Allahabad High Court
Rizwan Mohammad vs State Of U.P. on 30 September, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:161286 Reserved on: 25.07.2024 Delivered on: 30.09.2024 Court No. - 77 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 30450 of 2023 Applicant :- Rizwan Mohammad Opposite Party :- State of U.P. Counsel for Applicant :- Abhinav Gaur,Ankit Shukla,Mohd. Rashid Siddiqui,Sr. Advocate Counsel for Opposite Party :- G.A. Connected with Case :- CRIMINAL MISC. BAIL APPLICATION No. - 16087 of 2023 Applicant :- Mannu Rehman Opposite Party :- State of U.P. Counsel for Applicant :- Sharique Ahmed,Sr. Advocate Counsel for Opposite Party :- G.A. Connected with Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38275 of 2023 Applicant :- Irfan Solanki Opposite Party :- State of U.P. Counsel for Applicant :- Anand Kumar Tripathi,Pankaj Kumar Shukla, Ramji Mishra Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Anoop Trivedi, the learned Senior Counsel assisted by Mr. Ankit Shukla, the learned counsel for applicant-Rizwan Mohammad, Mr. Dilip Kumar, the learned Senior Counsel assisted by Mr. Sharique Ahmed, the learned counsel for applicant-Mannu Rehman, Mr. N.I. Jafri, the learned Senior Counsel assisted by Mr. Vineet Vikram, the learned counsel for applicant-Ifran Solanki and Mr. P.C. Srivastava, the learned Additional Advocate General assisted by Mr. Vikas Sahai, Mr. Arvind Kumar, Mr. Prashant Kumar and Mr. Amit Singh, the learned A.G.A. for State.
2. These applications for bail have been filed by applicants Rizwan Mohammad, Mannu Rehman and Irfan Solanki seeking their enlargement on bail in Case Crime No.54 of 2022, under Sections 420, 467, 468, 471, 120-B IPC and Section 13 read with Section 14 Foreigners Act, 1946, police station Moolganj, district Kanpur Nagar, during the pendency of trial.
3. Perused the record.
4. Record shows that in respect of an incident, which is alleged to have occurred on 11.12.2022, a prompt first information report dated 11.12.2022 was lodged by first informant, namely, Anoop Singh and was registered as Case Crime No.54 of 2022, under Sections 419, 420, 467, 468, 471, 120-B IPC and Section 14 Foreigners Act, 1946, police station Moolganj, district East (Commissionerate) Kanpur Nagar. In the aforesaid first information report, five persons, namely, Rizwan Mohammad, Hina Khalid, Ruksana Rizwan, Khalid Majid and Arslan Mohammad (juvenile) have been nominated as named accused.
5. The gravamen of the allegations made in the first information report is to the effect that though all the five named accused are Bangladeshi Nationals yet four of them are illegally staying in India. They are further alleged to have prepared documents to show that they are Indian Nationals. Fraud and forgery has been committed by them to procure public as well as private documents, on the basis of false information including residence proof.
6. After aforementioned first information report was lodged, Investigating Officer proceeded with statutory investigation of concerned Case Crime number in terms of Chapter XII CrPC. He, accordingly, examined various witnesses under Section 161 CrPC and recorded their statements. Apart from above, various recoveries were also made by the Investigating Officer. On the basis of above, he came to the conclusion that complicity of two not named accused, namely, Mannu Rehman and Irfan Solanki is also established in the crime in question. The named and not named accused were thus taken into custody. Ultimately, Investigating Officer on the basis of material collected by him during course of investigation opined to submit the charge-sheet. He, accordingly, submitted the police report dated 24.04.2023 in terms of Section 173 (2) CrPC (charge-sheet), whereby named accused, namely, Rizwan Mohammad, Hina Khalid, Ruksana Rizwan, Khalid Majid and Arsalan Mohammad and not named accused, namely, Mannu Rehman and Irfan Solanki have been charge-sheeted under Sections 420, 467, 468, 471, 120-B IPC and Section 13 read with Section 14 Foreigners Act, 1946.
7. At the very outset, Mr. Anoop Trivedi, learned Senior Counsel appearing for accused-applicant Rizwan Mohammad submits that co-accused Rukhsana Rizwan, Khalid Majeed and Mohammad Arsalan, who are children of present applicant Rizwan Mohammad, have already been enlarged on bail by court below.
8. It is then contended by the learned Senior Counsel that another named and charge-sheeted co-accused Hina Rizwan (wife of applicant Rizwan Mohammad) has also been enlarged on bail by this Court, vide order dated 08.07.2024 passed in Criminal Misc. Bail Application No.34991 of 2023 (Smt. Hina Rizwan Vs. State of U.P.). For ready reference, the same is reproduced herein-under :-
"1. Heard Mr. Anoop Trivedi, the learned Senior Counsel assisted by Mr. Abhinav Gaur, the learned counsel for applicant and the learned A.G.A. for State opposite party 1.
2. Perused the record.
3. This application for bail has been filed by applicant Smt. Hina Rizwan seeking her enlargement on bail in Case Crime No. 54 of 2022, under Sections 420, 467, 468, 471 and 120B IPC and Section 13 read with Section 14 Foreigners Act, 1946, Police Station-Moolganj, District-Kanpur Nagar, during the pendency of trial i.e. Criminal Case No. 49060 of 2023 (State Vs. Rizwaan Mohammad) under Sections 420, 467, 468, 471 and 120B IPC and Section 13 read with Section 14 Foreigners Act, 1946, now pending in the court of Metropolitan Magistrate (IInd), District Kanpur Nagar.
