Allowed

Smt. Afsari Khatoon Alias Gudia v. State of U.P. Thru. Addl. Chief Secy. Home, Lko.

Allahabad HC17 Feb 2025BAIL/5647/2023

Case brief

AI extract

What is this about?

Second bail application by a woman accused under Sections 302 and 201 IPC, jailed over five years while the murder trial remained unfinished. Relying on long incarceration and delay, the court granted bail subject to conditions.

What did the court decide?

Applicant released on bail on furnishing personal bond and two sureties, with conditions against adjournments, non-appearance and leaving the country.

Smt. Afsari Khatoon Alias Gudia Vs State of… — Murder and Culpable Homicide | Allahabad HC (2025)

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Neutral Citation No. - 2025:AHC-LKO:10273

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Court No. - 11

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 5647 of 2023

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Applicant :- Smt. Afsari Khatoon Alias Gudia Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Home, Lko. Counsel for Applicant :- Surendra Singh,Rajendra Pratap Singh,Vinay Pratap Singh Counsel for Opposite Party :- G.A.,D.P. Dutt Tiwari,Pramod Kumar,S.Mohd Kazim,Tajuddin

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Hon'ble Rajesh Singh Chauhan,J.

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1. Heard Sri R.P. Singh, learned counsel for the applicant, Sri Ran Vijay Singh, learned Additional Government Advocate for the State and Sri Tajuddin, learned counsel for the complainant/ informant.

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2. This is the second bail application as the first bail application has been rejected by Hon'ble Mr. Justice Mohd. Faiz Alam Khan on 04.12.2021 by a common order passed in two bail applications bearing Bail No.1402 of 2020; Nazimuddeen vs. State of U.P. and Bail No.7704 of 2020; Smt. Afsari Khatoon @ Gudia vs. State of U.P.. While rejecting the first bail application on 04.12.2021, this Court directed the learned trial court to expedite the trial of the case taking all possible efforts without giving any unnecessary adjournment to the parties, preferably, within a period of one year. But more than three years and two months period have lapsed the trial has not been concluded. It has been admitted at the bar that all the prosecution witnesses have been examined and the trial is listed for required exercise under Section 313 Cr.P.C.

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3. As per learned counsel for the applicant, the present applicant (Smt. Afsari Khatoon Alias Gudia) is in jail since 10.01.2020 in Case Crime No. 09 of 2020, under Sections 302 & 201 I.P.C., Police Station-Thakurganj, District-Lucknow. It has been submitted that the applicant has been falsely implicated in this case as she has not committed any offence as alleged.

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4. Learned counsel for the applicant has stated that at present he shall not address the Court on the point of merit of the case inasmuch as the merits of the case has already been addressed while arguing the first bail application but he shall address the Court on the point that despite the specific direction being

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issued by this Court to conclude the trial within one year but the trial has not been conclude within the period of three years and one month, there is no possibility to conclude the trial very soon inasmuch as after completing the required exercise of Section 313 Cr.P.C. the defence witnesses would be examined, thereafter the matter would be heard finally before the learned trial court. The present applicant is a lady, who is in jail for more than five years, to be more precise five years and one month, therefore, she may be given the benefit of Section 437 Cr.P.C./ 480 B.N.S. She is having no prior criminal history of any kind whatsoever. He has undertaken on behalf of present applicant that the applicant shall not misuse the liberty of bail and shall cooperate in the trial proceedings properly and shall abide by all terms and conditions of bail and shall not influence any prosecution witnesses as all the prosecution witnesses have been examined. Therefore, in the light of the dictum of Apex Court rendered in the case in re: Union of India vs. K.A. Najeeb, reported in AIR 2021 Supreme Court 712 and Paras Ram Vishnoi vs. The Director, Central Bureau of Investigation passed in Criminal Appeal No.693 of 2021 (Arising out of SLP (Crl.) 3610 of 2020 granting bail to those accused persons on the ground that there is no possibility to conclude the trial in near future and there is a long incarceration of that accused, therefore, they were entitled for bail. Para-16 of the case K.A.Najeeb (supra) is being reproduced here-inbelow:-

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"This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India, it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail."

