Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 34508 of 2018 Applicant :- Sachin Opposite Party :- State Of U.P.
Counsel for Applicant :- Sushil Kumar Pandey,Rakesh Kumar Pandey Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard learned counsel for the applicant, learned AGA and perused the record.
Perusal of the allegations made in the text of the FIR reveals that on the instigation of the applicant, the victim consumed poison. Elaborating the contention of the FIR, it has been mentioned therein that in front of him (complainant) the accused persons, provoked his sister (now deceased) by exhorting her that if she had any ignominy she shall die. Upon such an abetment committed by the accused persons, the victim committed suicide.
Contention raised at the Bar is that the applicant, who happens to be brother-in-law (Devar) of the deceased, has been falsely implicated, under section 306 IPC.
It is argued by learned counsel for the applicant that the victim herself wanted to live separately from the family of her husband and was rapaciously keen to apportion the land and house against the desire of her husband and in that distressed situation, she might have committed suicide. To buttress his argument, learned counsel for the applicant placed reliance on the principles enunciated in the case of Sanju alias Sanjay Singh Sengar v. State of M.P. [(2002) 5 Supreme Court Cases 371]. The relevant paragraph 12 of the aforesaid case is being enumerated herein below:
"Even if we accept the prosecution story that the appellant did tell the deceased 'to go and die', that itself does not constitute the ingredient of 'instigation'. The word 'instigate' denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotional."
Therefore, relying upon the principles enunciated in the case of Sanju v. State of M.P. (Supra), does not fall within the ambit of section 306 IPC, as the words alleged to be uttered by the accused persons seems to have no mens rea.
It has lastly been urged that the the applicant is in jail since 25.06.2018, without any criminal antecedents to his credit, therefore, he is liable to be enlarged on bail.
Learned AGA opposed the prayer for bail but could not dispute the aforesaid facts and the legal submissions as argued by the learned counsel for the applicant.
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, this Court is of the view that the applicant has made out a case for bail.
Let the applicant Sachin, involved in Case Crime No. 322 of 2018, under section 306 IPC, P.S. Dhaulana, District Hapur be released on bail 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 IPC.
(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 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 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.
Order Date :- 18.9.2018 shailesh