Ghanshyam Tiwari vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 28907 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:68207
 
Court No. - 15
 

 
Case :- CRIMINAL APPEAL No. - 19 of 2023
 

 
Appellant :- Ghanshyam Tiwari
 
Respondent :- State Of U.P. Thru. Prin. Secy. Home, Lko.
 
Counsel for Appellant :- Vivek Pandey
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Shamim Ahmed,J. 

1. This Court vide order dated 19.09.2023 passed the following order, by which the opposite party No. 2 was granted last time to file counter-affidavit :-

"Counter affidavit filed today in the Court by learned A.G.A. on behalf of the State is taken on record.

Learned Counsel for the appellant prays for and is granted one week's time to file rejoinder affidavit in reply to the counter affidavit filed today on behalf of the State.

As per the office report dated 18.09.2023 notice has already been served upon opposite party No.2 but till date no counter affidavit has been filed on behalf of opposite party No.2 nor any counsel is present today to represent the opposite party No.2.

As a last opportunity, the opposite party No.2 is granted ten days' time to file counter affidavit. Three days' time thereafter shall be available to learned Counsel for the appellant for filing rejoinder affidavit.

Accordingly, list/put up this case on 17.10.2023."

2. Today, when the matter is being taken up, no counter-affidavit has been filed on behalf of the opposite party No. 2 nor any counsel is present to press his case. It appears that the opposite party No. 2 is not interested to contest this case.

3. Learned counsel for the appellant submits that the matter pertains to bail and it is urgent, thus, this Court has no option, but to go for final hearing of this case.

4. Heard Sri Vivek Pandey, learned counsel for the appellant, Sri Bhaskar Mall, learned A.G.A. for the State and perused the entire record.

5. This Criminal Appeal under Section 14-A (2) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been preferred against the impugned order dated 05.08.2022 passed by learned Special Judge, S.C./S.T. Act, Gonda, in Bail Application No.1679 of 2022, Case Crime No. 63 of 2022, under Sections 420,467,468,471,452,504,506,354B I.P.C. and Section 3(1)Da, 3(1)Dha, 3(2)(v) of S.C./S.T. Act, Police Station Itiathok, District Gonda, whereby the bail application of the appellant has been rejected.

6. Learned counsel for the appellant submits that the appellant is innocent and he has been falsely implicated in the present case. The present first information report (F.I.R.) has been loged after delay of two-and-a-half months of moving an application under Section 156(3), Cr.P.C. regarding the incident dated 5.1.2022. He further submits that as per the version of the F.I.R. it has been stated by the complainant that for purchase of land-area 0.081 Hectare, out of Gata No. 804, total area 0.6320 Hectare, situated at Village Rupaideeh, Pargana, Tehsil and District Gonda, from the appellant he had paid Rs. 1,80,000.00 cash and got the sale-deed of the said land registered in his favour. The said sale-deed was executed on 9.8.2021 at the office of the Sub-Registrar, Gonda. It has been further stated in the F.I.R. that the complainant later on came to that before execution of the sale-deed dated 9.8.2021 in his favour the entire land of the above said Gata No. 804 had been sold by the appellant to several other persons and no part of it was remained with the appellant to sell further, thus, the appellant had played fraud with the opposite party No. 2 and thereafter when the opposite party No. 2 demanded his money back, then the appellant abused him with caste-language and on 5.1.2022 he came to the house of the opposite party No. 2 and molested his wife and also abused her with caste-language and threatened her with dire consequences.

7. Statement of the complainant was recorded under Section 161, Cr.P.C. in which he repeated almost the same version of the F.I.R. Thereafter, statement of his wife was recorded under Section 161 and 164, Cr.P.C. in which she also repeated almost the same version of the F.I.R.

8. Learned counsel for the appellant has submitted that the allegations made in the F.I.R. are totally false and fabricated. It is not disputed that the appellant had executed the sale-deed in respect of the land for which the opposite party No. 2 had paid the aforesaid amount and possession of the said land was duly given to the opposite party No. 2, but due to village rivalry and enmity he started demanding money from the appellant, without any cause. It has further been submitted by the learned counsel that the story in respect of molestation with the complainant's wife and abusing her is also false. It was mentioned in the F.I.R. only to give gravity to the alleged offence. In fact, no such incident had taken place. Although the present F.I.R. has been lodged after moving of an application under Section 156(3), Cr.P.C., after more than two-and-a-half months of the alleged incident, that is on 5.1.2022, no proper reason has been given regarding delay. There was also intention of the opposite party No. 2 to get some financial aid from the State Exchequer by lodging the present F.I.R., as the appellant belongs to the upper caste of the society and the opposite party No. 2 belongs to the S.C./S.T. Category.

