# Arvind v. State of U.P. Opp. Party

- **Citation:** (2021) 1 ILRA 494
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-01
- **Case number:** Crl. Misc. Bail Appl. No. 39888 of 2020
- **Bench:** Rahul Chaturvedi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arvind-v-state-of-u-p-opp-party-46036
- **Pages:** 10

## Headnote

A. Criminal Law - Indian Penal Code,1860
-
Sections
304-B,
498-A
&
Dowry
Prohibition
Act,1961-Section
3⁄4application-grant of bail-the entire family
has been roped in, unmindful of the fact of
interse
relationship
by
attributing
a
general and omnibus role to everybodyyoung lady interested to open beauty
parlour for additional income-she was
carrying the 5-6 months pregnancy-she
thought her dreams were shattered-she
has hanged herself-no external injury
found in the medical except foetus of a
male-no
evidence
collected
during
investigation that husband abetted her or
conspired or intentionally aided her.(Para
1 to 26)

The bail application is allowed. (E-5)
1 All. Arvind Vs. State of U.P.
495
List of Cases Cited:

## Text

494 INDIAN LAW REPORTS ALLAHABAD SERIES
first information report of about 16 years
and a statement, with respect to consent or
consensual relationship, made by the
prosecutorix is, under her minorship,
having no legal sanctity. Prosecutorix was
enticed, abducted and taken by the
applicant, who was next door neighbour
and was also married one. It was mentioned
in the first information report, itself, that
the wife of the applicant herself apprised
about this enticing and taking of minor by
the applicant. Life of the prosecutorix as
well as wife of the applicant has been put
under hell by the applicant, who is saying
to be in consensual living and marriage
with the prosecutorix, but, this marriage or
separation may be having no legal sanctity
because the applicant was already a
married man having his wife alive, with no
judicial separation of any competent court.
The aim and object of the Legislation of
Protection
of
Children
From
Sexual
Offences Act, 2012, is to protect minor
children from sexual assault and in present
case, it was a sexual assault, made by the
applicant with a minor girl of 15 years, who
is next door neighbour of the prosectuorix
and has committed offence of this heinous
nature and there is every likelihood of
tampering with evidence, in case of release
on bail, hence, Bail Application deserves to
be rejected..

5. Having heard learned counsel for
both sides and gone through materials on
record, it is apparent that in the medical age
determination test, prosecutorix was held to
be 17 years of age in the year 2019,
whereas, the offence is of the year 2017,
thus, at the relevant time, she was of 15
years of age, and as such considering aim
and object of the Legislation of Protection
of Children From Sexual Offences Act,
2012, to protect minor children from sexual
assault, heinousness of offence of rape with
a minor, likelihood of tampering with
evidence, in case of being released on bail,
but, without expressing any opinion on
merit of the case, there appears to be no
ground for bail.

6. Accordingly, in view of what has
been discussed above, Bail Application
stands rejected.
----------
(2021)01ILR A494
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.12.2020

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.

Crl. Misc. Bail Appl. No. 39888 of 2020

Arvind ...Applicant
Versus
State of U.P. ...Opp. Party

Counsel for the Applicant:
Sri Amit Daga

Counsel for the Opp. Party:
A.G.A.

A. Criminal Law - Indian Penal Code,1860
-
Sections
304-B,
498-A
&
Dowry
Prohibition
Act,1961-Section
3⁄4application-grant of bail-the entire family
has been roped in, unmindful of the fact of
interse
relationship
by
attributing
a
general and omnibus role to everybodyyoung lady interested to open beauty
parlour for additional income-she was
carrying the 5-6 months pregnancy-she
thought her dreams were shattered-she
has hanged herself-no external injury
found in the medical except foetus of a
male-no
evidence
collected
during
investigation that husband abetted her or
conspired or intentionally aided her.(Para
1 to 26)

The bail application is allowed. (E-5)
1 All. Arvind Vs. State of U.P.
495
List of Cases Cited:

1. Ramesh Kumar Vs St. of Chatt. (2001) 9 SCC
618

2. Gurjit Singh Vs / St. of Punj.(2010) CRLA No.s
1492-1493

3. St. of W.B. Vs Orilal Jaiswal & anr. (1994) 1
SCC 73

4. Dataram Singh Vs St. of U.P. & anr.(2018) 3
SCC 22

(Delivered by Hon'ble Rahul Chaturvedi, J.)

