Madhya Pradesh High Court
Haji Abdul Razzak vs The State Of Madhya Pradesh on 23 June, 2022
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 23rd OF JUNE, 2022
MISC. CRIMINAL CASE No. 22042 of 2022
Between:-
HAJI ABDUL RAZZAK S/O SHRI HAJI ABDUL
WAHEED, AGED ABOUT 63 YEARS,
OCCUPATION: MINING BUSINESS 903 RIPTA
NAYA MOHALLA POLICE STATION OMTI
JABALPUR M.P. (MADHYA PRADESH)
.....PETITIONER
(REPRESENTED BY SHRI MANISH DATT, SENIOR ADVOCATE
WITH SHRI AHMAD SAHID HUSSAIN, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
POLICE STATION HANUMANTAL DISTRICT
JABALPUR M.P. (MADHYA PRADESH)
.....RESPONDENT
(REPRESENTED BY SHRI BRAHM DATT SINGH, GOVERNMENT
ADVOCATE)
(SHRI SANKALP KOCHAR, ADVOCATE FOR THE OBJECTOR)
This application coming on for hearing this day, the court passed the
following:
ORDER
This second application under Section 439 of the Code of Criminal Procedure has been filed on behalf of the applicant for grant of bail in connection with Crime No.27/2022 registered at Police Station Hanumantal, District Jabalpur for the offence punishable under Sections 294, 308, 365, 366, 342, 452, 506, 120-B, 34, 420, 467, 468, 471 of the Indian Penal Code and Section 25/27 of the Arms Act.
2The first bail application of the applicant was dismissed as withdrawn vide order dated 11.03.2022 passed in M.Cr.C. No.9543/2022 with liberty to move a fresh one after some time.
Learned counsel for the applicant submits that the applicant has been shackled on 27.01.2022 in the present case (although he was already in jail w.e.f. 27.08.2021 in other crime). He further submits that as per the case of prosecution, on 19.09.2020 when complainant namely Mohd. Sabbir was all- alone in his house, at about 3:00 p.m. he received a mobile call of one Walia, who told that he had got his number from one Aman Bhai, Sadarwale and then called him at the field of pump-house and when the complainant reached there, he found son of Walia, who using invective language, took him forcibly in a Car by putting gun on his forehead and according to the complainant, it was done on the instructions of applicant and his son Sartaj. Complainant has also informed that his signature was taken on a pre-typed stamp papers. The complainant was brought to the police so as to give an affidavit that he had not made any complaint against the applicant and other co-accused persons and to submit the said affidavit before the CSP, Gohalpur and then he under the threat of these persons made statement before the police that he had made a false complaint against the applicant. The FIR got registered by the Police on 12.01.2022. Learned senior counsel for the applicant submits that the FIR is inordinately tardy and the explanation given by the complainant that because he was under threat of the present applicant, who according to him is a history- sheeter, did not take any action but when the police started taking action against the present applicant and his other gang members then only he came-forward and lodged the report to the police, does not appear to be justified for the reason that the complainant according to his own saying has been fighting 3 against the present applicant since long and on earlier occasions also he made several complaints to the police and also filed a writ petition in the High Court for taking appropriate action against the present applicant then under such circumstances, his explanation of delay in lodging the report cannot be said to be rational. Shri Manish Datt, learned senior counsel appearing for the applicant further submits that if the complainant was under threat but when he was brought to the police according to him i.e. CSP Gohalpur, he could have disclosed these facts to the police at that time, but story made by the complainant is false and concocted that too with the help of police so as to implicate the present applicant in a criminal case and to harass him like anything. He further submits that the conduct of the complainant can also be seen so as to ascertain the correctness of his allegation.
The counsel for the applicant has filed certain documents indicating that earlier also on the basis of complaint made by the complainant offence were registered but in the Court he turned hostile and accused were acquitted in the said crime. He further submits that basically the complainant is a blackmailer and is habitual of making false complaints just to extract money from the persons against whom he lodges the report and in the Court he turns hostile. Shri Datt further submits that it is not the first occasion when the applicant is being harassed by the police authorities but for one or other reason, the applicant is make scapegoat by registering false cases against him just to rot him in jail.