4. Record shows that in respect of an incident, which is alleged to have occurred on 11.12.2022, a prompt FIR dated 11.12.2022 was lodged by first informant-Anoop Singh and was registered as Case Crime No. 54 of 2022, under Sections 420, 467, 468, 471 and 120B IPC and Section 13 read with Section 14 Foreigners Act, 1946, Police Station-Moolganj, District-Kanpur Nagar. In the aforesaid FIR, 5 persons namely Rizwan Mohammad, Hina Rizwan, Ruksana Rizwan, Khalid Majid and Arsalan Mohammad have been nominated as named accused.
5. The gravamen of the allegations made in the FIR is to the effect that named accused Rizwan Mohammad, who is a Bangladeshi national had solemnized marriage (nikah) with the applicant Hina Rizwan and is staying in India illegally on the basis of forged documents.
6. After aforementioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr. P. C. On the basis of material collected by the Investigating Officer during course of investigation, he came to the conclusion that not only the complicity of the named accused but also the complicity of not named accused- namely Mohd. Adib, Mannu Rehman, Irfan Solanki and Rizwan Mohammad is also established in the crime in question. He, accordingly, submitted the police report (charge sheet) dated 24.4.2023 in terms of Section 173 (2) Cr. P. C., whereby named accused and aforementioned not named accused have been charge sheeted under Sections 420, 467, 468, 471 and 120B IPC and Section 13 read with Section 14 Foreigners Act, 1946.
7. At the very outset, Mr. Anoop Trivedi, the learned Senior counsel for applicant contends that named and charge sheeted accused Ruksana Rizwan, Khalid Majid Arsalan Mohammad, who are the children of applicant, have already been enlarged on bail by the Trial Court itself. Their bail orders are on record from pages 144 onward of the paper book. He, therefore contends that applicant is the mother and the father Rijwan Mohammad are languishing in jail. Considering the fact that the children of the applicant are of very young age and three of them are unmarried young girls, therefore, the applicant is liable to be admitted to bail.
8. It is next contended by the learned Senior counsel that the applicant Hina Rizwan is a lady, therefore, she is entitled to the benefit of the provisions contained in proviso to Section 437 Cr. P. C.
9. In the submission of learned Senior counsel, the case of the present applicant is distinguishable from other named/charge sheeted accused Rizwan Mohammad, who is a Bengladesh citizen and has solemnized marriage (nikah) with the applicant and other not named but charge sheeted accused Mannu Rehman and Irfan Solanki, M.L.A. Therefore, in view of aforesaid conspectus, an exception is liable to be carved out qua the present applicant, from not bailed out other co-accused. As such, applicant is liable to be admitted to bail.
10. Even otherwise, applicant is a lady of clean antecedents inasmuch as she has no criminal history to her credit except the present one. Applicant is in jail since 11.12.2022. As such, she has undergone more than 1 year and 6 1/2 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. Therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such incriminating circumstance has emerged on the record necessitating the custodial arrest of applicant during the pendency of trial. The learned Senior counsel, therefore, submits that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, she shall not misuse the liberty of bail and shall co-operate with the trial.
11. Per contra, Mr. P.C. Srivastava, the learned Additional Advocate General assisted by Mr. Amit Kumar Singh, the learned A.G.A. has vehemently opposed the prayer for bail. He submits that after the applicant Hina Rizwan solemnized marriage (nikah) with a Bengladeshi national i.e. named and charge sheeted accused Rizwan Mohammad on 21.10.1998, she went to Bengla Desh. No such material has been brought on record to establish that legal immigration of application Hina Rizwan took place. However, it is an undisputed fact that the applicant was granted citizenship by the Peoples Republic of Bengladesh. Subsequently, the Government of People Republic of Bangladesh granted visa to the applicant to visit India. She frequently visited India in the interregnum. Her three children were born in Bangladesh but on account of above, the applicant is a Bengladeshi national. Ultimately, for the reasons best known to applicant, she came to India for the last time in the year 2016 and though the period of visa granted to her by the Government of Bengladesh was for 180 days, she overstayed and did not return to Bengladesh.
12. According to the learned Additional Advocate General, forged documents were prepared at the behest of the present applicant, inasmuch as the local corporator Shahajad charge sheeted accused has issued domicile certificate that Ruksana Rizwan, Khalid Majid, father of applicant Hina Khalid, Mannu Rahman, the applicant and her three children are residents of Kanpur Nagar. School leaving certificate of the children of the applicant were prepared in a forged and clandestine manner to the effect that they were studying in Kolkata. Apart from above, forged birth certificates were also alleged to have been issued by the Kanpur Nagar Municipal Corporation to the effect that issues of the applicant were born in India. On the above premise, the learned Additional Government Advocate submits that since fraud and forgery committed by the applicant is writ large on the record, therefore, she is not entitled to be enlarged on bail.
