Allahabad High Court
Prem Bahadur Upadhyay vs State Of U.P. Thru. Secy. Deptt. Of Home ... on 7 April, 2025
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:19277
Court No. - 13
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 2273 of 2024
Applicant :- Prem Bahadur Upadhyay
Opposite Party :- State Of U.P. Thru. Secy. Deptt. Of Home Lko And 3 Others
Counsel for Applicant :- Nirankar Singh,Rajani Singh
Counsel for Opposite Party :- G.A.,Pramod Singh
Hon'ble Manish Mathur,J.
1. Heard learned counsel for applicant, learned A.G.A. for opposite parties 1 to 3- State and Mr. Pramod Singh learned counsel for opposite party No.4, informant.
2. First anticipatory bail application has been filed with regard to F.I.R. No. 0237 of 2023, under Sections 420, 467, 468, 471 IPC, P.S. Ghazipur, District Lucknow.
3. Earlier vide order dated Ist October, 2024, the interim anticipatory bail was granted to the applicant. The order is as follows:-
" Heard learned counsel the applicant and learned G.A. for the State assisted by Shri Rao Narender Singh, learned AGA as well as Shri Pramod Singh, learned Advocate who has filed vakalatnamam on behalf of respondent no. 4 which is taken on record.
The present bail application under Section 438 Cr.PC. has been filed seeking anticipatory bail in case crime/FIR No.237/2023, under Sections 420/467/468/471 I.P.C., P.S. Ghazipur, District Lucknow.
In the FIR, it is alleged that plot No. 24, khasra No. 7 was purchased by the informant on 22.02.2005 from Vibha Pandey and the informant is in possession of the land. On the plot there is a boundary on all four sides. On 26.05.2023 at 10:00 am, the informant came to know that plot has been sold by committing forgery by someone. After coming to the registry office, it has been informed to the informant that the applicant by forging an agreement to sell dated 19.05.2023 entered into an agreement between Pradeep Kumar Maurya. Complicity of the co-accused persons in this incident has been alleged.
Learned counsel for the applicant submits that the petitioner purchased plot No. 24 measuring 9100 square feet in the year 1989 through a registered sale deed from the Secretary of Cooperating Housing Society i.e. Krishan Sahkari Awas Samiti. Thereafter, he entered into an agreement to sell on 19.05.2023.
Learned counsel for the applicant submits that against the FIR, a writ petition No. 5196 of 2023 was filed, wherein earlier interim relief was granted by the Court vide order dated 10.07.2024, however, upon a statement that made by the prosecution side that "date of death of the executor of the sale deed has been verified from the Nagar Nigam Record; the alleged sale deed was executed on 21.1.1989 whereas the executor had died on 10.7.1987; the credible evidence has been found against the petitioner", the writ petition was dismissed.
It has been further submitted that the writ petition was dismissed on 05.10.2022 and if the investigating officer had the credible evidence, at that time, the charge sheet ought to have been filed which has not been filed yet. He also submits that even if all the allegations in the FIR are taken as it is, the remedy to the informant was to file a civil suit. The informant is not even the member of the Krishan Sahkari Awas Samiti. The Krishan Sahkari Awas Samiti has winded its office in the year 2022.
Learned Government Advocate has submitted that complicity of the applicant is prima facie evident. From the registry office, sale deed of the applicant could not be substantiated. The alleged person who is said to have sold the said plot to the applicant has died in the year 1987 whereas the applicant has purchased the same in the year 1989. It has also been submitted that the proceedings under Section 82 Cr.P.C. has been issued against the applicant. It is not a case of anticipatory bail.
Learned counsel for the applicant has submitted that after filing of the anticipatory bail application, maliciously, the proceedings under Section 82 Cr.P.C. have been initiated. So far as the death certificate relied on the prosecution is concerned, he has submitted that there was no occasion for the authority to issue death certificate of a person who had died in the year 1987 in the year 2000 after 13 years of his death, the death certificate was issued by the Executive Magistrate and not by the First Class Magistrate.
It has been further submitted that the dispute is purely civil in nature. Due to winding up of the society, the original record of the society are difficult to get for anyone. The applicant has no criminal antecedent. Offences are triable by magistrate.
