Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45816 of 2017 Applicant :- Sunesh Opposite Party :- State Of U.P.
Counsel for Applicant :- Kaushalendra Nath Singh,Romeshwari Prasad Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Romeshwari Prasad, the learned counsel for the applicants, learned A.G.A. for the State and perused the material on record.
This application has been filed by the applicant Sunesh seeking his enlargement on bail in Case Crime No. 228 of 2017 under Section 306 I.P.C., Police Station Rajapur, District Chitrakoot during the pendency of the trial in the above mentioned case crime number.
From the record, it appears that marriage of the applicant was solemnized with Munni Devi in the 2004-2005. From the wedlock of the applicant and deceased, two children, namely, Krishan Kumar aged about 10 years and Ram Kali aged about 7 years were born. After expiry of a period of 12 years from the date of marriage of the applicant, an unfortunate incident occurred on 23rd May, 2017 in which the wife of the applicant died by committing suicide. The inquest of the body of the deceased was conducted on the information not given by the applicant or any of his family members but by the brother of the deceased. In the opinion of the Panch witnesses, the death of the deceased was said to be suicidal. The postmortem of the deceased was conducted on 23rd May, 2017. The Doctor, who conducted the autopsy on the body of the deceased, opined that the cause of the death of the deceased was Asphyxia due to ante mortem hanging. No other external or internal injuries were found on the body of the deceased. A first information report in respect of the aforesaid incident was lodged on 22nd June, 2017 i.e. one month after the date of occurrence by the brother of the deceased. The same was registered as Case Crime No. 0228 of 2017 under Section 306 I.P.C., Police Station Rajapur, District Chitrakoot. In the aforesaid first information report, as many as five persons namely, Sunesh the husband i.e the applicant herein, Leelawati the Jethani, Shiv Mohan the father-in-law, Suraj the nephew, Kamlesh the Jeth of the deceased were nominated as the named accused while the mother-in-law was nominated as unnamed accused. The Police upon completion of the statutory investigation of the above mentioned case crime number in terms of Chapter XII Cr.P.C., has submitted a charge-sheet dated 16th December, 2017 against two of the accused persons, namely, Sunesh the husband i.e. the applicant herein and Leelawati the Jethani of the deceased. What has happened subsequent to the submission of the aforesaid charge-sheet dated 16th December, 2017 is not known to the learned counsel for the applicant.
Learned counsel for the applicant submits that the applicant is a young man aged about 35 years. He has no criminal antecedents to his credit except the present one. The applicant is in jail since 20th August, 2017. It is further submitted that From the wedlock of the applicant and deceased, two children, namely, Krishan Kumar aged about 10 years and Ram Kali aged about 7 years were born. In the aforesaid circumstances, in cannot be even presumed that the applicant would abet in the commission of the alleged crime. It is further submitted that upto 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. The proof of the charge under Section 306 I.P.C. is subject to trial evidence as it can be established only by the evidence which is produced at the time of trial. On the cumulative strength of the aforesaid submissions, it is urged by the elarned counsel for the applicant that the applicant is liable to be enlarged on bail.
Per contra, the learned A.G.A. and the learned counsel for the complainant have opposed the prayer for bail of the applicant. They submit that in the statements of the witnesses recorded under Section 161 Cr.P.C. by the Investigating Officer, prima facie implicate the applicant. However, the legal and factual submissions raised by the learned counsel for the applicant could not be disputed by the learned A.G.A. and the learned counsel for the complainant.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, 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 Sunesh 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.
(Rajeev Misra, J.) Order Date :- 29.10.2018 Sushil/-