HIGH COURT OF JUDICATURE OF ALLAHABAD

Criminal Misc. III Bail Application no. 20204 of 2005

Smt. Kamla Devi . . . . . Vs. . . . . . . . State.

Hon’ble R.K. Rastogi,J.

Applicant, Smt.Kamla Devi has applied for bail in case crime no. 18 of 2008 under sections 498A, 304B, I.P.C. and ¾ of the Dowry Prohibition Act of police station Raya district Mathura. This is third bail application of the applicant. Her first Bail Application no. 7404 of 2005 was rejected by me on merits vide order dated 25.4.2005. Thereafter she moved second Bail Application no. 8733 of 2005. It was also rejected on 20.5.2005 as no fresh ground for bail had been made out. The learned counsel for the applicant had, however, submitted before me at that time that since the charge sheet has been submitted in the case, a direction should be issued for its early disposal. At that time I had passed an order directing the sessions court to try this case on priority basis taking into consideration the provisions of section 309 Cr.P.C. and it was also ordered that endeavor should be made to complete the trial of the case within a period of three months from the date of filing of the certified copy of this order . It was further provided that the accused shall co-operate in the speedy trial of the case and if the trial is not completed within a period of three months for no fault of the accused, the applicant may move a fresh bail application in this Court. This order was passed on 20.5.2005. Certified copy of this order was filed in the court of the Magistrate where the case was pending for commitment on 13.6.2005. The trial of the case has not yet been completed and so the applicant has moved this third bail application on the ground that in view of the observations made in the order passed in Bail Application no. 8733/ 2005, she should be bailed out.

The prosecution has opposed this bail application and has asserted that the case was being delayed from the side of the accused and so there was no justification for grant of bail to the applicant.

Copies of the order sheets of the court of the Magistrate as well as of the Sessions court have been filed in this bail application. A perusal of the same goes to show that after filing of the certified copy of order dated 20.5.2005 on 13.6.2005 before the Magistrate, the case could not be committed to the court of Sessions upto 25.7.2005 due to absence of the co-accused Guddi, who is daughter of the present applicant and had been granted bail in the case. She appeared in the court on 28.7.2005 and then the case was committed to the court of sessions on that date. Hence, the accused can be blamed for this delay of one and half months in disposal of the case but after commitment of the case to the court of sessions there has not been any delay from the side of the accused and the record goes to show that the prosecution has been seeking adjournments in the case and so even after excluding the period upto July, 2005, the position is that the period of more than 4 ½ months has expired and only one witness named Devi Prasad P.W.1, who is father of the deceased, has been examined but he did not support the prosecution case and he was declared hostile by the prosecution. It was submitted by the learned counsel for the applicant that under these circumstances bail should be granted to the applicant.

The learned A.G.A. has opposed the bail application. He contended that in this case there is direct evidence of dying declaration of the deceased and according to that dying declaration the accused applicant had caught hold of her daughter in law when husband of the deceased poured kerosene oil upon her and burnt her. He submitted that under these circumstances bail should not be granted to the applicant and it is immaterial that father of the deceased had turned hostile. Anyhow when the prosecution was relying upon the dying declaration of the deceased as main piece of evidence it could have summoned the witnesses to prove that dying declaration and could have completed the trial within a period of three months but when there has been no progress in the trial of the case except recording of statement of a hostile witness during the period of about 4 ½ months from the date when the case was committed to the court of sessions, I am of the view that the applicant is entitled to bail in accordance with my order dated 20.5.2005.

The bail application is, therefore, allowed.

Let the applicant Smt. Kamla Devi be released on bail in the aforesaid case on her executing a personal bond and furnishing two sureties each of the like amount to the satisfaction of the court where the case is pending for trial. It is, however, made clear that this order granting bail to the applicant, who is mother-in-law of the deceased, shall not be considered to be a ground for bail to the husband of the deceased who is the main accused in the case and who had allegedly committed her murder by pouring kerosene oil upon her and then burning her.

Dated:20.12.2004

RPP