Allahabad High Court
Ubaid Ul Haq vs State Of U.P. on 26 November, 2020
Author: Suneet Kumar
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 19.11.2020 Delivered on 26.11.2020 Court No. - 2 (1) Case :- Criminal Misc. Bail Application No. 34387 of 2020 Applicant :- Ubaid Ul Haq Opposite Party :- State of U.P. Counsel for Applicant :- Sadaful Islam Jafri, Fakharul Islam Jafri, Nazrul Islam Jafri (Senior Adv.) Counsel for Opposite Party :- G.A. (2) Case :- Criminal Misc. Bail Application No.. - 23708 of 2020 Applicant :- Syed Ghulam Syedain Rizvi Opposite Party :- State of U.P. Counsel for Applicant :- Vaibhav Kaushik Counsel for Opposite Party :- G.A., Sharad Sharma Hon'ble Suneet Kumar, J.
1. Heard Shri N.I. Jafri, learned Senior Advocate, assisted by Shri S.I. Jafri, Advocate, appearing for Ubaid Ul Haq, applicant in Criminal Misc. Bail Application No. 34387 of 2020 (hereinafter referred to as "first applicant"), Shri Vaibhav Kaushik, Advocate, appearing for Syed Ghulam Syedain Rizvi, applicant in Criminal Misc. Bail Application No. 23708 of 2020 (hereinafter referred to as "second applicant"); and, Shri Vinod Diwakar, learned Additional Advocate General, assisted by Shri Jai Narain and Shri Abhijeet Mukherjee, Government Advocates, representing the State in both the matters.
2. On request of the learned counsel for the parties, the aforementioned bail applications, arising out of case crime no. 312 of 2019, under Sections 420, 467, 468, 471, 447, 409, 201, 120-B I.P.C. and Section 3 of Prevention of Damage to Public Property Act, 1984, Police Station, Azeem Nagar, District Rampur, are taken up together and is being decided by a common order.
3. An F.I.R. came to be lodged by Sri Allama Zameer Naqvi against several nominated persons including Mohd. Azam Khan, Smt. Tazeen Fatima, Abdullah Azam khan and the second applicant alleging that properties in question admeasuring 13.8 hectares belonging to Imamuddin Qureshi, an Indian sunni, who on partition migrated to Pakistan, consequently, relinquished his Indian citizenship; the property left behind by Imamuddin was declared Evacuee property duly notified by the Custodian, Evacuee Property in 1971. It is further alleged that Mohd. Azam Khan, misusing his position as a Cabinet Minister conspired with other co-accused, viz. Chairman/Administrator and got the property recorded as a waqf with the Shiya Central Waqf Board. After investigation a charge-sheet came to be filed against Mohd. Azam Khan, Smt. Tazeen Fatima, and Abdullah Azam (wife and son respectively). Investigation in respect of other persons was kept open.
4. It is urged that first applicant is neither named in the F.I.R. nor was made an accused during investigation of the case. It is submitted that for the first time, name of the first applicant surfaced in the statement of co-accused Syed Ghulam Syedain Rizvi (second applicant) recorded on 18.04.2020. Name of the first applicant also figures in the statement of Akash Saxena @ Honey recorded under Section 161 Cr.P.C. on 18.07.2020. It is urged that first applicant is a poet of Rampur known by his pen name ''Haq Rampuri'. His name surfaced after eight months in the confessional statement of co-accused, second applicant. The statement is not admissible in view of Section 25 of Indian Evidence Act. The statement of Akash Saxena @ Honey is of no relevance as is based on hearsay and suspicion; first applicant is neither known to the witnesses nor to the officials of Shia Central Waqf Board; during investigation the applicant was not put to identification parade; he is aged about 55 years; handwriting of the first applicant was not obtained by the investigating agency, nor, matched by an expert; he is, therefore, entitled to be enlarged on bail.
5. The second applicant is named in the F.I.R.; he is Administrator of the Shia Central Wakf Board. It is urged that applicant is an aged person; he is not involved in the conspiracy; he had merely carried out the directions and orders of the Chairman of the Wakf Board, co-accused Wasim Rizvi; the main culprit is co-accused Mohd. Azam Khan; second applicant is entitled to bail.
