Munshad Ahmad Khan vs State Of U.P. And Another
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Allahabad High Court

Munshad Ahmad Khan vs State Of U.P. And Another on 1 March, 2024

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


	                                    Reserved on 21.2.2024 Delivered on 1.3.2024
 
Court No. - 89
 
Case :- CRIMINAL MISC. BAIL CANCELLATION APPLICATION No. - 714 of 2023
 
Applicant :- Munshad Ahmad Khan
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Shitlesh Pandey
 
Counsel for Opposite Party :- G.A.
 
Hon'ble Mrs. Sadhna Rani (Thakur),J.
 

Heard learned counsel for the applicant, learned counsel for the opp. party no. 2 and perused the record.

By moving this application, the bail granted to opp. party no. 2 vide order dated 1.10.2007 by the Additional Sessions Judge, Muzaffarnagar in S.T.No. 1821 of 2007, Case Crime No. 45 of 2006, under sections 302, 120-B and 149 I.P.C., police station Phugana District Muzaffarnagar is prayed to be cancelled.

It is argued by the learned counsel for the applicant that the FIR was lodged against unknown persons on 21.3.2006 at 10.00 p.m. that on the same day at about 8.25 p.m. when the first informant Munshad Ahmad Khan was having dinner with his uncle Nasir Ahmad they heard sound of firing. Immediately, they rushed towards the window, flashed the torch and witnessed that four persons were profusely hitting the bullets at Dr. Haji Jahir, the father of the first informant. On raising alarm, all the accused persons made good their escape. Both, the first informant and his uncle saw the assailants face to face and could recognize them when brought before them. The father of the first informant died on the spot.

It is argued that the FIR was lodged against unknown persons because of the terror of the assailants. In the post mortem report 8 gun shot injuries were found on the person of the deceased. While at the spot dozens of bullets were fired. Because of imminent threats by the accused persons, the first informant and his near relatives were forced to migrate, hence, some of them shifted to Delhi while some persons shifted to Baghpat. Co-accused Kallu was granted bail being a juvenile. Co-accused Udham Singh and Rahul were granted bail on the ground of parity of co-accused Kallu and the present accused Sudhir @ Billu was granted bail on the ground of bail granted to co-accused Udham Singh and Rahul. It is further submitted that the trial court while considering the bail application did not consider the following principles of law;

1. Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

2. Nature and gravity of the accusation;

3. Severity of the punishment in the event of conviction;

4. Danger of the accused absconding or fleeing, if released on bail;

5. Character, behaviour, means, position and standing of the accused;

6. Likelihood of the offence being repeated;

7. Reasonable apprehension of the witnesses being influenced; and

8. Danger, of course, of justice being thwarted by grant of bail.

The bail was granted in super haste manner. Learned A.D.G.C. got no opportunity of defence. While there was no order of the same day disposal of the bail application of the accused persons but by misinterpreting the order of this court an application was moved by the learned counsel for the opp. party no. 2 that in compliance of the order of the High Court, the bail application be disposed of on the same day and the bail application of the opp. party no. 2 was disposed of both by the Chief Judicial Magistrate and the Additional District Judge concerned on the same day. The antecedents of the accused person were also not called upon. The chargesheet had been submitted by CBCID after recording the statements of about hundred of witnesses but this fact too was not considered by the trial court. The complete case diary of the case was not placed before the court at the time of bail.

Co-accused Maharaj Singh is a very influential person. The present accused, who happens to be the village Pradhan also, is the nephew of Maharaj Singh and because of their terror the witnesses do not dare to take their names in the incident. The wife of the present accused Sudhir @ Bullu lost the election of Gaon Pradhan. Co-accused Sudhir @ Billu and Maharaj Singh had hired gangster Udham Singh to terrorise the villagers before this election of Gram Pradhan. The deceased was considered to be responsible for the defeat of the wife of Sudhir @ Billu. All the accused persons who are quite influential in their position in the area, politically, financially and with muscle power threatened the witnesses with the help of gangsters and the witnesses are having serious apprehension of their life and liberty in coming to the court.

