Chandra Kumari Vs State of U.P Thru. Prin. Secy. Home Lko. and Another

Neutral Citation No. - 2024:AHC-LKO:66262

Court No. - 15

Case :- CRIMINAL APPEAL No. - 1487 of 2024

Appellant :- Chandra Kumari Respondent :- State Of U.P Thru. Prin. Secy. Home Lko. And Another Counsel for Appellant :- Rakesh Kumar,Manish Vaish Counsel for Respondent :- G.A.

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Hon'ble Mohd. Faiz Alam Khan,J.

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The State with its counter affidavit has enclosed a written information given by the Police Station Subeha, District Barabanki to respondent no.2, however, despite being served personally the respondent no.2 is not represented.

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

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This appeal has been preferred under Section 14 (A) (2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 against impugned order dated 15.04.2024, passed by Special Judge, (SC/ST Act), Barabanki, in bail application no. 1128 of 2024, arising out of Case Crime No. 393 of 2023, under Sections 306, 504, 506 IPC and Sections 3(2) (V) of SC/ST Act, Police Station- Subeha, District Barabanki, whereby the bail application of the appellant/applicant has been rejected.

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Learned counsel for appellant submits that appellant has falsely been implicated in this case. The FIR of the case has been lodged by moving an application under Section 156(3) Cr.P.C. after many days of the commission of the alleged incident and the allegations levelled therein have been aggravated therein with the help of legal professional, while there is no substance in the allegations as levelled in the FIR and the whole story of the prosecution is in the realm of suspicion.

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It is further submitted that there is no iota of evidence against the appellant with regard to any abetment given to the deceased on the basis of which he had committed suicide. While referring to the counter affidavit filed by the State, it is submitted that if this whole counter affidavit is believed as it is along with its document and the statements of the witnesses even then the case of the prosecution is silent as to how the

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abetment as required to invoke Section 306 IPC has been given.

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It is further submitted that the allegations of having illicit relationship with the appellant and providing her a mobile phone by the deceased may not be believed in absence of any direct evidence, even the Investigating Officer has not traced the IMEI No. of the mobile phones of the deceased as well as of the appellant in order to ensure that the mobile recovered from the appellant was purchased by the deceased and even if it is believed that the same was purchased by the appellant and it would not be a circumstance to infer that any abetment has been given by the appellant. The appellant is in jail in this case since 30.03.2023 and she is not having any criminal history and there is no apprehension that the accused-appellant after release on bail, may flee from the process of law or may otherwise misuse the liberty.

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Learned A.G.A. on the other hand opposes the prayer of bail of the appellant.

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Perusal of the record in the background of the submissions made by learned counsel for the parties would reveal that initially in the application moved under Section 156(3) Cr.P.C. on the basis of which the FIR has been lodged only the apprehension has been shown that the deceased has been done to death by the named accused persons including the appellant. Postmortem report of the deceased would reveal that a ligature mark has been found around the neck of the deceased and the cause of death has been ascertained as 'asphyxia' as a result of ante mortem hanging and thereafter the case of abetting the suicide has been alleged against the named accused persons. The defence of the appellant appears to be that to constitute an offence under Section 306 IPC the abetment must be of the nature as defined under Section 107 of the Indian Penal Code, 1860 and in absence of any such abetment the penal Section 306 IPC may not be invoked against any person.

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Having considered all the facts and circumstances of the case and keeping in view that to invoke Section 306 IPC there has to be a direct nexus between the alleged act or omission given by the accused to the deceased and also having regard to the period already undergone by the appellant in jail in this case, a case of bail is emerging in favour of the appellant.

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Thus, having regard to the above facts and circumstances of the case, in the considered opinion of this court material illegality has been committed by the trial court in rejecting the prayer of bail of the appellant.

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In result, the appeal filed by the appellant is allowed and the order dated 15.04.2024, passed by Special Judge, (SC/ST Act), Barabanki is hereby set-aside .

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Let appellant- Chandra Kumari be enlarged on bail in the aforesaid case crime number on her furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following additional conditions, which are being imposed in the interest of justice:-

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(i) The appellant shall not tamper with the evidence of witnesses and shall not commit any offence.

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(ii) The appellant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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 appellant shall remain present before the trial court on each date fixed, either personally or through her counsel. In case of her absence, without sufficient cause, the trial court may proceed against her under Section 229-A of the Indian Penal Code.

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(iv) In case, the appellant misuses the liberty of bail during trial and in order to secure her presence proclamation under Section 82 Cr.P.C. is issued and the appellant 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 of the Indian Penal Code.

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(v) The appellant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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 her in accordance with law.

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Observations made herein-above are only for the purpose of disposal of bail application and the same shall not have any bearing on the trial of the case.

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Order Date :- 24.9.2024 Muk

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Digitally signed by :- MOHD UMAR KHAN High Court of Judicature at Allahabad, Lucknow Bench

Chandra Kumari v. State of U.P Thru. Prin. Secy. Home Lko. and Another

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