Court No. - 41
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 49161 of 2018 Applicant :- Dinesh Opposite Party :- State Of U.P. Counsel for Applicant :- Sadhu Sharan Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Sadhu Sharan, learned counsel for the applicant and the learned A.G.A. for the State.
Counter affidavit filed on behalf of the learned A.G.A. in Court today is taken on record.
This application for bail has been filed by the applicant Dinesh, seeking his enlargement on bail in Case Crime No. 388 of 2018 under Sections 498A, 304B IPC and 3/4 D.P. Act, P.S. Kotwali, District Ghazipur during the pendency of the trial.
This Court passed the following order on 20.12.2018:-
"Heard Mr. Sadhu Sharan, learned counsel for the applicant the learned A.G.A. for the State.
The date of the marriage of the applicant is a serious issue in this case. According to the learned counsel for the applicant, the marriage of the applicant was solemnized with deceased on 3.5.2009. On the aforesaid factual premise, learned counsel for the applicant submits that the applicant can not be prosecuted under section 304 B IPC. However, the F.I.R. has been registered under section 498A, 304B IPC and Section 3/4 D.P. Act.
Let the learned A.G.A. ascertain the factual issue as indicated herein above before the next date of listing.
Put this case as a fresh case on 4.1.2019. "
It transpires from the record that the marriage of the applicant Dinesh was solemnized with Anita Devi on 3.5.2009. From the aforesaid wedlock, three children namely, Pratima Bharti, Vivek Kumar, Kumari Neetu were born. They are aged about 8 years, 6 years and 3 years respectively. As such, all the three are minors.
On the aforesaid factual premise, it is urged that no offence under section 304 B IPC can be said to have been committed by the present applicant. In view of the aforesaid fact the order dated 20.12.2018 was passed. However, in the counter affidavit filed by learned A.G.A., there is nothing on record to show that the marriage of the applicant was not solemnized on 3.5.2009.
Be that as it may. Prima facie, the Court is of the opinion that since the occurrence has taken place after the expiry of a period of nine years from the date of marriage of the applicant, at the most, an offence under section 306 IPC, can be said to have been committed by the present applicant. Therefore, the question is as to whether there is any evidence on the record to show that there is any aid, conspiracy or instigation on the part of the applicant in abetment of the alleged crime. Learned A.G.A. could not point out any such evidence.
Having heard the learned counsel for the applicant and the learned A.G.A. for the State and upon perusal of the material brought on record as well as the complicity of the applicant and without making any comment on the merits of the case, I find that applicant has made out a case for bail.
Let the applicant Dinesh, 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/her 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.
Order Date :- 22.1.2019 Arshad