Allahabad High Court
Husna Bano vs State Of U.P. And Another on 17 May, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:89920
Court No. - 77
Case :- CRIMINAL REVISION No. - 1878 of 2024
Revisionist :- Husna Bano
Opposite Party :- State of U.P. and Another
Counsel for Revisionist :- Ansar Ahmad,Mohd Akram,Shikher Trivedi
Counsel for Opposite Party :- G.A.
Connected with
Case :- CRIMINAL REVISION No. - 2150 of 2024
Revisionist :- Khusboo
Opposite Party :- State of U.P. and Another
Counsel for Revisionist :- Ansar Ahmad,Mohd Akram,Shikher Trivedi
Counsel for Opposite Party :- G.A.
Connected with
Case :- CRIMINAL REVISION No. - 2172 of 2024
Revisionist :- Reshma @ Kitty
Opposite Party :- State of U.P. and Another
Counsel for Revisionist :- Ansar Ahmad,Mohd Akram,Shikher Trivedi
Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
(Order on the application for suspension of sentence)-
1. Heard Mr. Shikher Trivedi, Advocate, along with Mr. Ansar Ahmad, the learned counsel for revisionists-Husna Bano, Khusboo and Reshma @ Kitty and the learned A.G.A. for State-opposite party-1.
2. Perused the record.
3. These criminal revisions have been filed challenging the judgment and order dated 30.11.2018 passed by Additional Chief Metropolitan Magistrate, Court No.-3, Kanpur Nagar in Criminal Case No. 8308 of 2010 (State VS. Shamim Akhtar and Others), under Sections 147, 323, 504 IPC, Police Station-Juhi, District-Kanpur Nagar arising out of Case Crime No. 186 of 2006, under Sections 147, 323, 504 IPC, Police Station-Juhi, District-Kanpur Nagar, whereby the revisionists Husna Bano, Khusboo and Reshma @ Kitty have been convicted under Sections 147 IPC and consequently, sentenced to one year imprisonment along with fine of Rs. 1,000/- each and in case of default, they are to undergo one week of additional simple imprisonment, 6 months imprisonment along with fine of Rs. 5,00/- each under Section 323 IPC and in case of default, they are to undergo, one week additional simple imprisonment and one year imprisonment along with fine of Rs. 1,000/- each under Section 504 IPC and in case of default, they are to undergo, one week of additional simple imprisonment as well as the judgment and order dated 11.03.2024 passed by Additional Sessions Judge, Court No.-8, Kanpur Nagar in Criminal Appeal No. 243 of 2018 (Shamim Akhtar and Others Vs. State of U.P.), whereby aforesaid appeal filed by the accused revisionists against judgment and order dated 30.11.2018 has been dismissed.
4. Learned counsel for revisionists contend that revisionists have been convicted under Sections 147, 323, 504 IPC. The maximum sentence awarded to the revisionists is one year inasmuch as, the sentences awarded under different Sections by the trial Court are to run concurrently. There is no likelihood of the appeal being heard in near future.
5. It is then contended that co-accused Shamim Akhtar has already been enlarged on bail by this Court vide order dated 21.03.2024 passed in Criminal Revision No. 1445 of 2024 (Shamim Akhtar Vs. State of U.P.). For ready reference, the order dated 21.03.2024 is reproduced herein under:-
"1. Sri Shikher Trivedi, learned counsel for the revisionist and learned AGA for the State assisted by Sri V.K. Singh, Brief-holder, are present.
2. It is noted that the revisionist has not impleaded the informant as opposite party in the memo of revision.
3. In view of the above, the revisionist is directed to implead the informant as opposite party no. 2 during the course of the day.
Order on Admission
4. The revisionist-Shamim Akhtar has challenged the order dated 11.03.2024 passed by Additional Session Judge, Court No. 8, Kanpur Nagar in Criminal Appeal No. 243 of 2018 as well as order dated 06.10.2018 and 30.11.2018 passed by learned trial court of Additional Metropolitan Magistrate, Court No. 3, Kanpur Nagar in Case no. 8308 of 2010 under section 323, 504, 147 IPC, Police Station Juhi, District-Kanpur Nagar, whereby the revisionist has been convicted under section 147 IPC and sentenced to imprisonment of 1 year and fine of Rs. 1,000/- and in default of payment of fine one week additional punishment; he has been convicted under section 323 IPC and sentenced to 6 months imprisonment and fine of Rs. 500/- and in default of payment of fine one week additional punishment and further convicted under section 504 IPC and sentenced to 1 year imprisonment and fine of Rs. 1,000/- and in default of payment of fine one week additional punishment.
5. Admit.
6. Summon the lower court record.
Order on the Application for bail
7. The revisionist has pointed out many discrepancies in the evidence given by the witnesses and has also pointed out several infirmities in the prosecution story itself. The revisionist submits that he is quite hopeful of being successful in this revision and further that he is in custody since 11.03.2024.