In contrast, Shri Bramhadatt Singh, learned counsel appearing for the State opposes the bail application and virtually raised all those grounds which have been taken note of by the Coordinate Bench in M.Cr.C.No.62436/2021.
4He has also explained that in the existing facts and circumstances of the case and the explanation given by the complainant about lodging the report belatedly, the delay is not so fatal because the explanation given by the complainant is reasonable and, therefore, delay does not dilute the gravity of offence.
Shri Sankalp Kochar, learned counsel appearing for the objector has also filed the objection and tried to establish that the conduct of the complainant as has been posed by the counsel for the applicant, is not correct. He submits that the cases in which the complainant was witness and then turned hostile, but the reason for doing so was the pressure and threat given by the applicant and his gang members. He submits that on a complaint made by the complainant against the present applicant that the applicant and his accomplice forcibly took his signature on a blank stamp paper which was never purchased by him and he also did not appear before the notary, the police made an enquiry and ultimately found that the said affidavit was not sworn by the complainant as he never appeared before the notary nor did he purchase the said stamp paper, meaning thereby, the said document was forged by the present applicant and his other gang members and offence was also registered by the police against them. He submits that looking to the past criminal history of the present applicant, it is not surprising that the complainant was under great pressure and threat of life from the present applicant and, therefore, not coming-forward to lodge the report to the police against the present applicant is not unacceptable excuse, therefore, according to Shri Kochar, the delay is not so fatal because the explanation for lodging the report belatedly is genuine and reasonable.
In support of his submission, the counsel for the applicant has placed reliance upon a decision of Supreme Court in re Maulana Mohammed Amir Rashadi Vs. State of Uttar Pradesh and another (2012) 2 SCC 382, in 5 which the Supreme Court has observed that if bail is granted by the High Court imposing certain conditions which provides sufficient safeguard, then rejecting bail only on the ground that the accused has past criminal antecedents and he is a history-sheeter, does not appear to be proper.
On the other hand, Shri Kochar, has placed reliance upon a judgment reported in (2012) 9 SCC 446 parties being Ash Mohammad Vs. Shiv Raj Singh alias Lalla Babu and another, in which the bail granted to the accused was rejected by the High Court considering his past criminal antecedents.
On earlier occasion i.e. 12.05.2022, hearing of this application took place, in which, this Court directed re-listing of matter for further hearing giving an opportunity to the parties to apprise the Court on the point that Coordinate Bench in one of the cases i.e. M.Cr.C.No.62436/2021 granted bail to present applicant in other crime number registered against him taking note of entire criminal history and then what would be the impact of that order in the present case when bail application is being opposed mainly on the basis of past criminal antecedents of the applicant.
The learned senior counsel for the applicant submits that so far as the present applicant is concerned, he has never gone or met with the complainant and even allegations made by him also about the incident took place on 19.09.2020 which has given rise to present criminal proceeding against the applicant, alleging what is being done against the complainant that is at the instance of present applicant. He reiterates the facts of the case and tries to establish that complainant's conduct is very important to be considered while granting bail to the applicant because he is habitual of making false complaints and in cases where he was a witness, appeared before the court and turned 6 hostile. He also submits that whatever explanation given by the present applicant for lodging the FIR at such a delayed stage of incident dated 19.09.2020 is also not acceptable for the reason that from the facts and circumstances of the case, it is clear that the complainant is making complaints and raising voice against the applicant since 2011, but till now nothing has happened to him and therefore explanation given for not lodging complaint timely about the alleged incident of 19.09.2020, is not acceptable and it clearly indicates that it is nothing but a concocted story and this complaint has been projected by the police authorities just to harass the applicant in all manner.
