Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45055 of 2018 Applicant :- Smt. Samundari Opposite Party :- State Of U.P.
Counsel for Applicant :- Chandra Prakash Garg Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Chandra Prakash Garg, learned counsel for the applicant and the learned A.G.A. for the State.
This bail application has been filed by the applicant Smt. Samundari seeking hir enlargement on bail in Case Crime No. 150 of 2018 under Sections 304B IPC, PS Naraini, District Banda.
From the record it appears that initially an FIR dated 13.8.2018 was lodged by Vivek Kacher (the brother of the deceased) which was registered as Case Crime No. 0150 of 2018 under Sections 498A, 307 IPC and sections 3/4 of D.P. Act, Police Station Naraini, District Banda. The applicant who is the mother-in-law of the deceased was enlarged on bail under the aforesaid sections vide order dated 24.9.2018 by this Court. For ready reference the order dated 24.9.2018 is quoted hereinasunder:-
"Supplementary affidavit filed today by learned counsel for the applicant is taken on record.
Heard Sri Chandra Prakash Garg, learned counsel for the applicant, Sri Abhinav Prasad, learned AGA for the State and perused the material brought on record.
It is contended by learned counsel for the applicant that applicant is a lady aged about 75 years and is the mother-in-law of the accused. It is next contended that applicant is a patient of Bronchitis and has been falsely implicated in the present case due to ulterior motive. Applicant has not committed the alleged offence and there is no independent witness of the alleged incident. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed forth before the Court. Further submission is that applicant who is in jail since 13.8.2018, has no other criminal history and there is also no possibility of her either fleeing away from the judicial process or tampering with the witnesses. Applicant also undertakes that she will not misuse the liberty, if granted.
Learned A.G.A. has vehemently opposed the prayer.
Having heard the submissions of learned counsel of both sides, nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment, and larger mandate of the Article 21 of the Constitution of India, the dictum of Apex Court in the case of Dataram Singh v. State of U.P. and another, reported in (2018) 2 SCC 22 and without expressing any opinion on the merit of the case, I find it to be a case of bail.
Let applicant Smt. Samundari wife of Late Chunbad, be released on bail in Case Crime No. 150 of 2018, under Sections-498-A, 307 IPC and 3/4 of D.P.Act, Police Station- Naraini, District- Banda, on her furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-
(i) The applicant will co-operate with the trail and remain present personally on each and every date fixed after release. (ii) The applicant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever. (iii) The applicant will not indulge in any unlawful activities. (iv) The applicant will not misuse the liberty of bail in any manner whatsoever.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison."
Subsequently, during the course of the investigation as the victim died, the case was converted under Section 304B IPC. Consequently, the present applicant has filed the present bail application. Learned counsel for the applicant submits that the applicant, who is the mother-in-law of the deceased is an old woman aged about 70 years as is evident from the Aadhar Card of the deceased, copy of which has been brought on record, by means of a supplementary affidavit filed today in court. The applicant has no criminal antecedents to her credit except the present one. The husband of the deceased is the only child of the applicant, who is working in Gujarat and for the welfare of the present applicant, the son of the applicant had detained his wife at the place of occurrence. On the aforesaid factual premise, it is urged that considering the age of the present applicant no role of even abetment can be said to have been committed by the present applicant. It is thus urged that the present applicant is liable to be enlarged on bail.
Per contra the learned A.G.A. has opposed the prayer for bail on the ground that the applicant has now been charged for an offence under Section 304B, as the occurrence has taken place within 7 years of the marriage. The applicant has failed to discharge her burden, which is required to be discharged in respect of an offence punishable under Section 304B, particularly when presumption is available to the prosecution. However, learned AGA would not dispute the factual and legal submissions raised 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.
Let the applicant-Smt. Samundari 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 :- 27.11.2018 Ravi Kant