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Allahabad High Court · body

2019 DIGILAW 978 (ALL)

Rameshwar Prasad v. State of U. P.

2019-04-17

MANJU RANI CHAUHAN

body2019
JUDGMENT : 1. Short counter affidavit filed on behalf of the informant in Court today is taken on record. 2. Heard Mr. Amit Daga, learned counsel for the applicant, Mr. Dharmendra Singhal, learned counsel for the informant and Mohd. Shoaib Khan, learned A.G.A. for the State. 3. Perused the material on record. 4. The present bail application has been filed by the applicant-Rameshwar Prasad with a prayer to enlarge him on bail in Case Crime No. 241 of 2014, under Sections 364 and 120-B I.P.C., Police Station-Khair, District-Aligarh, during the pendency of the trial. 5. It transpires from the record that by the sale-deed dated 26th September, 2012, the land was purchased by the applicant from Uttam Singh. Since the said land was mortgaged with the Bank as there was bank loan against the said land, therefore, prior to the execution of the said sale-deed, there was an understanding between the applicant and Uttam Singh for clearance of the bank loan and for which, out of total sale consideration, which was to be given by the applicant to Uttam Singh, he only gave Rs. 30 lacs and his name was mutated in the relevant revenue record. However, for the rest amount i.e. Rs. 36 lacs as well as the loan amount, he started avoiding Uttam Singh not having an intention to give the said amount. The first informant i.e. Suresh Singh, who is son of Uttam Singh was issue-less, hence the other son, namely, Preetam Singh along with his two sons, namely, Brij Mohan and Khsetrapal in collusion with the applicant was interested in grabbing the money as he was annoyed by the decision of his father Uttam Singh regarding selling of the land in question in place of giving it to him. As the informant was issue-less and the other son of Uttam Singh, namely, Preetam Singh along with his two sons were annoyed and Uttam Singh was in apprehension that he might be killed, he started to live at the place of his son-in-law (Behnoi of the first informant), namely Kedar Singh for his safety. As the informant was issue-less and the other son of Uttam Singh, namely, Preetam Singh along with his two sons were annoyed and Uttam Singh was in apprehension that he might be killed, he started to live at the place of his son-in-law (Behnoi of the first informant), namely Kedar Singh for his safety. It has also been stated that when the first informant told Kedar Singh about the aforesaid act of the applicant, he along with Ramphal Singh Ex-Pradhan of Erni village, Suresh Singh and others demanded the said money of Uttam Singh again and again, then the applicant had assured that he will repay the loan of the bank obtained by Uttam Singh. The first informant also came to know that some money was taken by the mediators, namely, Dasrath, Gopichand and Ishwarchand from applicant for sale deed dated 26th September, 2012, executed by Uttam Singh in favour of the applicant. Therefore it was agreed that by means of mediation, the matter was to be solved at the house of the applicant and on 20th June, 2013, one Nirbhay Singh son of Gopi Chand, who was also one of the mediator, came to the house of Kedar Singh and suggested Uttam Singh to go at the place of the applicant Rameshwar along with others in order to settle the dispute on which all agreed and since the first informant was not well, the victim Uttam Singh went along with Nirbhay son of Gopi Chand in the presence of Kedar Singh, Ram Phal Singh Ex-Pradhan of village Erni and Suresh Singh resident of Sattakheda. The informant was told that Gopi Chand, Ishwarchand, Preetam Singh and his two sons, namely, Brijmohan and Khsetrapal will also be present there. After 20th June, 2013, the father of the informant Uttam Singh did not return and it was conspiracy of the aforesaid persons including the applicant Rameshwar due to which the informant's father was missing since then. After searching for him, when he could not be found, an application under Section 156 (3) Cr.P.C. was moved by the first informant on 23rd April, 2014 on which the first information report was lodged on 17th May, 2014 regarding missing of Uttam Singh. After searching for him, when he could not be found, an application under Section 156 (3) Cr.P.C. was moved by the first informant on 23rd April, 2014 on which the first information report was lodged on 17th May, 2014 regarding missing of Uttam Singh. During the course of the investigation, statement of Kedar Singh i.e. brother-in-law of the first informant was recorded on 31st October, 2015, which goes to show that Uttam Singh had gone to the applicant's place to settle the dispute in the presence of Rampal Singh son of Deep Chand (Pradhan of the village Erni), whose name has also been mentioned in the first information report registered against him and other averments of the first information report have also been reiterated. 