Allahabad High Court
Suresh Dubey vs State Of U.P. on 8 January, 2020
Author: Sanjay Kumar Singh
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 73 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 56219 of 2019 Applicant :- Suresh Dubey Opposite Party :- State of U.P. Counsel for Applicant :- Sunil Kumar,Munesh Kumar Upadhyay Counsel for Opposite Party :- G.A.,Chandra Bhushan Singh Hon'ble Sanjay Kumar Singh,J.
Short counter affidavit filed today on behalf of the informant is taken on record.
Heard Mr. Sunil Kumar, learned counsel for the applicant, learned Additional Government Advocate for the State of U.P. and Mr. Chandra Bhushan Singh, learned counsel for the complainant (Govind Prasad).
By means of this application, the applicant, who is involved in Case Crime No. 177 of 2019, under Sections 419, 420, 467, 468 and 471 IPC, police station Haliya, district Mirzapur, is seeking enlargement on bail during the trial.
Mr. Sunil Kumar, learned counsel for the applicant submits that in the year 2015, Smt. Dulashi, wife of complainant Govind Prasad Gaur had contested election of Gram Pradhan against Smt. Anjana Devi, wife of applicant Suresh Dubey, but she was defeated. Thereafter, complaint dated 30.11.2018 was made by Govind Prasad Gaur, Anmol Agrahari, and Rampati against accused persons of this case with regard to land situated in village Gajariya and Mudpeli, making allegation that accused persons adopting different modus operandi succeeded in getting the Banjar land in question recorded in their names. Later on, in January, 2018 another complaint was also made by same complainants, Govind Prasad Gaur, Anmol Agrahari and Rampati. When no action was taken in both the aforesaid complaints, the complainant again approach to District Magistrate, Mirzapur with regard to same grievance, on which District Magistrate, Mirzapur vide order dated 24.07.2019 constituted a Committee of five members to conduct an enquiry in the matter. Thereafter, the Enquiry Committee submitted its report dated 28.08.2019 making recommendation to cancel the entries made in the Khatauni Nos. 1425 to 1430 of village Mudpeli and also to cancel the entries made in Khatauni Nos. 1422 to 1427 of village Umariya. On the recommendation made by the enquiry committee, Sub Divisional Magistrate, Lalganj, Mirzapur passed an order dated 31.08.2019, whereby all the entries made in the aforesaid Khataunies in favour of accused persons have been deleted.
It is pointed out by the learned counsel for the applicant that simultaneously on 29.08.2019, the District Magistrate has directed the Tehsildar, Lalganj, Mirzapur to lodge first information report in the matter against accused persons. Pursuant to the said direction dated 29.08.2019, impugned first information report dated 30.08.2019 has been lodged against eight accused persons, namely, Dinesh, Suresh (present applicant), Rajesh, Radha Murari, Sandeep Kumar Dwivedi, Anjana Devi, Jaya Devi and Ramesh Kumar. It is also pointed out by the learned counsel for the applicant that co-accused Dinesh, Rajesh, Radha Murari and Anjana Devi have been granted anticipatory bail in this case by the Apex Court. Co-accused Jaya Devi has been granted anticipatory bail by co-ordinate Bench of this Court. Co-accused Sandeep Kumar Dwivedi has been granted interim protection of stay of arrest by this Court and present applicant Suresh Dubey and co-accused Ramesh are in jail.
On the aforesaid facts, main substratum of argument of learned counsel for the applicant is that aforesaid enquiry report is an ex-parte report, behind the back of applicant and other concerned persons, and no opportunity of hearing was afforded to them by the Enquiry Committee in the said enquiry. The order dated 31.08.2019, by which all entries, which were earlier made in favour of applicant and other persons, have been cancelled, was also passed ex-parte. No opportunity of hearing was afforded to the accused persons before passing aforesaid order dated 31.08.2019.
It is also pointed out that in the complaint specific date of getting the entries of aforesaid land in question made in favour of accused persons, have not been mentioned in the complaint, but in the later stage, it has been found that all the entries were made about 30 years back.
