Allahabad High Court
Brahmadeen Alias Bramhadeen ... vs State Of U.P. on 21 November, 2019
Author: Naheed Ara Moonis
Bench: Naheed Ara Moonis
HIGH COURT OF JUDICATURE AT ALLAHABAD ?In Chamber Case :- CRIMINAL MISC. BAIL APPLICATION No. - 39728 of 2019 Applicant :- Brahmadeen Alias Bramhadeen Vishwakarma Opposite Party :- State of U.P. Counsel for Applicant :- Ashok Kumar Mishra,Gopal Srivastava,Krishna Kant Tiwari,Shanker Suan Counsel for Opposite Party :- G.A.,Deepak Dubey,Gopal Srivastava,Shanker Suan Hon'ble Naheed Ara Moonis,J.
The instant bail application has been moved on behalf of the applicant Brahmdeen @ Bramhadeen Vishwakarma to release him on bail in case Crime No. 32 of 2019, under Sections 419, 420, 467, 468, 471 and 120-B I.P.C., P.S. Colonelganj, district Allahabad.
The facts given rise to the instant bail application is that a first information report was lodged by Seeta Devi on 19.1.2019 against the applicant Brahmdeen, Shyam Dutt and one unknown person. It is contended that the complainant and her relatives? land situate in village Andawan, Jhunsi, Tehsil Phoolpur, district Prayagraj. The appeal relating to the landed property against the applicant and Shyam Dutt numbered as Appeal No. 70/61 of 2015 (Brahmdeen Vs. Seeta Devi and Appeal No 71/62 of 2015 (Shyam Dutt Vs. Seeta Devi and others) were transferred to the court of Sub Divisional Officer, Soraon by orders of the Broad of Revenue, Lucknow dated 14.2.2017. Both the appeals pending before the Sub Divisional Officer, Soraon for final argument on 27.11.2018. The complainant came to know on 27.11.2018 from the court of Sub Divisional Officer, Soraon that both the appeals have been transferred to Sub Divisional Officer, Phoolpur under the orders of the District Magistrate, Prayagraj. On being enquired it was found that Brahmdeen the applicant and Syam Dutt have filed a transfer application in the court of District Magistrate, Prayagraj on 20.8.2018 to gain undue advantage on the basis of forged thumb impression of the complainant on the Vakalatnama and also prepared papers relating to no objection bearing forged thumb impression of the complainant and filed the same through an imposter Advocate on 1.10.2018 and on the basis of the forged Vakalatnama and no objection on behalf of the complainant got the order of transfer on 15.11.2018. The applicant and the co-accused Shyam Dutt and one unknown person were involved in executing this fraudulent act. The complainant moved an application under Section 340 Cr.P.C. before the District Collector, Prayagraj on 1.12.2018, which is pending before the same court. The applicant and Shyam Dutt are Bhumafia and on the basis of forged will deed they wanted to usurp the land of the complainant. They are fully knowing well that their said will deed is forged and hence they wanted to delay the disposal of the appeal by moving such forged transfer application on behalf of the complainant and succeeded in their attempt to obtain the order from the concerned court. The complainant and his relatives are living under constant threat extended by the accused personssince last 20 years. On the basis of the aforesaid facts the complainant lodged the first information report along with all the documents, which were filed by the accused persons in obtaining transfer order, hence the case registered against them under Sections 419, 420, 467, 468, 471 and 120-B I.P.C. as case Crime No. 0032 of 2019 at police station Colonelganj, Prayagraj.
