Barquat Ali Thekedar@ Faqir Mohd vs State Of U.P.
2025 Latest Caselaw 10327 ALL

Allahabad High Court

Barquat Ali Thekedar@ Faqir Mohd vs State Of U.P. on 10 September, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2025:AHC:160090
 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD 
 
CRIMINAL APPEAL No. - 7164 of 2024   
 
   Barquat Ali Thekedar@ Faqir Mohd    
 
  .....Appellant(s)   
 
 Versus  
 
   State of U.P.    
 
  .....Respondent(s)       
 
   
 
  
 
Counsel for Appellant(s)   
 
:   
 
Ehtesham Afsar Khan, Sadrul Islam Jafri, Sr. Advocate   
 
  
 
Counsel for Respondent(s)   
 
:   
 
G.A.   
 
     
 
 RESERVED ON: 12.8.2025 
 
DELIVERED ON:10.9.2025
 
Court No. - 82
 
   
 
 HON'BLE SAMEER JAIN, J.      

In Re: Order on the application moved under Section 389(1) Cr.P.C. by applicant:

1. Heard Sri N.I.Jafri, learned Senior Advocate assisted by Sri Ehtesham Afsar Khan, learned counsel for the applicant-appellant and Sri Roopak Chauvey, learned AGA for the State on the prayer of bail during pendency of the instant appeal.

2. The instant application has been filed on behalf of the applicant/appellant with the prayer to suspend the execution of sentence awarded by the trial court and enlarge him on bail and stay the realization of fine in Special Case No.31A of 2021 (State of U.P. Vs. Mohammad Azam Khan) arising out of Case Crime No. 556 of 2019, under Sections 452,392, 504 and 506 read with 120B IPC during pendency of the appeal.

Brief facts of the case:

3. FIR of the present case was lodged on 13.8.2019 against the applicant and three others and according to the FIR on 6.12.2016 at about 8.00 AM in the morning applicant and three other co-accused persons entered in the house of the informant and threatened and abused him and stated that "if you will not vacate the house then we will kill you" and thereafter on the exhortation of co-accused CO Aley Hasan, co-accused SI Firoz Khan opened fire upon him, however, none sustained any injury.

4. As per the FIR, applicant was also making exhortation to kill the informant and co-accused Firoz Khan and Parvez Alam also committed the loot of household items of the informant and Rs. Five Thousand cash. It is further mentioned in the FIR that applicant and other accused also demolished the house of the informant.

5. After FIR investigation was commenced and after investigation charge sheet was filed against the applicant and others and during trial prosecution produced nine witnesses of fact and trial court after considering prosecution evidence convicted the applicant for offences under Sections 452,392, 504, 506 read with Section 34 IPC and for offence under Sections 452/34 IPC awarded him six years RI with a fine of Rs.Two Lacs and in default six months simple imprisonment; for offence under Section 392/34 IPC awarded him seven years RI with a fine of Rs. Three Lacs and in default six months simple imprisonment, for offences under Sections 504,506, 34 IPC awarded him two years RI along with a fine of Rs. Fifty Thousand each and in default three months simple imprisonment.

Submission advanced by learned counsel for the applicant/appellant:

6. Learned counsel for the applicant submitted that FIR of the present case was lodged after more than three years and however informant and other witnesses of fact tried to explain the delay of three years by stating that in spite of best efforts of the informant, i.e., PW-1 due to influence of the co-accused Mohd. Azam Khan, who was Cabinet Minister in the State of Uttar Pradesh FIR of the present case could not be lodged but merely by stating this inordinate delay of three years in lodging the FIR cannot be said to be explained especially considering the fact that informant did not move any application under Section 156 (3) Cr.P.C. for registration of the FIR but this important aspect of the case has not been properly considered by the trial court while convicting the applicant.

7. He further submits that however, as per prosecution, from the possession of the applicant some currency notes were recovered during investigation but trial court disbelieved the alleged recovery and in spite of that applicant has been convicted for offence under Sections 392/34 IPC.

