Gopali Kewat v. State of U.P

Court No. -65 Case :-CRIMINAL MISC. BAIL APPLICATION No. -52059 of 2023 Applicant :-Gopali Kewat Opposite Party :-State of U.P. Counsel for Applicant :-Prashant Kumar Singh,Harsh Narayan Singh Counsel for Opposite Party :-G.A. Hon'ble Rajeev Misra,J. Heard Mr. Prashant Kumar Singh, the learned counsel for applicant and the learned A.G.A. for State. Perused the record. This application for bail has been filed by applicant Gopali Kewat, seeking his enlargement on bail in Case Crime No. 506 of 2023, under section 452, 307, 302, 504, 120 B IPC, Police Station-Kotwali, District Banda, during the pendency of trial. Learned counsel for applicant contends that though the applicant is a named as well as charge sheeted accused, inasmuch as charge sheet has already been submitted on 21.8.2022 against applicant-Gopali Kewat and co-accused Shiv Kumar, yet applicant who is father-in-law of the deceased is liable to be enlarged on bail. Record shows that marriage of deceased was performed with the son of applicant on 29.4.2016. Occurrence giving rise to present criminal proceedings has occurred after more than seven years of marriage at the parental home of deceased. He has then invited the attention of the Court to the statements of the two eye witnesses, which are at pages 48 and 49 of the paper book. With reference to above, he submits that the role of assault upon the deceased is assigned to named and charge sheeted co-accused Shiv Kumar. He thus contends that the case of present applicant is distinguishable from aforesaid co-accused. As such, applicant is liable to be enlarged on bail. Even otherwise, applicant is man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in jail since 18.8.2023. As such, he has undergone more than three months of incarceration. The police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant, as such, the entire evidence sought to be relied upon by prosecution against applicants stands crystalized. However, upto this stage, no such circumstance has emerged necessitating the custodial arrest of applicants during the pendency of trial. It is thus urged that applicants are liable to be enlarged on bail. In case the applicants are enlarged on bail, they shall not misuse the liberty of bail and shall co-operate with the trial. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that applicant is a named as well as charge sheeted accused. He therefore does not deserve any indulgence of this Court. He further contends that the deceased was not residing at her marital home on account of conduct of applicant, who is father-in-law of deceased. On the above premise, learned A.G.A. contends that no sympathy be shown by this court in favour applicant. The deceased was young lady and mother of two children aged about 4 years and 15 months respectively. As such no sympathy be shown in favour of applicant. However, he could not dislodge the factual and legal submissions urged by learned counsel for applicant, with reference to record at this stage. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicant, accusation made coupled with the fact that the two eye witness of the occurrence have not implicated applicant the for causing assault upon deceased, as such, the role of applicant is distinguished from charge sheeted co-ssued Shiv Kumar who is said to have assaulted the deceased, the clean antecedents of applicant, period of incarceration undergone, police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant, as such, the entire evidence sought to be relied upon by prosecution against applicants stands crystalized, yet inspite of above, the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicant during pendency of trial, therefore, inspite of the objections raied by the learned A.G.A. in opposition to the present application for bail, but without making any comment on the merits of the case, applicant has made out a case for bail. Accordingly, the bail application is Allowed. Let the applicant Gopali Kewat, 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/SHE 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/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.

(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

(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 THE HIM/HER 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/her 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 :- 5.12.2023 Arshad High Court of Judicature at Allahabad