The submission of the learned counsel for the applicant is that the applicant is absolutely innocent and has been falsely implicated in the present case. The case under Section 340 Cr.P.C. has been registered without adhering to the provisions of Section 340 Cr.P.C. and without investigating into the matter the applicant has been arrested and sent to jail. The dispute with respect to property is going on since last several years. The present case has been registered with a view to cause sheer harassment of the applicant when a case under Section 340 Cr.P.C. has already been filed. There was no occasion for lodging the first information report, mere on the basis of the allegation against the applicant in the first information report that the complainant?s Vakalatnama has been filed by obtaining her thumb impression by some imposter Advocate. The said proceeding under Section 340 Cr.P.C. is not maintainable in view of the decision of the Hon?ble Apex Court in the case of Iqbal Singh Marvah Vs. Minakshi Marvah, which has been followed by the Hon?ble Apex Court in the case of Sasikala Pushpa and others Vs. State of Tamilnadu, reported in 2019 Cr.L.J. page 2896 whereby the Hon?ble Apex Court has held that a Vakalatnama is only a document, which authorizes an Advocate to appear on behalf of the party and by and large, it has no bearing on the merits of the case. It was observed by Hon?ble Apex Court that even assuming that the version in the Vakalatnama is wrong, mere incorrect statement in the Vakalatnama would not amount to create a forged document and it cannot be a reason for exercising the jurisdiction under Section 340 Cr.P.C. for issuing a direction to lodge a complaint against the appellant. Thus applying the above ratio of the decision no offence has been committed by the applicant nor he has any criminal antecedent as alleged by the complainant. The applicant is languishing in jail since 5.8.2019 deserves to be enlarged on bail as there is no prospect of conclusion of the trial.
Per contra learned counsel appearing on behalf of the complainant vehemently refuted the submissions of the learned counsel for the applicant and has contended that the applicant is trying to mislead this Hon?ble Court by suppressing the material facts. The father of the informant Moti Lal died in the year 1982 leaving behind his widow and three children. After the death of Moti Lal the name of mother of the complainant Smt. Rajwanti was recorded in the revenue records on 22.1.1983. On 21.10.1999 Smt. Rajvanti executed a registered will deed in favour of her three daughters i.e. the informant Seeta Devi, Smt. Phool Kali and Smt. Sonkali. On coming to know about the registered will deed dated 21.10.1999 Lal Bahadur the father of the applicant and uncle of the informant manufactured a forged will deed of Moti Lal (father of the informant) dated 25.1.1981 and instituted mutation proceedings under Section 34 of the Land Revenue Act on 6.12.1999 after 45 days of the execution of the registered will executed by the mother of the complainant and 17 years after the death of Moti Lal father of the informant and got his name recorded in the revenue record by an ex parte order dated 28.1.2000. On coming to know that her name has been expunged ex parte, Smt. Rajwanti mother of the informant moved a restoration application on 22.9.2000, which was allowed by order dated 22.4.2010, thereafter the mutation proceeding instituted by Lal Bahadur father of the applicant was dismissed by the court of Tehsildar Phoolpur, Allahabad by order dated 5.8.2015. Two separate appeals were filed by accused applicant against the order dated 5.8.2015, which were numbered as Appeal No. 70/61 of 2015 and Appeal No. 71/62 of 2015. The appeals were also dismissed on merits by order dated 19.2.2018 by the Sub Divisional Officer, Soraon, Prayagraj, which was later on restored on 23.10.2018 vide Annexure C.A. 1 to the counter affidavit.
The appeals are presently fixed for final hearing before the court of Sub Divisional Magistrate, Soraon, Prayagraj but the appellants deliberately avoiding to attend the court proceeding as they fully aware that they have got up a forged will deed. The applicant has moved the transfer application on 20.8.2018 with mala fide intention to mislead the court as the appeals were not in existence, which were already dismissed on 19.2.2018. No Vakalatnama and objection were ever filed by the complainant and by filing the same on behalf of the complainant, the applicant obtained an order for the transfer of the case from the court of Sub Divisional Magistrate, Soraon to the Sub Divisional Magistrate, Phoolpur.