8. He further submits that as per prosecution, applicant also involved for commission of offence under Sections 307/34 IPC but for offence under Sections 307/34 IPC he has been acquitted and, therefore, on same set of evidence applicant has been acquitted by the trial court for offence under Sections 307/34 IPC but trial court convicted him for offences under Sections 452, 392, 504 and 506 IPC read with Section 34 IPC and thus trial court committed illegally.

9. He further submits that applicant was mere contractor and there was absolutely no occasion for him either to enter in the alleged house of the informant or to commit robbery.

10. He further submits that from the FIR it reflects that only role of threatening and exhortation has been attributed to the applicant but during trial prosecution witnesses of fact developed the story and also started making allegation that applicant also committed robbery and trial court without considering this fact convicted the applicant even for offences under Sections 392/34 IPC.

11. He next submits that applicant is, however, having criminal history of 13 other cases but his criminal history has been duly explained in the instant application.He next submits that as applicant was contractor and he was working with the Government, therefore, he has been roped in all these cases along with co-accused Mohd. Azam Khan, who was MLA and was Cabinet Minister.

12. He next submits that as there are bright chances of success of the appeal filed by applicant-appellant, therefore, merely on the basis of criminal antecedents bail application of applicant should not be withheld during pendency of his appeal.

13. He further submits that even considering heavy dockets of the Court possibility of early hearing of the instant appeal is quite remote.

14. He further submits that considering the above facts, sentence awarded to the applicant may be suspended and applicant should be enlarged on bail during pendency of his appeal and realization of fine may also be stayed.

Submission advanced on behalf of the State:

15. Per contra, learned AGA vehemently opposed the prayer and submitted that applicant was contractor and he was even named in the FIR and as prosecution has proved its case beyond reasonable doubt, therefore, trial court rightly convicted him.

16. Learned AGA further submits that however, there is a delay of three years in lodging the FIR of the present case but prosecution successfully explained the delay and from the statements of the witnesses it is apparent that in spite of best efforts of the informant, i.e., PW-1 the FIR of the present case could not be lodged due to the pressure of the co-accused Mohd. Azam Khan, who was Cabinet Minister in the State of U.P.

17. He further submits that even merely on the basis of delay in lodging the FIR entire prosecution case cannot be disbelieved.

18. He further submits that applicant was specifically named in the FIR along with others and his presence at spot has been established by the prosecution witnesses.

19. He next submits that however, trial court disbelieved the recovery made from the possession of the applicant but merely on this ground it cannot be said that trial court wrongly convicted him for offence under Sections 392/34 IPC.

20. He next submits that from the statement of the witnesses produced before the trial court it is apparent that applicant and co-accused persons on the behest of the co-accused Mohd. Azam Khan threatened the informant and his family members and demolished his house and also committed robbery and, therefore, there is no illegality in the order of conviction passed against the applicant.

21. He next submits that apart from the present case applicant is also having criminal history of 13 other cases and, therefore, considering his criminal antecedents and facts of the case he should not be released on bail during pendency of his appeal.

Analysis:

22. I have heard learned counsel for the parties and perused the record of the case.

23. From the record it reflects that applicant has been convicted in the present matter for offences under Sections 452,392,504, 506 read with 34 IPC. He files the instant application to suspend his sentence awarded by trial court and to release him on bail during pendency of the instant appeal.

24. The Apex Court in the case of Bhupatji Sartajji Jabraji Thakor Vs. State of Gujarat, 2024 SCC On-line SC3320 observed that if trial court awarded fixed term sentence to an accused then during pendency of his appeal ordinarily his sentence may be suspended. The Apex Court, however, further held that where trial court awarded life imprisonment then appellate court before suspending sentence must analyze whether there are chances of success of appeal or not and only thereafter sentence may be suspended and accused can be released on bail.

25. In case at hand, however, trial court awarded maximum seven years sentence to the applicant which is fixed term sentence but considering the facts of the case it will be appropriate to analyze, whether instant appeal filed by applicant may be allowed or not.