1. Heard Shri Amit Daga, learned
counsel for the applicant; learned A.G.A.
and perused the record of the case.

2. Applicant, Arvind, who is husband,
facing incarceration since 25.5.2019 in
connection with Case Crime No.281 of
2019, u/s 304-B, 498-A I.P.C. and Section
3/4 of Dowry Prohibition Act, P.S.-
Kotwali, District-Jhansi. He is seeking bail
by means of the present bail application in
aforesaid case crime.

3. Long and short of the prosecution
case, as culled out from the F.I.R., is that
the applicant-Arvind happens to be the
husband
of
deceased-Ms.
Poonam
Kushwaha, who was the daughter of
Prakash
Chandra
Kushwaha
(the
informant). On 27.6.2018 both of them
were tied into nuptial knot as per Hindu
Rites
and
Customs.
Thereafter,
an
unfortunate incident took place whereby
around 6.00 in the evening of 17.5.2019 the
wife has committed suicide by hanging
herself. For this incident, the informant
lodged an F.I.R., on the same day i.e.
17.5.2019 at 22.57 hours. Thus, it is clear
that within less than a year (11 months to
be precise) of the marriage this unfortunate
incident took place whereby the wife has
lost her life by hanging.

4. Galvanized by the incident, her
father within no time of the incident has
succeeded in lodging the F.I.R., roping in
all eight members of the in-laws including
the husband-applicant, irrespective of their
inter se relationship with the husband and
their respective roles in commission of the
offence. As per prevailing practice in the
society now a days, a tailor-made story was
stitched by mentioning that during the
marriage of her daughter Poonam, the
informant
has
spent
Rs.9
lacs
approximately, but her greedy husband and
her in-laws were demanding Rs.5 lacs and
a car as an additional dowry. On this score
the deceased was severely harassed and
tortured by all the named accused persons.
On the fateful date and time, a call was
made by his son-in-law (Arvind-Applicant)
on the mobile phone of informant's
daughter Neha, informing her sister has
committed suicide by hanging herself and
she was admitted in medical college. Soon
after, the informant with his family
members reached to the medical college, he
saw that his daughter was lying dead.
Thereafter he leveled a general and
omnibus
allegation
for
alleged
torture/harassment against all the accused
persons, resultantly she hanged herself. It
was also revealed from the F.I.R., that at
the time of incident, the deceased was
carrying the pregnancy of about six
months.

5. There is specific allegation of
demand of Rs.5 lacs and a four wheeler as
an additional dowry against all accused
persons, attributing a general and omnibus
role of torturing the deceased with regard to
said additional dowry.
496 INDIAN LAW REPORTS ALLAHABAD SERIES

6. The autopsy of the deceased was
conducted on 18.5.2019 by a panel of
doctors at Post Mortem House Jhansi. As
per the findings of the doctors, the
deceased was 25 years of age. The doctors
do not find any external injury over her
person except singular ligature mark
around her neck, obliquely placed. Hyoid
bone was found intact. But her Uterus was
detected as Gravid, in which a male foetus
was present, aged about 5-6 months. As per
the opinion of doctors, SHE DIED ON
ACCOUNT
OF
ASPHYXIA
AS
A
RESULT
OF
ANTE
MORTEM
HANGING.

7. During investigation the police has
recorded the statements u/s 161 Cr.P.C. of
the informant, Prakash Chandra Kushwaha;
Rahul S/o informant; Geeta Devi W/o
informant; Km. Neha D/o informant;
Jitendra Kumar Dwivedi; Neeraj Kushwaha
and Ravi Kushwaha. On a plain reading of
all these statements, which are almost
repetition
of
prosecution
story
as
mentioned in the F.I.R., with minor and
insignificant alterations. In their respective
statements all these witnesses have alleged
that, on account of demand of additional
dowry in the shape of Rs.5 lacs cash and a
four wheeler by the deceased, she was
harassed and tortured on that score, and
thereafter, she eventually was hanged by all
her in-laws, including her husband. Only
startling feature in these statements is that,
none of these witnesses in their statements
have revealed, that during life time she has
ever made any complaint about the said
torture or harassment to the informant or
any other family members regarding
alleged demand of additional dowry by her
husband or in-laws.

