Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45077 of 2018 Applicant :- Subedar Opposite Party :- State Of U.P.
Counsel for Applicant :- Raj Kumar Mishra Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Raj Kumar Mishra, learned counsel for the applicant and the learned A.G.A. for the State.
This bail application has been filed by the applicant Subedar, seeking his enlargement on bail in Case Crime No. 0354 of 2018, under Sections 498A, 306 IPC, P.S. Kokhraj, District Kaushambi, during the pendency of the trial.
From the record, it appears that the marriage of the applicant was solemnized with Aarti in the year 2005. From the aforesaid wedlock, three children namely Aanchal, Saurav and Gaurav are said to be born, who are still minors. After the expiry of a period of more than 13 years from the date of marriage of the applicant, an unfortunate incident occurred on 1.7.2018, in which the wife of the applicant died as she committed suicide by hanging herself. The inquest of the body of the deceased was conducted on 02.7.2018, on the information given by the present applicant himself. In the opinion of the Panch witnesses, the death of the deceased was characterized as suicidal. The post mortem of the body of the deceased was conducted on 2.7.2018. The Doctor, who conducted the autopsy on the body of the deceased opined that the deceased has died on account of asphyxia, as a result of ante-mortem hanging. Except for the ligature mark no other external ante-mortem injury was found on the body of the deceased.
The F.I.R. in respect of the aforesaid incident was lodged on 4.7.2018 by the father of the deceased namely, Ram Sagar Mishra, which was registered as Case Crime No. 0354 of 2018 under Section 302 IPC, P.S. Kokhraj, District Kaushambi. In the aforesaid F.I.R., four persons namely, Subedar (husband), Lalita Devi (mother-in-law), Malkhan (Jeth) and Sheela Devi (Jethani) of the deceased were nominated as named accused. The Police upon completion of the statutory investigation of the aforesaid case crime number, in terms of Chapter 12 Cr.P.C. has submitted a charge-sheet dated 10.8.2018 only against the husband i.e. applicant herein. What has happened subsequent to the submission of the charge-sheet has not been detailed in the affidavit accompanying the bail application, nor the same has been disclosed by the learned counsel for the applicant at the time of hearing of the present bail application.
Learned counsel for the applicant submits that the applicant is the husband of the deceased, yet he is innocent. The applicant is in jail since 5.7.2018. The applicant has no criminal antecedent to his credit except the present one. The marriage of the applicant was solemnized with the deceased in the year 2005 and the applicant and the deceased had a happy married life of almost 13 years. During this interregnum no complaint was ever made by the wife to her parents with regard to the commission of any physical or mental cruelty upon the deceased. It is then submitted that from the wedlock of the applicant and the deceased three children were born, who are still minors. Looking into the precarious condition of the family life of the applicant, it is impossible to suggest that the applicant shall abet in the commission of alleged crime. It is lastly urged that the proof of charge under section 306 IPC is subject to trial evidence up to at this stage there is no evidence, on the basis of which, it can be said that the applicant has aided, conspired or instigated in the commission of the alleged crime. On the strength of the aforesaid factual foundation, it is thus urged that the applicant is liable to be enlarged on bail.
Per contra, the learned A.G.A. has opposed the prayer for bail. 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 and the learned A.G.A. for the State and upon perusal of the material brought on record as well as the complicity of the applicant and without making any comment on the merits of the case, I find that applicant has made out a case for bail.
Let the applicant Subedar, 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/SHE 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/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, 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 THE HIM/HER 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/her 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