13. Having heard the learned Senior Counsel for applicant, the learned Additional Advocate General for State, upon perusal of record, evidence, nature and gravity of offence, accusations made, complicity of accused and coupled with the fact that though applicant is a named and charge sheeted accused, applicant is a foreign national, inasmuch as she has been granted Bangladeshi citizenship, though applicant was brought up in India, her issues were born in Bangladesh out of wedlock of Rizwan Mohammad a Bangladeshi national, her marriage was solemnized in India, the applicant had returned from Bangladesh in the year 2016 and overstayed i.e. beyond the period mentioned in the visa granted by the Government of Bangladesh, yet irrespective of aforesaid clinching facts, the Court finds that the issues of the applicant namely Ruksana Rizawan, Khalid Majid, Arsalan Mohammad and Mohammad Adib have already been enlarged on bail by Trial Court, the applicant is a lady and therefore she is entitled to the benefit of the provision contained in proviso to Section 437 Cr. P. C., the clean antecedents of applicant, the period of incarceration undergone, the police report in terms of Section 173 (2) Cr. P. C. has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, there is no such distinguishing feature in the case of the present applicant from bailed out co-accused Ruksana Rizwan, Khalid Majid, Arsalan Mohammad and Mohammad Adib so as to deny her bail, the offence complained of is triable by Magistrate and also the fact that since the children have been enlarged on bail, three children of applicant are unmarried young girls and the parents being in custody, equity demands that the mother should be released on bail, therefore, irrespective of the objections raised by the learned Additional Advocate General in opposition to the present application for bail, but without making any comments on the merits of the case, applicant has made out a case for bail.
14. Accordingly, the bail application is allowed.
15. Let the applicant Smt. Hina Rizwan be released on bail in the aforesaid case crime number on her 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 shall file an undertaking to the effect that she shall not seek any adjournment on the date 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.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through her counsel. In case of her absence, without sufficient cause, the trial court may proceed against her under section 229-A I.P.C..
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure her presence proclamation under section 82 Cr.P.C., may be issued and if applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against her, in accordance with law, under section 174-A I.P.C.
(iv) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant 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 her in accordance with law.
(v) The trial court may make all possible efforts/endeavour and try to conclude the trial within a period of one year after the release of the applicant.
(16). However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on her bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above."
9. It was then urged by Mr. Anoop Trivedi, the learned Senior Counsel for accused-applicant Rizwan Mohammad that though applicant is a named and charge-sheeted accused yet he is liable to be enlarged on bail. Applicant is a Bangladeshi citizen but he was within the territorial limits of the Republic of India on the basis of a valid passport. The bona fide of the applicant is further explicit from the fact that Visa which was issued in his favour by the Government of India was a multiple entry Visa for the period 23.06.2022 to 22.12.2022. Applicant was arrested on 11.12.2022. As such, it is not a case where a foreign national was staying within this country i.e. Republic of India beyond the period mentioned in the Visa. According to the learned Senior Counsel, applicant had come to India on 15.11.2022 from Dhaka (Bangladesh) to Calcutta and thereafter, from Calcutta to Kanpur Nagar. Applicant had a return train ticket from Kanpur Central to Siyaldah (Calcutta) on 15.12.2022 and had also a return ticket from Calcutta to Dhaka (Bangladesh) by air on 19.12.2022.
10. Learned Senior Counsel further submitted that though in the first information report various allegations have been made but there is nothing on record to show that applicant has connived in the manufacture of the forged/false documents pertaining to his wife and children. Even otherwise, conspiracy is a closed door affair and subject to trial evidence. In a case relating to criminal conspiracy, there is hardly any chance of direct evident. However, irrespective of above, conspiracy can be inferred from the circumstances also. The said exercise can be accomplished only during the course of trial when evidence shall emerge. The offence complained of is triable by Magistrate. The maximum sentence that can be imposed against applicant is seven years under the charging sections mentioned in the charge sheet/police report. Applicant is in jail since 11.12.2022. As such, he has undergone sufficient period of incarceration (i.e. one year and 9 and a half months). The police report in terms of Section 173 (2) CrPC has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized. However, up to this stage, no such incriminating circumstance has emerged on record, on the basis of which, it can be said that custodial arrest of applicant is absolutely necessary during the pendency of trial. On the above premise he, therefore, submitted that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.
11. Mr. Dilip Kumar, the learned Senior Counsel assisted by Mr. Sharique Ahmed, the learned counsel for accused-applicant Mannu Rehman contended that applicant Mannu Rehman though not named in the first information report but is a charge-sheeted accused yet in spite of above, he is liable to be enlarged on bail. Referring to the material on record, it was urged by the learned Senior Counsel that two certificates are alleged to have been issued by applicant. However, even if the said certificates were issued by the applicant, no benefit could be derived by the beneficiary from the same. As such, no criminality can be said to have been committed by applicant Mannu Rehman.
12. It was also submitted by the learned Senior Counsel that prosecution has alleged that on the basis of said certificates, Aadhar Card/Domicile certificate came to be issued in favour of some of the accused. According to the learned Senior Counsel, the issuance of the Aadhar Card was initially governed under the provisions of Aadhar (Enrolment And Update) (Seventh Amendment) Regulations, 2016. With reference to above, the learned Senior Counsel would submit that under the aforesaid provisions, the Municipal Corporator has no role to play in issuance of Aadhar Card. Therefore, the certificates, if any, issued by the applicant have no material bearing qua the issuance of the Aadhar Card in favour of the accused. Attention of the Court was invited to list 'B' attached to aforesaid Regulations and, particularly, Column 23. On the basis of above, it was urged that the 'Certificate of address having photo issued by MP or MLA or MLC or Gazetted Officer or Tehsildar on letterhead' alone shall be considered for issuance of Aadhar Card. Since the certificates issued by the applicant do not fall within clause 23 of list 'B' of the aforesaid Regulations, therefore, it cannot be said that there was any illegal act committed by applicant warranting criminal prosecution.