8. On the above prosecution story,
learned counsel for the applicant has drawn
attention of the Court to the fact that the
applicant is a poor Deed Writer in the
chamber of one Mr. Akhilesh Sharma at the
Tehsil premises of Jhansi. At the relevant
point of time, the applicant was working in
the chambers, whereas the deceased at the
residence after bolting room from inside
hanged herself.

9. Additionally, it was argued by Shri
Daga, learned counsel for the applicant,
that the applicant is a low paid deed writer
and it is beyond his means or imagination
to demand a four wheeler as he cannot
afford the daily/recurring expenses of a
four wheeler automobile, as alleged in the
F.I.R.

10. The Court is in position to easily
visualize the monthly or daily earning of a
scribe of DEED and thus without referring
or analyzing much on this issue that there is
an unbridgeable gap in the daily/monthly
earning of the applicant viz-a-viz the
alleged demand of a four wheeler. In fact
this is an entirely bald and speculative
allegation
has
been
levelled
against
applicant by the informant.

11. So far as the real reason behind
taking of the ultimate step by the deceased
is concerned, it has been canvassed by
learned counsel for the applicant that the
elder sister of the deceased was running a
beauty parlor at her parental home prior to
her marriage. Subsequently the deceased
has took over its operation, but after her
marriage the said beauty parlor got closed.
The deceased has tried to persuade her
husband to join her at her parent's place so
that she may reopen the said beauty parlor.
This offer seems to be unaccepted by her
husband, due to which she got frustrated
which eventually led to a serious discord
and misunderstanding between the husband
1 All. Arvind Vs. State of U.P.
497
and wife. Not only this, during this period
she became pregnant also. It appears that
being a committed entrepreneur, her
pregnancy was coming in her way of
achieving her target/dream of reopening the
beauty parlor. In fact, the deceased was
forced to live with this diagonally opposite
responsibility i.e. her natural inclination to
run the beauty parlor with the help and cooperation of her husband BUT instead of
this, she was forced to face the liability of
her
pregnancy.
This
was
indeed
a
dichotomous situation for her, which all
likely have prompted her to take this
extreme, though foolish, step of hanging
herself.

12. Per contra, learned A.G.A. while
opposing the bail application has drawn
attention of the Court to the provisions of
Section 113-A of the Indian Evidence Act
and has strenuously argued that, even
assuming that deceased has self immolated
her by hanging herself, the presumption
would go against her husband or his
relatives, if she died within the seven years
of marriage and her husband or his relatives
had subjected her to cruelty for want of
additional dowry. In that event, the court
MAY PRESUME that such suicide had
been abetted by her husband or by his
relatives.

13. After having rival submissions,
factual as well as legal aspects of the issue,
let us examine the applicability and
operation of Section 113A of Indian
Evidence Act in the context of present case.

14. Before dissecting Section 113-A of
the Indian Evidence Act and its impact
upon the prosecution, it is imperative to
spell out the provisions of Sections 306,
107 and 498A of I.P.C. and also Section
113-A of the Indian Evidence Act, which
read thus :-

"306 IPC. Abetment of suicide.--If
any person commits suicide, whoever abets
the commission of such suicide, shall be
punished with imprisonment of either
description for a term which may extend to
ten years, and shall also be liable to fine."

"107 IPC. Abetment of a thing.-A
person abets the doing of a thing, who--

(Firstly)-- Instigates any person to do
that thing; or

(Secondly)--Engages with one or more
other person or persons in any conspiracy
for the doing of that thing, if an act or
illegal omission takes place in pursuance of
that conspiracy, and in order to the doing
of that thing; or

(Thirdly)-- Intentionally aids, by any
act or illegal omission, the doing of that
thing. Explanation 1.--A person who, by
wilful misrepresentation, or by wilful
concealment of a material fact which he is
bound to disclose, voluntarily causes or
procures, or attempts to cause or procure,
a thing to be done, is said to instigate the
doing of that thing.

