Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 36945 of 2018 Applicant :- Nazim Opposite Party :- State Of U.P.
Counsel for Applicant :- Manish Joshi Counsel for Opposite Party :- G.A.,Keshari Nath Tripathi
Hon'ble Rajeev Misra,J.
Heard Mr. Manish Joshi, learned counsel for the applicant and learned A.G.A. for the State.
Supplementary affidavit filed by the applicant today in Court is taken on record.
This application for bail has been filed by the applicant-Nazim seeking his enlargement on bail in Case Crime No. 134 of 2018 under Section 306 I.P.C., P.S.-Mainather, District-Moradabad, during the pendency of the trial.
Perused the record.
It transpires from the record that the marriage of the applicant was solemnized with Nurul Nisha on 10.05.2010 in accordance with the Muslim Rites and Customs. From the aforesaid wedlock a daughter, namely, Isha and a son were born. Both are minors as they are aged about six years and two years, respectively. However, after the expiry of a period of about eight years from the date of marriage of the applicant, an unfortunate incident occurred on 13.05.2018, in which the wife of the applicant died as she committed suicide by hanging herself. The inquest of the deceased was conducted on the same day, i.e., on 13.05.2018 not on the information given by the applicant or any of his family members but on the information given by one Gokul i.e., Village Chaukidar. In the opinion of the Panch witnesses, the death of the deceased was characterised as suicidal. The post-mortem of the body of the deceased was conducted on 13.05.2018. The Doctor, who conducted the autopsy on the body of the deceased, opined that the cause of death of the deceased was asphyxia as a result of ante-mortem hanging. However, no external ante-mortem injury was wound on the body of the deceased. The first information report in respect of the aforesaid incident was lodged belatedly after three days of the occurrence, i.e., on 16.05.2018 by Mohd.
Navi, the father of the deceased, which came to be registered as Case Crime No. 0134 of 2018 under Section 302 I.P.C., P.S.-Mainather, District- Moradabad.
In the aforesaid F.I.R., four persons, namely, Masitan-mother-in-law, Nazim-Husband, Nasir-Devar and Parvin-Nanad of deceased were nominated as named accused. 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 15.08.2018 against all the named accused. Upon submission of the aforesaid charge-sheet dated 15.08.2018, cognizance has been taken by the court concerned vide cognizance taking order dated 20.08.2018. What has happened subsequent to the passing of the Cognizance Taking Order dated 20.08.2018 has not been detailed in the affidavit accompanying the present bail application nor the same has been disclosed by the learned counsel for the applicant at the time of the hearing of the present bail application. However, learned counsel for the applicant very fairly submits that the other three co- accused have already been enlarged on bail vide orders dated 12.10.2018, 24.10.2018 and 27.10.2018 Learned counsel for the applicant submits that the applicant is the husband of the deceased but he is innocent. The applicant is in Jail since 23.05.2018. The applicant has no criminal antecedents to his credit except the present one. It is then submitted that F.I.R. was initially lodged under Section 302 I.P.C but subsequently, the case was converted under Section 306 I.P.C. The proof of charge under Section 306 I.P.C. is subject to trial evidence. Upto this stage, there is no evidence to show that there is any aid, instigation or conspiracy on the part of the present applicant in the commission of the alleged crime. In short, the submissions is that the applicant is being prosecuted for an un-abeted offence. Looking into the precarious family condition of the applicant, it is impossible to believe that the present applicant shall abet in the commission of the above mentioned crime involving his own wife when there are two minor children aged about six years and two years respectively. It is lastly submitted that similarly situated three co-accused have already been enlarged on bail by this Court. On the aforesaid factual premise, it is vehemently urged that the present applicant is also liable to be enlarged on bail.
Per contra, the learned AGA and the learned counsel for the complainant have opposed the prayer for bail. They submit that the applicant is a charge-sheeted accused and therefore, the bail application of the applicant is liable to be rejected. However, they could not dispute the factual and legal submission 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-Nazim 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 :- 21.12.2018 YK