HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 28

Case :- CRIMINAL MISC. BAIL APPLICATION No. – 9173 of 2019

Applicant :- Fakir Chand

Opposite Party :- State of U.P.

Counsel for Applicant :- Vijay Shanker Singh,Kamla Singh

Counsel for Opposite Party :- G.A.,Anuj Chaudhary

Hon’ble Rajeev Misra,J.

Heard Mrs. Kamla Singh, learned counsel for applicant and learned A.G.A. representing opposite party No. 1.

This second bail application has been filed by applicant Fakir Chand for seeking his enlargement on bail in Case Crime No. 305 of 2018, under Sections 498-A, 304-B, 323, 504, 506 IPC and Sections 3/4 Dowry Prohibition Act, P.S. Seohara, District Bijnor during the pendency of trial.

First bail application of applicant was rejected by Court by a detailed order dated 14.11.2018, which is reproduced herein below:-

“Heard Mr. Krishna Dutt Tiwari, learned counsel for the applicant, the learned A.G.A. for the State and Mr. Anuj Chaudhary, learned counsel for the complainant who has put in appearance by filing his Vakalatnama in Court today, which is taken on record.

This application for bail has been filed by the applicant Fakeer Chand seeking his enlargement on bail in Case Crime No. 0305 of 2018 under Sections 498A, 304B, 323, 504, 506 I.P.C., and Section 3/4 Dowry Prohibition Act, Police Station-Seohara, District-Bijnor during the pendency of the trial.

Perused the record.

From the record, it appears that the marriage of the son of the applicant namely, Rahul Yadav was solemnized with Smt. Pooja Yadav on 23.04.2017. Just after the expiry of a period of one year, one month and 13 days from the date of marriage of the son of the applicant, an unfortunate incident occurred 06.06.2018, in which the daughter-in-law of the applicant namely, Pooja Yadav became unconcious. It is the case of the present applicant that the victim was taken to the hospital namely, Cosmos Hospital, Moradabad but ultimately she died. The information regarding the death of the deceased was given by one Vinod Kumar, the Ambulance Driver of the hospital to the concerned Police Station and on the basis of the aforesaid information the inquest of the body of the deceased was conducted on 06.06.2018. In the opinion of the Panch witnesses, no definite opinion could be given regarding the nature of death of the deceased. The F.I.R. in respect of the aforesaid incident was lodged on 06.06.2018 by the father of the deceased namely Sanjeev Kumar, which came to be registered as Case Crime No. 0305 of 2018 under Sections 498A, 304B, 323, 504, 506 I.P.C., and Section 3/4 Dowry Prohibition Act, Police Station-Seohara, District-Bijnor. In the aforesaid F.I.R. five persons namely, Rahul Yadav (husband), Fakeer Chand (father-in-law), Pappi (mother-in-law), Rajni (Nanad) and Gaurav (Dewar) of the deceased were nominated as the named accused. The post-mortem of the body of the deceased was conducted on 07.06.2018. However, the doctor, who conducted the autopsy on the body of the deceased, opined that no definite opinion regarding the cause of death of the deceased can be given. As such the Viscera of the deceased was preserved. The Chief Chemical Analyst has submitted the Viscera Report dated 10.08.2018 whereby it has been stated that a foreign material namely, Organo Chloro Insecticide was found in the body of the deceased. The doctor, who conducted the post-mortem of the deceased further observed that the victim was in family way and was carrying a foetus which was seven months old. On the basis of the material collected during the course of investigation the police has submitted a charge sheet dated 28.08.2018 against three persons namely the husband Rahul Yadav, Fakeer Chand (father-in-law) and Pappi (mother-in-law) of the deceased. In respect of the other two accused namely, Rajni and Gaurav, the investigation is still said to be pending.

Upon submission of the aforesaid charge sheet dated 28.08.2018, cognizance has been taken by the Court concerned, vide Cognizance Taking Order dated 05.09.2018 and thereafter the case has been committed to the Court of Sessions, vide committal order dated 18.09.2018. What has happened subsequent to the passing of the committal order is neither known to the counsel for the applicant nor the counsel for the complainant.

Learned counsel for the applicant submits that the applicant is the father-in-law of the deceased. The applicant is an old man aged about 54 years. The applicant is in jail since 07.06.2018. The applicant has no criminal antecedents to his credit except the present one. According to the learned counsel for the applicant the deceased was a short tempered lady and she has taken the extreme step of committing suicide by consuming Organo-Chloro Insecticide. No ante mortem external injury was found on the body of the deceased. Up to this stage there is no evidence on the record on the basis of which it can be said that the present applicant has abetted in the commission of the alleged crime. On the aforesaid factual premise it is urged that the present 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 the occurrence in question has taken place just after the expiry of a period of 1 year, 1month and 13 days from the date of the marriage of the deceased at the time of the alleged incident the deceased was carrying a foetus which was seven months old and is such an advance stage of family life it is impossible that the alleged crime shall be committed by the potential mother. On the aforesaid factual premise, it is thus urged that no case for bail is made out. The bail application of the applicant is, thus, liable to be rejected.

Having considered the submissions made by the learned counsel for the applicant, the learned A.G.A. for the State and upon perusal of the evidence brought on record as well as the complicity of the accused but without commenting on the merits of the case, I do not find any good reason to exercise my discretion in favour of the accused applicant.

Accordingly, the bail application of the applicant stands rejected.

However, at this stage, it is expected from the learned trial court to gear up the trial and make necessary endeavour to conclude the same within six months provided the applicant would render all necessary co-operation in early conclusion of the trial.”

Subsequently, charge sheeted accused namely Rahul Yadav, husband of deceased Smt. Pappi and mother-in-law of deceased have been enlarged on bail by this Court, vide orders dated 11.12.2019 and 25.2.2019 respectively.

On the aforesaid premise, learned counsel for applicant submits that present applicant is liable to be enlarged on bail.

Per contra, learned A.G.A. opposed the present bail application. He submits that in view of the finding recorded in the bail rejection order dated 14.10.2018 coupled with the fact that no new ground has been made out by the applicant, the second bail application is liable to be rejected.

It is undisputed fact that co-accused, who are similarly placed, have been enlarged on bail by this Court. There is nothing on record on the basis of which the applicant can be denied parity with the orders passed by this Court. Applicant has made out a case for bail.

Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties and 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 Fakir Chand 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 :- 6.2.2020

HSM