When the objection was raised before the court of District Collector, Prayagraj, it was found that the thumb impression of the complainant on the no objection application with the restoration application is quite different and no objection application has been moved by committing fraud though an imposter representing the first informant, hence a first information report to this effect has been registered on 19.1.2019 against the applicant, co-accused Shyam Dutt and unknown persons. The order dated 15.11.2018 was set aside allowing the restoration application filed by the complainant, on being satisfied that the applicant and Shyam Dutt had filed forged and fictitious documents before the court by the District Magistrate, Prayagraj who directed to take appropriate action for committing fraud and forgery in the document, which were filed before the court. The order dated 31.1.2019 passed by the District Collector, Prayagraj has been appended as Annexure-3 to the counter affidavit. The present first information report had already been lodged after a detailed enquiry by Assistant Police Commissioner/S.H.O. 4th, Prayagraj on 16.1.2019. It has further been submitted that the case relied upon by the learned counsel for the applicant is not applicable under the present facts and circumstances of the case. At one hand the applicant is attempting that the case pertaining to the filing of forged documents is pending and on the other hand claiming to be innocent that he has not committed any fraud cannot be sustained. After due enquiry the first information report has been lodged in respect of committing fraud in not only filing the forged Vakalatnama of the complainant but also filing the transfer application on her behalf and obtained order to linger on the proceeding pending before the court below, hence the applicant does not deserve to be enlarged on bail.
Having considered the submissions advanced by the learned counsel for the applicant and the learned counsel appearing on behalf of the complainant and the learned A.G.A. it emerges that the present first information report was already in existence, when the order of the District Magistrate, Prayagraj was passed to initiate criminal proceeding, which would have no effect when the first information report has already been lodged against the applicant and co accused persons for filing forged Vakalatnama of the complainant and moving of a transfer application with no objection when no such application was even moved by the complainant whose thumb impression was fabricated and the application was filed and on the basis of which obtained the transfer order. Hence the District Collector has also recalled that order, which is evident from Annexure-3 to the counter affidavit itself. Obtaining an order from the court in a surreptitious manner is a serious offence and getting a transfer order on the basis of forged Vakalatnama filed in support of the transfer application has not been taken lightly while recalling the said order by the District Collector.
So far as the case cited by the learned counsel for the applicant, this court is of the view that the facts and circumstances of the case is entirely different as in the case of Sasikala Pushpa and others Vs. State of Tamil Nadu (supra) the counsels of the party themselves have filed Vakalatnama for their own client when they had already left for Singapore and the anticipatory bail application was moved by their counsel on their behalf and it was later on admitted by their counsel that the dates were mentioned in the Vakalatnama was an inadvertent mistake. In that case the High Court held that prima facie the document has been forged and the same has been signed and accepted out side the court and produced before the court as that it has been signed and accepted at Madurai and the same has been utilized and filed before the High Court. On that premise the complaint was directed to be lodged by the High Court against the appellant. That order came to be challenged before the Hon'ble Apex Court by filing the appeal in which some protection was granted at the initial stage, whereas in the present case the applicant has filed the Vakalatnama of the complainant, the opposite party, bearing her thumb impression and also a transfer application through an imposter, which was never moved by her thus this case cannot be said to be an identical one with the case cited by the learned counsel for the applicant. In that case the Vakalatnama was admitted to be an inadvertent mistake signed by the counsel for their own party whereas in the present case the applicant has taken advantage by filing a forged transfer application on the basis of forged thumb impression of the complainant/ opposite party. The first information report has come into existence after enquiry by the concerned police against the applicant and others. The proceeding under Section 340 Cr.P.C. is entirely distinct for different cause whereas the present first information report is in respect of specific allegation of fraudulent and dishonest intention on the part of the applicant in making false document viz Vakalatnama and no objection on behalf of the informant.
Moreover, the investigation in the present case is still continuing, hence the ratio of the decision of the Hon'ble Apex Court would not apply in the present facts and circumstances of the case.
Looking into the gravity of the offence the applicant is not liable to be enlarged on bail. The bail application is dismissed.
Order Date :- 21.11.2019 Shahnawaz