Saeeda Nikhat vs State of U.P. And Another

Heard Sri Manish Tandon, learned counsel for the applicant and learned A.G.A for the State.

Supplementary affidavit filed by counsel for the applicant today is taken on record.

The instant anticipatory bail application has been filed on behalf of the applicant, SaeedaNikhat,with a prayer to release her on bail in Case Crime No. 328 of 2020, under Section- 306 I.P.C., Police Station- Anwarganj, District- Kanpur Nagar, during pendency of trial.

Prior notice of this bail application was served in the office of Government Advocate and as per Chapter XVIII, Rule 18 of the Allahabad High Court Rules and as per direction dated 20.11.2020 of this Court in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 8072 of 2020, Govind Mishra @ Chhotu Versus State of U.P., hence, this anticipatory bail application is being heard. Grant of further time to the learned A.G.A as per Section 438 (3) Cr.P.C. (U.P. Amendment) is not required.

The allegation in the FIR is that brother of the informant, Sahibe Alam @ Jeeshan, was married to Gulvis,daughter of Gulam Sadiq on 08.02.2018. The wife of the brother oftheinformant used to physically and mentally torture his brother since the very beginning bypressurising him to take separate house. Hisbrother being fed upwith his wife took a flat in Uddeshya Apartment in BaansMandi, Kanpur Nagar on a rent of Rs. 10,000/- per month but the conduct of his wife did not changed. His brother made complaint of his wife to his father-in-law but instead of talking to his daughter he started blackmailing hisbrother for money. When his brother refused to give money his mother-in-law made an application before police station- Becanganj, Kanpur Nagar as aresult ofwhich his brother went intodepression and familymembers of hismatrimonial home used to threaten him of false implication in a case. Being fed up with his wife he took divorce from his wife on 20.07.2019 but after three months hiswife came back stating that his brother and parents do notgive her food and started living with hisbrother.Thereafter, she startedblackmailing him and her parents used to come and beat his brother anddemand money. He sold his shop and the entire money wastaken by them and being physically and mentally tortured hecommitted suicide on 10.08.2020 forwhich the accusedpersons are responsible.

Counsel for the applicant submits that the applicant was granted interim anticipatory bail by thisCourt earlier till submission of police report under Section 173(2) Cr.P.C., vide Crl. Misc. Anticipatory BailApplication No. 6894 of 2020. Since charge sheet has been submitted againsttheapplicant and otheraccusedpersons on 17.10.2020, hence, she is before this Courtagainst seekinganticipatory bail till the conclusion of trial. In thesupplementary affidavit filed today averment has been madethat the case oftheapplicant is covered by paragraph 41(1)(4)(5) and (10) and not barred by paragraph 43 of thejudgment in the case of Crl. Misc.Anticipatory Bail Application No. 2110 of 2021, Shivam Vs. State of U.P. andAnother.

He has referred to the statements of the witnesses recorded by the Investigating Officer. The informant has supported theallegations in the FIR. However, the owner of the building,wherein the deceased was residing with his wife, Sri Fasi Akhtar and Shabi Akhtar, stated that the deceasedand hiswife used tofrequently fight, but being disputebetween couple they never tried to know the cause ofthe same. Danish, owner ofthe flat no. 403, which was rented out tothe deceased stated that he has heard thatbeingfed up with the harassment by hiswife the deceasedcommitted suicide. He further stated that he had not seen the couple fighting nor the deceased committing suicide. The mother of the deceasedsupported the allegations made in the FIR. Thebrother and sisters of theinformant alsosupported the allegations made inthe FIR. The counsel for the applicant submits that the informant, hismother and sisters will support the allegations in the FIR since they areinterestedwitnesses. Onaccount ofdisputewith them the deceased and his wife left thejoint family house. Even if it is assumed that the wife of the deceased used tomentally and physically harass and torture him and the demand of money was made bythe applicant from her son-in-law, the ingredients forconstituting offence under Section 306 IPC are not made out. He has relied upon thejudgment of the Apex Court in the case of M. Mohan vs. State, 2011 AIR SCW 1601 and hasstated thatthere has to beclearmen-rea to implicate a person under Section 306 IPC. In the present case, there is no such allegation that the applicant instigated or intentionally aided the deceased to commit suicide. Abetmentinvolves a mental process ofinstigating aperson to commit suicide. Theindependentwitness have not stated that theapplicant used to come to the house of thedeceased. Only the interesting witnesses have made such anallegation. Being mother-in-law,applicant cannot be expected to instigate her son-in-law to commit suicide and leave herdaughter helpless.

Learned A.G.A. has opposed the prayer for anticipatory bail of the applicant. He has submitted that in view of the seriousness of the allegations made against the applicant, she is not entitled to grant of anticipatory bail. The apprehension of the applicant is not founded on any material on record. Only on the basis of imaginary fear, anticipatory bail cannot be granted.

After considering the rival submissions, this Court finds that there is a case registered against the applicant and Investigating Officer hassubmitted charge sheet against her. It cannot be definitely said when the police may apprehend her. After the lodging of F.I.R, the arrest can be made by the police at will. There is no definite period fixed for the police to arrest an accused against whom an F.I.R has been lodged. The courts have repeatedly held that arrest should be the last option for the police and it should be restricted to those exceptional cases where arresting the accused is imperative or his custodial interrogation is required. Irrational and indiscriminate arrests are gross violation of human rights. In the case of Joginder Kumar v. State of Uttar Pradesh AIR 1994 SC 1349,the Apex Court has referred to the third report of National Police Commission wherein it is mentioned that arrests by the police in India is one of the chief source of corruption in the police. The report suggested that, by and large, nearly 60 percent of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2 percent of expenditure of the jails. Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative. According to the peculiar facts and circumstances of the case, the arrest of an accused should be made.

Hence without expressing any opinion on the merits of the case and considering the nature of accusations and antecedents of applicant and also the second surge in the cases of novel coronavirus and possibility of further surge of the pandemic, she is directed to be enlarged on anticipatory bail as per the Constitution Bench judgment of the Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98.The future contingencies regarding anticipatory bail being granted to applicant shall also be taken care of as per the aforesaid judgment of the Apex Court.

In the event of arrest, the applicant shall be released on anticipatory bail. Let the applicant involved in the aforesaid crime be released on anticipatory bail on furnishing a personal bond with two sureties each in the like amount to the satisfaction of the trial court concerned with the following conditions:-

The applicant shall not leave the country during the currency of trial without prior permission from the concerned trial Court.

The applicant shall surrender her passport, if any, to the concerned Court forthwith. Her passport will remain in custody of the concerned Court.

That the applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade her from disclosing such facts to the Court or to any police officer;

The applicant shall file an undertaking to the effect that she shall not seek any adjournment on the dates fixed for evidence and 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 to ensure presence of the applicant.

In case, the applicant misuses the liberty of bail, the Court concerned may take appropriate action in accordance with law and judgment of Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98 and the Government Advocate/informant/complainant can file bail cancellation application.

The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court, default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of her bail and proceed against her in accordance with law.

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

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.