Explanation 2.--Whoever, either prior
to or at the time of the commission of an
act, does anything in order to facilitate the
commission of that act, and thereby
facilitate the commission thereof, is said to
aid the doing of that act."

"498A IPC. Husband or relative of
husband of a woman subjecting her to
cruelty.--Whoever, being the husband or
the relative of the husband of a woman,
subjects such woman to cruelty shall be
punished with imprisonment for a term
which may extend to three years and shall
also be liable to fine. Explanation.--For the
purpose of this section, "cruelty" means--
498 INDIAN LAW REPORTS ALLAHABAD SERIES

(a) any wilful conduct which is of such
a nature as is likely to drive the woman to
commit suicide or to cause grave injury or
danger to life, limb or health (whether
mental or physical) of the woman; or

(b) harassment of the woman where
such harassment is with a view to coercing
her or any person related to her to meet
any unlawful demand for any property or
valuable security or is on account of failure
by her or any person related to her to meet
such demand."

"113A of Evidence Act. Presumption
as to abetment of suicide by a married
woman.--When the question is whether the
commission of suicide by a woman had
been abetted by her husband or any
relative of her husband and it is shown that
she had committed suicide within a period
of seven years from the date of her
marriage and that her husband or such
relative of her husband had subjected her
to cruelty, the Court may presume, having
regard to all the other circumstances of the
case, that such suicide had been abetted by
her husband or by such relative of her
husband. Explanation.--For the purposes of
this section, "cruelty" shall have the same
meaning as in section 498A of the Indian
Penal Code (45 of 1860)."

15. The provisions of Section 113A of
the Evidence Act was introduced by the
Criminal Law (Second) Amendment Act,
1983 with effect from 26.12.1983 to meet
out the social demand to resolve the
difficulty of proof where helpless married
women were eliminated by being forced to
commit suicide by the husband or in-laws
and incriminating evidence was usually
available within the four corners of the
matrimonial home and hence was not
available to anyone outside the occupants
of the house. However, this provision does
not create any new offence nor does it
create any substantial right, but merely a
matter of procedure and its retrospective
operation. It gives a discretion to the Court
that under a given circumstance, the courts
may infer and punish the wrongdoer.

16. The beauty of law is that if a
person wants to get some remedy or get the
alleged offender prosecuted, then before
that he has to prove the existence of certain
factual situation. Thus, before the provision
u/s 113-A of Evidence Act activated, the
burden of proving the fact lies on the
person who affirms it. Before making the
provisions of Section 113-A of Evidence
Act operational, following factors has to be
established/ proved beyond any iota of
doubt :-

1. Suicide must be committed by a
married woman

2. Suicide must have been abetted by
the husband or any of the relatives of
husband.

3. Suicide must be committed within
seven years of marriage

4. She must have been subjected to
"cruelty" (as defined in Section 498A
I.P.C.) by her husband or his relatives.

17. Presumption u/s 113A of
Evidence Act refers to one of the three
ingredients of abetment as provided in
Section
107
I.P.C.
i.e.
instigation;
conspiracy and intentional aiding of the act.

18. Thus the first requisite for
attracting this section is that it should be
established that the wife was subjected to
"cruelty" as defined in Section 498A I.P.C.
'Cruelty' does not embrace acts of physical
torture alone, even scolding or extending
derogatory remarks, too would come within
its purview.
1 All. Arvind Vs. State of U.P.
499

