Harmukhi v. State of U.P

Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41926 of 2023 Applicant :- Harmukhi Opposite Party :- State of U.P. Counsel for Applicant :- Javed Alam,Dheeraj Kumar Tiwari Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.

¶1Heard Mr. Javed Alam, the learned counsel for applicant and the learned A.G.A. for State.

¶2Perused the record.

¶3This application for bail has been filed by applicant-Harmukhi, seeking her enlargement on bail in Case Crime No. 173 of 2023, under Sections 498-A, 304-B IPC and Sections 3/4 Dowry Prohibition Act, Police Station-Amroha Dehat, District-Amroha during the pendency of trial.

¶4Record shows that marriage of Hariraj (son of applicant) was solemnized with Preeti on 15.06.2020. However, just after expiry of a period of 2 years and 10 months from the date of marriage of the son of applicant, an unfortunate incident occurred on

18.04.2023 in which, the daughter-in-law of the applicant died as she committed suicide by hanging herself.

¶5Subsequent to the above occurrence, a delayed FIR dated

19.04.2023 was lodged by first informant-Ram Singh (father of the deceased) and was registered as Case Crime No. 0173 of 2023, under Sections 304-B IPC and Sections 3/4 Dowry Prohibition Act, Police Station-Amroha Dehat, District-Amroha. In the aforesaid FIR, 5 persons namely - (1) Hariraj (husband), (2) Smt. Harmukhi (mother-in-law i.e. applicant herein), (3) Kusum (Nanad), (4) Kartar Singh (Maternal father-in-law) and (5) Maternal father-in-law of the deceased have been nominated as named accused.

¶6Learned counsel for applicant submits that applicant is the mother-in-law of the deceased, a named and charge sheeted accused inasmuch as, the charge sheet has been submitted by the Investigating Officer on 28.06.2023 whereby 2 of the named accused i.e. Hariraj (husband) and applicnat-Harmuki (mother-in-law) of the deceased have been charge sheeted under Sections 498-A, 304-B IPC and Sections 3/4 Dowry Prohibition Act. However, irrespective of above, the applicant is liable to be enlarged on bail. Applicant is a lady and therefore, she is entitled to the benefit of the provisions contained in proviso to Section 437 Cr.P.C. According to the learned counsel for applicant, the deceased was a short tempered lady and she took extreme step of committing suicide by hanging herself. The bona-fide of the applicant is further explicit from the fact that except for the ligature mark, no other exterenal ante-mortem iinjury was found on the body of deceased. The husband of the deceased i.e. son of the applicant is already languishing in jail. Applicant cannot be said to be the beneficiary of the alleged demand of dowry. Moreover, the allegations made in the FIR regarding demand of dowry and commission of cruelty upon the deceased on account of non fulfillment of additional demand of dowry are vague and bald allegations inasmuch as, they are devoid of material particulars. With reference to the judgment of the Supreme Court in Kahkashan Kausar @ Sonam and Others Vs. State of Bihar and Others, (2022) 6 SCC 599, it is urged by the learned counsel for applicant that since the aforesaid allegations made in the FIR are devoid of material particulars i.e. regarding the manner in which, the alleged demand of dowry was made and cruelty was committed upon the deceased, therefore, the same are liable to be ignored by this Court at this stage. No attempt has been made by the first informant to explain the same in his statement under Section 161 Cr.P.C. either.

¶7Even otherwise, applicant is a woman of clean antecedents inasmuch as, she has no criminal history to her credit except the present one. Applicant is in jail since 16.06.2023. As such, he has undergone more than 5 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 applicant stands crystallized. However, up to this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. On the above premise, he submits that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, she shall not misuse the liberty of bail and shall co-operate with the trial.

¶8Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a named as well as charge sheeted accused, therefore, she does not deserve any indulgence by this Court. The death of deceased has occurred before expiry of a period of 7 years from the date of her marriage and at her marital home. As such, the death of deceased is a dowry death. The deceased was a young lady aged about 24 years who has died in unnatural circumstances. Applicant is the mother-in-law of deceased and an inmate of the house. By reason of above, the burden is upon the applicant to not only explain the manner of occurrence but also her innocence in terms of Sections 106 and 113B of the Evidence Act. However, the applicant has miserably failed to discharge the said burden up to this stage. On the above conspectus, it is thus urged that no sympathy be shown by this Court in favour of applicant. However, the learned A.G.A. could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

¶9Having heard, the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, accusations made, complicity of accused and coupled with the fact that since the applicant is a lady being mother-in-law of the deceased, therefore, she is entitled to the benefit of the provisions contained in proviso to Section 437 Cr.P.C., applicant cannot be said to be the beneficiary of the alleged demand of dowry, the husband of the deceased/son of the applicant is already languishing in jail, the bona-fide of the applicant is further explicit from the fact that except for the ligature mark, no other external ante-mortem injury was found on the body of deceased, prima-facie the death of the deceased is a suicidal death, in view of above, the applicant is not liable to be awarded the maximum sentence under Section 304-B IPC, in case, she is convicted, 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, the judgment of the Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5), therefore, irrespective of the objections raised by the learned A.G.A. in opposition to the present application for bail, but without making any comments on the merits of the case, applicant has made out a case for bail.

¶10Accordingly, the bail application is allowed.

¶11Let the applicant-Harmukhi, be released on bail in the aforesaid case crime number on her 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 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.

(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.

(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.

(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.

(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.

¶12However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on 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. Order Date :- 17.11.2023 Vinay High Court of Judicature at Allahabad