8. I perused the material on record including the impugned judgments. The application for bail is allowed. The revisionist is directed to be released on bail on furnishing personal bond and two sureties of the same amount to the satisfaction of the court concerned, till disposal of this revision, with an undertaking that the revisionist shall fully cooperate in the hearing of this revision and that he shall remain present before this Court on each and every date fixed, either personally or through his counsel.
9. The revisionist shall deposit the whole of the fine amount (if not deposited earlier) within next 15 days.
10. Subject to above, the operation of order of sentence shall remain suspended.
11. The learned trial court is directed to transmit the copy of the surety bonds and personal bonds as well as the copy of the receipt of the fine amount.
Order on Revision
12. Let complete steps, both ways, be taken by the revisionist for issuance of notice on opposite party no. 2-the informant, within a week from today. One set of notice shall be served through the office of C.J.M. District concerned and shall be returned to this Court within 15 days from the date of its receipt. Let another set of notice be sent through registered post.
13. List for hearing on 06.05.2024 in the additional cause list."
6. According to the learned counsel for revisionist, the case of present revisionists is similar and identical to aforementioned bailed out co-accused. There is no such distinguishing feature on the basis of which, the case of present revisionists could be so distinguished from bailed out co-accused Shamim Akhtar so as to deny them bail. On the above premise, it is thus contended by the learned counsel for revisionists that present revisionists are also liable to be enlarged on bail.
7. It is next contended that revisionists Husna Bano, Khusboo and Reshma @ Kitty are ladies, therefore, they are entitled to the benefit of the provisions contained in proviso to Section 437 Cr.P.C. The judgment and order passed by Court below is against the weight of the evidence on record. There is every likelihood of the appeal being allowed. Since the revisionists are not guilty of committing a heinous crime, therefore, considering the facts and circumstances of the case, as noted above, the present revisionists are also liable to be enlarged on bail.
8. Even otherwise, the revisionists are women of clean antecedents inasmuch as, they have no criminal history to their credit except the present one. In view of the grounds urged to enlarge the revisionists on bail, no useful purpose shall be served in maintaining the custodial arrest of revisionists during the pendency of appeal. They, therefore, contend that the revisionists be enlarged on bail. In case, the revisionists are enlarged on bail, they shall not misuse the liberty of bail and shall co-operate in the hearing of these criminal revisions.
9. Per contra, the learned A.G.A. for State-opposite party-1 has opposed the prayer for bail. He submits that since revisionists have been convicted by Court below, they are first required to surrender before Court below and only after accused-revisionists have surrendered before Court below that their application seeking suspension of sentence/bail can be considered by this Court.
10. When confronted with above, the learned counsel for revisionists submits that the objections raised by the learned A.G.A. are misconceived. To buttress his submission, he has relied upon the following orders/judgments;-
(i). Order dated 21.03.2024 passed in Criminal Revision No. 1445 of 2024 (Shamim Akhtar Vs. State of U.P.).
(ii). Order dated 14.09.2022 passed in Criminal Revision No. 2471 of 2022 (Ashok Kumar and 2 Others VS. State of U.P. and Another).
(iii). Order dated 01.11.2021 passed in Criminal Revision No. 2709 of 2021 (Ahiwaran Singh Vs. State of U.P. And Another).
(iv). Ikba and Anotyher Vs. The State of Maharashtra and Others, 2024 SCC OnLine Bom 43.
(v). Sanjay Nagayach Vs. The State of Madhya Pradesh, 2024 SCC OnLine MP 898.
(vi). Vivek Rai and Another Vs. High Court of Jharkhand Through Registrar General and Others, (2015) 12 SCC 86.
(vii). M/s Electromech Engineers through its Proprietor Sh.D.P. Sharma Vs. State of Haryana and Another, 2014 SCC OnLine P&H 19233.
11. Admittedly, the High Court of Judicature at Allahabad has framed relevant rules governing grant of bail in a revision petition filed by an accused. Chapter-18 Rule-18 of the Allahabad High Court Rules is relevant for the controversy in hand. Accordingly, the same is extracted hereinunder:-
"18. Application for bail :- (1) No application for bail shall be entertained unless accompanied by a copy of judgment or order appealed against or sought to be revised and a copy of order passed by the Sessions Judge on the bail application for the applicant and unless the accused has surrendered except where he has been release on bail after conviction under Section 389 (3) of the Code of Criminal Procedure, 1973.
Explanation :- the copy of the order refusing bail passed by the Sessions Judge shall either be a certified copy or the copy furnished by the Sessions Judge free of charge to the accused.