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5. The Apex Court in the case of Paras Ram Vishnoi (supra) has observed as under:-

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"On consideration of the matter, we are of the view that

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pending the trial we cannot keep a person in custody for an indefinite period of time and taking into consideration the period of custody and that the other accused are yet to lead defence evidence while the appellant has already stated he does not propose to lead any evidence, we are inclined to grant bail to the appellant on terms and conditions to the satisfaction of the trial court."

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6. Learned counsel for the applicant has stated that almost all fact witnesses have been examined, therefore, in view of the dictum of Apex Court rendered in re: Gokarakonda Naga Saibaba vs. State of Maharashtra reported in (2018) 12 SCC 505 whereby the Apex Court has held that if the material and fact witnesses have been examined and the accused applicant is in jail for considerably long time, his/ her bail application may be considered, the present applicant may be granted bail.

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7. As per Sri R.P. Singh, the aforesaid pleas and grounds may be considered as fresh ground considering the second bail application of the present applicant.

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8. Sri Ran Vijay Singh, learned A.G.A. as well as Sri Tajuddin, learned counsel for the complainant/ informant have opposed the prayer for bail of the present applicant by submitting that the applicant with the help of the co-accused, Nazimudeeen, has killed her husband and Nazimuddeen was arrested at Basti along with one Iron Box containing the dead body of the deceased, but they could not dispute the aforesaid facts as argued by the learned counsel for the applicant.

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9. Without entering into the merits of the case and considering the arguments of learned counsel for the parties, contents and allegations of the F.I.R., the fact that despite the specific direction being issued by this Court to conclude the trial within one year but the trial has not been concluded within the aforesaid period and there is no possibility to conclude the trial very soon inasmuch as after completing the required exercise of Section 313 Cr.P.C. the defence witnesses would be examined, thereafter the matter would be heard finally before the learned trial court. The period of incarceration of the present applicant i.e. five years and one month. The applicant being a lady, she may be given the benefit of Section 437 Cr.P.C./ 480 B.N.S. She is having no prior criminal history of any kind whatsoever; the undertaking on behalf of present applicant that the applicant shall not misuse the liberty of bail and shall cooperate in the trial proceedings properly and shall abide by all terms and conditions of bail order and shall not influence any prosecution witnesses as all the prosecution witnesses have been examined, having regard to the dictums of Apex Court in the case

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K.A.Najeeb (supra), Paras Ram Vishnoi (supra) and Gokarakonda Naga Saibaba (supra). I am of the view that the present applicant is entitled to be released on bail in this case.

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10. Accordingly, the instant second bail application is allowed.

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11. Let the applicant (Smt. Afsari Khatoon Alias Gudia), involved in aforesaid case crime be released on bail on her 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:-

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(i) The applicant shall file an undertaking to the effect that she 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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(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through her counsel. In case of his absence, without sufficient cause, the trial court may proceed against her under Section 229-A IPC/269 of the B.N.S., 2023.

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(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure her presence proclamation under Section 82 Cr.P.C./84 of B.N.S.S., 2023 is issued and the 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/208 of the B.N.S., 2023.

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(iv) The applicant 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./351 of B.N.S.S., 2023. 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. The present applicant shall not leave the country without prior permission of the Court.

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[Rajesh Singh Chauhan,J.]

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Order Date :- 17.2.2025 Suresh/

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Digitally signed by :- SURESH CHANDRA High Court of Judicature at Allahabad, Lucknow Bench

Smt. Afsari Khatoon Alias Gudia v. State of U.P. Thru. Addl. Chief Secy. Home, Lko.

Case brief

What is this about?

What did the court decide?

Smt. Afsari Khatoon Alias Gudia v. State of U.P. Thru. Addl. Chief Secy. Home, Lko.

Case brief

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What did the court decide?

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