Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40714 of 2018 Applicant :- Malikhan Opposite Party :- State Of U.P.
Counsel for Applicant :- Sunil Kumar Srivastava Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Sunil Kumar Srivastava, learned counsel for the applicant and learned A.G.A. for the State.
This application for bail has been filed by the applicant-Malikhan seeking his enlargement on bail in Case Crime No. 407 of 2018 under Sections 498A, 304B, 323 I.P.C. and Section 3/4 D. P. Act, P.S.-Kanth, District- Shahjahanpur during the pendency of the trial.
From the record, it appears that the marriage of the son of the applicant, namely, Alok was solemnized with Kanya Devi on 06.05.2016 in accordance with Hindu Rites and Customs. However, just after the expiry of a period of more than two years from the date of marriage of the son of the applicant an unfortunate incident occurred on 4.07.2018, in which the daughter-in-law of the applicant died as she committed suicide by hanging herself. The first information report in respect of the aforesaid incident was lodged on 05.07.2018 by the mother of the deceased, which was registered as Case Crime No. 407 of 2018 under Sections 498A, 304B, 323 I.P.C. and Section 3/4 D. P. Act, P.S.-Kanth, District-Shahjahanpur.
In the aforesaid F.I.R., four persons, namely, Ashok (the husband), Malikhan (the father-in-law), Namaloom (the mother-in-law) and Sanjeev (the Devar) of the deceased were nominated as named accused. The inquest of the body of the deceased was conducted on 05.07.2018 and in the opinion of the Panch witnesses, the death of the deceased was homicidal. The post-mortem of the body of the deceased was conducted on 06.07.2018. The Doctor, who conducted the autopsy on the body of the deceased opined that the death of the deceased was on account of asphyxia due to ante-mortem hanging. The Police upon completion of the statutory investigation of the aforesaid case crime number has submitted a charge- sheet dated 27.09.2018 against three of the named accused persons only, i.e., the father-in-law (the applicant herein), the mother-in-law and the husband of the deceased.
Learned counsel for the applicant submits that the applicant is the father- in-law of the deceased, who is aged about 58 years having no criminal antecendents to his credit except the present one. The presumption arising out of an offence under Section 304B I.P.C. is available to the prosecution but in the facts and circumstances of the case, the applicant is innocent. The deceased was a short tempered lady and she has taken the extreme step of committing suicide by hanging herself. The allegations made in the F.I.R. regarding the demand of dowry are vague and general allegations. The husband of the deceased is already languishing in Jail. There is no suicidal note of the deceased. There is no material on record upto this stage, on the basis of which, it can be inferred that the applicant has abetted in the commission of the crime. On the cumulative strength of the aforesaid submissions, it is urged that the bail application of the applicant is liable to be allowed and the applicant is entitled to be enlarged on bail.
Per contra, the learned AGA has opposed the prayer for bail. However, the learned A.G.A. could not dispute the factual and legal submissions made by the learned counsel for the applicant.
Having heard the learned counsel for the applicant, learned A.G.A. for the State and upon consideration of the evidence on record as well as the complicity of the applicant but without expressing any opinion on merits of the case, I am of the view that the applicant has made out a case for bail. Accordingly, the bail application of the applicant is allowed.
Let the applicant-Malikhan 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 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 counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under section 229-A I.P.C..
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his 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, in accordance with law, under section 174-A I.P.C.
(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 him 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.
Order Date :- 26.10.2018 YK