The learned senior counsel for the applicant also draws attention of this Court towards previous conduct of the applicant and explains that the cases registered against the applicant although considered by the coordinate bench even though granted bail to the applicant and even otherwise looking to the nature of cases; result of those cases further makes the applicant entitle to be released on bail and his past criminal conduct should not come in his way. Shri Datt submits that as per the document (Annexure-O/3) containing past criminal record of the applicant wherein 27 cases shown to have been registered, first case was registered in 1991 and in the same year, three cases were registered and in all these cases applicant has been acquitted. Then, cases at serial No.4 and 5 were also ended into acquittal of applicant. Case at serial No.6 registered in Uttar Pradesh in which conviction was made for offence under Section 326 of IPC and applicant has been bailed out and appeal is pending in the High Court. Case at serial No.7 was registered in 2011 which also got ended into acquittal of applicant. In the case at serial No.8, the police submitted closer report. Cases shown at serial No.9 to 18 registered under Section 107 and 116(3) of CrPC also ended. In the case at Sr.No.19, the applicant was suffered 7 with NSA, but that order of NSA was set aside by the Supreme Court. Case at serial No.21 also ended as was registered under Section 107, 116(3) of CrPC. Then cases at Sr.No.22, 23 & 24, in these cases, the applicant has been bailed out and as per applicant these cases have been registered fallaciously implicating him. In the case at Sr.No.25 again applicant was subjected to NSA, but that order of NSA was not confirmed by the Advisory Board and that order has been quashed. In the case at Sr.No.26, applicant has been bailed out by the Sessions Court. The case at Sr.No.27 is present case. Shri Datt submits that all these cases have been taken note of by the coordinate bench at the time granting bail to the applicant in other crime. He further submits that the State in its objection raised ground that the complainant has been threatened and receiving various phone calls from different parts of the country and even out of country giving threat to the complainant for withdrawing his case against the applicant. He submits that in none of the phone calls police traced out as to whether they have been made by the persons related to the applicant or were fake phone calls. He also submits that the complainant has been raising voice against the applicant making complaints at all level since 2011, but nothing has been done with him then there is no reason for the complainant to come under pressure or under threat of present applicant or his companions. He further submits that the respondent and the objector are raising objection alleging that the present applicant has also fraudulently prepared an affidavit of the complainant just to apprise the police authorities that the complainant did not want to prosecute the matter against the present applicant and as such committed forgery by preparing forged document but Shri Datt submits that at this stage it is difficult to understand whether the applicant was at all involved in such fraudulent activities 8 or it was planned by the police authorities. He also submits that the complainant has stated that he visited the office of CSP Hanumantal and got his statement recorded in which he had stated that he had no grudge with applicant and he had not made any complaint against him but as per the respondent that was also under pressure of applicant. Shri Datt submits that it is something surprising when the complainant was before the police officer, why did he not disclose that he was under pressure or threat of the companions of applicant. He also submits that if the allegations made by the complainant against applicant are seen, it is clear that in none of the incident, the applicant was directly involved or ever met with the complainant, but according to him, everything has been done at the instance of applicant. In support of his contentions, learned senior counsel placed reliance on the decisions of Supreme Court in re Prabhakar Tiwari v. State of Uttar Pradesh and another (2020) 11 SCC 648 and Neeru Yadav v. State of Uttar Pradesh and another (2016) 15 SCC 422.
Remonstrating the submissions made on behalf of the applicant, Shri B.D. Singh appearing for the respondent-State opposes the bail application and submits that looking to the allegations made against the applicant and nature of crime committed by him and also taking note of his criminal antecedents, he is not entitled to be released on bail. Shri Singh submits that the forgery which has been committed by the applicant forging the affidavit, corresponding seizure has been made from his house and that too Adhar Card and relevant documents and even as per the statement of Notary and also Stamp Vendor, it is clear that the applicant was involved in forging the stamp papers. He submits that the applicant is a known hardcore criminal, running a gang of criminal and involved in heinous and serious crimes, therefore, is not entitled to be released on bail.
