Court No. - 65
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 46150 of 2019 Applicant :- Munna Harijan Opposite Party :- State of U.P. Counsel for Applicant :- Akhil Ranjan Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Akhil Ranjan, learned counsel for applicant and learned A.G.A. for State.
Perused the record.
This application for bail has been filed by applicant Semu seeking his enlargement on bail in Case Crime No.138 of 2016, under Sections 498-A, 304-B IPC and Sections 3/4 Dowry Prohibition Act, Police Station Barhalganj, District Gorakhpur, during pendency of Sessions Trial No. 365 of 2016 (State Vs. Munna and others), arising out of above mentioned case crime number and now pending in the Court of Additional District and Sessions Judge, Court No. 5, Gorakhpur.
It transpires from record that marriage of Munna Harijan was solemnized with Urmila in the month of May, 2013. After expiry of a period of approximately 1 year and 6 months from the date of marriage of applicant with Urmila a son was born in the year 2014-15. Just after expiry of a period of approximately three years from the date of marriage of applicant with Smt. Urmila, an unfortunate incident occurred on 26.4.2016, in which the wife of applicant namely Smt. Urmila along with her minor son died on account of burn injuries. No information regarding aforesaid incident was given by applicant or any of his family members at the concerned police station. The F.I.R. in respect of aforesaid incident was lodged by first informant Babu Ram, father of the deceased, which was registered as Case Crime No.138 of 2016, under Sections 498-A, 304-B IPC and Sections 3/4 Dowry Prohibition Act, Police Station Barhalganj, District Gorakhpur. In the aforesaid F.I.R. four persons namely Sunil, brother-in-law, Srikant, father-in-law, Indrawati, mother- in-law, and Munna, husband of deceased (applicant herein) have been nominated as named accused. Subsequent to aforesaid F.I.R., inquest of the body of the deceased was conducted on same day. No definite opinion was formed by panch witnesses regarding nature of the death and they further stated that postmortem may be conducted to ascertain the exact cause of death of deceased. The postmortem of the body of the deceased was conducted on 27th April, 2016. In the opinion of Autopsy Surgeon, cause of death of Smt. Urmila Devi and her minor son Jigar was defined as ante-mortem burn injuries. The Autopsy Surgeon did not find any ante mortem injury on the body of the deceased Smt. Urmila Devi as well her minor son.
Investigating Officer upon completion of statutory investigation of the aforesaid case crime number in terms of Chapter XII Cr.P.C. ultimately submitted a charge-sheet dated 16.05.2016, whereby one of the named accused namely Sunil was exculpated, whereas three other named accused have been charge sheeted under Section 498-A, 304 B IPC and Sections 3/4 Dowry Prohibition Act.
Upon submission of aforementioned charge sheet, cognizance was taken upon same by Court concerned. As the offence complained of is triable by Court of Sessions, accordingly, concerned Magistrate committed the case to the Court of Sessions. Resultantly, Sessions Trial No. 365 of 2016 (State Vs. Munna and others), Sections 3/4 Dowry Prohibition Act, Police Station Barhalganj, District Gorakhpur, came to be registered.
Trial commenced. Charges were framed against charge sheeted accused, who denied the same. Consequently, burden fell upon prosecution to lead evidence to prove the charges so framed. Prosecution in discharge of aforesaid burden has adduced three witnesses i.e. P.W. 1 Babu Ram, P.W. 2 Phoolmati Devi, P.W. 3 Kaushalya Dev upto this stage. Their statements in chief and examination-in-chief have been brought on record by means of first supplementary affidavit and second supplementary affidavit.
Learned counsel for applicant contends that even though applicant is husband of the deceased, he is innocent. Applicant has been falsely implicated in above mentioned case crime number. Applicant is in jail since 1.5.2016. As such, applicant has undergone a period of 5 years, 7 months and 15 days of incarceration. It is then submitted that deceased was a short tempered lady and she had taken the extreme step of committing suicide by immolating herself along the minor son of the applicant. On the aforesaid premise, it is urged that no motive can be attached to the applicant in committing aforesaid crime against his wife and his minor son.
Learned counsel for applicant has then invited attention of the Court to the statement of the three prosecution witnesses who have been examined upto this stage. On the basis of same, learned counsel for applicant contends that no explanation has been offered by the prosecution witnesses with regard to the immolation of minor son by applicant. The testimony of three prosecution witnesses examined upto this stage is totally silent in that regard. Allegation with regard to the demand of dowry has been made only to give colour to the prosecution story. There is nothing on record to show that relationships in between the applicant and deceased were not cordial prior to the above occurrence or physical and mental cruelty was committed upon deceased on account of failure to fulfil additional demand of dowry as alleged in F.I.R.
Learned counsel for applicant has then invited attention of Court to the various statements of villagers examined by Investigating Officer under Section 161 Cr. P. C. in support of the fact that applicant was not present at the time and place of occurrence i.e. the house of the applicant. It is lastly submitted that in spite of the fact that a period of more than 5 years has rolled by, trial has not yet been concluded. Placing reliance upon judgement of Supreme Court in A. R. Antulay Vs. R.S. Nayak and another, 1988 AIR 1531, learned counsel for applicant contends that right to speedy trial is a fundamental right. There is nothing on record to show that applicant is responsible for delay in conclusion of trial. On the aforesaid premise, learned counsel for applicant submits that applicant is liable to be enlarged on bail.
Per contra, the learned A.G.A. for the State has opposed the present application for bail.
Having heard learned counsel for applicant, learned A.G.A. for the state and upon perusal of material brought on record, nature of offence, evidence, complicity of the accused and accusation made against applicant but without expressing any opinion on merits of the case, I am of the view that applicant has made out a case for bail. Accordingly, bail application is allowed.
Let the applicant Munna Harijan involved in aforesaid case crime number, be released on bail on his
(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.
The party is permitted to file a computer generated copy of this order downloaded from the official website of Allahabad High Court before the court concerned, who shall verify the authenticity of such computerized copy of the order from the official website of Allahabad High Court and shall make a declaration of such verification in writing.
Order Date :- 16.12.2021 HSM