Sitara Khatun Vs State of U.P. and Another

Court No. - 54

Case :- CRIMINAL APPEAL No. - 6152 of 2019

Appellant :- Sitara Khatun Respondent :- State of U.P. and Another Counsel for Appellant :- Satya Priya Mishra Counsel for Respondent :- G.A.

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Hon'ble Rajiv Joshi,J.

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Counter affidavit filed today by learned A.G.A. is taken on record.

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Learned counsel for the appellant states that he does not propose to file any rejoinder affidavit.

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Heard learned counsel for the appellant as well as learned A.G.A for the State and perused the record.

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As per the office report dated 18.12.2019, notice upon O.P. No.2 has been served, but neither anybody has put appearance on her behalf nor any counter affidavit has been filed.

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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 21.08.2019 passed by Special Judge, SC/ST (Prevention of Atrocities) 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.

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Learned counsel for the appellant submits that belated first information report has been lodged by the daughter of the deceased on 26.6.2019 naming Khalimullah, Sitara Khatun (appellant), wife of Khalimullah and son of Kalimullah with the allegation that the informant's mother was residing in a live-in relationship with Khalimullah and deceased sold out her property on 24.4.2019. Accused Khalimullah, with whom deceased was residing, misappropriated the entire amount of deceased and killed her. Admittedly, she was residing with Khalimullah for a considerable period in a live-in relationship. There is no evidence on record to show the complicity of the present appellant in the commission of offence although only this much has been on the record that the dead body of the deceased was recovered from the house of the appellant. It is further submitted by learned counsel for the appellant that the co-accused Hamidun Nisha has already been enlarged on bail vide order dated 27.11.2019 passed in Criminal Appeal

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No.5648 of 2019 and the appellant, who is a lady having 62 years old, is languishing in jail since 30.7.2019.

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On the other hand learned A.G.A opposed the prayer for bail and submits that from the evidence available on record prima facie case against the appellant is made out and there is no infirmity or illegality in the impugned order rejecting the bail application of the appellant.

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I have considered the rival submission made by learned counsel for the parties and gone through the entire record including the impugned order carefully.

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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 appellant has made out a case for bail.

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Let the appellant- Sitara Khatun , be released on bail in the aforesaid case crime number on her 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:-

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(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.

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(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.

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(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 HER UNDER SECTION 229-A IPC.

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(iv) IN CASE, THE APPLICANT MISUSE THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS

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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 HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

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(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 HER IN ACCORDANCE WITH LAW.

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However, it is made clear that any wilful violation of above conditions by the appellant, shall have serious repercussion on her bail so granted by this court.

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Accordingly, the appeal succeeds and the same stands allowed . Impugned order dated 21.08.2019 passed by Special Judge, SC/ST (Prevention of Atrocities) Act, Gorakhpur, is hereby set aside.

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Order Date :- 21.1.2020 T. Sinha

Sitara Khatun v. State of U.P. and Another

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Sitara Khatun v. State of U.P. and Another

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