19. In the celebrated judgments of
Hon'ble Apex Court in the case of
RAMESH KUMAR VS STATE OF
CHHATTISGARH (2001) 9 SCC 618, is
directly on this issue. It has been mentioned
that
where
a
married
woman
was
eliminated or was forced to commit suicide
within four corners of the wall of her
husband and there is no independent
witness to support the prosecution case, to
cope up this eventuality Section 113A of
the Evidence Act was incorporated for the
first time in the year 1983, adding a
presumption and making the husband and
his relatives responsible for this unnatural
mishap.
However,
despite
of
this
presumption, the Court cannot lost its sight
that presumption is intended to operate
against the accused in the field of a
criminal law. Before the presumption may
be raised, the foundation thereof must exist.
A bare reading of Section 113-A of
Evidence Act shows that to attract the
applicability of Section 113-A, it must be
shown that (i) the woman has committed
suicide,
(ii)
such
suicide
has
been
committed within a period of seven years
from the date of her marriage, (iii) the
husband or his relatives, who are charged
had subjected her to cruelty. On existence
and availability of the above circumstances,
the court may presume that such suicide
had been abetted by her husband or by such
relatives of her husband. The Legislation
has chosen to sound a note of caution.
Firstly, the presumption is not mandatory;
it is only permissive, keeping in view the
employment of expression "may presume"
as mentioned in the provisions itself.
Secondly, the existence and availability of
aforesaid circumstances shall not, like a
mathematical
formula,
enable
the
presumption being drawn; before the
presumption may be drawn the court shall
have
to
regard
to
"all
the
other
circumstances of the case". A consideration
of all the other circumstances of the case
may strengthen the presumption or may
dictate the conscience of the Court to
abstain from drawing the presumption. The
expression "all the other circumstances of
the case" used in Section 113-A suggests
the need to reach a "cause and effect
relationship" between the cruelty and the
suicide for the purpose of raising a
presumption. There shall be a direct
nexus/linkage in the said abetment and its
afterflow by means of committing suicide
by the deceased. Last but not the least, the
presumption is not an irrebuttable one. In
spite of a presumption having been raised,
the evidence adduced in defence or the
facts and circumstances otherwise available
on record may destroy the presumption.
The phrase "may presume" used in Section
113-A is defined in Section-4 of the
Evidence Act, which says-"Whenever it is
provided by this Act that the court may
presume a fact, it may either regard such
fact as proved, unless and until it is
disproved, or may call for proof of it."

20. It would be not be out of context,
while discussing the pivotal point on
presumption, one must keep in mind that
presumptions are of two folds, presumptions
of fact and of law. Presumptions of fact are
inferences logically drawn from one fact as to
the existence of other facts. Presumptions of
fact are rebuttable by evidence to the
contrary. Presumptions of law may be either
irrebuttable, so that no evidence to the
contrary may be given or rebuttable. A
rebuttable presumption of law is a legal rule
to be applied by the Court in the absence of
conflicting evidence. (Halsbury, 4th Edition
paras 111, 112).

Among rebuttable presumptions there
are again two folds. Section 4 of the
500 INDIAN LAW REPORTS ALLAHABAD SERIES
Evidence Act defines the words 'may
presume' and 'shall presume' as follows :

(a) 'may presume' : Whenever it is
provided by this Act that the Court may
presume a fact, if may either regard such
facts as proved, unless and until it is
disproved or may call for proof of it.

(b) 'shall presume' : whenever it is
directed by this Act that the Court shall
presume a fact, it shall regard such fact as
proved, unless and until it is disproved.

12. In the former case, the Court has
an option to raise the presumption or not,
but in latter case, the Court must
necessarily raise the presumption. If in the
case where the Court has an option, it
chooses to raise the presumption, the
distinction between the two categories of
presumption ceases and the fact is
presumed, unless and until it is disproved.

21. In this regard, this Court lays its
hand to yet another judgment of Hon'ble
Apex Court in the case of GURJIT
SINGH VS STATE OF PUNJAB in
Criminal Appeal Nos.1492-1493 of 2010
decided on 26.11.2019, whereby Hon'ble
Apex Court has got an opportunity to
dissect the provisions of Section 113-A of
the Evidence Act in the light of Sections
306, 107 and 498A I.P.C. As mentioned
above in the light of three essential
prerequisites the Court may presume that
such suicide has been abeted by the
husband or his relatives.

