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2022 DIGILAW 142 (ALL)

Satish Verma v. State Of U. P.

2022-02-03

SURESH KUMAR GUPTA

body2022
JUDGMENT : 1. Heard Shri Hemant Kumar Mishra, learned counsel for appellant, learned AGA as well as Shri Abhishek Misra, learned counsel for respondent and perused the record. 2. This appeal has been preferred under Section 14 (A) (2) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 against impugned order dated 13.09.2021 passed by Special Judge, (SC/ST Act), Lucknow in bail application 5852 of 2021 arising out of Case Crime No. 575 of 2019, under Sections 406, 419, 420, 448, 323, 354, 504, 506, 120-B IPC and Sections 3(1) r s & 3(2)(va) of SC/ST Act, Police Station-Wazirganj, District-Lucknow, whereby the bail application of the appellant/applicant has been rejected. 3. Learned counsel for appellant submits that the first informant lodged the FIR on 09.10.2019 with allegation that the first informant purchased the plot from Parvatiya Sahkari Awas Samiti in the year 2008 situated in Village Nizamuddinpur, Tehsil and District Lucknow. The real owner of the plot bearing Khasra No.2 was Moharram Ali, who had already sold the whole area of Khasra no.2 to the Samiti by registered sale deed. After death of Moharram Ali, land grabber-appellant by hatching conspiracy purchased the said land from the legal heirs of late Moharram Ali by forged sale deed. Thus, the F.I.R. was lodged against the appellant and other co-accused under Sections 406, 419, 420, 467, 468, 471, 448, 120-B, 352 IPC. But after arrest of the appellant, remand of the appellant has been taken by the investigating officer under Sections 406, 419, 420, 448, 323, 354, 504, 506, 120-B IPC and Section 3(1) r s and 3(2)(va) of SC/ST Act. 4. Learned counsel for the appellant further submits that the appellant is innocent and has been falsely implicated in this case. Prior to the alleged incident, the appellant is not known to the complainant that she belongs to SC/ST. As per FIR version, no allegation of SC/ST Act is made out against the appellant. It is further submitted that the appellant and other co-accused have purchased parts of the aforesaid land by three different sale deed from the legal heirs of late Moharram Ali namely Mohd. Aleem, Mohd. Majeed and Smt. Jareen. Thereafter, the name of the appellant has been mutated in the revenue records. After mutation, several civil litigation were run between the parties and later on, Additional Commissioner (Judicial), Lucknow has cancelled the name of appellant. Aleem, Mohd. Majeed and Smt. Jareen. Thereafter, the name of the appellant has been mutated in the revenue records. After mutation, several civil litigation were run between the parties and later on, Additional Commissioner (Judicial), Lucknow has cancelled the name of appellant. Being aggrieved from the order of the Additional Commissioner, Lucknow, the appellant filed a writ petition before this Court bearing No.13741 (MS) of 2019, in which this Court directed that the parties shall maintain status quo vide order dated 29.5.2019 (Annexure-3). 5. Learned counsel for appellant further submits that statement of the complainant was recorded under Section 164 Cr.P.C. on 4.8.2020, in which no specific role is assigned to the appellant and general allegation has been levelled against appellant. The investigating officer further recorded the statement of complainant on 25.8.2020, in which she improved the prosecution case by making several allegations against the accused persons. It is further submitted that after the death of of Moharram Ali, his legal heirs namely Mohd. Aleem, Mohd. Majeed and Smt. Jareen have mutated their name in Khasra No.2 measuring 1.294 hectare and after mutation, they have sold the said land to the appellant and thereafter the name of appellant was also mutated in revenue records. 6. Learned counsel for appellant further submits that on perusal of evidence, it transpires that the appellant is the bonafide purchaser of the land in question. It is further submitted that at the time of purchasing of the land in question, the appellant has no knowledge that the said land has already been sold by late Moharram Ali. Thus, the appellat is also sufferer. 7. Learned counsel for appellant submits that no specific role is assigned to the appellant for hatching any conspiracy. Several civil disputes between the parties are pending. The trial court without appreciating the evidence available on record wrongly rejected the application of the appellant. It is further submitted that the appellant is not a previous convict and he is languishing in jail since 13.8.2021. So, learned counsel prays to set aside the order passed by the trial court and allow the appeal. 8. Learned AGA as well as learned counsel for respondent has vehemently opposed the prayer made by the counsel for appellant and submitted that the appellant is very well known that the land in question is already sold by Late Moharram Ali. So, learned counsel prays to set aside the order passed by the trial court and allow the appeal. 