While according very rightly the much needed requisite importance to the most fundamental principle of “bail over jail” and so also “bail is the rule” and “jail is an exception” and most sagaciously underscoring the pivotal place of cogent evidence in criminal trials, the Single Judge Bench of the Allahabad High Court comprising of Hon’ble Mr Justice Krishan Pahal in a most learned, laudable, landmark, logical and latest judgment titled Rupesh Kushwaha in Criminal Misc. Bail Application No. – 39578 of 2024 and cited in Neutral Citation No. – 2024:AHC:184066 that was pronounced as recently as on 25.11.2024 has granted bail to Rupesh Kushwaha in a dowry death case. We need to pay our unremitting attention here that the Bench while granting bail was most forthright in observing that delays in filing the FIR, inconsistencies in the investigation, and lack of a clear link between the alleged actions and the tragic death necessitated a more nuanced application of the law. What also deserves our singular attention is that Hon’ble Mr Justice Krishan Pahal in his most commendable, courageous, convincing and cogent judgment made it absolutely clear that bail is a rule and its denial should be an exception, particularly when the evidence does not prima facie establish the alleged offence.
It is certainly the bounden duty of all the Judges all over India from the lowest to the highest court to pay heed broadly if not microscopically to what has been held so very pragmatically in this leading case and decide the concerned case accordingly in similar such cases! We also need to concede very rightly that this leading case which has garnered a lot of public, media and legal interest delves quite in detail into the complex interplay that takes place between the serious allegations of dowry harassment, abetment of suicide and judicial principles and how most precisely the Allahabad High Court gave most pragmatic reasons for granting bail to Rupesh Kushwaha. No denying it!
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench of the Allahabad High Court comprising of Hon’ble Mr Justice Krishan Pahal sets the ball in motion by first and foremost putting forth in para 1 that, “List has been revised.”
As we see, the Bench then observes in para 2 of this robust judgment that, “Heard Sri Vikas Tiwari, learned counsel for the applicant and Sri Akshansh, learned counsel for the informant as well as Sri Amit Kumar, learned State Law Officer and also perused the material available on record.”
As things stands, the Bench then discloses in para 3 of this recent judgment that, “Applicant seeks bail in Case Crime No. 146 of 2024, under Section 306 of I.P.C., Police Station – Chirgaon, District – Jhansi, during the pendency of trial.”
It is worth noting that the Bench then notes in para 4 of this rational judgment that, “This Court finds that learned counsel for the applicant could not assist the court in a proper way, as such, I myself have perused the case diary, FIR and other relevant documents filed with the bail application.”
Be it noted, the Bench notes in para 5 of this progressive judgment that, “A perusal of FIR indicates that the applicant, who happens to be the husband of the deceased person, used to instigate the deceased person to establish illicit relationship with her brother-in-law (Jeth) but after her refusal, the applicant and other named accused persons have committed her murder on 19.04.2024.”
Most significantly and most sagaciously, the Bench then encapsulates in para 6 what constitutes the cornerstone of this notable judgment due to which this case was found fit for bail to be granted postulating that, “This Court finds following grounds after perusal of record:-
(i) that the FIR is delayed by 20 days and there is no explanation of the said delay caused.
(ii) the cause of death has been found to be asphyxia as a result of ante mortem hanging.
(iii) the inquest report of deceased person indicates that the panch witness no.1, who is the husband of the informant, and another panch witness no.5, who is the son of the informant, were very much present at the stage of recording of inquest proceedings. Their presence at the time of recording of inquest proceedings indicates that there was no foul play in the said incident.
(iv) the cause of death also speaks otherwise, as such, after thorough investigation, the case was transformed u/s 304 IPC.
(v) no overt act has been assigned to any person whatsoever.
