Kasim v. State of U.P

Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44761 of 2023 Applicant :- Kasim Opposite Party :- State of U.P. Counsel for Applicant :- Sunil Kumar Misra Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.

¶1Heard Sri Sunil Kumar Misra, learned counsel for the applicant and Sri Ajay Singh, learned A.G.A.-I for the State and perused the material on record.

¶2This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant-Kasim, seeking enlargement on bail during trial in connection with Case Crime No. 4 of 2016, under Sections 498-A, 304-B I.P.C. and Section 3/4 Dowry Prohibition Act and as a option Section 302 I.P.C., Police Station Nakhasa, District Sambhal.

¶3Learned counsel for the applicant argued that the applicant is devar of the deceased Shahana. He has been falsely implicated in the present case. It is argued that the marriage of the deceased was solemnized with Rashid the brother of the applicant. It is argued that the first information report was lodged against Rashid, Noor Mohammad, Rukhsana, Kasim (the present applicant) and Rauf. The matter was investigated after which charge-sheet was submitted against Rashid @ Mota under Sections 498-A, 304-B I.P.C. and Section 3/4 Dowry Prohibition Act whereas the other accused persons including the applicant were exonerated. It is argued that trial in the matter started in which an application under Section 319 Cr.P.C. was moved by the informant Niyaz Mohammad on which the trial court vide its order dated 17.08.2022 summoned Noor Mohammad, Rukhsana, Kasim and Rauf for offences under Sections 498-A, 304-B I.P.C. and Section 3/4 Dowry Prohibition Act. It is further argued that general and omnibus allegations have been levelled against the applicant and all the accused persons. The deceased although was found to have received a ligature mark along with one contusion and two abrasions but the cause of death was opined as cardio pulmonary arrest due to antemortem hanging. It is argued that the applicant is not involved in the present matter. The applicant has no criminal history as stated in para 22 of the affidavit and is in jail since

17.08.2023.

¶4Per contra, learned counsel for the State opposed the prayer for bail.

¶5After having heard learned counsel for the parties and perusing the record, it is evident that the applicant is devar of the deceased. He was exonerated in the investigation subsequent to which he was summoned under Section 319 Cr.P.C. along with three other accused persons. The cause of death is cardio pulmonary arrest due to antemortem hanging.

¶6Looking to the facts and circumstances of this case, the nature of evidence 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.

¶7Let the applicant-Kasim, 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.

¶8The 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.

¶9The bail application is allowed. Order Date :- 26.10.2023 AS Rathore (Samit Gopal,J.) High Court of Judicature at Allahabad