13. According to the learned Senior counsel, Regulations, 2016 were amended in the year 2019 and are known as 'Aadhar (Enrolment and Update) (Seventh Amendment) Regulations, 2019 (No.3 of 2019). It is now provided in clause 38 of list 'B' that 'Certificate of address having photo issued by Municipal Councillor on letterhead' can be considered for issuing Aadhar Card. Since even otherwise the accused persons, in whose favour Aadhar Cards were issued in the year, 2017, were otherwise eligible for grant of Aadhar Card, therefore, it cannot be said that letterhead issued by the applicant was used for obtaining Aadhar Card by the accused.
14. Even otherwise, applicant is a man of clean antecedents having no criminal history to his credit except the present one. Applicant is in jail since 14.02.2023. As such, he has undergone more than one year and five months of incarceration. The police report in terms of Section 173 (2) CrPC (charge-sheet) has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such incriminating circumstance has emerged on the basis of which it can be said that custodial arrest of applicant is absolutely necessary during the pendency of trial. It is further submitted that some of the co-accused have already been enlarged on bail. The offence complained of against applicant is triable by Magistrate. The maximum sentence that can be awarded to the applicant is seven years. Upto this stage, no such evidence has emerged on record which establishes that applicant has connived in the illegal stay of the accused or has conspired in the manufacture of any such public document to which the accused were otherwise not entitled for. On the above edifice, he submitted that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.
15. Mr. N.I. Jafri, learned Senior Counsel assisted by Mr. Vineet Vikram, the learned counsel for accused-applicant Irfan Solanki submits that though applicant is not named in the first information report but a charge-sheeted accused yet he is liable to be enlarged on bail. The only charge alleged against applicant is that a letter was issued by applicant on his letterhead. However, during course of investigation, as per the report of Handwriting Expert, the signature of applicant did not match. As such, no evidence has emerged against applicant during course of investigation regarding the charge alleged against him. Much emphasis was laid to paragraph 10 of the counter affidavit filed by State, wherein aforementioned fact has been clearly explained. Furthermore, no other document was generated on the basis of the said letter issued by the applicant. As such, no justifiable ground exists to prolong the custodial arrest of applicant. Applicant is in jail since 02.12.2022. As such, he has undergone sufficient period of incarceration (i.e. one year and 9 and half months(. The police report in terms of Section 173 (2) CrPC has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such incriminating circumstance has emerged on the basis of which it can be said that custodial arrest of applicant is absolutely necessary during the pendency of trial. On the above conspectus, he, therefore, urged that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.
16. Per contra, Mr. P.C. Srivastava, the learned Additional Advocate General assisted by Mr. Vikas Sahai, Mr. Arvind Kumar, Mr. Prashant Kumar and Mr. Amit Singh, the learned A.G.A. for State vehemently opposed the prayer for bail. Learned Additional Advocate General referred to the spot search and recovery memo pertaining to applicant Rizwan Mohammad. As per the said document, following recoveries were made from the person of Rizwan Mohammad :
Spot Search @ Recovery from Rizwan Mohammad-
During interrogation Rizwan Mohammad told his address as 39/69, Maida Baddar, Mestan Road, P.S. Moolganj, District-Kanpur Nagar.
Two Aadhar Cards were recovered from the possession of Rizwan Mohammad-
1. Aadhar Card-Address 8/02, Flat No.801, Imperial Residence of Sheelin House, Arya Nagar, Kanpur Nagar.
2. Aadhar Card No.229246872949 - 39/69, Maida Baddar, Mestan Road, P.S. Moolganj, Kanpur.
3. Passport - Permanent Address 11/07, Block (A), Iqbal Road, Mohammadpur, 12-7 Dhaka, Bangladesh.
Recovery from Green colour Kit bag/hand bag :
1. Two Passport in the name of Ruksana Rizwan D/O Rizwan Mohammad
(i) Passport No. BA0347748
(ii) Passport No. WO120804 Address - 11/07, Iqbal Road, Mohammadpur, Dhaka, Bangladesh.
2. Two Passport in the name of Arsalan Mohammad S/O Rizwan Mohammad.
(i) Passport No. BA0347749
(ii) Passport No.C1485775 Address - 11/07, Iqbal Road, Mohammadpur, Dhaka, Bangladesh.
3. Aadhar Card of Ruksana Rizwan No.813439751430.
4. enrolment - Perk English School, 115 Park Street Kolkata, Transfer Certificate No.1367 - Blank Name not mentioned.
5. Transfer Certificate of Seedlings Academy in the name of Ruksana Rizwan.
6. Transfer certificate in the name of Ayasha Noor - The Park English School.
7. Aayasha Noor Birth Certificate issued by Kolkata Municipal Corporation.
8. Ruksana Rizwan Birth Certificate issued by Nagar Nigam, Kanpur.
9. Ruksana Rizwan - Driving license No.UP78 20210004710.
10. Arsalan - 2 enrolment aadhar form, Aadhar Card No.384714029438, Park English School, Transfer Certificate No.1366. Birth Certificate issued by Kanpur Nagar Nigam.