6. In rebuttal, learned counsel appearing for the State-respondent submits that the first applicant along with nominated persons conspired to procure a manufactured document, i.e., waqf-deed of 1939; the alleged document was transcribed by the first applicant in his handwriting. It is further urged that second applicant during investigation was summoned under Section 91 Cr.P.C.; he appeared and filed an affidavit alleging that the first applicant was present in the room wherein the waqf register was interpolated and substituted by the alleged waqf deed recorded by first applicant in his handwriting. It is further urged that at the stage of bail, statements recorded under Section 161 Cr.P.C is relevant and would be considered though the statements may not be relevant for the purposes of trial. It is further submitted that statement of second applicant was recorded during judicial custody and not in police custody. It is urged that the statement is voluntary; further, second applicant was confronted by the investigating officer with the photographs and he identified first applicant stating that it is he who had transcribed and made interpolation in the records of the Waqf Board. It is further urged that the second applicant, Syed Ghulam Syedain Rizvi, is the Administrator of Shiya Central Waqf Board; he is the custodian of the records and had made available the waqf register wherein forgery was committed. They conspired with the main accused Mohd. Azam Khan in forging the consigned records, whereby, the valuable property was illegally transferred to a Trust managed and controlled by co-accused Azam Khan and his family members.
7. I have heard learned counsels for the parties and perused the material placed on record. Learned counsels for the parties have relied upon a number of authorities, which, in my opinion, is not relevant while considering the bail applications. The authorities pertain to trial.
8. Investigation Officer collected evidence from the office of District Magistrate, Rampur, Custodian Evacuee Property, Shia Central Wakf Board, Lucknow, and other departments.
9. Applicants herein have been charged with offence under Section 120-B read with offence under other sections of I.P.C. The ingredients of criminal conspiracy is an agreement reached between two or more persons to commit or do an illegal act or a legal act by illegal means. The agreement/understanding for illegal purpose has been made an offence without requiring any overt act pursuant to the agreement. At this stage, prima face allegation constituting the offence and the evidence to link the applicants with commission of the offence is sufficient. The wakf records of the relevant year was provided by second applicant, wherein forgery in the consigned record was executed by the first applicant in his own handwriting on the directions of the main accused Mohd. Azam Khan. The property of a sunni muslim was fraudulently converted into shia wakf, whereas the property had vested in the Custodian of the State in 1971 on being notified evacuee property.
10. In the petition filed by the second applicant, it is admitted by him that being an Administrator of the wakf, he had executed the directions and instructions of his superiors viz. the co-accused Wasi Rizvi, the Chairman of the Shia Central Wakf Board. The first applicant forged the documents (wakf deed) in his presence.
11. It is further urged that Mohd. Azam Khan, Smt. Tazeen Fatima and Abdullah Azam, members of Parliament/Legislative Assembly, are habitual offenders and have been regularly forging documents and records to procure property for their private trust. It is alleged in several other FIRs. that large hectares of land including land belonging to the Central/State government was fraudulently transferred causing wrongful loss and commensurate wrongful gain to the family members. Co-accused Mohd. Azam Khan has 91 reported criminal antecedents commencing since 1982, Smt. Tazeen Fatima has 32 and Abdullah Azam has 44 criminal cases pending against him.
12. A committee was constituted to enquire into the irregularities of a private university managed by co-accused Mohd. Azam Khan. Enquiry revealed that government land ad-measuring 13.842 hectares, duly declared evacuate property was grabbed by the Trust/University on manufactured documents. Likewise 5000 hectare river bed; 6.917 hectare public utility land vesting in the State have been usurped on the strength of a forged and manufactured documents. The property of Imamuddin, situated in village Shingan Kheda, Rampur, was fraudulently and dishonestly transferred to Shia Central Wakf Board by forging wakf deed of 1939. Imamuddin a sunni muslim, his properties came to be declared and notified as Evacuee property, could not have been transferred as a Shia wakf property but for the fraud. Reliance has been placed on several Case Diary (C.D.) parchas.
13. There is likelihood of the witnesses being tampered with having regard to the conduct of the main accused Mohd. Azam Khan and the influence he and his family members exercise.
14. Having considered the rival submissions and upon perusal of the material placed on record, I find no good ground to grant bail to the applicants. It is not in the public interest to enlarge the applicants on bail at this stage.
15. Without expressing any opinion on the merits of the case, both the bail applications are rejected, with liberty to the applicants to approach the Court for bail after the witnesses of fact are examined in the trial.
16. In view of the mandate of Supreme Court in Ashwini Kumar Upadhyay Vs. Union of India1, the trial is expedited.
17. The trial Court shall proceed in accordance with law without being influenced by the observations made in the order.
Order Date :- 26.11.2020 P. Sri.