6. In the statement recorded during the course of investigation by the Police, Ram Pal Singh son Deep Chand has also reiterated the prosecution version as unfolded in the first information report, which also goes to show that Uttam Singh had gone to the place of applicant from where he is missing. In the statement recorded during the course of investigation, Suresh Singh son of Nathhi Singh, in whose presence Nirbhai Singh had taken Uttam Singh to place of the applicant, has also reiterated the prosecution version as unfolded in the first information report. Statements of two independent witnesses, nmaley, Udayveer Singh son of Bachhu Singh and Roop Kishor @ Babalu, who belong to village Barautha i.e. the village of Kedar Singh, brother-in-law of the first informant were recorded on 11th March, 2016, where they have stated that Kedar Singh used to share all the problems with them and they have narrated the prosecution story in the same manner as it happened in order to settle the dispute with respect to the property which was purchased by the applicant from Uttam Singh and have also helped the applicant and other co-accused responsible for missing of Uttam Singh. The victim has not been recovered till date. 7. The victim has not been recovered till date. 7. It has been argued by the learned counsel for the applicant that the land in question was purchased by him from Uttam Singh for which a sale-deed was executed on 26th September, 2012, he had moved an application for mutation, but he came to know that the land in question was mortgaged to the Oriental Bank of Commerce and in the connivance with the Tehsil officials on the basis of forged and fabricated bank certificate, entry was managed in the relevant revenue record for which an application under Section 156 (3) Cr.P.C. has been moved on 18th January, 2014 by the applicant for registration of the first information report against Uttam Singh along with six named and some known persons for forgery, which has been registered as Case Crime No. 148 of 2014 but after investigation, the Police has submitted the final report. On a protest petition filed by the applicant, the said final report was rejected by the court concerned on 17th October, 2016, the same was directed to be treated as a complaint case and the same is still pending at the stage of summoning and accused persons are yet to be summoned by the court concerned. Seeing the aforesaid complaint case, an application under Section 156 (3) Cr.P.C. was moved by Suresh Chandra son of Uttam Singh i.e. one of the accused on 23rd April, 2014 due to which the first information report was lodged against the applicant on 17th May, 2014 in order to make a case against the applicant. 8. It has also been argued by the learned counsel for the applicant that in order to save their skin from forgery made by Uttam Singh and his family members to sell him the property, which was mortgaged to the Bank, the present first information report has been lodged through an application under Section 156 (3) Cr.P.C. He has also argued that there is no evidence against the applicant to show that he is responsible in missing of Uttam Singh. Therefore, he requests for bail. He has also argued that the first informant has filed several litigation to get an order granted in his favour to falsely implicate the present applicant. It has further been argued by the learned counsel for the applicant that the applicant has no motive to kidnap or murder the victim. Therefore, he requests for bail. He has also argued that the first informant has filed several litigation to get an order granted in his favour to falsely implicate the present applicant. It has further been argued by the learned counsel for the applicant that the applicant has no motive to kidnap or murder the victim. The applicant has no criminal antecedents to his credit except the present one. As the present case is false, the applicant is liable to be enlarged on bail. It is lastly contended that there is no possibility of the applicant of fleeing away from the judicial process or tampering with the witnesses and in case, the applicant is enlarged on bail, the applicant shall not misuse the liberty of bail. The applicant is in jail since 7th February, 2019. 