High Court
Case Details
Court No. - 65 Case :- CRIMINAL APPEAL No. - 5848 of 2021 Appellant :- Dr. Hina Hameed Alias Hina Ishrat Respondent :- State of U.P. and Another Counsel for Appellant :- Chandan Sharma Counsel for Respondent :- G.A.,Tarun Kumar Tripathi Hon'ble Rahul Chaturvedi,J.
Legal Reasoning
Heard learned counsel for the appellant, learned counsel for the opposite party no.2 as well as Sri Faraz Qazmi, learned A.G.A for the State and perused the record. This criminal appeal under Section 14 A (2) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short "S.C./S.T. Act") has been filed for setting-aside the impugned order dated 29.11.2021 passed by learned Additional Sessions Judge, Court No.2/Special Judge, SC/ST Act, Mahoba in Bail Application No.153 of 2021 in Case Crime no.286 of 2021, under Sections 313, 314, 506 I.P.C. and Section 3(1)r, 3(1)(s), 3(2)(v) and 3(2)(va) of SC/ST Act, Police Station-Kabrai, District-Mahoba. While attracting the attention of the Court, learned counsel for the appellant has submitted that one Bhagirath Ahirwar has lodged the present FIR on 29.09.2021 under sections 376, 313, 314, 506 IPC and Section 3(1)Da, 3(1)Dha, 3(2)(V) and 3(2)(Va) of the SC/ST Act, against four named accused persons. The FIR is in two parts, in the earlier part, the allegation of sexual assault was attributed upon one Shailendra whereas in the later part, it is alleged that when the victim became pregnant, in order to terminate her pregnancy, she was brought to the nursing home of the appellant who administered certain medicines/injections to her which has resultantly turned to be fatal one and she died on 28.09.2021. Learned counsel for the appellant next submitted that the appellant is well qualified doctor in the Unani field. She has obtained the degree of Bachelor in Unani Medicines and Surgery and thereafter has done internship in B.U.M.S. stream in the final professional examination in 2003 and has undergone one year rotary internship from A.K. Tibbiya College Hospital, Aligarh Muslim University, Aliga and at Balrampur Hospital, Lucknow and since then, she is running her own nursing home in the name and style of "Hameed Hospital and Maternity Centre, Rehmaniya Road, Maudaha". She was treating patients through unani mode of medicines, general medicines and treating her patients in her maternity home. Though, license of that nursing home was not renewed, on account of recent COVID upsurge though her hospital was duly registered. Whatever action has been done by her is in the welfare of her patient with utmost wisdom and experience. Unfortunately, the victim died on the said date. The post mortem report reveals that the cause of death is shock and haemorrhage on account of "ante mortem uterine and vaginal injuries" sustained by the injured. It is specifically submitted that these injuries are not caused by the appellant. She has only treated and administered certain medicines to her for her welfare and well-being. These injuries might have caused by some other co- accused persons. The case of the appellant is quite distinguishable from the other co-accused persons. There is no ill mens rea involved nor it could be said that the concern doctor was medically incompetent to treat her patiens including the deceased. In fact, there is no carelessness on the part of the appellant. Learned counsel for the opposite party no.2 has opposed the arguments advanced by learned counsel for the appellant by making a mention that on account of misdeed of the co-accused Shailendra, she became pregnant and during treatment, she lost her life but he could not dispute the fact that cause of death as mentioned by the doctor is not caused by the appellant. Taking into account the totality of circumstances and the role attributed to the appellant, he has made out a fit case for bail. The appellant is languishing in jail since 30.09.2021. It is made clear that case of the appellant shall not be used for any parity purpose. The submission made by learned counsel for the appellant, prima facie, is quite appealing and convincing for the purpose of bail only. Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, taking into account the manner and mode of the offence and taking into account the generality of allegation, I am of the view that the appellant has made out a case for bail. Let the appellant-Dr. Hina Hameed Alias Hina Ishrat, be released on bail in the aforesaid case crime number on her furnishing a personal bond and two reliable 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 APPELLANT WOULD FULLY COOPERATE IN THE CONCLUSION OF TRIAL WITHIN ONE YEAR AND ANY TEMPERING OR WILLING TACTICS ON THE PART OF THE APPELLANT TO DELAY THE TRIAL WOULD WARRANT THE AUTOMATIC CANCELLATION OF BAIL. (ii) THE APPELLANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE 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. (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 IPC. (iv) IN CASE, THE APPELLANT MISUSE THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF 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 IPC. (v) THE APPELLANT 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 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. However, it is made clear that any wilful violation of above conditions by the appellants, shall have serious repercussion on her bail so granted by this court. Accordingly, the appeal succeeds and the same stands allowed. Impugned order dated 29.11.2021 passed by learned Additional Sessions Judge, Court No.2/Special Judge, SC/ST Act, Mahoba in Bail Application No.153 of 2021 in Case Crime no.286 of 2021, under Sections 313, 314, 506 I.P.C. and Section 3(1)r, 3(1)(s), 3(2)(v) and 3(2)(va) of SC/ST Act, Police Station-Kabrai, District- Mahoba, is hereby set aside. Order Date :- 18.2.2022 Sumit S Digitally signed by SUMIT SRIVASTAVA Date: 2022.02.19 15:24:19 IST Reason: Location: High Court of Judicature at Allahabad