Criminal Appeal challenging rejection of bail in kidnapping case under SC/ST Act. Court granted bail imposing strict conditions regarding attendance and witness safety, quashing the lower order.
Impugned bail order quashed; appellants released on personal bond and two sureties each under strict attendance and safety conditions.
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Court No. - 67
Case :- CRIMINAL APPEAL No. - 2195 of 2021
Appellant :- Sammo Khatun And Anr Respondent :- State Of U.P. And Anr Counsel for Appellant :- Azad Khan Counsel for Respondent :- G.A.
Hon'ble Rahul Chaturvedi,J.
Counter affidavit filed learned Learned A.G.A. through e-mode.
Heard counsel for the appellants, learned A.G.A. and perused the record.
Learned counsel for the appellants does not want to file any rejoinder affidavit to the counter affidavit filed by the State.
As per the report of C.J.M., Banda dated 22.07.2021 indicates that notice was personally served upon opposite party no. 2 but till date neither any counsel was engaged nor any counter affidavit filed by opposite party no. 2. With the help and aid of the learned A.G.A. the Court is proposing to decide the appeal on merits.
By means of the appeal u/s 14 (A)(2) SC/ST Act, the appellants are challenging the order dated 19.03.2021 whereby the bail application of the appellants was rejected by Additional Session Judge/Special Judge, SC/ST Act, Banda in Case Crime No. 217 of 2020, u/s 376, 366, 344, 323, 506 IPC and section 3(2)5 of SC/ST Act, P.S. Girwa, District Banda.
It is contended by learned counsel for the appellants that there are four named accused persons including the appellants. As per the allegation of the FIR that the victim was kidnapped by the named accused persons namely, Sammo Khatun, Reshma, Rahees Khan and Amir Khan in the open market in broad day light kidnapped the prosecution and taken her to some unknown destination. Needless to mention here that the victim is a student of B.com Ist year aged about 21 years. For her kidnapping, the gumshudgi report was lodged on 11.06.2019 and the girl was eventually recovered on 11.10.2020 almost after about one year and 4 months. The Court has an occasion to perused the statements of the victim recorded u/s 161 and 164 Cr.P.C. and in her statement recorded u/s 161 Cr.P.C. she has given an absurd explanation for this delay. She has stated that the mother, the appellant no. 1, Sammo Khatun has tied some "Tabeez" around her neck consequently, she was mesmerize and hypnotized and has forgotten everything about her past. As one day during the scuffle, the "Tabeez" was removed and all of a sudden she has recalled all about her past incident. Almost on the similar fashion, she has given her statement recorded u/s 164 Cr.P.C. It is surprising that during this period she was working in
Gurgaon in a Maruti Company, and has got an ample opportunity to inform the police about the incident but her conduct shows that the entire family of Rahees Khan has been falsely roped in. The medical opinion too does not give any concrete opinion about the sexual offence upon her. It has lastly been submitted that the appellants are in jail since 19.03.2021 having no criminal antecedents to their credit.
Learned AGA opposed the prayer for bail but could not dispute the aforesaid facts and the legal submissions as argued by the learned counsel for the appellants.
The submissions made by learned counsel for the appellants, prima facie, quite appealing and convincing for the purpose of bail only.
Keeping in view the totality of circumstances and the 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 appellants have made out a fit case for bail.
Let the appellants Sammo Khatun and Reshma, be released on bail in the aforesaid case crime number on furnishing a personal bond and two 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 APPELLANTS SHALL FILE AN UNDERTAKING TO THE EFFECT THAT THEY 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. (ii) THE APPELLANTS SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH THEIR COUNSEL. IN CASE OF THEIR ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST THEM UNDER SECTION 229-A IPC. (iii) IN CASE, THE APPELLANTS MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE THEIR PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPELLANTS FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST THEM IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(iv) THE APPELLANTS 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 APPELLANTS 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 THE THEM IN ACCORDANCE WITH LAW.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANTS.
Keeping in view that though the complainant belongs to the S.C. community and as per arguments of learned counsel for the complainant that the accused appellants would create all sorts of impediments in the smooth trial. Besides this, after the release the accused appellants who belong to a higher caste may extend threat and pressurize the witnesses.
All these complaints may be raised by the complainant before S.P. Banda who would examine objectively after having reports from his agencies at the earliest with regard to threat prospective of informant and his family members and use his own discretion in the matter, if it desirable, then during trial may provide security to complainant and his near family members.
With the aforesaid observation, the present appeal stands allowed and the impugned order dated 19.03.2021 passed by Additional Session Judge/Special Judge, SC/ST Act, Banda is hereby quashed.
Order Date :- 27.9.2021
Nisha
Digitally signed by RAHUL CHATURVEDI Date: 2021.10.02 14:35:13 IST Reason: Document Owner Location: High Court of Judicature at Allahabad
3 issues framed by the court
Whether the appellants are made out a fit case for bail in a kidnapping case involving a Scheduled Caste victim.
Whether the impugned order rejecting bail should be quashed to allow the release of appellants on bail.
Whether specific conditions can be imposed to ensure the safety of the complainant and witnesses during the trial.
7 provisions across 3 enactments
Sammo Khatun And Anr
State Of U.P. And Anr
Rahul Chaturvedi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
