In Chamber
Case :- CRIMINAL APPEAL No. - 2639 of 2020 Appellant :- Akshay Mishra @ Akki Respondent :- State Of U.P.And Another Counsel for Appellant :- Pankaj Satsangi,Nipun Singh,Piyush Kumar Shukla,Vivek Chaubey Counsel for Respondent :- G.A.,Deepanshu Shrivastava,Sunil Kumar Srivastava
Hon'ble Rahul Chaturvedi,J.
Heard Sri Nipun Singh, learned counsel for the appellant, Sri Padmakar Pandey, Advocate holding brief of Sri Deepanshu Shrivastava, learned counsel for the respondents, Sri Satendra Tiwari, learned A.G.A. for the State and perused the record.
This criminal appeal under Section 14 A (2) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short "S.C./S.T. Act") has been filed for setting-aside the impugned order dated 06.07.2020 passed by learned Special Judge, SC/ST Act, Jhansi in Case Crime No. 06 of 2020, under Sections 314, 304 I.P.C. and Section 3(2)5 S.C./S.T. Act, Police Station Nawabad, District Jhansi by rejecting the bail Application No. 737 of 2020.
The pleadings are exchanged between the parties.
Learned counsel for the applicant submitted that applicant is facing a prosecution in Case Crime No.06 of 2020, under Sections 314, 304 I.P.C., Police Station-Nawabad, District Jhansi. F.I.R. was registered by Chandra Bhan against the applicant and four other named accused persons with the allegation that the appellant have sexually exploited her and when she become a pregnant then he got her aborted at Narayan Hospital Jhansi, where she developed certain complications and eventually died on 03.01.2020.
The contention of learned counsel for the applicant is that applicant and the deceased were of younger age and they have developed certain amount of affinity to each other, they have crossed the limits of decency and established physical relation and when she become pregnant then on her own she has consumed some pills for terminating her pregnancy without any medical advice or supervision. This has caused a serious complications, namely, excessive bleeding and etc. The applicant has got her admitted at the Narayan Hospital at Medical Centre Jhansi on 02.01.2020 at 4 PM and on 03.01.2020 she took her last breath as a result of her precarious condition on account of those contraceptives.
I have perused the statement under Section 161 Cr.P.C. of the doctor Suraksha Shukla, who treated the girl and in which she has given a vivid description of the incident and opined that she has started having convulsions and things were got complicated and eventually she died on account of Cardiac Arrest.
Today, learned A.G.A. has filed a counter affidavit annexing the Viscera report and there is no poison was found in her Viscera. The contention raised by learned counsel for the applicant that on account of providence and as a result of those pills the situation has gone bad to worse and eventually she died. Effort has been made by the applicant to save the life of the deceased but he has failed. It is further contended that both of them were residing with each other from last 2 and ½ years and there was no complaint or report by the father of the deceased, to know the whereabouts of her daughter. All these facts cumulatively amply reflects upon the conduct of the father. The cause of death of the deceased is on account of cardiac arrest.
Learned counsel for the opposite party no.2 has opposed the prayer for bail by drawing the attention of the Court to the bail rejection order, in which it has been contended that the applicant has been falsely implicated, neither the appellant has ever met with the deceased nor he identified her. The second submission advanced by the learned counsel for the opposite party no.2 that if the applicant is projecting himself as her husband of the deceased, it is binding duty upon him to at least inform about the incident but instead of doing so he fled away from the spot, for the obvious reasons.
Taking after the rival submissions of the parties and without making any final comment on merit of the case it seems that keeping in view that she lost her life on account of Cardiac Arrest, as a result of those pills, which she consumed on her own to get rid off from her pregnancy. This misadventure has resulted in this unfortunate debacle in the shape of her untimely demise.
The submission made by learned counsel for the appellant, prima facie, is quite appealing and convincing for the purpose of bail only.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, taking into account the manner and mode in which the appellant has been summoned and the period of detention already undergone, and also without expressing any opinion on merits of the case, I am of the view that the appellant has made out a case for bail.
Let the appellant-Akshay Mishra @ Akki, be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable 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 APPELLANT WOULD FULLY COOPERATE IN THE CONCLUSION OF TRIAL WITHIN ONE YEAR AND ANY TEMPERING OR WILLING TACTICS ON THE PART OF THE APPELLANT TO DELAY THE TRIAL WOULD WARRANT THE AUTOMATIC CANCELLATION OF BAIL.
(ii) THE APPELLANT 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.
(iii) THE APPELLANT 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 IPC.
(iv) IN CASE, THE APPELLANT MISUSE 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 APPELLANT 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 IPC.
(v) THE APPELLANT 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 APPELLANT 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.
However, it is made clear that any wilful violation of above conditions by the appellant, shall have serious repercussion on his bail so granted by this court.
Accordingly, the appeal succeeds and the same stands allowed. Impugned order dated 06.07.2020 passed by the Special Judge, S.C./S.T. Act, Jhansi in Case Crime No. 06 of 2020, under Sections 314, 304 I.P.C. and Section 3(2)5 S.C./S.T. Act, Police Station Nawabad, District Jhansi, is hereby set aside.
Order Date :- 23.9.2021 Rahul.