Vijay Kumar vs State Of U.P.
2021 Latest Caselaw 7848 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 29
 

 
Case :- BAIL No. - 7157 of 2021
 

 
Applicant :- Vijay Kumar
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Surendra Kumar Mishra,Anshuman Pandey
 
Counsel for Opposite Party :- G.A.
 
(In chamber)
 

 
Hon'ble Vikas Kunvar Srivastav,J.

The case is called out through video conferencing.

Learned counsel for the bail-applicant SriSurendra Kumar Mishra, Advocate and learned A.G.A. for the State Sri Diwakar Singh, Advocate are connected through video conferencing.

The present bail application is filed on behalf of the accused-applicant-Vijay Kumar, involved in Case Crime No.18/2020, under Sections 419, 420, 467, 468, 471 of I.P.C., registered at Police Station Kotwali Bikapur, District Ayodhya.

The occasion of present bail application has arisen on rejection of bail plea of applicant by learned Sessions Judge, Faizabad vide order dated 08.06.2021.

Learned A.G.A. informs the Court that he has received the instructions, on the basis whereof, he is well in position to contest the bail prayer.

Reading over the first information report, learned counsel for the bail-applicant submitted that it is lodged by one Leelawati in whose favour, the undivided interest in the property by the brother of the accused namely Santosh Kumar is transferred through execution of sale deed dated 23.08.2018.

It is further argued by learned counsel for the bail-applicant that when the mother of the accused namely Ram Lali came into notice of the sale deed executed by Santosh Kumar, she promptly filed suit for cancellation, as according to her, on the date of execution of sale deed i.e. 23.08.2018, her son was minor in age, as such, he was not competent to enter into contract. The said suit no.1250 of 2018 (Ram Lali Vs. Leelawati and Santosh Kumar) is pending in the Court of Civil Judge, Junior Division, Haveli, District Faizabad.

Learned counsel for the bail-applicant further submitted that pending the suit, Leelwati with a view to pressurize for the compromise, lodged the first information report against the present accused-applicant that he manipulated the date of birth certificate of Santosh Kumar, the vendor of the sale deed under the sale deed dated 23.08.2018, executed in favour of Leelawati, the complainant by submitting a false affidavit as to the date of birth and thus got a date of birth certificate, showing the vendor Santosh Kumar as minor.

Learned counsel for the bail-applicant drew attention towards the annexures made with the affidavit in support of the bail-application, the school leaving certificate, wherein the date of birth of Santosh Kumar is shown as 05.09.2002 whereas the sale deed as pleaded in the suit for cancellation was executed by the Santosh Kumar, showing his date of birth to be 01.01.1999 on the basis of Aadhar Card.

Learned counsel further submitted that since Aadhar Card is not a genuine date of birth certificate or sufficient to prove the date of birth authentic and the school leaving certificate, the Parivar Register and the certificate of date of birth issued by the local body, all are showing the Santosh Kumar as minor. Learned counsel further submitted that the faith of the sale deed executed by the Santosh Kumar be decided efficaciously by the Civil Court, where the suit is pending, as such, the F.I.R. is lodged only to pressurize for compromise of the suit and withdrawal of the F.I.R. otherwise the manipulation is false.

Learned counsel further submitted that accused-applicant is ready to face trial, he is not in a position to flee away from the process of the Court, he is not having any criminal antecedents, he is a common man and and he is law abiding person.

On the other hand, learned A.G.A. submitted that the certificate relied in the suit for cancellation before the Civil Court, seeking relief against the sale deed executed by the Santosh Kumar on the ground being his minor at the time of execution of the deed was inquired by the State and according to the instructions received to him, the birth certificate issued, showing the date of birth of the Santosh Kumar as 05.09.2002 is canceled.

In the aforesaid circumstances, learned A.G.A. submitted that the accused-applicant is not in a position to plead innocence under the matter. However, the other documents like Parivar Register, the school leaving certificate are admittedly have no any such objection by learned Additional Government Advocate. He has also not denied that the judiciary had held that Aadhar Card is no document to authenticate date of birth.

On hearing the learned counsel for the bail-applicant and learned A.G.A., this is to be kept in mind that the dispute substantively lies between the parties to the suit with regard to the cancellation of sale deed executed by Santosh Kumar in favour of Leelawati, the complainant. The suit is filed by the mother, one of the interested person in the property and the right, title and interest on the basis of sale deed is to be decided only by the Civil Court efficaciously. The present accused-applicant is neither vendor nor marginal witness nor any how have assigned role in the execution of the sale deed, therefore, so far as the manipulation of getting date of birth of Santosh Kumar which is relied in the suit of Ram Lali, is a matter of proof. The present accused-applicant seems to have no role with the execution of sale deed or calling evidence in the suit of Ram Lali for the cancellation of sale deed dated 23.08.2018 in course.

Keeping into mind the valuable right of personal liberty and the fundamental principle not to disbelieve a person to be innocent unless held guilty and if he is not arraigned with the charge of an offence for which the law has put on him a reverse burden of proving his innocence as, held in the judgment of Hon'ble the Supreme Court in Dataram Singh Vs. State of U.P. and ors. reported in (2018) 3 SCC 22, I find force in the submission of learned counsel for the bail-applicant to enlarge him on bail.

Considering the facts and circumstances of the case, perusing the record, considering the nature of allegations, arguments advanced by learned counsel for the parties and looking into the complicity of the applicant-accused in the offence, the gravity of offence, severity of punishment without expressing any opinion on the merit of the case, I find it to be a fit case for granting bail. Moreover, benefit of parity is also being given to him in the case.

Let applicant (Vijay Kumar), involved in Case Crime No.18/2020, under Sections 419, 420, 467, 468, 471 of I.P.C., registered at Police Station Kotwali Bikapur, District Ayodhya be released on bail on his furnishing a personal bond of Rs.1,00,000/- and two reliable sureties of the like amount to the satisfaction of the court concerned subject to following additional conditions, which are being imposed in the interest of justice:-

(i) The applicant shall file an undertaking to the effect that he 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.

(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(iii) In case, the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. 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 him, in accordance with law, under Section 174-A of the Indian Penal Code.

(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. 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 him in accordance with law.

Order Date :- 13.7.2021

Saurabh