Allahabad High Court
Vijay Shankar And 8 Others vs State Of U.P. on 13 April, 2021
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved On:- 08.04.2021
Delivered On:- 13.04.2021
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 5403 of 2021
Applicant :- Vijay Shankar And 8 Others
Opposite Party :- State of U.P.
Counsel for Applicant :- Shivam Yadav
Counsel for Opposite Party :- G.A.,Abhishek Kumar Srivastava
Hon'ble Siddharth, J.
1. Heard Sri Shivam Yadav, learned counsel for the applicants, Sri Abhishek Kumar Srivastava, learned counsel for the informant and learned A.G.A for the State.
2. The instant Anticipatory Bail Application has been filed with a prayer to grant an anticipatory bail to the applicant,s namely, Vijay Shankar, Sankalp Gupta, Premchand, Niyaz Ahmad, Bheemsen, Mohanlal, Sahabuddin, Isteyaq Ahmad and Ramanand, in Case Crime No.- 0011 of 2021, under Sections- 419, 420, 467, 468, 471 IPC, Police Station- Phoolpur, District- Azamgarh.
3. Prior notice of this bail application was served in the office of Government Advocate and as per Chapter XVIII, Rule 18 of the Allahabad High Court Rules and as per direction dated 20.11.2020 of this Court in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 8072 of 2020, Govind Mishra @ Chhotu Versus State of U.P., hence, this anticipatory bail application is being heard. Grant of further time to the learned A.G.A as per Section 438 (3) Cr.P.C. (U.P. Amendment) is not required.
4. There is allegation in the FIR that that Abadi land of the applicant is situated on Arazi No. 351 Kha, area 0.574 kadi. Earlier his father used to run an iron workshop over the same which is close for a long time. The shop and house of the applicant is situated thereon. The applicant no. 1, Vijay Shankar, has executed a sale deed of part of plot no. 351 Kha M on 10.12.2020 in favour of applicant no. 2, Sankalp Gupta, without any right and title. Applicant no. 3, Prem Chand and applicant no. 4, Niyaz Ahmad, are the witness of the sale deed. Similarly, on 11.12.2020 applicant no. 1, Vijay Shankar, has executed another sale deed in favour of applicant no. 5, Bhim Sen, applicant no. 2, Sankalp Gupta and applicant no. 6, Mohan Lal Yadav, regarding area of 120 kadi of the aforesaid plot. Applicant no. 3, Prem Chand and applicant no. 4, Niyaz Ahmad, are again the witness of the aforesaid sale deed. Prior to execution of the aforesaid sale deed, on 17.09.2019 an agreement to sell without possession was executed by applicant no. 3, Prem Chand, in favour of applicant no. 5, Bhim Sen. Applicant no. 8, Isteyaq Ahmad and applicant no. 4, Niyaz Ahmad, testified to the documents and witnesses. The accused persons have deliberately fabricated valuable security for the purpose of earning illegal gains showing fraudulent transfer of property belongs to the father of the applicants. The old number of the plot in dispute was 711/2 area 0.574 kadi. The Assistant Settlement Officer, found possession of the father of the applicant over the same which was affirmed by Deputy Director of Consolidation in his order dated 15.05.1995. After the death of his father the applicant in his possession the same. The applicant has the documentary evidence in the form of registration of iron workshop of his father, sales tax and income tax receipt, electricity bills, etc.
5. Learned counsel for the applicants has submitted that the applicant no. 1 is the cousin of the informant. Number of civil disputes are pending between them and a Civil Suit No. 238 of 1996 which was pending the parties was dismissed on 30.01.2018. A Civil Appeal No. 16 of 2018 has been preferred by the applicant against the aforesaid judgment dated 30.01.2018 of the Civil Judge Senior Division, Azamgarh and another Civil Appeal No. 19 of 2019 has been preferred by applicant no. 1 which is also pending. He has submitted that on account of civil litigation between the parties the offences alleged are not made out against the applicants.
6. Learned counsel for the informant has vehemently opposed the anticipatory bail application of the applicants. He has submitted that there is no denial of the facts mentioned in the FIR regarding the execution of fraudulent sale deeds and an agreement to sale of the land of the informant. The offences alleged are fully made out against the applicants.
7. Learned AGA has opposed the prayer for anticipatory bail of the applicant. He has submitted that in view of the seriousness of the allegations made against the applicant, he is not entitled to grant of anticipatory bail. The apprehension of the applicant is not founded on any material on record. Only on the basis of imaginary fear anticipatory bail cannot be granted.
8. After hearing the rival contentions it appears that the land in dispute was found abadi by the Assistant Settlement Officer Consolidation in his order dated 01.07.1986 and by the Deputy Director of Consolidation in his order dated 15.05.1995 which has not been disputed. The reference to the Original Suit No. 238 of 1996 as the suit pending between the parties is not correct. In the aforesaid suit, Daya Shankar (since deceased), was the original plaintiff who instituted a suit for partition against the applicant no. 1 and informant both apart from other family members. The aforesaid suits has not been dismissed, but partly decreed and the share of the plaintiff has been directed to be separated. The applicant no. 1 and the informant have preferred civil appeals against the same which are pending. From the perusal of the judgment dated 30.01.2018 the plot no. 351 kha, forming subject matter of FIR, has been found to be the exclusive property of the informant and the name of the informant and his family is recorded over the same. The civil court has recorded a clear finding that consolidation courts have found the possession of the father of the informant over the same. The father of the applicant, Dhirendra, contested the cases before the revenue and civil courts and civil litigation is still pending before the civil court. The aforesaid property has been found by the civil court to be exclusive property of the father of the applicant and not the joint family property required to be partitioned in the partition suit.
9. In view of the above consideration, it is not a fit case for grant of anticipatory bail since the applicants appear to have executed illegal sale deeds and an agreement to sale between them regarding the property of the informant, which has not been denied in the pleadings or in the argument of the counsel for the applicants, hence the alleged offences appear to be made out against the applicants.
10. The anticipatory bail application is rejected.
Order date:- 13.04.2021
Rohit