9. Per contra, learned A.G.A. for the State as well as the learned counsel for the informant opposed the prayer for bail of the applicant. Learned counsel for the informant has drawn the attention of the Court to the Khatauni enclosed as Annexure-2 of the shot counter affidavit and has argued that as per the 1419-Fasli, the property was already discharged on 19th March, 2012, which goes to show that the bank dues were already cleared and from the same record it is shown that by order dated 18th December, 2012, name of the applicant was mutated in the relevant revenue record pursuant to the sale-deed dated 26th September, 2012, therefore the allegations made by the applicant against the first informant and his family members that Uttam Singh along with his family members in collusion with the Tehsil officials had made forgery in selling the land in question vide sale-deed dated 26th September, 2012, are false and unsustainable in eyes of law. It has further been argued by the learned counsel for the informant that the applicant was absconding from the investigation and the same has been submitted by the Investigating Agency in their compliance affidavit, which are on record at page no. 180 of the paper book. It has also been argued that the applicant is not only a named accused but also is a charge-sheeted accused. 180 of the paper book. It has also been argued that the applicant is not only a named accused but also is a charge-sheeted accused. Learned counsel for the informant has further shown the conduct of the applicant by placing reliance upon the order of the Hon'ble High Court dated 17th February, 2017 passed in Application U/S 482 No.-5459 of 2017 challenging the charge-sheet submitted against him as well as entire proceedings of the aforesaid case crime number, wherein Court refused to quash the same and the Court has only granted 30 days time to the applicant to apply for bail in the aforesaid proceedings, but the applicant instead of appearing before the court and applying for bail, was busy in filing of litigation in order to get orders granted in his favour and has not complied with the order of the Court dated 17th February, 2019. Learned counsel for the applicant has also drawn the attention of the Court to Annexure-17 of the affidavit accompanying the present bail application in which Senior Police Officer has submitted a conclusive report, wherein it has specifically been mentioned that the consideration amount with respect to property in dispute was not fully paid by the applicant and for the same last meeting was held at the house of the applicant on 20th June, 2013 and on that date, the co-accused Nirbhay took the victim Uttam Singh for meeting at the place of the applicant and since then he is missing. It has further been argued by the learned counsel for the informant that the applicant has strong motive in kidnapping or missing of the victim as the applicant has purchased the property from the victim and has also got his named mutated but he has not paid the entire money to the victim. Since the victim has not been recovered till date, the applicant is not liable to be enlarged on bail. In case the applicant is enlarged on bail, all efforts to recover the victim will go in vain. Dealing with the complicity of applicant-accused and in light of the material on record, the learned A.G.A. and learned counsel for the informant vehemently submit that no case for bail is made out and the bail application of the present applicant is liable to be rejected. Dealing with the complicity of applicant-accused and in light of the material on record, the learned A.G.A. and learned counsel for the informant vehemently submit that no case for bail is made out and the bail application of the present applicant is liable to be rejected. It is lastly contended that the innocence of the applicant cannot be adjudged unless or until the victim is recovered, therefore, he does not deserves any indulgence. 10. Having considered the submissions made by the learned counsel for the applicants, the learned A.G.A. for the State and upon perusal of the evidence brought on record as well as the complicity of the applicants but without commenting on the merits of the case, I do not find any good reason to exercise my discretion in favour of the accused applicant. Thus, the bail application stands rejected. 11. However, the trial court is expected to gear up the trial of the aforesaid case and conclude the same as expeditious, as possible from the date of receipt of certified copy of this order, keeping in view the law laid down by the Apex Court in the case of Alakh Alok Srivastava Vs. Union of India and another reported in AIR 2018 (SC) 2004, if there is no legal impediment. in accordance with law, without granting any unnecessary adjournment to either of the parties, provided the applicants fully cooperate in conclusion of the trial, if there is no other legal impediment. 12. Office is directed to transmit a certified copy of this order to the court concerned within a fortnight. 13. It is clarified that any observations, if any, made by this Court are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merits of the case.