Allahabad High Court
Ashok Kumar Rathi vs State Of U.P. And 2 Others on 26 November, 2020
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 70 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 7874 of 2020 Applicant :- Ashok Kumar Rathi Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Sandeep Kumar Srivastava,Amit Daga Counsel for Opposite Party :- G.A.,Ajay Kumar Pandey,Rajiv Lochan Shukla Hon'ble Siddharth,J.
Heard Shri Amit Daga learned counsel for the applicant and Sri Rajiv Lochan Shukla, Shri Ajay Kumar Pandey, learned counsel for the informant and learned AGA,.
Perused the material on record.
The instant Anticipatory Bail Application has been filed with a prayer to grant an anticipatory bail to the applicant, namely, Ashok Kumar Rathi, in Case Crime No. 78 of 2020, under Sections 420,467,468,471,447,120-B and 506 I.P.C. , Police Station - Kotwali, District - Agra.
The brief facts of the case, as submitted by the learned counsel for the applicant, are that a lease dated 27.2.1967 was executed in favour of the father of the applicant by Syed Aziz Ahmad for the period of 40 years letting out the property to the father of the applicant. It is alleged that father of the applicant died in the year 1994 and deed executed in the year 1967 come to an end in the year 2006.Subsequently executor of lease deed, Syed Aziz Ahmad, also died on 1.7.2011. After expiry of more than eight years, from the death of Syed Aziz Ahmad, the informant and his family members forged one unregistered Will dated 17.10.1992 and one power of attorney dated 20.11.1999 of Syed Aziz Ahmad and on the basis of said documents claimed their right and title over the property in dispute.After fabricating aforesaid documents the informant gave show cause notice to the applicant on 30.9.2019/1.10.2019 calling him to pay the entire arrears of rent and damages for use and occupation of the property in dispute. The applicant replied to the notice dated 30.9.2019/ 1.10.2019 through his counsel on 6.12.2019 wherein he refuted entire allegations leveled in the notice.It is further submitted that after giving aforesaid notice informant instituted suit for permanent prohibitory injunction against the applicant and apart from aforesaid suit informant had also instituted a suit for ejectment against the applicant before the civil court. The applicant has no criminal history to his credit. He has definite apprehension of his arrest by the police Learned counsel for the informant has vehemently opposed the bail prayer of the applicant and submitted that after lease deed was executed in favour of the father of the applicant, the name of his father was recorded in municipality as lessee and after his death in the year 1994 applicant has got his name muted as owner of the property in the Municipal record .He has committed offences alleged in collusion with the employees of the Nagar Nigam,Agra regarding the disputed property. There are 80 tenants in the leased property and applicant is realizing their rents.He has further submitted that applicant claims existence of a Hiba in his favour, as averred in paragraph-16 of the affidavit filed in support of the bail application. He has submitted that plea of Hiba was raised in reply to the notice given by the informant to the applicant to vacate the premises. He has not filed any suit for declaration on the basis of alleged Hiba. Learned counsel for informant has further submitted that Hiba of more than 1/3rd of the property cannot be done under the Muslim law,therefore Hiba is not in accordance with Muslim law.
After considering the rival contentions, it appears that the applicant is successor of the original lessee . He has continued in possession over the property after expiry of the period of lease.The name of the applicant is also mutated in the municipal record as owner. Whether the claim of the applicant on the basis of Hiba would sustain or not is subject matter of civil suit.The role of the applicant in recording of mutation entry is yet to be decided in investigation , which is pending.
Learned AGA has also opposed the prayer for anticipatory bail of the applicant.
Without expressing any opinion on the merits of the case and considering the nature of accusation and his antecedents, the applicant is entitled to be released on anticipatory bail in this case for the limited period considering the exception considered by the Hon'ble Supreme Court in the case of Sushila Aggarwal Vs. State (NCT of Delhi)-2020 SCC Online SC 98.
In the event of arrest of the applicant shall be released on anticipatory bail till the submission of police report, if any, under section 173 (2) Cr.P.C. before the competent Court on furnishing a personal bond of Rs.50,000/- with two sureties each in the like amount to the satisfaction of the Station House Officer of the police station concerned with the following conditions:-
(i) The applicant shall make himself available for interrogation by a police officer as and when required;
(ii) The applicant shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade from disclosing such facts to the Court or to any police office;
(iii) The applicant shall not leave India without the previous permission of the Court and if he has passport, the same shall be deposited by him before the S.S.P./S.P. concerned.
(iv) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
(v) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
In default of any of the conditions, the Investigating Officer is at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicant.
The Investigating Officer is directed to conclude the investigation of the present case in accordance with law, expeditiously, independently without being prejudiced by any observations made by this Court while considering and deciding the present anticipatory bail application of the applicant.
The applicant is directed to produce a copy of this order downloaded from the official website of this Court before the S.S.P./S.P. concerned within ten days from today, who shall ensure the compliance of present order.
Order Date :- 26.11.2020 Atul kr. sri.