11. Aman Ahmad - Birth Certificate issued by Kolkata Municipal Corporation.
12. Mohd. Adeeb S/O Rizwan Mohammad - Aadhar Card No.957940157685, The Park English School Transfer Certificate No.1368.
13. Birth Certificate of Adeeb issued by Nagar Nigam, Kanpur, LIC Policy of Adeeb 2 forms, Adeeb-Elan House Public School Report Card and Aadhar Card of Adeeb.
14. Salman Ahmad - Birth Certificate issued by Kolkata Municipal Corporation.
15. Transfer Certificate issued by The Park English School bearing Nos. 1534 and 1369 - blank.
16. E-Rail Ticket - Rizwaan Mohammad-dated 15.12.2022 - Kanpur to Sealdah, Dated 15.11.2022 Howrah to Kanpur.
17. Rizwan Mohammad- US Bangla flight E-ticket dated 15.11.2022 from Dhaka to Kolkata and [Kolkata to Dhaka] by AIR on 19.12.2022.
18. Notary Affidavit - 29AE990949 attested by Hina Khalid that she is mother and guardian of Mohammad Arsalaan.
19. Ruksaar Rizwana-Indusland Bank Passbook No.156394149564 and cheque book.
20. Hina Khalid - Indusland Bank Statement of Account between 1/4/2021 to 31.3.2022.
It is then contended that following recoveries were made from the house of Rizwaan Mohammad on his pointing :
Search and Recovery from the house of Rizwan Mohammad- on his pointing From the bedroom:
1. Domicile certificate issued on letter head of MLA Irfan Solanki-39/69, Maida Bazar, Mestan Road, P.S. Moolganj issued on 19.8.2017 in the name of Rizwan Mohammad.
2. Domicile certificate issued on letter head of MLA Irfan Solanki in the name of Khalid Mazeed.
3. Aadhar form of Rizwan Mohammad attested by Irfan Solanki.
4. Aadhar form of Hina Khalid attested by MLA Irfan Solanki.
5. Domicile certificate issued by Mannu Rahman dated 19.8.2017 in the name of Rizwan Mohammad.
Search in presence of Khalid Mazeed -
1. Passport of Khalid Mazeed No.A6869712 valid upto 9/1/1999.
2. Aadhar Card of Khalid Mazeed No.533726624904.
3. Pan Card of Khalid Mazeed No.ACMPM03135Q.
4. Indusland Bank Debit Card No.4213242506170250.
5. HDFC Bank Master Card No.5419190505465792.
6. Canara Bank Debit Card No.4601332355012842.
7. Indusland Bank Master Card No.5256220700622867.
8. HDFC Debit Card of Ruksana Rizwan No.4355840103298172.
9. Indusland Bank Debit Card of Hina Khalid No.4363936120865305.
10. Punjab National Bank Debit Card No.6070936120865305.
11. Pan Card of Ruksana Rizwan - FTWTR6232P.
12. Driving License of Ruksana Rizwan - UP 7820210004710.
13. Cash Rs.14,56,400/- (28 b undle of Rs.500/-, 232 note of Rs.200/- and 100 notes of Rs.100/-).
14. 100 American Dollar @ 10 note, One dollar 1 note, Yellow ornaments.
Reference was then made to the spot search and recovery made from Hina Rizwaan W/O Rizwan Mohammad Spot Search & Recovery from Hina Rizwan W/O Rizwan Mohammad
1. Aadhar Card No.-923165179024 Hina Khalid W/O Rizwan Mohammad R/O 14/113, Woodland Apartment, Flat No.605, Civil Lines, Kanpur Nagar.
2. Aadhar Card No.923165179024 - Address 8/02, Flat No.801, Imperial Residency, Arya Nagar, Sheeling House School, Kanpur Nagar.
3. Indian Voter Card No.WGX4214763 - Address-39/69, Meston Road, P.S. Moolganj, Kanpur Nagar.
4. Pan Card No. - EYVPK27-5P.
5. Passport No.A6869492 - issued on 14.12.1998 valid upto 13.12.2008.
6. Marriage Certificate Translated from Arabic mentins the date of marriage as 31.10.2018 - Notary No. 2615199.
7. Two marriage certificates in Arabic/Nikah Nama - Address mentioned as-39/69, Majeed Ahmad Road, Kanpur.
8. Rent Agreement Deed between Mukhtar Alam and Party Hina Khalid.
9. Indusland Bank passbook Account No.1573103727783, Cheque Book - Hina Khalid.
10. HDFC Bank Pass book Account No.50100290375608 - Hina Khalid.
Three Passport Bangladeshi-
1. Passport No.P0059693-Valid between 10/1/2005 to 28/2/2008 in the name of Hina Rizwan W/O Rizwan Mohammad.
2. Passport No.E0237184 - Valid Upto 6/10/2014 in the name of Hina Rizwan W/O Rizwan Mohammad.
3. Passport No.BB0043621 - Valid upto 1/1/2016 All above passports are mentions the Address of the holders as N- 11/07, Iqbal Road, Mohammadpur, Dhaka, Bangladesh.
Learned Additional Advocate General has then referred to the spot search and recovery made from Mohd. Arsalaan Spot Search and Recovery from Mohd. Arsalan-
Apple I-Phone IMEI No.356440100256120, Cash 1250/-.
