Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41558 of 2018 Applicant :- Umesh @ Nanhey Opposite Party :- State Of U.P.
Counsel for Applicant :- R.P.S. Chauhan Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. R.P.S. Chauhan, learned counsel for the applicant, the learned A.G.A. for the State and Mr. Prabhat Pandey, Advocate who has put in appearance on behalf of the complainant by filing his Vakalatnama in Court today, which is taken on record.
This bail application has been filed by the applicant Umesh @ Nanhey seeking his enlargement on bail in Case Crime No. 199 of 2018, under Section 498A, 304B, and Section 3/4 Dowry Prohibition Act, Police Station-Bisauli, District-Budaun.
From the record, it appears that the marriage of the applicant was solemnized with Agresh Kumari in July, 2013. Just after the expiry of a period of a little more than three years from the date of marriage of the applicant an unfortunate incident occurred on 19.05.2018, in which the wife of the applicant died on 19.05.2018. The inquest of the body of the deceased was conducted on 19.05.2018 not on the information given by the applicant or by any family member of the applicant but by the father of the deceased. In the opinion of the Panch witnesses the nature of the death of the deceased could not be categorically defined. The post mortem of the body of the deceased was held on 19.05.2018. The doctor, who conducted the autopsy on the body of the deceased opined that the cause of death of the deceased cannot be ascertained and accordingly the viscera was preserved. Subsequently, the F.I.R. dated 19.05.2018 came to be lodged by the father of the deceased which was registered as Case Crime No. 199 of 2018, under Section 498A, 304B, and Section 3/4 Dowry Prohibition Act, Police Station-Bisauli, District-Budaun. In the aforesaid F.I.R. six persons namely, Umesh @ Nanhey (husband), Vidyawati (mother-in-law), Damodar (father-in-law), Somwati (Nanad), Pandu and Rajveer (Dewars) of the deceased were nominated as the named accused. The chief chemical analyst submitted the viscera report dated 16.07.2018. As per the viscera report, no foreign material was found in the body of the deceased. The police upon completion of the statutory investigation of the aforesaid case crime number, submitted a charge sheet dated 22.08.2018 only against the husband i.e. the present applicant. Upon submission of the charge sheet cognizance has been taken by the Court concerned vide cognizance taking order dated 04.09.2018.
Learned counsel for the applicant submits that the applicant is a young man. The applicant has no criminal antecedents to his credit except the present one and he is in jail since 27.06.2018. On the basis of the post mortem report as well as the viscera report pertaining to the deceased, it is urged by the learned counsel for the applicant that the death of the deceased is natural. Consequently, the applicant is not required to discharge the burden arising out of an offence under Section 304B I.P.C. The allegations with regard to the demand of dowry made in the F.I.R. have been engineered for the purpose of the present proceedings. The said allegations made in the F.I.R. are simply vague and general allegations without pin pointing the person from whom the said demand was raised. In the light of the facts and circumstances as noted herein above, it is vehemently urged by the learned 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. According to them, since the death of the deceased has occurred before the expiry of a period of seven years from the date of marriage of the applicant, therefore, the presumption is available in favour of the prosecution. As a result of the aforesaid, the applicant is under a heavy burden to explain the circumstances in which the death of the deceased has occurred but such circumstances have not been explained. It is thus submitted that no case for bail is made out. The bail application of the applicant is liable to be rejected. However, the legal and factual submissions raised by the learned counsel for the applicant could not be disputed by the learned A.G.A.
Having heard the learned counsel for the applicant, learned A.G.A. for the State and upon perusal of the material on record and 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- Umesh @ Nanhey 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 Rahul.