Allahabad High Court
Kusum Devi Patel vs State Of U.P. on 27 February, 2023
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 22.02.2023
Delivered on 27.02.2023
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29574 of 2022
Applicant :- Kusum Devi Patel
Opposite Party :- State of U.P.
Counsel for Applicant :- Mukesh Kumar Pandey,Ravindra Kumar Tripathi
Counsel for Opposite Party :- G.A.
Hon'ble Siddharth,J.
Heard Sri Sunil Vashishth, Advocate holding brief of Sri Mukesh Kumar Pandey, learned counsel for the applicant, and learned A.G.A. for the State.
There is allegation in the first information report that the informant is resident of Swaroop Rani College compound, Prayagraj. On 17.03.2022 at about 6.00 p.m. her husband and his friend, Surendra Bhartiya (Golu Kanja) came to her parental house at Shantipuram, Phaphamau. They stayed in the night there and at about 8.00 a.m. they left for Swaroop Rani College compound, Prayagraj. On 18.03.2022 she made number of calls on mobile phone on her husband and his friend, Surendra Bhartiya, aforesaid but their phone did not responded. On 20.03.2022 at about 9.30 a.m. she was informed by her neighbours that some incident has taken in her house and thereafter, she came to her house and found the dead body of her husband lying on the floor and foul smell coming from the same. It is alleged that murder of her husband was done 1-2 days ago.
Learned counsel for the applicant has submitted that the applicant is the wife of the deceased and she has been falsely implicated in this case on the basis of false statement of her sister-in-law, Seema Patel. Recovery of her mobile phone has been planted along with mobile phone of co-accused and she has been falsely implicated in this case. He has submitted that the allegation that she had illicit relation with co-accused, Surendra Bhartiya, is absolutely incorrect. The allegation that she wanted to eliminate her husband only to get job of ward boy in S. R. N. Hospital, which was being performed by her husband, is incorrect. Her confessional statement before the police cannot be read against her. Before the investigating officer an affidavit was given by brother of her father-in-law, Laxmi Kant Patel and his mother-in-law, Shashi Patel stating that the allegations against her are incorrect. Her character and beheaviour was always good. She has been falsely implicated in this case.
Learned AGA has vehemently opposed the prayer for bail application and has submitted that there was motive for the applicant to commit the alleged offence. She wanted job in place of her husband on compassionate basis and therefore, she got the murder of the deceased done. The cousin of the deceased, Soni Patel, has stated that the deceased had sold his land were an amount of Rs.30 lakhs. He purchased a land in Naini for Rs.18 lakhs and the remaining amount was spent by him along with co-accused. He also used to roam with the applicant on motorcycle openly.
After hearing rival contentions, this court finds that except allegations in the statement of Soni Patel and Seema Patel, there is no evidence against the applicant of involvement in the murder of her husband. Recovery of mobile phone of the applicant from the scooty is not convincing since there is allegation in the first information report that the applicant made number of calls to her husband and co-accused. How her mobile phone has been recovered along with mobile phone of co-accused has not been investigated by collecting any evidence by way of CDR details by the investigating officer. Applicant is in jail 24.03.3022.
Learned AGA has opposed the prayer for bail but could not dispute the above submissions.
Keeping in view the nature of the offence, evidence, complicity of the accused; submissions of the learned counsel for the parties noted above; finding force in the submissions made by the learned counsel for the applicant; keeping view the uncertainty regarding conclusion of trial; one sided investigation by police, ignoring the case of accused side; applicant being under trial having fundamental right to speedy trial; larger mandate of the Article 21 of the Constitution of India and recent judgment dated 11.07.2022 of the Apex Court in the case of Satendra Kumar Antil vs. C.B.I., passed in S.L.P (Crl.) No. 5191 of 2021 and considering 5-6 times overcrowding in jails over and above their capacity by the under trials and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.
Let the applicant, Kusum Devi Patel, involved in Case Crime No. 88 of 2022, under Sections 302, 120-B I.P.C, Police Station George Town, District- Allahabad be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.
(i) The applicant shall not tamper with the evidence or threaten the witnesses.
(ii) The applicant shall file an undertaking to the effect that she shall not seek any adjournment on the dates 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.
(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against her under Section 229-A of the Indian Penal Code.
(iv) In case the applicant misuse the liberty of bail during trial and in order to secure her presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fail 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 of the Indian Penal Code.
(v) The applicant shall remain present in person before the Trial Court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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 her in accordance with law.
In case of breach of any of the above conditions, the complainant is free to move an application for cancellation of bail before this court.
Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
The trial court is directed to conclude the trial against the applicant as expeditiously as possible, preferable within a period of one year from the date of production of certified copy of this order.
Registrar (compliance) is directed to communicate this order to the court concerned within a week.
Order Date :- 27.02.2023
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