Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38259 of 2018 Applicant :- Shailendra Yadav Opposite Party :- State Of U.P.
Counsel for Applicant :- Gaurav Singh,Abhishek Singh,Apul Misra Counsel for Opposite Party :- G.A.,Ashutosh Pratap Singh
Hon'ble Rajeev Misra,J.
Heard Mr. Apul Misra Advocate alongwith Mr. Gaurav Singh, Advocate on behalf of the applicant and learned A.G.A. for the State.
Rejoinder affidavit filed on behalf of the applicant to the counter affidavit filed by the learned A.G.A in Court today is taken on record.
This application for bail has been filed by the applicant- Shailendra Yadav seeking his enlargement on bail in Case Crime No.111 of 2018 under Sections 498A, 323, 306 I.P.C. and Section 3/4 Dowry Prohibition Act, Police Station-Babupurwa, District-Kanpur Nagar during the pendency of the trial.
From the record, it appears that the marriage of the applicant-Shailendra Yadav was solemnized with Jyoti Yadav on 11.03.2003 in accordance with Hindu Rites and Customs. From the aforesaid wedlock, a son, namely Raj was born, who is aged about 14 years on date. After the expiry of a period of more than 15 years from the date of marriage of the applicant- Shailendra Yadav, an unfortunate incident occurred on 21.05.2018 at 11.50 PM in which the wife of the applicant became unconscious on account of having consumed some injurious substance. Immediately, the victim was admitted to the Regency Hospital, Kanpur City on 22.05.2018 but one hour later, she died. Upon the death of the victim, the information was given in respect of the same by means of a Memo submitted by the Guard of the Hospital to the concerned Police Station. As such, on the aforesaid information, the inquest of the body of the deceased was conducted on 23.05.2018. According to the Panch witnesses, the death of the deceased was said to be homicidal. The post-mortem of the body of the deceased was conducted on 23.05.2018. The Doctor, who conducted the autopsy on the body of the deceased, opined that the cause of death of the deceased could not be ascertained and therefore, the viscera was preserved. The first information report in respect of the aforesaid incident was lodged on 23.05.2018 by the brother of the deceased, namely, Arvind Singh, which came to be registered as Case Crime No. 0111 of 2018 under Sections 498A, 323 and 302 I.P.C., Police Station-Babupurwa, District-Kanpur Nagar.
In the aforesaid F.I.R., five persons, namely, Vijay Singh Yadav (the father-in-law), Ajit Singh and Shubham Yadav (the Devars), Shailendra Yadav (the husband), the applicant herein and Munni Yadav (the mother- in-law) of the deceased were nominated as named accused. The Police upon completion of the statutory investigation under Chapter XII Cr.P.C. of the aforesaid case crime number submitted a charge-sheet dated 26.07.2018 against four named accused persons. One of named accused persons, namely, Ajit Singh, the Devar of the deceased, was excluded in the charge-sheet so submitted. Upon submission of the charge-sheet, cognizance was taken by the court concerned vide cognizance taking order dated 24.07.2018. What happened subsequent to the cognizance taking order, has not been detailed in the affidavit accompanying the bail application or the rejoinder affidavit filed today.
Learned counsel for the applicant submits that the first information report was lodged against five persons under Section 498A, 323, 302 I.P.C. However, the Police upon investigation has submitted the charge sheet under Section 498A and 3/4 D. P. Act and therefore, after the expiry of a period of more than 15 years from the date of marriage of the applicant no offence under Section 498A or Sectiosn 3/4 D. P. Act can be said to have been committed by the applicant. It is further submitted that the proof of the charge under Section 306 I.P.C. is subject to trial evidence. It is also contended that in the statement of the witnesses recorded by the Investigating Officer under Section 161 Cr.P.C. particularly the son of the applicant namely, Raj Yadav, who has stated that the applicant was addicted to alcohol and on account of said bad habits, frequent quarrels used to take place between the applicant and the deceased. At this stage learned counsel for the applicant summits that the deceased was a short tempered lady and she has taken the extreme step of consuming insecticide. There is no such evidence on record upto this stage to suggest that the applicant has aided, conspired or instigated in the commission of the alleged crime. It is further submitted the applicant is in jail since 25.05.2018 having no criminal antecedents to his credit except the present one. On the aforesaid factual premise, it is urged that the applicant is 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 legal submissions 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-Shailendra Yadav 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 :- 30.10.2018/YK