22. In another case of STATE OF
WEST
BENGAL
VS
ORILAL
JAISWAL AND ANOTHER, (1994) 1
SCC 73, Hon'ble Apex Court has cautioned
that the law courts should be extremely
careful and cautious in assessing the facts
and circumstances of each case and the
evidence adduced in the trial for the
purpose of finding whether the cruelty
meted out to the victim had in fact induced
her to end her life by committing suicide. If
it transpires to the court that a victim
committing suicide was hypersensitive to
ordinary petulance discord and differences
in domestic life quite common to the
society to which the victim belonged and
such petulance discord and differences
were not expected to induce a similarly
circumstanced individual in a given society
to commit suicide, the conscience of the
Court should not be satisfied for basing a
finding that the accused charged of abetting
the offence of suicide should be found
guilty. Section 498A and 306 I.P.C. are
independent
and
constitute
different
offences. Though, depending on the facts
and circumstances of an individual case,
subjecting a woman to cruelty may amount
to an offence under Section 498A and may
also, if a course of conduct amounting to
cruelty is established leaving no other
option for the woman except to commit
suicide, amount to abetment to commit
suicide. However, merely because an
accused has been held liable to be punished
under Section 498A IPC it does not follow
that on the same evidence he must also and
necessarily be held guilty of having abetted
the commission of suicide by the woman
concerned. Thus, as observed by the
Hon'ble Apex Court, the courts should be
extremely careful and cautious in assessing
the facts and circumstances of each case
and
the
evidence
adduced
by
the
prosecution for the purpose of finding
whether the cruelty meted out to the victim
had in fact induced her to end her life by
committing suicide. It has further been held
that Section 498-A and Section 306 of the
IPC
are
independent
and
constitute
different offences. It has been observed,
that
dependent
on
the
facts
and
circumstances of an individual case,
1 All. Arvind Vs. State of U.P.
501
subjecting a woman to cruelty may amount
to an offence under Section 498-A of the
IPC. It has been further observed, that if a
course of conduct amounting to cruelty is
established leaving no other option for the
woman except to commit suicide, it may
also amount to abetment to commit suicide.
It is further observed that, however, merely
because accused had been held liable to be
punished under Section 498-A of the IPC,
it does not follow that on the same
evidence he must also and necessarily be
held
guilty
of
having
abetted
the
commission of suicide by the woman
concerned.

23. Thus, from the above discussion it
is clearly established beyond any iota of
doubt that if an accused is found guilty of
an offence punishable under Section 498-A
of the IPC and the death has occurred
within a period of seven years of the
marriage,
the
accused
cannot
be
automatically held guilty for the offfence
punishable under Section 306 of the IPC by
employing the presumption under Section
113-A of the Evidence Act. Unless the
prosecution established that some act or
illegal omission by the accused has driven
the deceased to commit suicide, the
conviction under Section 306 would not be
tenable.

24. Illumined by the guidelines of
Hon'ble Apex Court, mentioned above, if
the
Court
compares
the
facts
and
circumstances of the present case, the
admitted position of fact is that within
seven years of marriage (11 months to be
precise) the deceased Poonam committed
suicide by hanging herself and from the
statements of witnesses it clearly indicates
that there was a demand of Rs.5 lacs and a
four wheeler as alleged in the F.I.R.,
unmindful of the fact that the applicant is a
petty scribe of the deeds in the chambers of
one Mr Akhilesh Sharma in a tehsil
premise and he has got no means to cope
with the daily/recurring expenses of a fourwheeler. During her life time, the deceased
has never made any complaint with her
family members about the alleged atrocities
faced by her on account of alleged
additional dowry. This is also admitted that
she has committed suicide by bolting the
doors from inside and there is singular
ligature mark around her neck, obliquely
placed, suggestive of the fact that she has
hanged herself. There is no mark of any
other injury over her person. Yet another
startling feature of the case is that the
deceased was carrying the pregnancy of 6-7
months and for every married woman this
is the most precious time in her life.
Ignoring all these, she has taken this
extreme step of committing suicide. Under
circumstances, the Court has every reason
to presume that the deceased seems to be a
hypersensitive lady, who has taken this
extreme step and has given up the pleasure
of being a mother. As suggested by learned
counsel for the applicant that being a young
entrepreneur she was direly interested in
reopening her beauty parlor and wants to
open an additional source of income, but
the Court cannot ignore the fact that her
dreams were shattered by non co-operation
of her husband. This could be a reason of
discord between the husband and wife, but
the Court cannot expect that it could be
such a big reason where she commits
suicide, moreover, when she is in the
valuable phase of her life. There is no such
evidence collected during investigation that
it could be said that the husband at any
point of time either abetted her or created
any situation for her or conspired anything
where she has been left with no other
option but to hang herself. The entire
family has been roped in, unmindful of the
502 INDIAN LAW REPORTS ALLAHABAD SERIES
fact of interse relationship by attributing a
general and omnibus role to everybody.
Taking the help of the above mentioned
observations made by Hon'ble Apex Court,
prima facie it seems that there might be a
discord and bad breath between the
husband and wife with regard to certain
issues
but
rest
of
the
attending
circumstances nowhere indicates that the
applicant's conduct at any point of time
during her life time falls within the
category of Section 107 of the I.P.C. i.e.
either the husband has instigated her or
hatched any conspiracy for doing any act or
illegal omission pursuant to the conspiracy
or intentionally aided her to act upon
certain thing. Mere levelling a bald
allegation of dowry harassment with regard
to additional dowry the husband could be
prosecuted for offence u/s 498A I.P.C. but
certainly not within the four corners of
Section 306 I.P.C.

