Allahabad High Court
Gulam Moinuddeen Siddiqui vs State Of U.P. And C.B.I. on 12 May, 2022
Author: Krishan Pahal
Bench: Krishan Pahal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved On 6.5.2022 Date of Delivery 12.5.2022 Court No. - 28 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 7366 of 2019 Applicant :- Gulam Moinuddeen Siddiqui Opposite Party :- State Of U.P. And C.B.I. Counsel for Applicant :- Mohemmed Amir Naqvi, Amjad Siddiqui, Bal Keshwar Srivastava Counsel for Opposite Party :- G.A.,A.S.G. Hon'ble Krishan Pahal,J.
1. Heard Sri Amjad Siddiqui, learned counsel for the applicant and Sri Anurag Kumar Singh, learned counsel for the CBI and also perused the material available on record.
2. By means of the present bail application, the applicant seeks bail in Case Crime No.810 of 2018, under Sections 147, 149, 386, 329, 420, 467, 468, 471, 394, 506, 120-B, 364-A IPC, Police Station- Krishna Nagar, District- Lucknow, during the pendency of trial.
BRIEF FACTS OF THE CASE
3. Facts in brief giving rise to the present application are that the Informant/victim is a resident of Alambagh, Lucknow and engaged in the real estate business having his office at Gomti Nagar, Lucknow. At the time of the offence, the accused Atiq Ahmad, Ex-Member of Parliament, Phulpur, Allahabad was detained in Deoria Jail and he had tried to pressurize the Informant for extortion of money for about two years and out of fear, the Informant had also given him some amount as such. The two henchmen of Atiq Ahmad, namely, Mohd. Farooq and Jaki Ahmad had been trying to extort money from the Informant for about several months. The said two accused persons had also taken possession of the office of the Informant forcibly and got their names inducted in the board of the company and procured digital signatures of the Informant and his sister Aarti Jaiswal. Even after that the Informant did not transfer any shares of the company to them. On 26.12.2018, another goon of Atiq Ahmad took the Informant to Deoria Jail where Atiq Ahmad along with his son Umar and 10-12 other persons were found present. The two accomplices of Atiq Ahmad, namely, Jafarullah and Ghulam Sarvar had beaten the Informant mercilessly thereby breaking his fingers and causing him several external and internal injuries. The accused Atiq Ahmad in the jail premises itself got the companies M.J. Infra Housing Private Limited, M.J. Infra Green Private Limited, M.J. Infra Land L.L.P. Private Limited and M.J. Infra State Private Limited transferred forcibly in the name of his associates Mohd. Farooq and Jaki Ahmad. The accused Atiq Ahmad has even retained the Fortuner Car of the Informant bearing No. UP-32 JR 1804 with him. It has also been alleged in the FIR that the accused Atiq Ahmad had obtained signatures of the Informant on blank letter heads including his resignation letters and also pressurized the Informant to make forged signatures of his sister on the blank papers. The accused Atiq Ahmad and his associates forcibly obtained the digital signatures of the Informant and his sister and thereby got the names of their associates inducted in all the aforesaid companies.
4. The instant FIR has been lodged at Police Station- Krishna Nagar, Lucknow. The Supreme Court of India vide its order dated 23.4.2019 passed in Writ Petition (Civil) No.699 of 2016 in the matter of Ashwani Kumar Upadhyay and Others Vs. Union of India and Others transferred the investigation of the case to Central Bureau of Investigation (CBI) and was also directed to submit quarterly status report of the investigation to the Court. The main accused Atiq Ahmad was then shifted to Ahmedabad Jail, Gujarat.
RIVAL CONTENTIONS
5. It is submitted by the learned counsel for the applicant that the applicant is maliciously being prosecuted in the present case only on the basis of conjecture and surmises and without any evidence. The jurisdiction of the case falls within the Police Station- Gomti Nagar, Lucknow and not Krishna Nagar where the instant FIR has been initially lodged. The applicant is not named in the FIR. The statement of the Informant has been recorded four times by the I.O. and in each of the subsequent statement, he has improvised from the previous one. Initially, the two statements were recorded by the local police and the subsequent two have been recorded by the CBI. His name has come up as an improvement in the statement of Informant after being specifically asked by the Investigating Officer (I.O.) of the local police although the applicant is well acquainted with the Informant as he was his associate and business partner and this fact was also admitted by the Informant in his second supplementary statement. The Informant himself is a trickster and a money-minded person.
6. Learned counsel for the applicant has next contended that the charge-sheet has already been filed in the matter and the trial is not going forward and not even the charge has been framed against the applicant. The CBI is also not interested in getting the trial concluded expeditiously as on the last three occasions, the public prosecutor of the CBI was not present in the Court and the case was adjourned only on this ground.
7. As per the prosecution allegation, the applicant had taken the Informant forcibly to Deoria Jail by the alleged Fortuner Car No. UP-32 JR 1804. Learned counsel has argued that it is impossible that a single unarmed person would forcibly pickup the Informant at Lucknow and take him to Deoria Jail and during such a long distance from Lucknow to Deoria Jail, the Informant did not raise any alarm while he had ample opportunity to do so and resist. Learned counsel has also argued that on the way to Deoria Jail, there are six toll booths and surprisingly, there is no CCTV footage to indicate that the applicant had carried any weapon at the time of abduction and taking the Informant to Deoria and back. There is no allegation against the applicant which attracts Sections 364, 364A and 365 IPC. Learned counsel has also pointed out several contradictions in the two supplementary statements of the Informant/victim recorded by the I.O. regarding the complicity of the applicant. The prosecution version is doubtful, suspicious and cannot be relied upon.
