Julekha Begum vs State Of U.P. Thru Principal Secy ...
2023 Latest Caselaw 724 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 12
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 8 of 2022
 

 
Applicant :- Julekha Begum
 
Opposite Party :- State Of U.P. Thru Principal Secy Home Dept. Civil Sectt Lucknow And Another
 
Counsel for Applicant :- Sumit Kumar Srivastava
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Karunesh Singh Pawar,J.

Heard learned counsel for the applicant as well as learned Additional Government Advocate for the State and perused the record.

A Co-ordinate Bench of this Court vide order dated 17.01.2022 has passed the following order which covers the gist of the matter:

"Heard Mr. Sumit Kumar Srivastava, learned counsel for the applicant, Mr. Arvind Kumar Pandey, learned AGA and perused the record.

By means of the instant application under Section 438 of Cr.P.C., the applicant-Julekha Begum has prayed for being granted anticipatory bail in case Crime No. 0134/2019 arising out of Criminal Case No.6616 of 2020 (State vs. Abdullah Khan & Others), under sections 419, 420, 467, 468, 471, 506 I.P.C., Police Station Kandhai, District Pratapgarh.

The facts, in brief, are that a first information report was lodged on 17.06.2019 against (1) Abdullah Khan, (2) Gyan Prakash Pandey, (3) Mohd. Irfan, (4) Kisunath and (5) Julekha alleging therein that the informant Momina is the sole heir of her ancestors and the aforesaid accused-persons No. 1 to 4 got the land of her ancestors bearing Gatas No. 275Ka, 282Ka, 294, 295 and 299 mutated on 11.01.2019 in the name of the present applicant-Julekha Bugum on the basis of inheritance and within a period of 40-50 days, they obtained an agreement from Julekha Begum. They even obtained an agreement in respect of the land bearing Gatas No. 304, 800 and 801, which had not been mutated in the name of the applicant-Julekha Begum. Upon coming to know about these facts, the informant filed a case in the Court of Naib Tehsildar, Raniganj. It is submitted that the mutation order dated 11.01.2019 has been been stayed by an order dated 28.02.2020 passed by the Naib Tehsildar in Case No. T201902570500236 (Momina Khatun vs. Jubaida Khatun in respect of Gatas No. 275ka-0.084 hectare, 282Ka-0.044 hectare, 294-0.103-hectare, 295-0.0557 hectare and 299-0.152 hectare.

Learned counsel for the applicant has submitted that the applicant has merely entered into an agreement to sell without handing over possession of the property and in paragraph 15 of the affidavit filed in support of the application for anticipatory bail, she has categorically given an undertaking that she will not sell the land in dispute without decision of the dispute by the Revenue Court.

Learned counsel for the applicant has further submitted that the co-accused, Gyan Prakash Pandey and Abdullah Khan have already been granted anticipatory bail by the Additional Sessions Judge, Court No. 5, Pratapgarh vide orders dated 6.1.2020 passed in Anticipatory Bail Applications No. 17/2019 and 20/2019, respectively (Annexure-5 to the application).

Learned counsel for the applicant has placed reliance on the decisions of Hon'ble Supreme Court in the case of Sushila Aggarwal And Others Vs. State (NCT of Delhi) And Another reported in (2020) 5 SCC 1 and Siddarth vs. State of U.P. & Anr. reported in 2021 SCC OnLine SC 615 and submitted that the applicant was not arrested during the course of investigation and a charge-sheet has already been filed in the matter. He submitted that during the course of investigation, the applicant has cooperated in the investigation and she has never misused the liberty given by the Investigating Officer, as such, she is entitled for anticipatory bail.

Learned AGA opposed the prayer of applicant and submitted that a charge-sheet has already been filed in the matter after detailed investigation in which the involvement of applicant has been found.

Keeping in view the aforesaid facts, prima facie, it appears that the dispute between the parties is essentially of a civil nature and even as per the allegations made in the FIR till date the applicant has neither transferred the possession nor the ownership of the property in dispute. Two co-accused persons have already been granted anticipatory bail of the learned Court below, therefore, I am of the view that the applicant is entitled for an interim protection pending disposal of her application for anticipatory bail.

Therefore, it is provided that in the event of arrest of the applicant, namely, Julekha Begum in the aforesaid case, she shall be released forthwith by the Station House Officer of the police station concerned, on her furnishing personal bond of Rs.50,000/- with the following condition:-

(i) That the accused-applicant shall make herself available for interrogation by police authorities as and when required and will cooperate with the investigation;

(ii) That the accused-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 to any police officer; and

(iii) That the accused-applicant shall not leave India without the previous permission of the Court.

However, it is directed that the applicant will join and participate in each and every aspect of Investigation and will lend full assistance to the Investigating Agency, even with regard to 'discovery of fact' if and when required so by the Investigating Agency.

Learned AGA is directed to file a counter affidavit within period of three weeks.

The applicant shall have one week thereafter for filing rejoinder affidavit.

List thereafter for final disposal."

Learned counsel for the applicant submits that the applicant has not misused the liberty granted by this Court. She has cooperated in the investigation and also undertakes to cooperate in the trial.

Learned AGA, though, has opposed the bail prayer, however could not show any material that applicant has not cooperated in the investigation or is not cooperating in the trial.

On due consideration to the argument advanced as well as perusal of the record so also considering the fact that primarily the dispute is civil in nature and applicant has undertaken to cooperate in the trial, the interim protection granted vide order dated 17.01.2022 is affirmed.

Without expressing any opinion on the merits of the case and considering the nature of accusation and having no criminal antecedents, coupled with the undertaking given by the applicant that he will cooperate in the investigation/trial, the applicant is entitled to be released on anticipatory bail in this case.

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 interim order dated 17.01.2022 is affirmed. However, the accused applicant is directed to surrender before trial court, if charge sheet has been filed and she is summoned to face trial for offence in question. The accused applicant shall be released on bail by the trial court on furnishing a personal bond with two sureties each in 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 application is disposed of.

Order Date :- 9.1.2023

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