Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45438 of 2018 Applicant :- Bharti @ Neelu @ Neeru Opposite Party :- State Of U.P.
Counsel for Applicant :- A.C.Srivastava,Ravitendra Pratap Singh Chandel Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. A.C.Srivastava, learned counsel for the applicant, the learned A.G.A. for the State and Mr. J.N. Yadav, Advocate who has put in appearance on behalf of the complainant by filing his vakalatnama in Court today, which is taken on record.
This application has been filed by the applicant Bharti @ Neelu @ Neeru seeking her enlargement on bail in Case Crime No. 121 of 2018 under Sections 498A, 304B IPC I.P.C. and section 3/4 Dowry Prohibition Act, Police Station Kotwali, District Ghaziabad, during the pendency of the trial in the above mentioned case crime number.
From the record, it appears that the marriage of the son of the applicant, namely, Shekhar Yadav was solemnized with Karishma Yadav on 21.11.2017. However, just after the expiry of a period of little more than two months from the date of marriage of the son of the applicant, an unfortunate incident occurred on 10.02.2018, in which the daughter-in-law of the applicant was the victim. It is the case of the present applicant that immediately after the occurrence, the victim was taken to hospital, where ultimately she died. A first information report in respect of the aforesaid incident, was lodged by Mr. Satish Yadav, the father of the deceased on 11.2.2018 itself, which was registered as Case Crime No. 121 of 2018 under Sections 498A, 304B IPC I.P.C. and section 3/4 Dowry Prohibition Act, Police Station Kotwali, District Ghaziabad. In the aforesaid first information report, the applicant and three others were nominated as the accused. Inquest of the body of the deceased was conducted on 11.2.2018 not on the information given by the present applicant or any of the family members of the present applicant, but on the information given by the father of the deceased namely Satish Yadav. In the opinion of the Panch witnesses, the death of the deceased was characterised as homicidal. Post mortem of the body of the deceased was conducted on 11.2.2018. The Doctor, who conducted the autopsy on the body of the deceased. opined that the cause of the death of the deceased could not be ascertained, Accordingly, the viscera of the deceased was preserved. However, the doctor found one ante mortem injury on the body of the deceased which is an abraded contusion. The Chief Chemical Analyst submitted the viscera report dated 7.3.2018 and opined that a foreign element, namely, Aluminium Phosphide was found in the body of the deceased. The police upon partial completion of the statutory investigation of the aforesaid case crime number has submitted a charge sheet dated 7.5.2018 against Shekhar, the husband of the deceased and Sumit Yadav, devar of the deceased.
Learned A.G.A. submits that since the rest of the accused persons had not surrendered, therefore, the investigation relating to them could not be completed. It was only pursuant to an order dated 29.6.2018, that the other accused persons surrendered and thereafter the investigation against them could be completed. However, the learned counsel for the applicant fairly submits that the date of the submission of the charge sheet and consequential proceedings taken pursuant thereto have not been disclosed in the affidavit filed in support of the present application for bail.
Learned counsel for the applicant submits that the applicant is the mother-in-law of the deceased, but the applicant is innocent. The applicant has no criminal antecedents to her credit except the present one. The applicant is in jail since 19.9.2018.
Learned counsel for the applicant submits that the earlier wife of the husband of the present applicant had died prior to the alleged incident and therefore, after the death of the first wife, he had married the present applicant. From the aforesaid wedlock, a child was born, who is three years of age. It is then contended that subsequent to the birth of the said child, the present applicant, who is mother-in-law of the deceased along with her husband, who is father-in- law of the deceased have been residing separately from his son i.e. the husband of the deceased. In support of the aforesaid fact, reliance is placed upon the Adhar Card of the applicant, photo copy of which is on record at page-44 of the paper book. Referring to the statement of the first informant as recorded under Section 161 Cr.P.C., it is submitted that the allegations made in the F.I.R. regarding the demand of dowry is also misconceived, at this stage as the amount of Rs. 2,00,000/-, detailed in the F.I.R., were transferred in the account of the deceased and the husband of the deceased. The applicant is not the beneficiary of the alleged dowry as said to have been demanded.
It is further contended that the deceased was a short tempered lady and on account of quarrel with her husband, she has taken the extreme step of committing suicide by consuming Aluminium Phosphide. Except for one abraded contusion, no other external ante-mortem injury has been found on the body of the deceased. General and omnibus allegations have been made in the F.I.R. On the cumulative strength of the aforesaid, it is urged that the bail application of the applicant is liable to be allowed. It is further submitted that the father-in-law of the deceased has already been enlarged on bail by this Court vide order dated 15th November, 2018 passed in Criminal Misc. Bail Application No.43813 of 2018. Similarly the devar of the deceased has also been enlarged on bail by this Court vide order dated 15th November, 2018 passed in Criminal Misc. Bail Application No. 24094 of 2018. The case of the present applicant is similar and identical to that of the co-accused i.e. the father-in-law and devar of the deceased. As such, the applicant is liable to be enlarged on bail.
Per contra, the learned A.G.A. and the learned counsel for the complainant have opposed the prayer for bail of the applicant. However, they could not dispute the factual submissions made by the learned counsel for the applicant.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties and without expressing any opinion on merits of the case, I am of the view that the applicant has made out a case for bail.
Let the applicant Bharti @ Neelu @ Neeru be released on bail in the aforesaid case crime number on 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.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his 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.
(Rajeev Misra, J.) Order Date :- 28.11.2018 Sushil/-