Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41133 of 2018 Applicant :- Mahendra Singh Opposite Party :- State Of U.P.
Counsel for Applicant :- Rajesh Kumar Singh Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Rajesh Kumar Singh, the learned counsel for the applicant and the learned A.G.A. for the State.
Perused the record.
This application has been filed by the applicant Mahendra Singh seeking his enlargement on bail in Case Crime No. 166 of 2018, under Section 306 I.P.C., Police Station Kuber Sthan, District Kushingar during the pendency of the trial in the above mentioned case crime number.
From the record, it appears that marriage of the younger brother of the applicant, namely, Vijay Singh was solemnised with Madhulika Singh 13 years ago. From the aforesaid wedlock, two children, namely, Shalini aged about 8 years and Alok aged about of 6 years were born. An unfortunate incident occurred on 13th July, 2018 in which the Bhayahu of the applicant i.e. the wife of the younger brother of the applicant sustained burn injuries and ultimately she died on the same date. The inquest of the body of the deceased was conducted on 13th July, 2018 and in the opinion of the Panch witnesses, the death of the deceased was said to be suicidal. The post-mortem of the body of the deceased was conducted on 13th July, 2018. According to the Doctor, who conducted the autopsy on the body of the deceased, the cause of death of the deceased was Asphyxia due to ante-mortem burn injuries. It was further noted in the postmortem report that the deceased has sustained 92% superficial to deep burn injuries all over her body. A first information report in respect of the aforesaid incident was lodged on 16th July, 2018 by the father of the deceased, which was registered as Case Crime No. 0166 of 2018, under Section 306 I.P.C., Police Station Kuber Sthan, District Kushingar. In the aforesaid first information report, four persons, namely, Mahendra Singh the Jeth i.e. the present applicant herein, Kamlesh the Jethani, Nandani the Devrani and Sarawasti the mother-in-law were nominated as the named accused persons. The present applicant was arrested on 22nd July, 2018. However, the other accused persons filed Criminal Misc. Writ Petition No. 25382 of 2018 (Kamlesh @ Preeti & 2 Others vs. State of U.P. & 02 Others), which was disposed of finally vide order dated 17th September, 2018 and interim protection was granted to the petitioners of the said petition till the submission of the police report in terms of Section 173 (2) Cr.P.C. The Police as per the material collected during the course of statutory investigation of the aforesaid case crime number in terms of Chapter XII Cr.P.C. has submitted charge-sheet against the present applicant and the investigation in respect of the other accused persons is said to be pending. The applicant has been charge-sheeted under Section 306 I.P.C.
Learned counsel for the applicant submits that the applicant is the Jeth of the deceased. He is aged about 28 years. The applicant is innocent having no criminal antecedents to his credit except the present one. He is in jail since 22nd July, 2018. The charge-sheet has been submitted against the applicant under Section 306 I.P.C. The charge under Section 306 I.P.C. can be established only during the course of trial as it is only by means of trial evidence that the said charge can be established against a person. There is no evidence upto this stage on the basis of which it can be assumed that the applicant has aided, conspired or instigated in the commission of the alleged crime. As such it is urged that there is no abetment on the part of the applicant. It is further submitted that the prosecution story, as unfolded in the first information report, is highly improbable. On the aforesaid factual premise, it is urged by the learned counsel for the applicant that the present applicant is liable to be enlarged on bail.
Per contra, the learned A.G.A. for the State has opposed the prayer for bail of the applicant. He submits that the applicant has been charge-sheeted by the Police and therefore, the present bail application of the applicant is liable to be rejected. However, the legal and factual submissions raised by the learned counsel for the applicant could not be disputed by the learned A.G.A.
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 Mahendra Singh 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.
(Rajeev Misra, J.) Order Date :- 27.10.2018 Sushil/-