Spot search and recovery from Car -
Black Laptop Case - HP Laptop, Samsung Mobile IMEI No.57544102656655/01, IMET-2-357545102656652/01, Vehicle Registration Paper from desk board of Car-UP 78 EK 9669 in the name of Khalid Mazeed.
Material evidences collected during investigation, which are part of case diary are as below SL No. Prosecution Evidences collected Page No.
1. Statement of Mohd Adeeb 39-40
2. Majeed Statement of Rizwan Mohammad 89-90
3. Aadhar Card of Rizwan Mohammad Aadhar Card of Mohd Adeeb Aadhar Card of Rikhsar Rizwan Aadhar Card of Hina Khalid & Mohammad Arsalan Aadhar certificate of Hina Khalid 21.11.2021 ✓ Mark in resident column.
✓ Mark in MP/MLA/MLC/Municipal Councilor column for resident proof document.
Aadhar Certificate of Rizwan Mohammad dated 21.11.2021 mentions the Date of Birth 20.1.1975, while on the passport issued by Government of Bangladesh the Date of Birth is mentioned as 2.9.1968.
✓ Mark in resident column.
✓ Mark in MP/MLA/MLC/Municipal Councilor column for resident proof document.
155 156158 & 504 160, 363, 501 161 551 552
4. Hina Khalid Income Tax Assessment Income Tax Return for the year 2019-2020 Assessment Income Tax Return for the year 2020-2021 Assessment Income Tax Return for the year 2021-2022 Assessment Income Tax Return for the year 2022-2023 163-187
5. Mohd Adeeb S/O Rizwan Mohammad L.I.C. Policy Marks sheet issued from Allenhouse Public Schoo, Kanpur Transfer certificate issued by The Park English School Kolkata The Certificate dated 24.12.2022 issued by the Principal of The Park English School shows Mohd Adeeb was never a student of the Park English School.
Mohd Araslan S/O Rizwan Mohammad Transfer Certificate issued by The Park English School Kolkata The Certificate dated 24.12.2022 issued by the Principal of The Park English School shows that Mohd Arasalan was never a student of The Park English School.
Statement of Dharmendra Kumar Dixit, the Admission Incharge of the School has admitted that the admissions of Mohd. Arsalan and Mohd. Adeeb in Allenhouse Public School Rukhsana Rizwan D/O Rizwan Mohammad Transfer Certificate issued by Seedlings Academy Kanpur Certificate issued by Principal Seedlings Academy Kanpur showing Transfer Certificate Sr. No. 7386 dated 12.4.2017 is a forged document.
Statement of Principal Seedlings Academy Statement of Sandeep Kumar Sharma Admin D.P.S. College Kalyanpur Driving Licence of Rukhsana Rizwan CD-22- Staff of Schools of Rukhsana Rizwan, Mohd. Adeeb and Mohd. Arsalan, where they all alleged to have studied also interrogated and college/school records of D.P.S. College, Kalyanpur & Allenhouse Public School, were also examined.
200, 201 202 601 303 600 305 575 603 596 580 578 505 361-363
6. Nagar Nigam Birth Certificate dated 12.5.2017 Mohd. Arsalan Reg. No.B-2017-9-90374-009871 D.O.B.-24.9.2005.
Mohd. Adeeb Reg. No.B-2017-9-90374-009869 D.O.B.-11.7.2009.
Rukhsar Rizwan Reg No. B-2017-9-90374-009870 D.O.B.-9.9.2001 Mentioning fake place of birth at Kanpur U.P. India, Address of Parents at the time of birth of the chld and Permanent Address of Parents at Kanpur U.P. India.
While according to passport of-
Mohd. Arsalan - Date of birth is 28.9.2004, Place of Birth is-Khulna, Permanent Address is 11/7 Iqbal Road, Mohammadpur, Dhaka.
Mohd. Adeeb- Date of birth is 11.7.2007, Place of Birth is-Dhaka, Permanent Address is 11/7 Iqbal Road, Mohammadpur, Dhaka.
Rukhsar Rizwan- Date of birth is 9.9.1999, Place of Birth is-Khulna, Permanent Address is 11/7 Iqbal Road, Mohammadpur, Dhaka 511 to 513 CD-43 665-666
7. Hina Rizwan Voter Identity Card No.WGX4214763 is not available on election website nvps-no data found, certified by Election Officer dated 19.1.2023 556
8. Statement of Faizal independent eye witness of the incident regarding connectivity of Rizwan Mohammad, Irfan Solanki and Mannu Rahman and narrated the true version of story regarding act and conduct of accused persons.
206-207
9. Statement of Shahid @ Kallu, who has stated about the connection of Rizwan Mohammad with the Irfan Solanki and Mannu Rahman for preparation of Aadhar Card.
570-571
10. Statement of Nadeem who applied Aadhar on behalf of all the Bangladeshi Citizens.
609-609
11. Case Diary No. 43- Details about scrutiny of material evidences collected during investigation.
644-675
12. Case Diary No. 54- To and fro travelling of Rizwan Mohammad, Hina Rizwan and Rukhsana Rizwan between Bangladesh and India on passport issued by Govt. of Bangladesh.
CD-54
13. Travelling of Hina Rizwan @ Hina Khalid from India to Bangladesh by using Indian Passport is not available. How she had migrated from India to Bangladesh is still under question, burden lies upon accused persons to prove the same.
