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2016 DIGILAW 78 (ALL)

Rajesh Kumar v. State of U. P.

2016-01-07

AKHTAR HUSAIN KHAN

body2016
JUDGMENT Akhtar Husain Khan, J. Sri Pravin Kumar Verma and Sri Bhola Singh Patel appeared for petitioners. Learned A.G.A. appeared for opposite parties no.1 to 3. Sri Lalit Kishore appeared for opposite party no.4. 2. I have heard learned counsel for petitioners as well as learned A.G.A. and learned counsel for opposite party no.4. 3. Present petition has been moved by petitioners Rajesh Kumar and Anuj Kumar Diwedi under Section 482 of Cr.P.C. with prayer to quash order dated 22.09.2015 passed by learned Sessions Judge, Barabanki in Misc. Case No.965 of 2014 arising out of Case No.2509 of 2013, Crime No.436 of 2013, under Sections 467, 468, 471, 419, 420, 120-B IPC, Police Station Kotwali City, District Barabanki, whereby, learned Sessions Judge has cancelled bail of petitioners under Section 439 (2) of Cr.P.C. on the ground that they have misused liberty of bail by indulging in similar criminal activity. 4. It is contended by learned counsel for petitioners that impugned order dated 22.09.2015 passed by learned Sessions Judge is against law. Petitioners have not tampered any evidence and have not misused liberty of bail. 5. It is further contended by learned counsel for petitioners that name of complainant-opposite party no.4 has been expunged from revenue records and the order passed by Tahsildar has been upheld by this High Court vide order dated 23.09.2013 passed in Writ Petition No.6055 (M/S) of 2013 (Dharamveer Singh and others Vs. State of U.P. and others). Special Leave Petition filed against order dated 23.09.2013 passed by this High Court has also been dismissed by Hon'ble Apex Court vide order dated 20.01.2014. 6. Learned A.G.A. and learned counsel for opposite party no.4 opposed petition and contended that petitioners have misused liberty of bail by making frequent transfer of disputed property, which is subject matter of present crime and has been obtained by fraud and forgery. 7. Learned A.G.A. as well as learned counsel for opposite party no.4 has referred judicial pronouncement of this High Court rendered in the case of Bakhtawar Singh Vs. Arun and another reported in 1999 (1) JIC 413 (All). 8. I have considered the submissions made by learned counsel for the parties. 9. In the case of Bakhtawar Singh Vs. Arun and another (Supra), Hon'ble Single Judge of Allahabad High Court has placed reliance on judicial pronouncement of Hon'ble Apex Court rendered in the case of Aslam Desai Vs. Arun and another reported in 1999 (1) JIC 413 (All). 8. I have considered the submissions made by learned counsel for the parties. 9. In the case of Bakhtawar Singh Vs. Arun and another (Supra), Hon'ble Single Judge of Allahabad High Court has placed reliance on judicial pronouncement of Hon'ble Apex Court rendered in the case of Aslam Desai Vs. State of Maharashtra; 1992 Cri.L.J. 3712 (SC) and has held as follows: "5. The principles regarding the cancellation of bail are now well settled. In Aslam Babalal Desai v. State of Maharashtra, 1992 Cri. L. J. 3712 (SC), the Supreme Court after referring the earlier decisions of the court held that the grounds for cancellation of bail under Section 437 (5) and 439 (2), Cr. P. C. are identical and the bail granted can be cancelled on the following grounds : - (i) where the accused misuses his liberty by indulging in similar criminal activity, (ii) where he interferes with the course of investigation, (iii) where he attempts to tamper with evidence of witnesses, (iv) where he threatens witnesses or indulges in similar activities, which would hamper smooth investigation, (v) where there is likelihood of his fleeing to another country, (vi) where he attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, and (vii) where he attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, where attempts to place himself beyond the reach of his surety, etc. " 10. Petitioners are accused of Crime No.436 of 2013, under Sections 467, 468, 471, 419, 420, 120-B IPC, Police Station Kotwali City, District Barabanki. Police has submitted charge-sheet against them along with other co-accused, whereupon, Magistrate has taken cognizance. Criminal case is still pending. Indisputably, petitioners have executed sale deed of property in dispute alleged to have been obtained by sale deed allegedly executed by imposter of Ram Lali mother of complainant Dharamveer Singh who allegedly died on 14.02.1984. 11. After investigation, Investigating Officer has concluded that the lady alleging herself to be Ram Lali wife of Mangrey is not mother of complainant Dharmveer Singh. Actually, she is Ram Lali alias Chuggi alias Chandra Kali wife of Ram Prasad R/o Village Harsinghpur H/o Bambhaur, P.S. Rampur Kala District Sitapur. 12. 11. After investigation, Investigating Officer has concluded that the lady alleging herself to be Ram Lali wife of Mangrey is not mother of complainant Dharmveer Singh. Actually, she is Ram Lali alias Chuggi alias Chandra Kali wife of Ram Prasad R/o Village Harsinghpur H/o Bambhaur, P.S. Rampur Kala District Sitapur. 12. In order dated 23.9.2013 passed by this High Court in Writ Petition No.6055 (M/S) of 2013, "Dharamveer Singh and others versus State of U.P. and another" it has been accepted that the recorded tenure holder of disputed land namely Ram Lali is wife of Vidyadhar and mother of complainant Dharamveer, but it has been held that she is alive. She has not died on 14.2.1984. In above order dated 23.9.2013, it has been further held that it is quite possible that Ram Lali petitioner's mother (Mother of complainant Dharmveer) w/o Vidyadhar might have remarried with Mangray after the death of Vidhyadhar. 13. In view of above, on the basis of above order dated 23.9.2013 passed by this High Court, it cannot be said that recorded tenure holder of disputed land Ram Lali is not mother of complainant Dharmveer and it is not the case of petitioners that the lady alleging herself to be Ram Lali is mother of complainant Dharmveer Singh and wife of Vidhyadhar. Whereas evidence collected by Investigating officer shows that she is Ram Lali alias Chuggi alias Chandra kali wife of Ram Prasad R/o Village Harsinghpur H/o Bambhaur, P.S. Rampur Kala District Sitapur meaning thereby she is imposter of Ram Lali. 14. In view of discussion made above, at this stage, it cannot be said that accusation made against petitioners are groundless. 15. While on bail petitioners have executed sale-deed on the basis of title alleged to have been derived from the sale deed allegedly executed by impostor of Ram Lali. Thus, they have committed again offence of similar nature in respect of same subject matter. As such cancellation of bail by Session Judge U/s 439 of Cr.P.C. Vide impunged order dated 22.9.2015 cannot be said to be against law. 16. Learned Session Judge has passed impugned order after hearing both parties. I found no illegality or material irregularity in impugned order to justify interference under section-482 of Cr.P.C. Petitioners have opportunity to move bail application under section-439 of Cr.P.C. before this Court. 17. 16. Learned Session Judge has passed impugned order after hearing both parties. I found no illegality or material irregularity in impugned order to justify interference under section-482 of Cr.P.C. Petitioners have opportunity to move bail application under section-439 of Cr.P.C. before this Court. 17. For reasons recorded above, petition is dismissed with liberty to petitioners to move bail application under section-439 of Cr.P.C. in accordance with law.