26. FIR of the present case was lodged after more than three years and however, informant, i.e., PW-1 and other witnesses of fact tried to explain the delay by stating that in spite of best efforts of the informant FIR of the present case could not be lodged due to the influence of the co-accused Mohd.Azam Khan, who was Cabinet Minister in State of U.P. but merely on this basis delay of more than three years in lodging the FIR cannot be said to be explained. Further, however, prosecution case cannot be completely disbelieved on the ground of delay in FIR but delay in lodging the FIR is a relevant fact which can harm the prosecution and if there is inordinate delay of more than three years then it can definitely be fatal for the prosecution.

27. Further, however, as per the prosecution witnesses applicant was named in the FIR and he was also present at spot but from the FIR it reflects that only role of exhortation and threatening has been attributed to him but during trial prosecution witnesses including informant, i.e., PW-1 developed the story and stated that applicant also committed offence of robbery.

28. Considering the fact that there is delay of three years in lodging the FIR and there are material contradictions in the FIR and in the statements of witnesses with regard to the role attributed to the applicant it cannot be said that applicant is not having any chance of success of his instant appeal.

29. Further, however, apart from the present case, applicant is having criminal history of 13 other cases but from his criminal history which has also been disclosed by the State in the counter affidavit it reflects that all the cases were of the year 2019-2020 and considering the fact that applicant was a contractor and at the time of alleged incident he was working with the Government, the argument advanced by the learned counsel for the applicant-appellant with regard to his implication in these cases cannot be ruled out.

30. Further, in view of this Court after conviction ordinarily bail application of an accused should not be withheld on the basis of his criminal history if there are chances of success of his appeal.

31. Further in the present matter, applicant is in jail for almost one and half years and considering heavy dockets of the Court possibility of early hearing of his appeal is quite remote.

32. Therefore, considering the facts and circumstances of the case discussed above, in my view, applicant has made out his case to suspend his sentence and to release him on bail during pendency of his appeal.

33 Accordingly, instant application filed by applicant stands allowed. Sentence awarded to the applicant/appellant by trial court shall remain suspended during pendency of instant appeal. Appellant is directed to release on bail in the instant matter during pendency of appeal.

34. Let the applicant/appellant convicted and sentenced by the Special Judge(MP/MLA)/Addl. District & Sessions Judge, Rampur vide judgment and order dated 29.5.2024 and sentencing order dated 30.5.2024 in Special Case No. 31-A of 2021 (State of U.P. Vs. Barquat Ali Thekedar @ Faqir Mohd.) arising out of Case Crime No. 556 of 2019 for offences under Sections 452/34, 392/34, 504/34 and 506/34 IPC, Police Station Ganj, District Rampur be released on bail in the above case on furnishing personal bond and two sureties each of the like amount to the satisfaction of the court concerned with the following conditions:-

(i) The appellant shall not misuse the liberty of bail in any manner whatsoever.

(ii) The appellant shall pursue the case regularly, shall not seek any unnecessary adjournment and shall co-operate in early disposal of the present appeal.

(iii) The applicant shall not indulge in any criminal and anti-social activity.

35. From the conviction order it reflects that total fine of Rs. Six Lacs have been imposed by the trial court upon the applicant-appellant and out of total fine imposed upon the applicant-appellant, trial court ordered to pay 50% of fine to the informant as compensation. Considering the provisions of Section 357(2) Cr.P.C., 50% of the total fine imposed upon the applicant-appellant as compensation shall remain stayed and out of remaining 50% of fine, half of the fine shall remain stayed during pendency of appeal.

36. On acceptance of bail bonds, the lower court shall transmit photostat copies thereof to this Court for being kept on the record of this appeal.

In Re: Memo of appeal

1. Office is directed to prepare the paper book within two months.

2. List the instant appeal in the week commencing 10th November, 2025 for final hearing along with the connected matters in the category of daily cause list.

(Sameer Jain,J.)

September 10, 2025

SKM