8. Learned counsel for the applicant has also relied upon the judgement of Supreme Court passed in the case of Union of India versus K.A. Najeeb1, and the relevant para-16 reads as under:-
"16. This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India, it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail."
9. Learned counsel for the applicant has also submitted that the applicant is neither the beneficiary of the alleged transactions nor he has been made Director of any of the Companies of the Informant. There are no allegation against him of beating or threatening the Informant. The four co-accused persons, namely, Irfan, Nitesh Mishra, Mahendra Kumar Singh and Pawan Kumar Singh, have already been enlarged on bail by the court concerned passed in Bail Application Nos. 7363 of 2019, 12768 of 2021, 14713 of 2021 and 1786 of 2021, vide orders dated 30.11.2021, 10.12.2021 and 15.12.2021, respectively. Since the case of the applicant is on better footing to that of co-accused persons who have already been enlarged on bail, the applicant is also entitled for bail on the ground of parity. The applicant is languishing in jail since 29.12.2018 having no criminal history to his credit, deserves to be released on bail. In case, the applicant is released on bail, he will not misuse the liberty of bail and shall cooperate with the trial.
10. Per contra, Sri Anurag Kumar Singh, learned counsel for the CBI has vehemently opposed the prayer for bail on the ground that the applicant is the main accomplice of the accused Atiq Ahmad, as it was he who had forcibly taken the Informant in his Fortuner Car bearing No. UP-32 JR 1804. The applicant and the co-accused persons are dreaded criminals of the area and out of their fear, the Informant could not dare to depose against them. Several witnesses have been put under Witness Protection Programme. He has further argued that looking at the seriousness and gravity of the subject matter, the investigation has been entrusted to CBI by the order of Supreme Court and also the main accused Atiq Ahmad has been shifted to Ahmedabad Jail, Gujarat. The local police had also filed charge-sheet against the applicant. It is the applicant who had forcibly terrorized the Informant and taken him all the way from Lucknow to Deoria Jail. Prosecution allegations are substantiated by the fact that some cheques signed by the Informant which were taken by the applicant and co-accused persons, were encashed after lodging of the present FIR i.e. on 29.12.2018. The applicant in conspiracy with other co-accused persons had also forced the Informant to put his sister's forged signature on blank papers/letterheads.
11. Learned counsel for the CBI has further submitted that the Informant in his statement recorded by the Investigating Officer has categorically stated that the applicant had taken him to Deoria Jail and had even dropped him at a distance of 100 metres from his house by the car of co-accused person Ghulam Sarvar. The case of the applicant is not at par with the accused persons who have been enlarged on bail. The trial could not proceed further owing to Covid-19. The offence is not against a particular person, but against the society as a whole. Investigation is pending against the jail officials involved in the said offence.
12. Learned counsel for the CBI has fairly conceded the fact that there is no criminal history of the applicant but has stated that he is the close associate of main accused Atiq Ahmad who had been five times M.L.A., once an M.P. and a notorious criminal, against whom 106 cases are pending trial including the heinous offences and out of his fear, the FIR has been lodged after a delay. There is every likelihood that he shall misuse the liberty of bail as he is an influential person and a close associate of Atiq Ahmad, therefore, he does not deserve any indulgence. In case, the applicant is released on bail, he will misuse the liberty of bail by extending threat and intimidation to the prosecution witnesses.
CONCLUSION
13. It would be inappropriate to discuss the evidence in depth at this stage because it is likely to influence the trial court but from the perusal of the evidence collected during investigation and the charge-sheet, it prima-facie appears that the applicant was involved in this offence and there is no reason to falsely implicate him in the present case. The complicity of the applicant is well established by the statements of the Informant. It is an admitted case of the applicant that he had accompanied Informant to Deoria Jail but the defence taken is that the Informant had gone to Deoria Jail out of his own sweet will and was not taken by force.
14. In the changing social circumstances, it has now become obvious that nobody dares to depose against the dreaded and hardened criminals out of fear. The Informant, who himself is a victim could garner some courage as some point of time to depose against such high profile criminals. The crime seems to have been committed after a well orchestrated plan to deprive the Informant/victim of his valuable assets and the culpability of applicant cannot be ruled out from the evidence adduced as he seems to have acted as concierge of crime.
15. It is quite clear that an order of bail cannot be granted in an arbitrary or fanciful manner. A ratio decidendi of the judgement of the Apex Court in Anil Kumar Yadav Vs. State (N.C.T.) of Delhi and another2, has stated that in serious crimes, the mere fact that the accused is in custody for more than one year, may not be a relevant consideration to release the accused on bail.
16. Considering the facts and circumstances of the case, the nature of offence, severity of offence, threat perception of the witnesses, complicity of accused, involvement of higher echelons of society as well as the rival submissions advanced by the learned counsel for the parties and without expressing any opinion on the merits of the case, I am not inclined to release the applicant on bail.
17. Accordingly, the bail application of the applicant is rejected.
18. It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial.
19. However, it is directed that every endeavor shall be made by the trial court to conclude the trial expeditiously, if there is no other legal impediment.
Order Date :- 12.5.2022 Siddhant (Justice Krishan Pahal)