Mohammad Zaki Hashmi And 2 Others vs State Of U.P. Thru Prin. Secy. ...
2022 Latest Caselaw 15425 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

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Court No. - 11
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 1307 of 2022
 

 
Applicant :- Mohammad Zaki Hashmi And 2 Others
 
Opposite Party :- State Of U.P. Thru Prin. Secy. Deptt Of Home U.P. Civil Sectt Lko And Another
 
Counsel for Applicant :- Pawan Kumar Mishra
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Sanjay Kumar Singh,J.

Heard learned counsel for the applicants, learned Additional Government Advocate for the State of U.P. and perused the record.

This Criminal Misc. Anticipatory Bail Application under Section 438 Cr.P.C. has been moved by the applicants after rejecting their anticipatory bail application by the order dated 06.07.2022 passed by learned Additional Sessions Judge/Special Judge (Exclusively POCSO Act), Shrawasti, seeking Anticipatory Bail in Case Crime No. 87 of 2022, under Sections 419, 420, 467, 468, 504, 506, 471 IPC, Police Station Ikauna, District Shrawasti.

On 10.08.2022, while granting interim anticipatory bail to the applicant, following order was passed :-

"Heard Sri Pawan Kumar Mishra, learned counsel for the applicants, Sri Shivpal Singh, learned counsel for the informant, Sri Vinay Kumar Shahi, learned AGA for the State and perused the material available on record.

The present anticipatory bail application has been filed on behalf of the applicants in FIR/Case Crime No.0087 of 2022, under Sections 419, 420, 467, 468, 504, 506 and 471 IPC, Police Station Ikauna, District Shrawasti, with a prayer to enlarge them on anticipatory bail.

As per prosecution story, the applicant is stated to have purchased a land bearing gata Nos.485 and 487 which were recorded as Aabadi in the revenue records. The informant is stated to have lodged an FIR after a delay of about nine years. There is a Civil Suit No.11/2014 pending between the parties.

Learned counsel for the applicants has stated that the applicants have been falsely implicated in the case. The suit pertaining to title of the land and the possession is pending in the Court of Civil Judge, Shrawasti. Learned counsel has placed reliance on the restraining order passed by the said court vide order dated 15.04.2017. The informant herein is stated to have even filed objections in the said civil suit. Learned counsel for the applicants undertakes that they will cooperate in the investigation failing which the State can move appropriate application for vacation of the interim protection.

Learned A.G.A. has opposed the prayer for grant of anticipatory bail but unable to dispute the submissions raised by the learned counsel for the applicants.

Matter requires consideration.

Learned AGA is granted three weeks' time to file counter affidavit. Rejoinder affidavit, if any, may be filed within a week thereafter.

List this case on 22.09.2022 in the additional cause list.

On due consideration to the arguments advanced by learned counsel for the applicants as well as learned A.G.A. and considering the nature of accusations and antecedents of the applicants, the applicants, as an interim measure, are liable to be enlarged on anticipatory bail in view of the Constitution Bench judgment of Supreme Court in the case of "Sushila Aggarwal Vs. State (NCT of Delhi)-2020 SCC online SC 98". The future contingencies regarding the anticipatory bail being granted to applicants shall also be taken care of as per the aforesaid judgment of the Apex Court.

In the event of arrest, the accused-applicants- Mohammad Zaki Hashmi, Mohammad Razi Hashmi and Mohammad Faseeh Hashmi shall be released forthwith in the aforesaid case crime (supra) on interim anticipatory bail on furnishing a personal bond of Rs.50,000/- and two sureties each in the like amount to the satisfaction of the arresting officer/investigating officer/S.H.O. concerned on the following conditions:-

(i) the applicants shall make themselves available for interrogation as and when required;

(ii) the applicants shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or to any police officer; and

(iii) the applicants shall not leave India without the previous permission of the Court.

It is made clear that observations made hereinabove are exclusively for deciding the instant anticipatory bail application and shall not affect the trial or deciding the regular bail application."

It is argued by learned counsel for the applicants that the applicants are purchaser of the property in question. The other co-accused - Datadeen, Banshidhar, Om Prakash, Dharnidhar, Satish Chandra and Tarun Kumar, who are seller of the property in question have been granted anticipatory bail vide order dated 21.09.2022 by the Coordinate Bench of this Court passed in Criminal Misc. Anticipatory Bail Application under Section 438 Cr.P.C. No. 1552 of 2022. The applicants have no criminal history to their credit. Pursuant to F.I.R. of this case, the applicants have apprehension of imminent arrest. Lastly, it is submitted that in case, applicants are granted anticipatory bail, they would not misuse the liberty and will co-operate with the investigation of this case.

Learned Additional Government Advocate for the State of U.P. opposed the prayer for granting anticipatory bail to the applicants by contending that as on date, there is no material on record to presume the false implication of the applicants. Investigation of this case is going on. Considering the prosecution case, offence is made out against the applicants.

Having heard learned counsel for the parties, I find that the case of the applicants stands on better footing than that of co-accused Datadeen, Banshidhar, Om Prakash, Dharnidhar, Satish Chandra and Tarun Kumar who have been granted anticipatory bail by the Coordinate Bench of this Court.

Looking to the overall facts and circumstances of the case, submissions of learned counsel for the parties as noted above, reasonable apprehension of arrest of the applicants, taking into consideration the gravity of offence, nature of accusation and there being no possibility of their fleeing from justice, this Court is of the view that prima facie the applicants have made out a case for granting anticipatory bail during investigation.

In the event of arrest of the applicants, namely, Mohammad Zaki Hashmi, Mohammad Razi Hashmi and Mohammad Faseeh Hashmi involved in the aforesaid case shall be released on anticipatory bail on their furnishing personal bond of Rs.25,000/- with two sureties each in the like amount to the satisfaction of the Station House Officer of the police station concerned till the submission of police report, if any, under Section 173(2) Cr.P.C. with the following conditions :-

i) The applicants shall make themselves available for interrogation by a police officer/investigating officer as and when required.

ii) The applicants shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.

iii)The applicants shall not leave India without the previous permission of the Court.

iv) In default of any of the conditions mentioned above or in case it is found that applicants have obtained this order concealing any material facts, the investigating officer shall be at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicants.

It is clarified that observations made in this order at this stage is limited for the purpose of determination of this anticipatory bail application only and will in no way be construed as an expression on the merits of the case. The investigating officer of this case shall be absolutely free to arrive at its independent conclusions according to law on the basis of materials/evidences on record.

With the aforesaid observations and directions, this anticipatory bail application is allowed.

Order Date :- 1.11.2022

Shubham