Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11166 of 2021 Applicant :- Susheel Kushwaha Opposite Party :- State of U.P.
Counsel for Applicant :- Mritunjay Singh,Phool Singh Yadav Counsel for Opposite Party :- G.A.,Chandra Narayan Mishra
Hon'ble Samit Gopal,J.
Heard Sri Phool Singh Yadav, learned counsel for the applicant, Sri Chandra Narayan Mishra, learned counsel for the first informant and Sri Bade Lal Bind, learned A.G.A. for the State and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Susheel Kushwaha, seeking enlargement on bail during trial in connection with Case Crime No. 42 of 2021, under Section 306 I.P.C., registered at Police Station Rasoolabad, District Kanpur Dehat.
Learned counsel for the applicant argued that the applicant is named in the first information report and the alleged suicide note, the copy of which is annexed as Annexure-6 to the affidavit in support of bail application but there is no instigation, abetment, mens-rea and motive of the applicant to commit the aforesaid offence. It is argued that the suicide note, only speaks of the fact that the applicant has done wrong by going to the house of one Amir who is also a co-accused as per the first information report due to which the deceased has thought that something wrong can happen to her. It is argued that the same does not fall within the parameter of Section 306 I.P.C. It is argued that the implication of the applicant is thus false and incorrect. Learned counsel has argued that the deceased committed suicide and died which is suggestive from the postmortem report, wherein, the doctor has found a ligature mark only on her body but has separate out the ligature mark into seven different points in the column of antemortem injuries but the same are not seven injuries but only a single ligature mark which has been detailed in seven points. Further the cause of death has been opined as Asphyxia due to antemortem hanging.
It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required. It has also been pointed out that the applicant is not having any criminal history as stated in para 19 of the affidavit and he is in jail since 26.01.2021 and there is no likelihood of early conclusion of trial and hence, the applicant may be released on bail during pendency of trial.
Learned A.G.A. and learned counsel for the first informant have vehemently opposed the prayer for bail and argued that the deceased was a 15 year old girl who committed suicide. It is argued that the suicide note, names the applicant as a person due to whom the deceased committed suicide and as such, the implication of the applicant is there in the case.
After having heard the learned counsel for the parties and perusing the record, it is apparent that the ingredients of Section 306 I.P.C. are missing. There is no abetment and instigation of any kind by the applicant which has any nexus with the death of the deceased, the applicant has no mens-rea at all, there is no overt act whatsoever of the applicant, which resulted in the death of the deceased, the applicant has no motive at all to commit the aforesaid offence.
Looking to the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.
Let the applicant- Susheel Kushwaha, 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) 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.
(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. 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.
(v) 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 and the trial court may proceed against him under Section 229-A IPC.
(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.
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. The bail application is allowed.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 27.7.2021 AS Rathore (Samit Gopal,J.)