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Allahabad High Court orders release of convicted husband, in-laws in dowry harassment case

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The Allahabad High Court has ordered the release of the convicted husband, mother-in-law and father-in-law on bail from the trial court in the case of dowry harassment and murder of a woman under jurisdiction of Police Station – Phase II Noida, District Gautam Budh Nagar.

A Single Bench of Justice Ashwani Kumar Mishra passed this order while hearing a Criminal Revision with Connected appeal filed by Pawan Kumar Jain.

In this petition, three cases are connected, inasmuch as, Criminal Appeal No 5822 of 2019 is by the husband of the deceased victim challenging his conviction and sentence in Session Trial No 293 of 2014 (State Vs Anurag Jain and others) arising out of Case Crime No 57 of 2014, Police Station – Phase II Noida, District Gautam Budh Nagar awarding him 10 years rigorous imprisonment under Section 304B IPC; three years rigorous imprisonment under Section 498A IPC with a fine of Rs 50,000/- and in case of default in payment of fine to further undergo four months additional rigorous imprisonment and under Section 04 of Dowry Prohibition Act, two years rigorous imprisonment with a fine of Rs 10,000/- and in case of default in payment of fine to further undergo one month’s additional imprisonment.

The connected Criminal Appeal No 5754 of 2019 is by the father-in-law and mother-in-law of the deceased victim challenging their conviction and sentence in Session Trial No 293 of 2014 (State Vs. Anurag Jain and others) awarding them 7 years rigorous imprisonment under Section 304B IPC; 3 years rigorous imprisonment under Section 498A IPC with a fine of Rs 50,000/- each and in case of default in payment of fine to further undergo 4 months’ additional rigorous imprisonment and under Section 04 of Dowry Prohibition Act, 2 years rigorous imprisonment with a fine of Rs 10,000/- each and in case of default in payment of fine to further undergo 1 month’s additional imprisonment. All sentences are to run concurrently.

G.S Chaturvedi, Senior Counsel assisted by Alok Ranjan Mishra is present on behalf of revisionist/informant submitted that office report dated 7.7.2022 is not correct, inasmuch as, by virtue of Chapter V Rule 2(vii) of the Court, the revision is liable to be placed before the Division Bench for hearing as notices have already been issued to the accused appellants in the revision filed by the informant for enhancement of punishment vide order dated 5.11.2019.

Senior Counsel, however, fairly states that the Court will have the jurisdiction to consider the application filed under Section 389(1) CrPC by the accused appellants for suspension of sentence and grant of bail, particularly as the appeals are otherwise not ready for hearing since paper books have not been prepared in the matter, so far.

The Court find substance in the objection raised by Chaturvedi to the office report dated 7.7.2022, inasmuch as, notice has already been issued to the accused appellants in the revision filed by the informant for enhancement of punishment and, therefore, by virtue of Rule 2(vii)(d) of Chapter V of the Rules of the Court the Revision is required to be heard by a Division Bench. The office is directed to list the Revision (lead case) for final hearing before a Division Bench in terms of the roster. Paper books shall also be prepared in the revision as also the criminal appeals, forthwith.

The Court noted that,

The criminal appeals are cognizable by the Single Judge under the Rules of the Court, and as the applications filed under Section 389(1) CrPC are pending consideration, for long, these pending applications are taken up for hearing in view of the stand taken by Chaturvedi.

The appellants in the two criminal appeals have been convicted and sentenced to undergo punishments as are already noticed above. The maximum punishment awarded to the accused husband is 10 years, while the in-laws of the deceased victim have been sentenced to undergo seven years imprisonment.

Husband and Father-in-Law of the deceased victim were arrested on 6.2.2014 and have remained incarcerated in Jail ever since then, except for the period during which they were on parole on account of Covid-19 Pandemic. They have, thus, undergone about seven years actual imprisonment, even without any remission.

The other appellant i.e the Mother-in-law of the deceased victim was also arrested on the same date i.e 6.2.2014 but was on bail from 11.12.2015 to 31.7.2019 during trial. Even after excluding the aforesaid period the Mother-in-law has also undergone about four years actual imprisonment, even without remission.

The appellants have substantially served their sentence, as noted above, while their appeals are yet to be heard.

The Court held that,

Criminal Procedure Code has been amended in the year 2006 to incorporate Section 436-A which provides that an undertrial prisoner shall be released by the Court on his personal bond with or without sureties if he has undergone detention for a period extending upto one half of the maximum period of imprisonment specified for that offence in law. Though, the provision would not be strictly applicable in case of pending appeal, nor can be claimed as a matter of right by the convict, yet, the principles contained in Section 436-A of the Code can be extended while considering application of a convict filed under Section 389(1) of the Code for suspension of sentence and grant of bail.

This view finds support from a Full Bench Judgment of Bombay High Court in Maksud Sheikh Gaffur Sheikh Vs State of Maharashtra, 2020 SCC Online Bombay 878.

“Since the appellants have already undergone sentences of more than half of the period of imprisonment, as such, the appellants are entitled to the grant of relief prayed for in their application filed under Section 389(1) CrPC.

It is also to be noticed that appellants in Criminal Appeal No 5754 of 2019 are senior citizens and the Mother-in-law is also entitled to the protection under provision to Section 437 of the Code.

In view of the discussions aforesaid applications filed under Section 389(1) of the Code in the Criminal Appeals No 5754 of 2019 and 5822 of 2019 succeeds and are allowed”, the Court observed.

The Court ordered that, let the accused applicant/appellants – Swatantra Kumar Jain, Smt Kamla Jain and Anurag Jain be released on bail in Session Trial No 293 of 2014 (UPGB01-006023-2014), State Vs Anurag Jain and others arising out of Case under Sections 304B, 498A IPC and Section 04 Dowry Prohibition Act, Police Station – Phase II Noida, District Gautam Budh Nagar, on furnishing personal bond and two sureties each in the like amount to the satisfaction of the Chief Judicial Magistrate concerned, subject to furnishing undertaking that they will cooperate in the hearing of the appeal.

The appellants shall deposit the fine within two months after release.

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