(vi) the Supreme Court in Ude Singh and Ors. vs. State of Haryana, (2019) 17 SCC 301 observed:-
“16. In cases of alleged abetment of suicide, there must be a proof of direct or indirect act/s of incitement to the commission of suicide. It could hardly be disputed that the question of cause of a suicide, particularly in the context of an offence of abetment of suicide, remains a vexed one, involving multifaceted and complex attributes of human behavior and responses/reactions. In the case of accusation for abetment of suicide, the Court would be looking for cogent and convincing proof of the act/s of incitement to the commission of suicide. In the case of suicide, mere allegation of harassment of the deceased by another person would not suffice unless there be such action on the part of the accused which compels the person to commit suicide; and such an offending action ought to be proximate to the time of occurrence. Whether a person has abetted in the commission of suicide by another or not, could only be gathered from the facts and circumstances of each case.
16.1. For the purpose of finding out if a person has abetted commission of suicide by another; the consideration would be if the accused is guilty of the act of instigation of the act of suicide. As explained and reiterated by this Court in the decisions above referred, instigation means to goad, urge forward, provoke, incite or encourage to do an act. If the persons who committed suicide had been hypersensitive and the action of accused is otherwise not ordinarily expected to induce a similarly circumstanced person to commit suicide, it may not be safe to hold the accused guilty of abetment of suicide. But, on the other hand, if the accused by his acts and by his continuous course of conduct creates a situation which leads the deceased perceiving no other option except to commit suicide, the case may fall within the four-corners of Section 306 IPC. If the accused plays an active role in tarnishing the self esteem and self-respect of the victim, which eventually draws the victim to commit suicide, the accused may be held guilty of abetment of suicide. The question of mens rea on the part of the accused in such cases would be examined with reference to the actual acts and deeds of the accused and if the acts and deeds are only of such nature where the accused intended nothing more than harassment or snap show of anger, a particular case may fall short of the offence of abetment of suicide. However, if the accused kept on irritating or annoying the deceased by words or deeds until the deceased reacted or was provoked, a particular case may be that of abetment of suicide. Such being the matter of delicate analysis of human behaviour, each case is required to be examined on its own facts, while taking note of all the surrounding factors having bearing on the actions and psyche of the accused and the deceased.”
(vii) he has no criminal history.
(viii) he is languishing in jail since 17.07.2024.”
Do note, the Bench notes in para 8 that, “Per contra, learned counsel for the informant as well as learned State Law Officer have vehemently opposed the bail application but could not dispute the aforesaid fact.”
Most remarkably and most forthrightly, the Bench then while citing relevant Apex Court rulings directs in para 9 propounding that, “Considering the facts and circumstances of the case, submissions made by learned counsel for the parties, the evidence on record, and taking into consideration the settled law of the Supreme Court passed in Ude Singh and Ors. vs. State of Haryana (supra), Satender Kumar Antil vs. Central Bureau of Investigation and Ors., 2022 INSC 690 and Manish Sisodia vs. Directorate of Enforcement, 2024 INSC 595 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.”
It would be instructive to note that the Bench then while granting bail stipulates in para 10 that, “Let the applicant- Rupesh Kushwaha, 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 not tamper with evidence. (ii) 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 him in accordance with law.”
What’s more, the Bench then while adding a caveat stipulates further in para 11 that, “In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.”
Finally, the Bench then concludes by clarifying clearly in the concluding para 12 that, “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.”
In a nutshell, we thus see that the Single Judge Bench comprising of Hon’ble Mr Krishan Pahal of the Allahabad High Court has made it indubitably clear that prolonged incarceration without conviction was deemed contrary to the principles of justice. It also must be definitely borne in mind that the Bench primarily took into account various key factors like the applicant having no prior criminal record as we have discussed already hereinabove and was most forthright in ruling clearly that bail cannot be denied when evidence lacks cogency as we see in this leading case which fortified the creditworthy arguments that had been forwarded by the applicant for being granted bail and thus was granted bail with conditions as mentioned hereinabove without ruling on the merits of the case and leaving it to the Trial Judge to decide based on testimony of the witnesses. No denying!
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