this stage, PW-1 Rampal @ Ramphal, PW-2 Smt. Umesh Devi and PW-3 Seema have been examined. After the deposition of aforesaid witnesses was recorded, the prosecution filed an application before court below under Section 319 Cr.P.C. praying therein that since complicity of other accused has also emerged in the crime in question as per the deposition of aforementioned witnesses, therefore, they be also summoned to face trial. The said application came up allowed by court below vide order dated 15.01.2021. Resultantly, 6 persons namely (1) Nekpal, (2) Karan Singh, (3) Upendra Pal, (4) Smt. Nanhi, (5) Nemwati and (6) Bhograj were summoned to face trial.

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At the very outset, the learned counsel for applicant submits that following accused have already been enlarged on bail;-

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(i). Criminal Misc. Bail Application No. 52009 of 2019 (Mool Chandra Vs. State of U.P.) decided on 07.01.2020.

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(ii). Criminal Misc. Bail Application No. 36760 of 2019 (Smt. Bhagirathi Vs. State of U.P.) decided on 17.01.2020.

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(iii). Criminal Misc. Bail Application No. 27087 of 2020 (Nek Pal

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Vs. State of U.P.) decided on 27.09.2022.

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(iv). Criminal Misc. Bail Application No. 31646 of 2023 (Bhograj @ Bhojpal Vs. State of U.P.) decided on 08.08.2023.

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(v). Criminal Misc. Bail Application No. 39262 of 2023 (Upendra Pal Vs. State of U.P.) decided on 06.09.2023.

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(vi). Criminal Misc. Bail Application No. 39974 of 2023 (Nemwati Vs. State of U.P.) decided on 13.09.2023.

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It is next contended by the learned counsel for applicants that applicants-Smt. Hemlata, Karan Singh and Hori Lal are not charge sheeted accused but they have summoned under Section 319 Cr.P.C. It is thus urged that during course of investigation, Investigating Officer found that as per the material collected by him, the complicity of applicants is not established in the crime in question. Moreover, as per the deposition of the prosecution witnesses examined up to this stage i.e. PW-1, PW-2 and PW-3, no strong and cogent evidence has emerged against applicants which may establish something more than mere complicity of applicants in the crime in question. They, therefore, contend that applicants are liable to be enlarged on bail. Even otherwise, applicant-Smt. Hemlata is a lady and therefore, she is entitled to the benefit of the provisions contained in proviso to Section 437 Cr.P.C.

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Even otherwise, applicants are of clean antecedents inasmuch as, they have no criminal history to their credit except the present one. Applicants are in jail since 01.08.2023. As such, they have undergone more than 2 and 1/2 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 the prosecution against applicants stands crystallized. However, up to this stage, no such circumstance has emerged necessitating the custodial arrest of applicants during the pendency of trial. On the above premise, they submit that applicants are liable to be enlarged on bail. In case, the applicants are enlarged on bail, they shall not misuse the liberty of bail and shall co-operate with the trial.

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Per contra , the learned A.G.A. has opposed the prayer for bail. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicants with reference to the record at this stage.

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Having heard, the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and

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gravity of offence, accusations made, complicity of accused and coupled with the fact that applicants are not charge sheeted accused, they have been summoned under Section 319 Cr.P.C. by court below, similarly situate and circumstanced co-accused have already been enlarged on bail by this Court, something more than mere complicity of the applicants in the crime in question can be established only after the entire evidence has been recorded, the clean antecedents of applicant, the period of incarceration undergone, the police report 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 crystallized, yet in spite of above, the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, therefore, irrespective of the objections raised by the learned A.G.A. in opposition to the present applications for bail, but without making any comments on the merits of the case, applicants have made out a case for bail.

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Accordingly, the bail applications are allowed .

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Let the applicants-Smt. Hemlata Alias Nanhi, Karan Singh and Hori Lal , be released on bail in the aforesaid case crime number on their 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:-

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(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.

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(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.

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(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.

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(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.

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(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.

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However, it is made clear that any wilful violation of above conditions by the applicants, shall have serious repercussion on their 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.

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Order Date :- 6.10.2023 Vinay

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Digitally signed by :- VINAY KUMAR High Court of Judicature at Allahabad

Smt. Hemlata Alias Nanhi v. State of U.P.

Case brief

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Smt. Hemlata Alias Nanhi v. State of U.P.

Case brief

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