25. Keeping in view the nature of the
offence,
evidence
on
record
regarding
complicity of the accused, larger mandate of the
Article 21 of the Constitution of India and the
dictum of Apex Court in the case of Dataram
Singh Vs. State of U.P. and another, (2018)3
SCC 22 and without expressing any opinion on
the merits of the case, the Court is of the view
that the applicant has made out a case for bail.
The bail application is allowed.

26. Let the applicant Arvind, who is
involved in aforementioned case crime be
released on bail on his furnishing a personal
bond and two sureties each in the like amount
to the satisfaction of the court concerned subject
to following conditions. Further, before issuing
the release order, the sureties be verified.

(i) THE APPLICANT SHALL FILE
AN UNDERTAKING TO THE EFFECT
THAT HE 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 COUNSEL. IN CASE
OF
HIS
ABSENCE,
WITHOUT
SUFFICIENT CAUSE, THE TRIAL
COURT MAY PROCEED AGAINST
HIM UNDER SECTION 229-A IPC.

(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., 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 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
1 All. Udai Veer Singh Vs. State of U.P.
503
BAIL AND PROCEED AGAINST HIM
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.

27. In case of breach of any of the
above conditions, it shall be a ground for
cancellation of bail.

28. It is made clear that observations
made in granting bail to the applicant shall
not in any way affect the learned trial Judge
in forming his independent opinion based
on the testimony of the witnesses.

29. Since the bail application has been
decided
under
extra-ordinary
circumstances, thus in the interest of justice
following additional conditions are being
imposed just to facilitate the applicant to be
released on bail forthwith. Needless to
mention that these additional conditions are
imposed to cope with emergent condition-:

(a). The applicant shall be enlarged
on bail on execution of personal bond
without sureties till normal functioning of
the courts is restored. The accused will
furnish sureties to the satisfaction of the
court below within a month after normal
functioning of the courts are restored.

(b). The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad.

(c). The computer generated copy of
such order shall be self attested by the
counsel of the party concerned.

(d).
The
concerned
Court/Authority/Official shall verify the
authenticity of such computerized copy of
the order from the official website of High
Court Allahabad and shall make a
declaration of such verification in writing.

29. However, it is made clear that any
willful 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.
----------
(2021)01ILR A503
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.11.2020

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Crl. Misc. Bail Appl. No. 41048 of 2020

Udai Veer Singh ...Applicant
Versus
State of U.P. ...Opp. Party

Counsel for the Applicant:
Sri Ramesh Kumar Shukla, Sri Krishna Kant
Shukla

Counsel for the Opp. Party:
A.G.A., Sri S.P.S. Chauhan

A. Criminal Law - Indian Penal Code,1860
-
Sections
452,406,376,504,506application-grant
of
bail-prosecutrix
lodged false and fabricated FIR against
the applicant-she developed relationship
with the applicant just to fulfil her lust
and extract money-Also she stayed with
the
applicant
in
Jaya
Place
Hotel,
Dhaulpur,Rajasthan with her own free
will-husband of the prosecutrix did not
defend her as she was a consenting partywhen the applicant retired he refused to
fulfill the lust of prosecutrix, then she
lodged FIR.(Para 2 to 4)