Shri Kochar, learned counsel for the objector supported the stand taken 9 by the counsel for the State and adds that the applicant should not be released on bail because if ultimately he is released, he would definitely influence the witnesses of the case. He submits that even the applicant is in jail, then the complainant received at-lease 20 phone calls from different parts of the country giving threat to him and compelling him to withdraw the report against applicant, otherwise he will have to face dire consequences. The complainant has also informed the police about threats received through phone calls. Taking aid of the decision of Supreme Court in case of Neeru Yadav (supra), he submits that the present applicant is a history-sheeter and having long list of cases, therefore, he is not entitled to be enlarged on bail only on the ground of parity claimed with other accused persons who have been granted bail by the Court. Shri Kochar further submits that as per his objection the applicant with the help of his gang members creating pressure upon the complainant for withdrawal of complaint and a report in this regard was also made to the police and he filed document to that effect and also copy of statement of complainant recorded under Section 164 of CrPC. He submits that under these circumstances, the applicant is not entitled to be released on bail.
Shri Datt in response to the submission made by the counsel for the respondent and objector, submits that the complainant is already under police protection and he has been provided protection by the police and he is always under the security of police guards and even otherwise when since 2011 nothing has been done with the complainant then all allegations with regard to receiving threats and threatening phone calls are nothing but false and concocted story just to prejudice the Court so that bail application of the applicant may not be considered. Shri Datt submits that the coordinate bench has granted bail to the 10 applicant in another crime registered against him imposing certain conditions, therefore, this Court can also do so as the applicant being a permanent resident of Jabalpur, having movable and immovable property, there is no possibility of his getaway. He submits that if any condition is imposed, the applicant would be under obligation to abide by the same.
In repartee, Shri Kochar submits that under existing circumstances, at the most the Court looking to the fact that the charge-sheet has already been filed, can direct the trial Court to get the statement of complainant recorded and till then the applicant may not be released.
Considering the submissions of learned counsel for the rival parties, perusal of record and also the decisions relied upon by the learned counsel for the parties, but without expressing any view on merits, prima facie it appears that the present applicant has not come in picture directly and as per the allegations made by the prosecution, the alleged crime has been committed by other persons at the instance of present applicant. Discussing the history of criminal past of applicant, the coordinate bench has also considered this aspect that in several cases, applicant has been acquitted and even twice NSA proceedings instituted against him got set aside. The coordinate bench has also granted bail to applicant in other cases imposing stringent conditions.
Accordingly, the application is allowed and it is directed that the applicant be released on bail on the following conditions:-
(1) The applicant shall furnish a personal bond in the sum of Rs.5,00,000/- (Rupees Five Lakh) with two solvent local sureties of the like amount to the satisfaction of the trial Court concerned for his appearance on the dates given by it;
(2) The applicant will report to the Police Station Hanumantal, District 11 Jabalpur on first day of each month between 10:00 a.m. & 12:00 noon, whose presence will be duly marked by the police;
(3) The applicant will deposit his passport, if available, with the trail Court within a period of 15 days from his release and will make his presence before the trial Court on each and every date of hearings unless there appears any unavoidable exigency in attending the court; and (4) The applicant shall not make any attempt, by his own or with the assistance of his acquaintance, to pressurise or threaten the complainant; to tamper the evidence and influence the witnesses in any manner.
Certified copy as per rules.
(SANJAY DWIVEDI) JUDGE Sudesh SUDESH Digitally signed by SUDESH KUMAR SHUKLA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya KUMAR Pradesh, 2.5.4.20=1d5e479f08e68eda8f9271dbbe2c 4bc3916264aec736f7c5f5885257f5eeaeb7, pseudonym=70EE703D36E97ABB20BA3C7 9C921929E09400A16, SHUKLA serialNumber=7D462390C18350EF7C4081 1B12AB45D82AF1259878762BAC356DCFA 877F02654, cn=SUDESH KUMAR SHUKLA Date: 2022.06.24 17:14:03 +05'30'