Allahabad High Court
Mohammad Abid vs State Of U.P. Thru. Secy. Home Lko. ... on 20 February, 2023
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 12
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 1713 of 2022
Applicant :- Mohammad Abid
Opposite Party :- State Of U.P. Thru. Secy. Home Lko. And Another
Counsel for Applicant :- Sheikh Mohammad Ali
Counsel for Opposite Party :- G.A.,Rajendra Prasad Lodhi
Hon'ble Karunesh Singh Pawar,J.
The applicant has moved the present application under Section 438 of Cr.P.C. praying for grant of anticipatory bail in Case Crime No.662 of 2013 under sections 419, 420, 467, 468 I.P.C., P.S. Hardi, district Bahraich.
Heard learned counsel for the applicant and learned A.G.A. for the State. None appears for the complainant.
Vide order dated 19.5.2022, interim protection was granted by this court in a petition under section 482 CrPC No.2744 of 2022 filed by the seller and two marginal witnesses.. Gist of the issue involved in the present matter is given in the said order, which is extracted below :
"Heard learned counsel for the petitioners and learned A.G.A. for the State.
Issue notice to respondent no. 2.
Learned counsel for the petitioners submits that petitioner no. 1 is seller and petitioner no. 2 and 3 are marginal witnesses. It is further submitted that after the death of late Satgur Dayal who died issue less, the name of petitioner no. 1 and his four brothers were recorded as his legal heirs in the revenue records and thereafter the land in question was sold to the co-accused Abid by the registered sale deed.
It is further submitted that after the mutation of the name of the co-accused Abid in the revenue records, respondent no. 2 claiming himself to be the son of late Satgur Dayal has filed an application before the revenue authorities which was allowed and against that order an appeal was filed before the SDM concerned at Mahsi, District Bahraich by petitioner no 1 and his brothers which was also allowed vide order dated 16.01.2020 and remanded back the matter to the court below which is still pending.
It is further submitted that the dispute is primarily is of civil nature. Initially an F.I.R. was lodged against 12 persons, however, the charge sheet has been filed against six persons and name of the revenue officers have been dropped. The gram pradhan of the village has certified that there is no person having name Ishak son of Wali Mohammad residing in the village which falsifies the statement of the witness recorded by the investigating officer. Likewise the affidavit has been given by Pitamber and the certificate issued by the gram pradhan clearly shows that no such statement under Section 161 Cr.P.C. has been given by the witnesses. The affidavit of Pitamber as well as certificate issued by the gram pradhan is on record. It is lastly submitted that the co-accused of this case has lodged an F.I.R. against the complainant alleging that the complainant is not the son of late Satgur Dayal, copy of which is on record. It is thus submitted that primarily a civil dispute is tried to be given a colour of criminal nature.
On due consideration to the argument advanced by the parties as well as perusal of the record, I am of the opinion that the matter requires consideration, therefore, till further orders the proceedings of criminal case No. 13581/2020 "State Vs. Shiv Kumar and others" arising out of case crime No. 662/2013, under Sections 419/420/467/468 I.P.C. P.S. Hardi, District Bahraich shall remain in abeyance so far as it relates to petitioners namely Shiv Kumar, Kallu and Ishak.
List on 21.07.2022.
Learned A.G.A. shall file counter affidavit in the meantime. "
It is submitted on behalf of the applicant that the applicant is a bona fide purchaser. His case is on better footing than the co-accused who have got the interim order, extracted above.
It is next submitted that the dispute is purely of civil nature. He further submits that a perusal of the order sheet dated 17.10.2022 and 31.10.2022 shows that the matter was adjourned at the behest of the complainant's counsel on the ground of granting time to file counter affidavit. Despite orders of the court, no counter affidavit has been filed by the State. None is present for respondent No.2.
It is submitted that the applicant has cooperated in the investigation. Charge sheet has been filed. He undertakes on behalf of the applicant that the applicant shall cooperate in the trial.
Learned A.G.A. has opposed the prayer made by the applicant's counsel.
Without expressing any opinion on the merit of the case and considering the nature of accusation and the applicant having no criminal antecedents, the undertaking given on behalf of the applicant that he shall cooperate in the trial , the applicant is a bona fide purchaser, the interim order passed by this court in favour of the co-accused persons, I am of the opinion that in the event of arrest/surrender before the concerned court, the applicant is entitled to be enlarged on anticipatory bail in this case in the light of judgment of Supreme Court in Sushila Aggarwal and others vs. State (NCT of Delhi) and another (2020)5 SCC 1, subject to his cooperation in the trial.
In view of the above as also keeping in view of the judgment in Sushila Aggarwal vs. State (NCT of Delhi) 2020 SCC OnLine 98, the accused applicant is directed to surrender before trial court if he is summoned to face trial for offence in question after filing of the charge sheet. In the event of arrest/surrender before the concerned court, the accused applicant shall be enlarged on anticipatory bail by the trial court on his furnishing a personal bond and two sureties each of the like amount to the satisfaction of the trial Court, with the following conditions.
(i) The applicant 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 tamper with the evidence;
(ii) The applicant shall not leave India without the previous permission of the court;
(iii)The applicant shall not pressurize/ intimidate the prosecution witness;
(iv)The applicant shall appear before the trial court on each date fixed unless personal presence is exempted;
(v) In case of breach of any of the above conditions the court below shall have the liberty to cancel the bail;
Any other reasonable restrictions/conditions which the trial court may deem fit and proper can be imposed.
It is made clear that the observations made in granting bail to the applicant shall not in any way affect the trial Judge in forming his independent opinion based on the testimony of the witnesses.
In view of the aforesaid, the anticipatory bail application is allowed.
Order Date :- 20.2.2023
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