Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 36926 of 2018 Applicant :- Rajesh Sharma Opposite Party :- State Of U.P.
Counsel for Applicant :- Santosh Kumar Mishra,Rajesh Kumar Dubey Counsel for Opposite Party :- G.A. and Case :- CRIMINAL MISC. BAIL APPLICATION No. - 36927 of 2018 Applicant :- Dashrath Sharma Opposite Party :- State Of U.P.
Counsel for Applicant :- Santosh Kumar Mishra,Rajesh Kumar Dubey Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Santosh Kumar Mishra, Advocate alongwith Mr. Rajesh Kumar Dubey on behalf of the applicants in both the bail applications and the learned A.G.A. for the State.
These two applications for bail have been filed by the respective applicants, namely, Rajesh Sharma and Dashrath Sharma seeking their enlargement on bail in Case Crime No. 122 of 2018 under Sections 323, 306, 506 I.P.C, Police Station- Madanpur, District-Deoria during the pendency of the trial.
From the record, it appears that an unfortunate incident occurred on 16.06.2018, in which a minor boy, namely, Ramu who is said to be aged about 11 years, died. The inquest of the body of the deceased was conducted on 16th June, 2018 on the information given by the Village Chaukidar. In the opinion of the Panch witnesses, cause of death of the deceased was said to be suicidal. The post- mortem of the body of the deceased was conducted on 17th June, 2018. The Doctor, who conducted the autopsy on the body of the deceased, opined that the cause of death of the deceased was due to ante-mortem hanging. Eleven days after the date of occurrence, the first information report in respect of the aforesaid incident was lodged on 27th June, 2018 by the mother of the deceased, which came to be registered as Case Crime No. 0122 of 2018 under Sections 302 and 506 I.P.C., Police Station- Madanpur, District-Deoria.
In the aforesaid F.I.R., four persons, namely, Dhoopchand Sharma, Rajesh Sharma (the applicant herein), Dashrath Sharma (the applicant herein) and Brij Mohan were nominated as named accused. According to the allegatins made in the F.I.R., the nominated accused persons have committed the murder of the son of the first informant. During the course of investigation of the aforesaid case crime number, the Investigating Officer recorded the statement of various witnesses including the first informant under Section 161 Cr.P.C. The statement of the first informant is on record at page 30 of the paper book. The said statement of the first informant enumerated a new story, which is different from that of the allegations made in the F.I.R.. The Police, upon completion of the statutory investigation of the aforesaid case crime number in terms of Chapter XII Cr.P.C., submitted a charge-sheet dated 24.07.2018 against three named accused persons. One of the named accused, namely, Brij Mohan was excluded in the charge-sheet so submitted. According to the learned counsel for the applicants, upon submission of the charge- sheet, cognizance was taken by the court concerned but what happened subsequent thereto, has not been detailed in the affidavit accompanying the bail application.
Learned counsel for the applicants submits that initially the first finormation report was lodged against the applicants and two others under Section 302 I.P.C but the charge-sheet has been submitted under Section 323, 306 and 506 I.P.C. The offence under Section 306 I.P.C. can only be proved by the trial evidence. He further submits that the applicant-Rajesh Sharma is aged about 35 years whereas the applicant-Dashrath Sharma is aged about 42 years and both the applicants have no criminal antecedent to their credit except the present one. The applicants are in jail since 12.07.2018. It is also contended that upto this stage, there is no such evidence on record on the basis of which it can be said that the applicants have aided, conspired or instigated in the commission of the alleged crime. On the cumulative strength of the aforesaid, it urged that the applicants are liable 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 the legal submissions made by the learned counsel for the applicants.
Having heard the learned counsel for the applicants, learned A.G.A. for the State and upon consideration of the evidence on record as well as the complicity of the applicants but without expressing any opinion on merits of the case, I am of the view that the applicants have made out a case for bail. Accordingly, the bail applications of the applicants are allowed.
Let the applicants-Rajesh Sharma and Dashrath Sharma be released on bail in the aforesaid case crime number on furnishing their personal bond each 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 applicants shall file an undertaking to the effect that they 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 applicants shall remain present before the trial court on each date fixed, either personally or through their counsel. In case of their absence, without sufficient cause, the trial court may proceed against them under section 229-A I.P.C..
(iii) In case, the applicants misuse the liberty of bail during trial and in order to secure their presence proclamation under section 82 Cr.P.C., may be issued and if applicants fail to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against them in accordance with law, under section 174-A I.P.C.
(iv) The applicants 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 applicants 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 them 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 applicants.
However, it is made clear that any wilful violation of above conditions by the applicants, shall have serious repercussion on their bail so granted by this court and the trial court is at liberty to cancel their bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Order Date :- 30.10.2018 YK