(2) Every application for bail in a case which is under investigation or which is pending in a lower Court shall state whether application for bail had or had not been previously made before the Magistrate and the Sessions Judge concerned and the results of such applications, if any.
(3) Save in exceptional circumstances-
(a) No order granting bail shall be made on an application unless notice thereof has been given to the Government Advocate and not less than ten days have elapsed between the giving of such notice and the hearing of such application.
(b) If the application for bail has not been moved within two days after the expiry of the aforesaid period of ten days the applicant or his Counsel shall give two days previous notice to the Government Advocate as to the exact date on which such application is intended to be moved.
(c) Where the prayer for bail is contained in a petition of appeal or application for revision, notice thereof may be given to the Government Advocate the same day prior to the hearing of such petition or application and the fact of such previous notice having been given, shall be endorsed on such petition or application. Alongwith such notice a certified copy or one attested to be true by the counsel, of the Judgment appealed from or sought to be revised shall also be given to the Government Advocate.
(4) Every application for bail shall show prominently in the first page thereof the crime number, the police station by which and the section or sections and the Act or Rules under which the applicant is being prosecuted or has been convicted and whether such application is the first, second or any such subsequent application moved by him before this Court, and shall be accompanied by a copy of the first information report. It shall also state the following particulars, namely:-
(a) The date of the alleged occurrence;
(b) The date of the applicant's arrest.
The Bench Secretary shall while entertaining a bail application for presentation to the court check every page there of and shall affix a rubber stamp of the bail application and all the annexures thereto before putting it up before the court in token of his having checked, every page of the bail applications and containing his initials on every page he shall, thereafter, make the following endorsement on the bail application :
'Moved before Hon'ble ................................ J. on ................................... (date)'
Similarly the official whose duty it is to receive the bail application from the court after orders, shall affix a rubber stamp containing his initials on the first page of the bail application in token of his having checked that all the pages of the bail application bear the rubber stamp of the Bench Secretary.
The rubber stamps containing the initials of the Bench Secretary and the official or officials authorised to receive fresh bail application from the Court shall be supplied to the Bench Secretaries and the officials by the Registrar General of the Court.
The application shall not be returned to the applicant or his counsel after the above endorsement has been made.]
(5) Every page of the application for bail and every page of the annexures thereto shall bear the full signature of the applicant or his counsel.
(6) In every such application shall bestatedthefull particulars of the previous application or applications, if any, moved in this Court by same applicant in respect of the same crime and the date or dates on which such previous application or applications had been rejected.]"
12. Perusal of the aforesaid Rules, leaves no room for doubt that an accused upon conviction by an Appellate Court is required to surrender and only thereafter, his application for bail shall be considered. The judgment of the Apex Court in Bihari Prasad Singh Vs. State of Bihar, (2000) 10 SCC 346, was on the premise that no Rules have been framed by the Patna High Court regarding grant of bail to convicted accused in a revision petition. The judgment of Apex Court in Vivek Rai and Another Vs. High Court of Jharkhand Through Registrar General and Others, (2015) 12 SCC 86 relied upon by the learned counsel for revisionists answers the objections raised by the learned A.G.A. Paragraph 4 of the aforesaid report is relevant for the controversy in hand and is accordingly, extracted herein under:-
"We do not find any merit in the challenge to the validity of the Rule. It is well known practice that generally a revision against conviction and sentence is filed after an appeal is dismissed and the convicted person is taken into custody in Court itself. The object of the Rule is to ensure that a person who has been convicted by two courts obeys the law and does not abscond. The provision cannot thus be held to be arbitrary in any manner. The provision is to regulate the procedure of the Court and does not, in any manner, conflict with the substantive provisions of the Cr.P.C. relied upon by the petitioners. A similar provision exists in the Supreme Court Rules, 1966. In K.M. Nanavti vs. State of Bombay[3] this Court considered the scope and effect of identical provision of Order XXI Rule 5 of the Supreme Court Rules, then applicable, which read as follows :
"When the petitioner has been sentenced to a term of imprisonment, the petition shall state whether the petitioner has surrendered. Unless the court otherwise orders, the petition shall not be posted for hearing until the petitioner has surrendered to his sentence"
13. In view of above, this Court finds that the application for suspension of sentence/bail filed by the revisionists can not be considered unless the revisionists have surrendered before Court below.
14. In view of above, let the matter re-appear as fresh on 10.07.2024.
(Order on the memo of revision)-
1. Heard Mr. Shikher Trivedi, Advocate, along with Mr. Ansar Ahmad, the learned counsel for revisionists-Husna Bano, Khusboo and Reshma @ Kitty and the learned A.G.A. for State-opposite party-1.
2. Perused the record.
3. Admit.
4. Summon the lower Court record.
5. Issue notice to opposite party-2.
Order Date :- 17.5.2024/Imtiyaz