Learned AGA has further submitted that vide letter dated 13.03.2024, the Chief Treasurer, Adarsh Treasurer Collectorate, Lucknow has certified that the alleged stamp used and shown by the applicant in his registered sale deed has not been issued by the treasury. The letter dated 13.03.2024 produced by the learned AGA is taken on record.
Learned counsel for the applicant further submits that the alleged sale deed was executed by the then Secretary of the Society Krishan Sahkari Awas Samiti. In case any forgery regarding the stamps has been committed, the applicant cannot be blamed for that.
Learned counsel for the applicant submits that the applicant is not a previous convict and he undertakes to cooperate in the investigation.
On due consideration to the fact that the dispute appears to be civil in nature; it is admitted fact that the sale deed was executed by the Secretary of the Society Krishan Sahkari Awas Samiti and not by the present applicant and also considering the judgment in Sushila Aggarwal and others versus State (NCT of Delhi) and another (2020)5 SCC 1 and without entering into the merit of the case, as an interim measure, it would be appropriate to grant interim protection to the applicant under Section 438 Cr.P.C.
Till the next date of listing, it is provided that in the event of arrest, the applicant shall be released on bail on his furnishing a personal bond and two sureties of the like amount to the satisfaction of the arresting officer/I.O./S.H.O. concerned.
The applicant shall report to the investigating officer within twenty days from today. He shall cooperate in the investigation and he will not influence the witness. The accused-applicant will remain present as and when the arresting officer/I.O./S.H.O. concerned call(s) for investigation/interrogation. The applicant shall not leave India without previous permission of the Court.
In case of default, it would be open for the investigating agency to move application for vacation of this interim protection."
4. Rejoinder affidavit filed on behalf of applicant in response to the counter affidavits filed by State and informant are taken on record. In furtherance of his submissions as indicated in the order dated Ist October, 2024, it has been submitted that applicant has cooperated during course of investigation and therefore subsequently the charge sheet has been filed whereafter summons have been issued. It is reiterated that applicant in fact is owner of the property in question in pursuance of the sale deed executed in favour of him in the year 1989 and that till date no suit has been filed for its cancellation. It has also reiterated that agreement to sell dated 19th May, 2023 which forms the basis of F.IR. even otherwise does not transfer any title to any person and upon registration of F.I.R., the said agreement to sell has also been cancelled at the instance of applicant. It is also reiterated that an unnecessary criminal colour is being sought to be given to a purely civil dispute.
4. Learned A.G.A. as well as learned counsel for informant have opposed the bail application reiterating the facts that sale deed allegedly executed in favour of applicant in the year 1989 is in fact a forged document as has also been communicated by the Chief Treasurer, Lucknow vide letter dated 13th March, 2024 specifically indicating that the stamp used in the deed of 1989 has not been issued by the Treasury.
5. It is however admitted that till date no suit for cancellation of the aforesaid sale deed has been filed till date and that charge sheet in the matter has already been issued. It is also submitted that interim anticipatory bail was obtained by misleading this Court whereas in fact proclamation under Section 82 Cr.P. C. was issued prior to filing of anticipatory bail application and not subsequent thereto.
7. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, specifically the aspect that the applicant is claiming on the basis of registered sale deed of 1989, the cancellation of which has not been sought by the informant till date and particularly the aspect that an agreement to sell does not transfer or confer title upon any person as well as the fact that charge sheet in the matter has already been filed and therefore the aspect of proceedings under Section 482 Cr.P.C. lose their relevance, the interim anticipatory bail granted vide order dated Ist October, 2024 is hereby made absolute.
8. Without expressing any opinion on the merits of the case, I am of the opinion that the that the liberty of the applicant may be protected in view of dictum of Apex Court in re: Sushila Aggarwal Vs. State (NCT of Delhi)-2020 SCC online SC 98.
9. In view of the above, it is provided that in the event of arrest, the applicant- Prem Bahadur Upadhyay shall be released on anticipatory bail in the aforesaid Case Crime number on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the arresting officer/investigating officer/S.H.O. concerned with the following conditions:-
(1) The applicant shall cooperate in the investigation and he will not influence the witnesses.
(2) The accused-applicant will remain present as and when the arresting officer/1.O./S.H.O. concerned call (s) for investigation/interrogation.
(3) The applicant shall not leave India without previous permission of the Court.
(4) In case of default, it would be open for the investigating agency to move application for vacation of this protection.
10. The application stands allowed.
Order Date :- 7.4.2025
prabhat