CD No.55
17. Apart from referring to the aforesaid recoveries, the learned Additional Advocate General made the following submissions;-
17.1. Hina Rizwan @ Hina Khalid migrated from India to Bangladesh after getting married to Rizwan Mohammd.
17.2. Hina Rizwan has lost Indian Citizenship by acquiring the nationality of foreign state voluntarily. (Section 9 of the Citizenship Act, 1955).
17.3. Hina Rizwan illegally procured following Indian National Identity Card being Citizen of Bangladesh.
(i) Aadhar Card without disclosing her passport & visa and without using prescribed Form No. 7/8 available on UIDAI website, while using residential certificate issued on letter head of Irfan Solanki (Violates the mandate of Section 37 of THE Aadhar (TARGETED DELIVERY OF FINANCIAL AND OTHER SUBSIDIES, BENEFITS AND SERVICES) ACT, 2016
(ii) Indian Voter Card which is not on electoral roll.
(iii) Pan Card No. EYVPK27-5P
(iv) Opening Bank accounts in India, intervene in Indian financial system by using her Aadhar card by filing ITR.
17.4. Rizwan Mohammad- being Citizen of Bangladesh;
Procured AADHAR CARD in his name.
(Part of case diary at page No. 552)
- Certificate of Aadhar shows ✓ mark in residence column.
- Certificate of Aadhar shows mark in MP/MLA/MLC/Municipal Councillor column for resident proof document.
Without following Requirement for application of Aadhar by Resident Foreign National Residential Status: (resided in India for 182 days or more in 12 months immediately preceding enrolment application) Mandatory Demographic information: (Name, Date of Birth, Gender, Indian Address and e-mail) Optional Demographic Information: (mobile number) Biometric Information: (Photo, Finger Prints and both Iris) Type of documents presented: [valid foreign passport and valid Indian VISA/Valid OCI card / Valid LTV is mandatory as Proof of Identity (Pol)] (Passport of Nepal/Bhutan for nationals of Nepal/Bhutan. In case passport is not available, following two documents to be submitted:
(1) Valid Nepalese/ Bhutanese Citizenship Certificate (2) Limited validity Photo Identity Certificate issued by Nepalese Mission / Royal Bhutanese Mission in India for stay of more than 182 days.
And Proof of Address (PoA) as specified in the list of valid supporting documents.
The details submitted through enrolment can be confirmed with the concerned authorities during processing of enrolment.
- All the Bangladeshi Citizens have not applied Aadhar in proper form No. 7/8
- Violation of Aadhar Act.
17.5. Rizwan Mohammad, Hina Rizwan, Rukhsana Rizwan, Mohd. Adeeb and Mohd. Arsalan are illegally living at Kanpur, U.P. since more than 180 days without valid authorization and registration in India, which violates the provisions of Acts dealing with entry, stay and exit of Foreign Nationals in the Country i.e.;
(i) The Passport(Entry into India) Act 1920.
(ii) The Foreigners Act, 1946.
(iii) The Registration of Foreigners Act, 1939 17.6. The role of accused Mannu Rahman in the present case crime number is granting fraudulent domestic certificate to foreign nationals. He in association with Ex. M.L.A. Irfan Solanki provided the fake docmicile certificate in order to procure their respective Adhar Cards, which is corroborated by the FSL Report.
17.7. The role of co-accused Irfan Solanki is that though he was having full knowledge about Rizwan Mohammad, Hina Rizwan, Ruksana Rizwan, Mohd. Adeeb and Mohd. Arsalan that they are citizens of Bangladesh, yet he wilfully issued residence certificate in the names of all Bangladeshi Nationals by approving local address at Kanpur under his instructions, which is corroborated by the statements of independent witness Mohd. Faizal. (Case Diary Page No. 206 to 207) and statement of Shahid @ Kallu (Case Diary Page No. 570 and 571).
17.8. Till date no charges have been framed only on the pretext of non appearance of bailed out co-accused.
17.9. All the accused persons being citizens of Bangladesh have fraudulently secured Indian Aadhar Card by suppressing their original nationality of Bangladesh.
17.10. All the Aadhar Cards have been applied by the accused Bangladeshi citizen without disclosing that their passports have been issued by Govt. of Bangladesh.
17.11. Rizwan Mohammad and Hina Rizwan have fraudulently secured the birth certificates of their children from Nagar Nigam by not disclosing correct date of birth of their children, place of birth, permanent Address which are mentioned in their passport sissued by the Govt. of Bangladesh.
17.12. Accused Rizwan Mohammad and Hina Rizwan by playing fraud have manipulated and procured the School Transfer Certificate of The Park English School Kolkata and Seedlings Academy for getting admission of their children in school situate at District Kanpur,Nagar.
17.13. There is great apprehension of tampering the witnesses, in case, accused are released on bail.
17.14. In case, accused Rizwan Mohammad and Hina Rizwan, who are Citizens of Bangladesh, are enlarge on bail, the proceeding of trial will be derailed due to their immigration from India.
