THE HIGH COURT OF MADHYA PRADESH, INDORE BENCH (Tejbhan @ Subham vs. State of Madhya Pradesh)

Indore, Dated: 29/09/2021 Shri S.K. Vyas, learned Senior counsel with Shri Harshwardhan Pathak, learned counsel for the applicant.

Ms. Geetanjali Chourasiya, learned Panel Lawyer for the respondent/State.

They are heard. Perused the case-diary.

This is the applicant's first application under Section 439 of Criminal Procedure Code, 1973, as he is implicated in connection with Crime No.333/2021 registered at Police Station-Sanawad, District- Khargone for offence punishable under Sections 304-B and 498-A of the IPC. The applicant is in custody since 29.05.2021.

The allegation against the applicant is that he was involved in the aforesaid offence wherein his wife died due to burn injuries.

Counsel for the applicant has submitted that the dying declaration is also filed along with the charge sheet in which the deceased has not alleged any overt act against any person and has also stated that she had no quarrel with anybody and that she got burnt on account of chimney. Counsel has further submitted that the applicant has been falsely implicated in the offence as he happens to be husband of the deceased and on the basis of a photo copy of the screenshot of Whats-app chat which was allegedly obtained from the maternal uncle of the deceased, the applicant is sought to be arrayed as an accused. Counsel has further submitted that only the photocopy of the screen-

shot of the WhatsApp chat has been filed along with the charge sheet and there is nothing on record to show that any mobile phone has also been seized from the maternal uncle of the deceased. In such circumstance, it is prayed that the application be allowed.

Counsel for the State has opposed the prayer however, it is submitted that despite two occasions having availed i.e. on 20.9.2021 and 27.9.2021, she has not been able to contact the Investigating Officer and to obtain proper instructions as to why the mobile phone has not been seized and why only the photocopy of the screenshot of Whats-app chat has been filed in the charge sheet.

On due consideration of submissions and on perusal of the case-

diary including the dying declaration of the deceased and the fact that no mobile phone has been seized from the maternal uncle of the deceased from which, it is alleged that the screenshot of the Whats-app chat has also been obtained wherein the deceased has mentioned that the applicant used to beat her, this Court finds force with the contentions raised by Counsel for the applicant. Thus, in the considered opinion of this Court the application deserves to be allowed. Accordingly, without commenting on the merits of the case, the application filed by the applicant is allowed The applicant is directed to be released on bail upon furnishing a personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand only) with one solvent surety of the like amount to the satisfaction of the trial Court for his regular appearance before the trial Court during trial with a condition that he shall remain present before the court concerned during trial and shall also abide by the conditions enumerated under Section 437 (3) Criminal Procedure Code, 1973.

It is also observed that if the applicant is found to be involved in any criminal activities, after his release on bail, then the present bail order shall stand cancelled without further reference to this Court; and the State/prosecution will be free to arrest the accused in the present case also.

This order shall be effective till the end of the trial, however, in case of bail jump, it shall become ineffective.

Certified copy, as per rules.

(SUBODH ABHYANKAR )

JUDGE moni Digitally signed by MONI RAJU Date: 2021.09.29 17:55:40 +05'30'