The investigation of the local police was influenced by the accused persons, so investigation was first transferred to SIS on 5.5.2006, later on, on 10.5.2006, it was transferred to CBCID. On 30.5.2007 the charge sheet was filed against accused persons. In fact, Co-accused Maharaj Singh and Raj Singh wanted to exchange their land in the consolidation proceedings and it was being opposed by the deceased, hence, this incident took place. The accused persons were seen in the village with sophisticated weapons. Threats were being given by them to get the deceased eliminated. Because of their influence, during 17 years of trial, the statement of only one witness P.W.-1 could be recorded.

Because of the continuous threats of the accused persons, the witnesses and the first informant have been granted police protection. Vide order dated 21.8.2023 of this court, the permission has been granted to conduct the trial and record the statements of the witnesses through video conferencing. The accused persons are still exercising influence to get the matter compromised through some intermediaries or other influential persons.

Unnecessary exemptions from the attendance in the court are being granted to the accused and out of 295 total dates fixed in the matter till date of filing the affidavit, 66 exemption applications moved for the opp. party no. 2 were allowed. The opp. party no. 2 fired at the father of the complainant with the help and support of gangster Udham Singh.

It is further submitted that respondent Sudhir @ Billu moved an application u/s 482 Cr.P.C. to quash the proceedings which was dismissed by this court vide order dated 23.5.2007. He was directed to appear before the trial court within 15 days but ignoring that order he did not appear before the court further on 27.8.2007, an order was secured by the accused concealing the fact of the previous order dated 23.5.2007. Thus, the bail granted to the respondent no. 2 is the misuse of the process of law. The discharge application of the accused has also been rejected by the trial court. The sureties of respondent Sudhir @ Billu died many years back but no new sureties were filed by the respondent which amounts to gross violation of the terms of bail. The bail order as per section 447 Cr.P.C. also amounts to fraud on the court. The accused persons use to chase, attack and give threats to the applicant and his family members to coerce them to make compromise in the matter. The complaint dated 18.1.2019 was registered in this regard.

The testimony of P.W.-1 was recorded on 4.6.2018 and 13.6.2018 and prior to that he was under coercive force and threat. The public prosecutor in the trial court apparently acted more as a defence counsel than a government counsel. The Presiding Officer also recorded the testimony as per the version of the defence counsel with the sole intent to damage the entire testimony of P.W.-1. The charges could only be framed in 2012 i.e. after six years of the commission of the crime and five years after release of the accused on bail. Thus, it is clear that the accused is misusing his liberty of bail by evading court proceedings, influencing, threatening the witnesses, attempting to tamper with the evidence and interfering in the course of investigation.

As per the Judgement Prakash Kadam and others Vs. Ram Prasad Vishwanath Gupta and another, 2011 (6) SCC 189, the bail may be cancelled even if there is no misuse of bail granted and if allegations levelled against the accused are serious.

The attention of the court is drawn towards the judgment in State of U.P. Vs. Amarmani Tripathi, (2005) 8 SCC 21, wherein the Apex Court reached at the conclusion that misusing the liberty granted by the court by deliberately delaying the trial or engaging in dilatory tactics, can be a valid ground for cancellation of bail.

In Bashir Ahmad Rather Vs. State of Jammu & Kashmir, 2014 SCC Online J & K 198, the J.&K. High court held that if the accused is taking undue advantage of bail and seeking repeated adjournments to delay the trial, it can be a ground for cancellation the bail.

In Salauddin Abdulsamad Shaikh Vs. State of Maharashtra (1996) 1 SCC 667, the Apex Court held that the bail granted to an accused can be cancelled if there is a change in the circumstances and new facts emerged which were not known earlier and have material bearing on the grant of bail.

In Pankaj Kumar Vs. State of Maharashtra, 2019 SCC Online Bombay 4925, Bombay High Court held that if the accused was not named in the FIR but later on chargesheet was filed against him, it can be a ground for consideration the cancellation of bail.

In Ram Narayan Gupta Vs. State of Rajasthan 2015 SCC Online RAJ 600, Rajasthan High Court cancelled the bail of the accused when it was discovered that the accused had been involved in the commission of the crime but his name was not mentioned in the FIR.