It is next contended by the learned counsel for the applicant that the said order dated 31.08.2019 of Sub Divisional Magistrate has been challenged by the applicant and other two co-accused persons, namely, Ramesh and Dinesh before the Board of Revenue, U.P. Lucknow by means of filing Revision No. 2010 of 2019, on 16.09.2019 which is still pending. Complainants are not party in the said revision.
It is further contended that apart from the present case, applicant has criminal history of ten cases, which were lodged by political enmity against him and the same have been explained by the applicant in paragraph 71 of the bail application. There is no chance of the applicant of fleeing away from the judicial process or tampering with the prosecution evidence. Learned counsel for the applicant lastly submitted that if the applicant is released on bail, he will not misuse the liberty of bail and will cooperate in the early disposal of the case.
It is next contended that there is no chance of the applicant of fleeing away from the judicial process or tampering with the prosecution evidence. It is also submitted that the applicant is facing detention since 19.10.2019. Learned counsel for the applicant lastly submitted that if the applicant is released on bail, he will not misuse the liberty of bail and will cooperate in the early disposal of the case.
Per contra, learned counsel appearing on behalf of complainants vehemently refuting the aforesaid submissions advanced on behalf of applicant contended that the applicant has not come with clean hands because after filing Revision No. 2010 of 2019 when serious objection was raised on behalf of complainant while contesting Writ Petition No. 21780 of 2019 before this Court, the applicant and other co-accused persons committed forgery by making interpolation in paragraph No. 1 of the ground of Revision No. 2010 of 2019 by deleting the words "izkFkhZ ds firk dh e`R;q ds i'pkr" and regarding which an application under section 340 Cr.P.C. dated 09.10.2019 has also been filed on behalf of complainant (Govind) in the said revision. Photo copy of the said application has been filed as annexure No.-2 with short counter affidavit dated 20.12.2019 and certified copy of the said application has been brought on record as annexure No.-1 with the supplementary counter affidavit dated 07.01.2020. It is further contended that applicant has criminal antecedents. Applicant is not a law abiding person. The fraud committed by him is on record, therefore, bail application of the applicant is liable to be rejected.
The aforesaid submissions about filing of application under section 340 Cr.P.C. on behalf of complainant has been seriously objected by Mr. Sunil Kumar, learned counsel for the applicant in his rejoinder reply by contending that he has filed a certified copy of grounds of revision No. 2010 of 2019 as Annexure No. 8 to the bail application. No such deletion or interpolation has been made in paragraph No. 1 of the ground of revision after filing of the same, but the said correction was done before filing the revision. It is also submitted that applicant has no knowledge about the alleged application dated 9.10.2019, because no such application dated 9.10.2019 has been served upon the applicant prior or after filing the same. It is further submitted that though in photocopy of alleged application under Section 340 Cr.P.C. filed on behalf of complainant, date is mentioned as 9.10.2019, but in certified copy of same filed along with supplementary counter affidavit neither date nor Section 340 Cr.P.C. are mentioned. It is also submitted that since complainant is neither aggrieved nor party in the matter, therefore, he has no locus standi to file alleged application dated 9.10.2019 in revision No. 2010 of 2019 and to oppose the bail application of the applicant. It is also pointed out that the complainant has not given para wise reply of the bail application.
Learned Additional Government Advocate appearing on behalf of the State of U.P. opposed the bail and reiterated the criminal history of the applicant as mentioned in paragraph No. 71 of the bail application, but did not dispute the fact that co-accused, Dinesh, Rajesh, Radha Murari and Anjana Devi, who are also beneficiary in the matter along with applicant have been granted anticipatory bail by the Apex Court and civil dispute is sub-judice before the Board of Revenue, Lucknow.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, I am of the view that the applicant has made out a fit case for bail. Hence, the bail application is hereby allowed.
Let the applicant, Suresh Dubey be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant will not indulge in any unlawful activities.
(iv) The applicant will not misuse the liberty of bail in any manner whatsoever.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. It is further clarified that the trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
Order Date :-8.1.2020 Sumaira