18. Apart from pointing out the recoveries that have been made from the person of applicant Rizwan Mohammad, or on his pointing out it was further contended by the learned Additional Advocate General that though Rizwan Mohammad is a Bangladeshi citizen along with his wife and children yet Aadhar Card in respect of children, namely - Ruksana Rizwan, Khalid Majid and Arslan Mohammad were got made. With reference to above, it was urged that in the Aadhar Card of accused-applicant Rizwan Mohammad issued on 21.11.2021, his date of birth is mentioned as 20.01.1975, whereas in his passport his date of birth is recorded as 02.09.1968. Marking has been made in the residence column with reference to the residence proof provided by MP/MLA/MLC/Municipal Councillor. It was then contended that Hina Khalid is a Bangladeshi national yet she has submitted her income tax return for Assessment Years 2020-21, 2021-22 and 2022-23. In respect of Mohd. Adeeb, it is urged that LIC Policy has been issued in the name of Mohd. Adeeb. Though mark-sheets are alleged to have been issued by Elan House Public School, Transfer Certificate of Park English School, Kolkata but the fact of the matter is that the student, in whose favour, aforesaid documents are alleged to have been issued, was never a student of Park English School, Kolkata. Similar is the position with regard to Mohd. Arsalaan son of Rizwan Mohammad. Reference was then made to the Transfer Certificate of the children of applicant Rizwan Mohammad in support of the submission that the same are also forged and fabricated as the children had not studied at Calcutta. Attention of the Court was also invited to the birth certificate dated 12.05.2017 issued by Nagar Nigam, Kanpur in respect of the children of applicant, namely Arsalan Mohammad; Mohd. Adeeb and Rukhsana Rizwan when admittedly, they were born in Bangladesh.
19. Reference was then made to the various statements of the witnesses recorded under Section 161 CrPC to show that calculated fraud was played by charge-sheeted accused to somehow or the other establish Bangladeshi Nationals i.e. accused-applicant Rizwan Mohammad, his wife and children as Indian citizens.
20. On the basis of aforesaid submissions, the learned Additional Advocate General vehemently urged that considering the nature and gravity of offence i.e. how Foreign Nationals are trying to sneak into this country, no indulgence be granted by this Court in favour of applicant Rizwan Mohammad. Though applicants Mannu Rehman and Irfan Solanki are Indian Nationals, they have connived with Rizwan Mohammad and his wife Hina Khalid for settling them in India illegally. fraud and forgery committed by the accused is writ large. In the totality of the circumstances, no case for grant of bail to applicants is made out. As such, the present bail applications are liable to be rejected.
21. Having heard the learned Senior counsel for the parties, upon perusal of record, evidence, nature and gravity of offence, accusations made, complicity of accused, this Court finds that the Investigating Officer, upon completion of investigation of concerned case crime number, has already submitted the police report/charge sheet in terms of Section 173(2) Cr.P.C., as such, the entire evidence sought to be relied upon by the prosecution against applicants and other charge sheeted accused stands crystallized, yet in spite of above, the learned Additional Advocate General could not point out any such incriminating circumstance from the record necessitating the custodial arrest of applicants during the pendency of trial, the judgment of Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5), most of the evidence relied upon by the prosecution against charge sheeted accused including applicants is documentary evidence, as such, in case, the applicants are enlarged on bail then in that eventuality, it cannot be said that applicants will tamper with the evidence, the Apex Court in the case of Mahdoom Bava Vs. C.B.I., 2023 SCC OnLine SC 299, has held that where the prosecution primarily relies upon documentary evidence, then in such a circumstance, the accused should ordinarily be enlarged on bail, three of the co-accused i.e. the children of Rizwan Mohammad were enlarged on bail by Court below, whereas co-accused Hina Khalid (wife of applicant Rizwan Mohammad) has already been enlarged on bail by this Court, the case of applicant Rizwan Mohammad is substantially similar and idential to co-accused Hina Khalid, in spite of vehement opposition by the learned Additional Advocate General, no distinguishing feature could be pointed out by the learned Additional Advocate General so as to distinguish the case of applicant Rizwan Mohammad from bailed out co-accused Hina Khalid, in respect of applicant Mannu Rehman, the Court finds that this accused is alleged to have issued two certificates but the same could not have been used for applying the Aadhar Card by other accused, the conspiracy element in the conduct of this accused can be examined threadbare during the course of trial, in respect of applicant Irfan Solanki, there is no evidence to the effect that the letter alleged to have been issued by this applicant on his letter head was not found to be under his signatures as per the opinion of the Handwriting Expert, considering the above, the applicants have made out a case for bail, therefore, irrespective of the objections raised by the learned Additional Advocate General in opposition to the present bail applications but without making any comment on the merits of case, applicants have made out a case for bail.
22. Accordingly, all the bail applications are allowed.
23. Let the applicants-Rizwan Mohammad, Mannu Rehman and Irfan Solanki, be released on bail in aforesaid case crime number on their 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 APPLICANTS SHALL FILE AN UNDERTAKING TO THE EFFECT THAT THEY SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE 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.
(ii) THE APPLICANTS SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH THEIR COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST THEM UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANTS MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE THEIR PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST THEM, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(iv) THE APPLICANTS SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) RECORDING OF STATEMENT UNDER SECTION 313 CR.P.C. IF IN THE OPINION OF THE TRIAL COURT ABSENCE OF THE APPLICANT 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 THE HIM/HER IN ACCORDANCE WITH LAW.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL EXPEDITIOUSLY BY FIXING VERY SHORT DATES.
24. However, it is made clear that any wilful violation of above conditions by the applicants, shall have serious repercussion on their bail so granted by this Court and the trial court shall be at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the conditions mentioned above.
Order Date :- 30.09.2024 Vinay-