8. Learned AGA as well as learned counsel for respondent has vehemently opposed the prayer made by the counsel for appellant and submitted that the appellant is very well known that the land in question is already sold by Late Moharram Ali. The appellant in connivance with one Gyan Prakash succeeded the land and got their name entered in the revenue records. The appellant along with Gyan Prakash purchased the land from legal heirs of late Moharram Ali, even after the knowledge that the land had already been sold and construction was raised. It is also submitted that the disputed facts have been placed before this Court and the writ petition bearing No.13741 (MS) of 2019 has been dismissed by this Court vide order dated 1.10.2021. It is further submitted that the appellant and their associates have full knowledge that the land in question had already been sold and purchaser and first informant have constructed their houses, but by hatching conspiracy with co-accused succeeded to get entered his name in the revenue records and within one month, the accused-appellant-land grabber got the land. 9. Learned counsel for first informant further submits that appellant withheld the fact that there are several criminal history against appellant and on this account, bail application of appellant is liable to be rejected. Learned counsel has drawn attention of the Court towards order of this Court bearing Bail No.43160 of 2020. The relevant portion of which is reproduced hereunder: "10. On the point of criminal history, this Court has perused the free copy of the order dated 24.9.2020 passed by the Additional Sessions Judge, Court No. 6, Firozabad in Bail Application No. 1403 of 2020, CNR No. UPFD03867-2020, Uday Pratap urf Dau vs. State of U.P. by which the bail application of the applicant has been rejected by the court below. The same is annexed as annexure no. 11 to the affidavit. The said order does not attend about the criminal history of the applicant. In the said order while mentioning the arguments as raised on behalf of the applicant, it has specifically been mentioned that the applicant is "not a previous convict." There is no discussion by the court about the said argument in the order rejecting bail of the applicant. 11. In the said order while mentioning the arguments as raised on behalf of the applicant, it has specifically been mentioned that the applicant is "not a previous convict." There is no discussion by the court about the said argument in the order rejecting bail of the applicant. 11. Not only in this case but in many other cases it is seen that there is an averment made that the applicant/accused is not involved in any other criminal case before this Court. The order rejecting bail by the courts below is silent about the criminal antecedents of the applicant/accused but on the basis of instructions of learned Additional Government Advocate of this Court or on the basis of instruction of learned counsels for the first informant, it transpires that the applicant/accused has previous criminal history. When the learned counsels are countered with the same it becomes embarrassing for them and is also an impediment in deciding the said bail application due to the non-disclosure of the criminal history of the accused. Although the criminal antecedents of the accused are not the sole and decisive factor for decision of bail applications but the same needs to be considered while deciding an application for bail under Section 439 Cr.P.C. as per the legislative mandate of Section 437 Cr.P.C. 12. This Court directs the courts below in the State of Uttar Pradesh to attend the issue of criminal antecedent(s) of accused persons while deciding bail applications under Section 439 Cr.P.C. and give a complete detail of the criminal antecedent(s), if any, of the applicant(s)/accused before them or record the fact that there are no criminal antecedent(s) of the said person(s) if there are none." 10. Learned counsel for appellant submits that at the time of filing of the appeal, the affidavit is sworn by wife of the appellant and she has no knowledge about criminal history of appellant and also it is not mentioned in the impugned order passed by the trial court. So, learned counsel could not explain the criminal history of appellant. 11. Criminal history of appellant is filed by learned AGA as well as learned counsel for respondent by means of counter affidavit, which is as follows: "(i) Case Crime No.113/13, under Sections 323/504/506 IPC, Police Station- Indira Nagar, Lucknow. (ii) Case Crime No.188/13, under Sections 147/452/323/506/392 IPC, Police Station- Indira Nagar, Lucknow. 11. Criminal history of appellant is filed by learned AGA as well as learned counsel for respondent by means of counter affidavit, which is as follows: "(i) Case Crime No.113/13, under Sections 323/504/506 IPC, Police Station- Indira Nagar, Lucknow. (ii) Case Crime No.188/13, under Sections 147/452/323/506/392 IPC, Police Station- Indira Nagar, Lucknow. (iii) Case Crime No.235/13, under Sections 323/504/506 IPC, Police Station- Indira Nagar, Lucknow. (iv) Case Crime No.121/13, under Sections 444/427/504/506 IPC, Police Station- Indira Nagar, Lucknow. (v) Case Crime No.449/16, under Sections 419/420/467/468/471/406/504 IPC, Police Station- Indira Nagar, Lucknow. (vi) Case Crime No.590/16, under Sections 406/420/467/468/471 IPC, Police Station- Indira Nagar, Lucknow. (vii) Case Crime No.503/18, under Sections 406/420 IPC, Police Station-Indira Nagar, Lucknow. (viii) Case Crime No.687/18, under Sections 406/420 IPC, Police Station-Indira Nagar, Lucknow. (ix) Case Crime No.695/18, under Sections 504/506 IPC, Police Station-Indira Nagar, Lucknow. (x) under Section Gunda Act, Police Station- Indira Nagar, Lucknow. (xi) Case Crime No.49/19, under Sections 406/420 IPC, Police Station-Indira Nagar, Lucknow. (xii) Case Crime No.40/19, under Sections 323/504/447 IPC, Police Station- Indira Nagar, Lucknow. (xiii) Case Crime No.281/20, under Sections 406/420/120B/427 IPC, Police Station-Wazirganj, Lucknow. (xiv) Case Crime No.575/19, under Sections 406/419/420/448/323/504/506/354/120B IPC and 3(1)da, dha, 3(2)a of SC/ST Act, Police Station-Wazirganj, Lucknow." 12. Learned counsel for appellant submits that all the above-mentioned cases are pending before the trial court and on the basis of criminal history, the appeal cannot be rejected. 