Court No. - 67
Case :- CRIMINAL APPEAL No. - 5648 of 2019 Appellant :- Hamidun Nisha Respondent :- State Of U.P. And Anr.
Counsel for Appellant :- Mohd. Samiuzzaman Khan Counsel for Respondent :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard learned counsel for the appellant as well as learned A.G.A for the State and perused the record. Despite of the service of notice, no one has put in appearance on behalf of opposite party no.2. With the aid and help of learned A.G.A., this appeal is being heard and decided.
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 bail rejection order dated 30.07.2019 passed by Special Judge, Exclusive Special Court, SC/ST Act, Gorakhpur in case crime no.300 of 2019 under sections 302/34 IPC and Section 3(2)5 of SC/ST Act, Police Station-Gulariha, District-Gorakhpur.
Submission made by learned counsel for the appellant is that the belated FIR was lodged by the daughter of the deceased on 26.06.2019 naming Khalimullah, Sitara Khatoon, wife of Khalimullah(applicant) and son of Khalimullah with the allegation that informant's mother was residing in a live-in relationship with Khalimullah. The deceased sold out her property on 24.04.2019. The accused-Khalimullah, with whom deceased was residing, misappropriated the entire amount and killed her. Admittedly, she was residing with Khalimullah for the considerable period in a live-in relationship. There is no evidence on record to show the complicity of the present applicant in commission of the offence. The case of the applicant is clearly distinguishable from the main accused- Khalimullah. The applicants are languishing in jail since 08.07.2019.
Learned A.G.A opposed the prayer for bail.
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 and without expressing any opinion on merits of the case, I am of the view that the applicant has made out a case for bail.
Let the appellant-Hamidun Nisha, be released on bail in the aforesaid case crime number on their 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 APPLICANT WOULD FULLY COOPERATE IN THE CONCLUSION OF TRIAL WITHIN ONE YEAR AND ANY TEMPERING OR WILLING TACTICS ON THE PART OF THE APPLICANT TO DELAY THE TRIAL WOULD WARRANT THE AUTOMATIC CANCELLATION OF BAIL.
(ii) 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.
(iii) THE APPLICANT 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 APPLICANT 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 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 IPC.
(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.
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 30.07.2019 passed by Special Judge, Exclusive Special Court, SC/ST Act, Gorakhpur, is hereby set aside.
Order Date :- 27.11.2019/Sumit S