9. Learned counsel for the appellant further submits that if it is assumed to be true that the land, which was sold by the appellant to the opposite party No. 2, does not exist and as per the detail given in the sale-deed the possession was also not taken by the opposite party No. 2, then the opposite party No. 2 has remedy to file a suit for cancellation of the sale-deed before the competent Civil Court, but not lodging the present F.I.R. by moving an application under Section 156(3), Cr.P.C. The opposite party No. 2 has tried to give colour to a civil dispute into a criminal prosecution, which shows his mala fide and arbitrary action. It was also stated that the other allegations as averred in the F.I.R. are nothing, but only to get financial aid from the State Exchequer. He further submits that the appellant is an innocent person and till date sale-deed has not been cancelled and the land still belongs to the opposite party No. 2, and the appellant has no concern with the alleged land. The land still exists on the spot, but the opposite party No. 2 with mala fide intention does not intend to take possession of the said land, thus, he submits that no criminal liability lies abainst the appellant.

10. Several other submissions have also been brought forth regarding the illegality and infirmity of the prosecution case and it has been highlighted that the appellant is in detention since 20.3.2022 and he has already undergone substantial period of detention. It has also been submitted that due to heavy pendency of criminal cases there are blinking chances that the trial of the present case would be concluded expeditously, thus, he submits that the appeal of the appellant should be allowed by this Court sympathetically and the judgment and order passed by the Court below be reversed and the appellant be released on bail.

11. Sri Bhaskar Mall, learned A.G.A. has vehemently opposed the prayer for bail and submitted that it cannot be said that the appellant is free from the criminal liabilities, as he has played fraud by selling the land, which does not exist on the spot. He also submits that it is not in dispute that the sale-deed has been executed in favour of the opposite party No. 2, but actually the possession has not been given and the money has been taken by playing fraud, thus, the appellant is not entitled to get any relief by this Court and the appeal of the appellant be rejected.

12. After considering the arguments, as advanced by the learned counsel for the parties, this court is of the view that there appears force in the arguments of the learned counsel for the appellant that the opposite party No. 2 has tried to give colour to a civil dispute to be a criminal prosecution by moulding the entire facts of the case and if he is actually aggrieved that he was not given possession of the land purchased, he has a remedy to file a suit for cancellation of the sale-deed before a competent Civil Court, but in spite of moving to the Civil Court he has adopted a shortcut method by moving an application under Section 156(3), Cr.P.C. and lodging the F.I.R., which is nothing but an abuse of process of law. There also appears force in the argument as advanced by learned counsel for the appellant that another story as manufactured by the complainant in the first information report is also false and fabricated, and it has been mentioned in the F.I.R. only to give gravity to the alleged offence. No such incident, as alleged in the F.I.R., has happened. It was only a ploy to get financial aid from the State Government by lodging the present F.I.R., as the appellant belongs to Upper caste and the opposite party No. 2 is a Member of the S.C./S.T. category.

13. After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also in the absence of any convincing material to indicate the possibility of tampering with the evidence and further considering the larger mandate of the Article 21 of the Constitution of India and the law laid down by the Hon'ble Apex Court in the case of Dataram Singh vs. State of UP and another, reported in (2018) 3 SCC 22, this Court is of the view that the learned court below has failed to appreciate the material available on record. The order passed by the court below is liable to be set aside.

14. Accordingly, the appeal is allowed. Consequently, the impugned order dated 05.08.2022 passed by learned Special Judge, S.C./S.T. Act, Gonda, in Bail Application No.1679 of 2022, Case Crime No. 63 of 2022, under Sections 420,467,468,471,452,504,506,354B I.P.C. and Section 3(1)Da, 3(1)Dha, 3(2)(v) of S.C./S.T. Act, Police Station Itiathok, District Gonda, is hereby set aside and reversed.

15. Let the appellant Ghanshyam Tiwari be released on bail in the Case Crime No. 63 of 2022, under Sections 420,467,468,471,452,504,506,354B I.P.C. and Section 3(1)Da, 3(1)Dha, 3(2)(v) of S.C./S.T. Act, Police Station Itiathok, District Gonda, with the following conditions:-

(i) The appellant shall furnish a personal bond with two sureties each of like amount to the satisfaction of the court concerned.

(ii) The appellant shall appear and strictly comply following terms of bond executed under section 437 sub section 3 of Chapter- 33 of Cr.P.C.:-

(a) The appellant shall attend in accordance with the conditions of the bond executed under this Chapter.

(b) The appellant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

(c) The appellant 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 appellant shall cooperate with investigation /trial.

(iv) The appellant 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.

(v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(vi) In case, the appellant misuses the liberty of bail during trial, in order to secure his presence, proclamation under section 82 Cr.P.C. is issued and the appellant 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.

(vii) The appellant shall remain present, 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 appellant 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.

16. The trial court is also directed to expedite the trial of the aforesaid case by following the provisions of Section 309 Cr.P.C., strictly without granting any unnecessary adjournments to the parties, in case there is no other legal impediment.

(Shamim Ahmed, J.)

Order Date :- 17.10.2023

A.Nigam