Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38002 of 2018 Applicant :- Monu Alias Mukesh Opposite Party :- State Of U.P.
Counsel for Applicant :- Azad Khan,Javed Khan Counsel for Opposite Party :- G.A.,Vinod Kumar Hon'ble Rajeev Misra,J.
Heard Mr. Azad Khan, the learned counsel for the applicant, the learned A.G.A. for the State and Mr. Vinod Kumar, the learned counsel for the complainant.
The learned A.G.A. has filed short counter affidavit in Court today which is taken on record. The learned counsel for the applicant submits that he does not wish to file rejoinder affidavit to the short counter affidavit filed on behalf of the State. Accordingly, the Court has proceeded to hear the present bail application.
Perused the record.
This application has been filed by the applicant Monu @ Mukesh seeking his enlargement on bail in Case Crime No. 171 of 2018 under Sections 323, 504, 498- A, 304-B I.P.C. and Sections 3/4 D.P. Act, Police Station Moth, District Jhansi, during the pendency of the trial in the above mentioned case crime number.
From the record, it appears that the marriage of the brother of the applicant, namely, Bharat Tanay Prakash Kushwaha was solemnized with Uma on 7th May, 2017 in accordance with the Hindu Rites and Customs. However, just after the expiry of little more than one year from the date of marriage of the brother of the applicant, an unfortunate incident occurred on 10th June, 2018, in which, the Bhabhi of the applicant died. The inquest of the body of the deceased was conducted on 11th June, 2018 in the Mortuary of the District Hospital, Jhansi. The Panch witnesses concluded that the death of the deceased was suicidal. The post-mortem of the body of the deceased was conducted on 11th June, 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 and therefore, the viscera of the deceased was preserved. The Doctor further noted that no external injury was found on the body of the deceased. The viscera report of the deceased dated 5th July, 2018 has been brought on record, which is at page 4 of the short counter affidavit filed today on behalf of the State. According to the viscera report of the Chief Chemical Analyst, no foreign element was found in the body of the deceased. A first information report in respect of the aforesaid incident was lodged on 11th June, 2018 by the father of the deceased. The same came to be registered as Case Crime No. 0171 of 2018 under Sections 323, 504, 498-A, 304-B I.P.C. and Sections 3/4 D.P. Act, Police Station Moth, District Jhansi. In the aforesaid first information report, as many as seven persons, namely, Bharat the husband, Prakash the father-in-law, Smt. Dhakeli the mother-in- law, Halke @ Man Singh the cousin father-in-law, Smt. Kranti the cousin mother-in-law, Rajani the Nanad and Sonu the Devar i.e the present applicant herein of the deceased were nominated as the named accused persons. The Police, upon completion of the statutory investigation of the aforesaid case crime number, in terms of Chapter XII Cr.P.C., has submitted a charge- sheet dated 6th July, 2018. Upon submission of the charge-sheet dated 6th July, 2018, the congnizance was taken by the court concerned vide Cognizance Taking Order dated 21st July, 2018. What has happened subsequent to the passing of the Cognizance Taking Order dated 21st July, 2018 has not been detailed in the affidavit filed in support of the present bail application nor the learned counsel for the complainant is able to address the Court on the said issue.
Learned counsel for the applicant submits that the applicant is the unmarried Dever of the deceased. The applicant is a young man. He has no criminal antecedents to his credit except the present one. He is in jail since 4th July, 2018. Placing reliance upon the post-mortem report dated 11th June, 2018 as well as viscera report of the deceased dated 5th July, 2018 submitted by the Chief Chemical Analyst, learned counsel for the applicant submits that the death of the deceased is natural. Firstly, no external injury was found on the body of the deceased as per the post- mortem report and secondly, no foreign substance was found in the body of the deceased as per the report of the Chief Chemical Analyst. Consequently, no presumption under Section 304-B I.P.C. can be drawn against the applicant. On the cumulative strength of the aforesaid submissions, the learned counsel for the applicant submits that the present 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. They submit that in the statements of the witnesses recorded under Section 161 Cr.P.C. by the Investigating Officer, prima facie implicate the applicant. Therefore, the applicant is not liable to be enlarged on bail. However, the legal and factual submissions raised by the learned counsel for the applicant could not be disputed by the learned A.G.A. and the learned counsel for the complainant.
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 Monu @ Mukesh 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 :- 30.10.2018 Sushil/-