In Zahira Habibullah Sheikh and another Vs. State of Gujarat, AIR (2004) SC 3114, the Supreme Court highlighted the duty of the court to ensure a fair trial and held that if the accused attempts to delay the trial or interferes with the judicial process it shall be considered a valid ground for cancellation of bail.

In Prasanta Kumar Sarkar Vs. Ashis Chatterjee and another, 2010 (14) SCC 496, the court held that the bail of the accused can be cancelled if the general principle laid down for bail are not followed by the court concerned.

In judgment of Sudha Singh Vs. State of U.P., 2021 (4) SCC 781, the court cancelled the bail of a history sheeter who was a sharp shooter too.

By placing the Judgment of Neeru Yadav Vs. State of U.P. ( 2014) 16 SCC 508, it is argued that if the accused is a history sheeter, he cannot claim parity.

Again placing the Judgments in Deepak Yadav Vs. State of U.P., 2022 SCC Online SC 672 and Harjit Singh Vs. Inderpreet Singh, 2021 SCC Online 633, it is argued that at the time of granting bail, the conduct of the accused has to be mandatorily looked into.

By placing the judgment in Ram Govind Upadhyay Vs. Sudharshan Singh and others, (2002) 3 SCC 589, it is argued that threatening the witnesses in the court and tampering the evidence is sufficient ground for cancellation of bail.

Hence submitted that in the compelling circumstances, there is no other option for the applicant but to approach this court seeking cancellation of bail of the opp. party no. 2.

The prayer is opposed by the learned counsel for the opp. party no. 2 and is submitted that the FIR was lodged against unknown persons while the opp. party no. 2, his uncle Raj Singh and Maharaj Singh, his cousin Rahul are living in the same village at a distance of 200 metres from the house of the first informant. After lodging the FIR on 21.3.2006 for the first time the name of co accused Kallu came into light on 2.4.2006 when he is said to have been seen by the first informant in the Mosque. The bail was granted to respondent no. 2 on 1.10.2007 while this bail cancellation application has been moved on 15.10.2023 after more than 16 years of enlarging the opp. party no. 2 on bail. The opp. party no. 2 has no criminal history to his credit. He has no relation with gangster Udham Singh, the main accused. There is no evidence on record of his involvement in the offence. The applicant himself is lingering on the case by moving transfer applications, recall applications, bail cancellation applications, applications u/s 482 Cr.P.C. applications for demanding security for the witnesses and for the first informant and his family members, application for conducting the trial through video conferencing e.t.c.

The transfer application of the applicant was rejected by the Apex Court vide order dated 7.12.2009 with liberty to the petitioner to approach the High Court seeking transfer within the State. The transfer application no. 130/2021 moved by the applicant in this court was disposed of vide order dated 21.8.2023 directing the court concerned to conclude the sessions trial through video conferencing without granting unnecessary adjournments to either of the parties. Transfer application dated 4.5.2018 was moved by the applicant raising allegations against the Presiding Officer and the District Judge had to withdraw the sessions trial from the court of Additional District Judge concerned vide order dated 18.5.2019. The accused persons in the matter by moving an application u/s 482 Cr.P.C. No. 51759 of 2022 vide order dated 27.6.2022 got a direction for the trial court to dispose of the sessions trial expeditiously preferably within a period of 8 months, but since then more than 15 months have been passed but trial has not been concluded because of the conduct of the applicant. An application was moved by the applicant to recall the above order dated 27.6.2022 of this court of the expeditious disposal of the case which was rejected by a detailed order dated 30.8.2023 by this court. Thus by not complying with the order of this court of expeditious disposal within time bound period, the applicant is committing contempt of court of the order dated 21.8.2023.

