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Waqil & Others v/s State of U.P.

    Criminal Appeal No. 505 of 2011

    Decided On, 16 July 2018

    At, High Court of Judicature at Allahabad


    For the Appellants: Abhay Krishna Agrawal, Mohd. Aslam Ansari, Shailendra Awasthi, Vikrant Pandey, Advocates. For the Respondent: Anil Kumar Shukla, Govt Advocate.

Judgment Text

Amreshwar Pratap Sahi, Bachchoo Lal, JJ.

Cause list has been revised. No one appears on behalf of appellant.

On 3rd April, 2018, the following order was passed by a Division Bench;

"Case called out in the revised list.

None appears on behalf of the appellants to press this appeal even though the cause list shows that the appellants have engaged as many as four counsels.

Sri Saghir Ahmad and Sri J. K. Upadhyay, learned A.G.A.s are present.

This appeal is of the year 2011.

Record shows that the appellant no. 2, Khushnuma is on bail. In view of above, issue non-bailable warrant against accused-appellant no. 2, Khushnuma through Chief Judicial Magistrate, Saharanpur returnable at an early date. In case the appellant surrenders and/or is arrested, she shall 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 subject to the undertaking that she shall appear before this Court on the next date fixed.

Chief Judicial Magistrate, Saharanpur shall submit his report along with the copies of bail bonds and sureties furnished by the appellant.

List on 30.04.2018."

On 2nd July, 2018, we passed following order;

"In this case, the appeal has been abated against the appellant no. 3 who has died. This fact is recorded in the order dated 23.10.2017.

The case was adjourned on three occasions either on one account or the other and came up before a Division Bench on 3rd April, 2018. The Division Bench recorded that even though the cause list indicated names of four counsel, no one had appeared, therefore, non bailable warrants were issued against the appellant no. 2 with a direction to her to appear before the concerned Magistrate and seek bail and put up her appearance before this Court. The said order was passed in order to ensure the appearance on behalf of appellants.

On 13th April, 2018, an application was filed by Sri Vikrant Pandey, Advocate, for recall of the said order on which orders were passed by this Court on 18.4.2018 to put up the application on the next day with records.

It appears that no further orders were passed on the said the application and according to the report of office, the said application was placed on record and was put up for hearing. There are no orders of the Court thereafter.

It appears that in compliance of the order dated 3rd, April 2018, the Chief Judicial Magistrate, Saharanapur on 28.4.2018 bailed out the appellant no. 2 in terms of the order of the High Court dated 3.4.2018.

The net result is that the impact of the order dated 3.4.2018 which was to ensure the presence on behalf of the appellant before this court has today been nullified by sending of an illness slip by Sri Shailendra Awasthi, one of other advocates on behalf of appellants.

List peremptorily in the next cause list.

As in our opinion, the application for recall of the order dated 3.4.2018 has become infructuous, it is accordingly, rejected."

Today when the case called out again no one has appeared on behalf of the appellant.

In the background of the aforesaid two orders there is no option but to issue a non-bailable warrant against Khushnuma- the appellant no. 2 through the Chief Judicial Magistrate Saharanpur returnable at an early date. The appellant Khushnuma shall surrender and her bail shall be considered by the learned Chief Judicial Magistrate, Saharanpur in the back ground aforesaid by placing such conditions that she may e

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nsure her presence before this Court in view of the above conduct which is evident from the facts narrated above. It is evident that the appellant no. 2 and her counsel are avoiding Court. List immediately after two weeks. The Chief Judicial Magistrate, Saharanpur shall submit his report along with copies of bail bonds and sureties so furnished by the said appellant.