13. I have heard learned counsel for the parties and perused the record. On perusal of the FIR, it transpires that the FIR is lodged after inordinate delay. No time, date or place is mentioned in the FIR. On perusal of the entire record, it reveals that several civil disputes between the parties are pending. The appellant is languishing in jail since 13.8.2021 and the maximum sentence provided in this Section is not more than seven years. All the criminal cases against the appellant as mentioned by learned AGA as well as learned counsel for respondent are pending. Apart from this, the appellant is not a previous convict. 14. Although, learned A.G.A. as well as learned counsel for respondent opposed the prayer for bail but could not place anything before this Court so as to bring any circumstance existing, justifying denial of bail to accused-applicant when he is already in jail for a long time. 15. Supreme Court in State though C.B.I. Vs. 14. Although, learned A.G.A. as well as learned counsel for respondent opposed the prayer for bail but could not place anything before this Court so as to bring any circumstance existing, justifying denial of bail to accused-applicant when he is already in jail for a long time. 15. Supreme Court in State though C.B.I. Vs. Amar Mani Tripathi 2005 (8) SCC 21 has also observed that normally bail should have been granted unless there exist circumstances/factors justifying denial thereof. Some of such circumstances have been stated as under: "(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of accused absconding or fleeing if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail." 16. In Rajesh Ranjan Yadav @ Pappu Yadav vs Cbi Through Its Director, 2007 (1) SCC 70 while recognizing that personal liberty is a valuable constitutional right recognized under Article 21, Court observed that while considering question of bail, judicial approach balancing personal liberty as well as interest of the society and also other relevant factors must be observed. Court further held that personal liberty of an accused or convict is also a fundamental right but if the circumstances so justify, it can be eclipsed. The length for which an accused has remained in jail before conviction, i.e., during investigation or trial, is a relevant consideration for the reason that in case ultimately the incumbent is found not guilty, i.e. having not committed any offence, it would be a travesty of justice to keep such a person in jail for years together and denial of personal liberty in such a case though may be mitigated by awarding appropriate compensation but cannot appropriately be compensated at all. Simply because Court takes a long time in trial, it will not be justified to keep a person in jail on the ground that Court or the prosecution is not efficient enough in completing trial in a reasonably short period and the incumbent must remain in jail, even though ultimately he may be found innocent. Simply because Court takes a long time in trial, it will not be justified to keep a person in jail on the ground that Court or the prosecution is not efficient enough in completing trial in a reasonably short period and the incumbent must remain in jail, even though ultimately he may be found innocent. In fact, if a person is acquitted after a long and delayed trial, though incumbent was throughout in jail, even Judicial Officer would be having a feeling of contrition facing a situation where a person has served sufficiently a long term in imprisonment though, is found innocent and ultimately acquitted. No uniform principle can be laid down since every matter would depend on the circumstances of each case and it cannot be said that a person has remained in jail for long time, for that reason alone bail must be granted, but the period during which an incumbent has been remained in jail, during investigation or trial is a relevant factor. These are certain guidelines laid down in State through C.B.I. v. Amar Mani Tripathi (supra) were reiterated in Rajesh Ranjan Yadav @ Pappu Yadav vs CBI (supra). 17. In view of above and looking to the facts and circumstances of the case, without expressing any opinion on merits of the case, I think it appropriate to release appellant/applicant on bail. 18. Impugned order dated 13.9.2021 is set aside. 19. The appeal is hereby allowed. 20. Let appellant-Satish Verma be enlarged on bail in the aforesaid case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following additional conditions, which are being imposed in the interest of justice:- (i) The appellant shall not tamper with the evidence of witnesses and shall not commit any offence. (ii) The appellant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law. (iii) The appellant shall remain present before the trial court on each date fixed, either personally or through her counsel. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law. (iii) The appellant shall remain present before the trial court on each date fixed, either personally or through her counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code. (iv) In case, the appellant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the appellant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code. (v) The appellant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the appellant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law. (vi) The accused/appellant shall file computer generated copy of such order downloaded from the official website of High Court Allahabad. (vii) The computer generated copy of such order shall be self attested by the counsel of the party concerned. (viii) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.