The opp. party no. 2 has not misused the liberty of bail during last 17 years of his enlarging on bail. The allegations against the opp. party no. 2 are totally false. He has neither committed the offence in question nor he can be said to be indulged in any anti social activities after his release on bail. The opp. party no. 2 has neither tampered any evidence nor threatened any of the witnesses. He has been dragged falsely in the present offence, whereas there is no evidence of his involvement in the commission of the crime. The applicant and his family members have not left their house because of the terror of the accused persons rather they are residing in Delhi or on other addresses with respect of their jobs. As the witnesses have been directed by the court to adduce their evidence through video conferencing and the applicant is also given a direction to appear in the court through video conferencing, proper security had been provided for the witnesses and the first informant both, even then the prosecution evidence after P.W.-1 is not being produced in the trial court. The applicant and the prosecution itself is not cooperating with the court in the further proceedings.

The judgements filed by the learned counsel for the applicant are not applicable in the case as the respondent no. 2 is neither a history sheeter nor a hard core criminal, nor he is giving threats to the witnesses or tampering with the evidence. There is no change of circumstance, so that the bail of the opp. party no. 2 can be cancelled, hence, the prayer is made accordingly.

From the perusal of the record, it is found that as per the addresses of the parties mentioned in the documents, both the parties appear to belong to the same village and as per the learned counsel for the opp. party no. 2, the opp. party no. 2 lives at a distance of about 200 metres from the house of the first informant, but even then the opp. party no. 2 is said to have not recognized the accused persons on the spot and the FIR has been lodged against unknown persons. The name of the opp. party no. 2 came into light for the first time on 1.9.2006 in the statement of Shahjad, the son of the deceased. The bail was granted to the opp. party no. 2 vide order dated 1.10.2007 and after 16 years this application for the cancellation of bail of opp. party no.2 has been moved on 15.10.2023.

It is wrong to say that prosecution/ Government counsel was not given an opportunity of being heard on bail application, as per endorsement of Government Counsel on the application of the opp. party no. 2, the Government Counsel had all necessary documents with him so he was ready to argue the bail in compliance of the orders of High Court. It is true that in the application the counsel for the opp. Party no. 2 wrongly mentioned that there was the order of High Court to hear the bail application on the same day but the Presiding Officer was aware of the fact that High Court never ordered for the same day disposal of the bail application as he has mentioned in the bail order of opp. Party no. 2 that because of the orders of the High Court of the early disposal of the bail application, the applicant and DGC were ready with all the documents to argue the application so the disposal of the bail application was done the same day.

Whether the opp. party no.2 committed any crime during his liberty on bail has not been disclosed by the learned counsel for the applicant. As per the chart given by the applicant in his application, out of 295 dates fixed in the trial court till the date of moving bail cancellation application, opp. party no. 2 is said to have moved 66 attendance exemption applications and on rest 229 dates admittedly he attended the court. The adjournment applications are being moved by the respondent no. 2 is not the case of the applicant rather after the file being committed in the year 2006 though the charge could be framed against opp. party no. 2 after six years but after framing the charge the statement of P.W.-1 only has been concluded till date and the application has also been moved by the informant to cancel the evidence of P.W.-1 on the ground of its being tweaked, twisted, distorted, tainted and manipulated which was rejected by the court vide order dated 28.11.2023. Various transfer applications, recall applications and application for demanding protection and applications of threat from the side of the accused persons have been moved by the applicant which certainly caused delay in the proceedings. But now there is order of expeditious disposal of the case of this court on record. The applicant and the witnesses have been granted police protection. They are also permitted to appear and adduce the evidence through the video conferencing, hence, there is hope of early disposal of the case.

So far as various judgements filed by the learned counsel for the applicant are concerned, mainly they are regarding the accused having criminal history and his being historysheeter. But the prosecution could not produce any criminal history of the present accused. Delaying tactics are not found on the part of the opp. party no. 2, neither the circumstances can be said to be changed. No report / complaint has been filed against the present respondent regarding tampering of the evidence or giving threats to the witnesses. The trial court has well mentioned the grounds of granting bail to the opp. party no. 2 in the order. Even after being brought the fact of the death of the sureties of opp. party no. 2 he did not file fresh sureties in the court is not the version of the applicant.

Going through the above discussions, no appropriate ground is found to cancel the bail of the opp. party no. 2. Bail cancellation application being devoid of merits is liable to be dismissed.

It is hereby dismissed.

Order Date :- 1.3.2024

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