The Allahabad High Court while rejecting an anticipatory bail application held that while invoking judicial precedents to decide a case with similar facts and circumstances, it was important to understand the relationship between logic and experience and reiterated that they cannot be applied mechanically.
A Single Bench of Justice Krishan Pahal passed this order while hearing a Criminal Misc Anticipatory Bail Application filed by Kusum Devi and Another.
The anticipatory bail application has been filed on behalf of the applicants in Case under Section 306 IPC at Police Station- Naini, District Prayagraj with a prayer to enlarge them on anticipatory bail.
The deceased, who happens to be the husband of the informant, is stated to be a Marine Engineer and had left his job and started doing the contract job at Prayagraj as his father had fallen ill and was bedridden, but the said money earned used to be transferred to the account of his ailing father, as such his family was dependent on the money being given to them by his father Balram Mishra, who has subsequently expired. Out of the said wedlock, there is a five year old daughter.
The deceased is stated to have committed suicide in the night of 5/6.01.2022 and the informant could reach the house of her in-laws on 07.01.2022 from Ahmedabad. The behaviour of her in-laws was not proper, as such she left her in-laws house after Terahawi of her husband and she received a WhatsApp message from the mobile of the father-in-law which was being used by her husband, whereby a suicide note was sent to her. The FIR was instituted on 19.02.2022 at Police Station Naini at Prayagraj as such.
Senior Counsel has argued that the applicants were granted anticipatory bail till the submission of report under Section 173(2) Cr.P.C by the Sessions Judge, Prayagraj and have not misused the opportunity granted earlier on.
Senior Counsel has vehemently argued at Bar that no ingredients of Section 306 I.P.C are fulfilled as there is no overt act assigned to the applicants and even Section 107 I.P.C is not attracted in the case as the applicants, who are the ladies, have not abetted the deceased to commit suicide.
Senior Counsel has further stated that the co-accused Manohar Mishra has been granted regular bail by the Court vide order dated 17.07.2023 and the very sad order categorically indicates that the ingredients of Section 306 I.P.C are not fulfilled.
Senior Counsel has further stated that the applicants, being ladies, are also entitled for anticipatory bail as no purpose shall be fulfilled by sending them behind the bars.
Their reputation in the society shall stand tarnished and there is no likelihood of them tampering the evidence as the final report (chargesheet) has already been submitted. They are ready to cooperate in the trial as they have already cooperated during the investigation.
Senior Counsel has further stated that there is no eyewitness of the said incident. The said FIR has been lodged after a delay of more than a month, as such the said inordinate delay is also a valid ground for grant of anticipatory bail to the applicants.
Per contra, counsel for the informant and A.G.A have vehemently opposed the anticipatory bail application on the ground that the applicants have not come with clean hands as they have already relinquished the opportunity granted under Section 482 Cr.P.C and the case is squarely hit by paragraph 43(2), (8) and (10) of the judgment of the Court passed in Shivam (supra).
The Court observed that,
As far as the judgment of Apex Court passed in the case of Kamlesh (supra) is concerned, the said case law does not apply to the case as in the said case, the F.I.R was challenged in the petition under Section 482 Cr.P.C as is the practice at Rajasthan High Court, as such even after the petition challenging the F.I.R is concerned, the application under Section 438 Cr.P.C is very much taken up and decided by this Court. Herein, the applicants had challenged the final report (charge-sheet) and failed.
As far as the judgment of Vijay Pal Prajapati (supra) is concerned, the said judgment also cannot be considered applicable to the case as it is based on the judgment of the Apex Court passed in Kamlesh (supra). The said judgment also does not carry any force as far as the case of the applicant is concerned and is per-incuriam.
Senior Counsel for the applicants has also placed reliance on the judgment of Vinod Kumar Sharma (supra), whereby it has been opined that the word ‘regular bail’ includes the provisions of Section 438 CrPC. The said argument hold good and it is very true that even if the order for regular bail is passed, the anticipatory bail can be taken up, but the said case law also do not apply to the case as we have to see the case on his own merits and the said judgment of the Court passed in the case of Dr Rajni Tripathi (supra) has been placed on the said judgment of Apex Court passed in the case of Vinod Kumar Sharma (supra). Thus, they do not apply to the case.
The judgment of the Court passed in Udit Arya (supra) also does not apply to the case as in that case of dowry death, the cause of death was chronic illness and she had died in her parental house. Only the order under Section 82 Cr.P.C was issued that too a few days before filing of the anticipatory bail application. The proceedings were not complete. No case under Section 304-B I.P.C was made out, as such an exception was drawn. In the case, the proclamation under Sections 82 and 83 Cr.P.C was completed on 18.01.2023 itself and a period of more than six months have passed and herein, the deceased has committed suicide within the precincts of the house of the applicants, as such this case law also does not hold good to the case and the exception cannot be drawn here. The applicants are named in the FIR.
“After hearing counsel for the parties and taking into consideration paragraph 43(2), (8) and (10) of the judgment of the Court passed in Shivam (supra) and also the facts of the case, I do not find it a fit case to grant anticipatory bail to the applicants”, the Court further observed while rejecting the anticipatory bail application.