Allahabad High Court
Kunwar Surendra Singh vs State Of U.P. Thru. Prin. Secy. Home Lko. on 5 May, 2023
Author: Rajeev Singh
Bench: Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 11 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 5931 of 2023 Applicant :- Kunwar Surendra Singh Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. Counsel for Applicant :- Akshat Kumar,Nadeem Murtaza Counsel for Opposite Party :- G.A. Hon'ble Rajeev Singh,J.
Vakalatnama filed by Shri J.B. Singh, Advocate on behalf of the complainant is taken on record.
Supplementary affidavit filed today by the learned counsel for the applicant is taken on record.
Heard learned counsel for the applicant, learned A.G.A. for the State and learned counsel appearing for the complainant.
The present bail application has been filed by the applicant in F.I.R. No. 937 of 2022, under Sections 34, 420 IPC, Police Station Kotwali Nagar, District Raebareli with the prayer to enlarge him on bail.
On 03.05.2023, following order was passed.
"Heard Shri Vivek Raj Singh, Senior Advocate assisted by Shri Nadeem Murtaza, learned counsel for the applicant and Shri Rao Narendra Singh, learned A.G.A. for the State.
Learned counsel for the applicant submitted that alleged property was owned by one Sardar Nihal Singh, which was inherited to his son, namely, Sardar Shamsher Singh. Sardar Shamsher Singh executed a will deed in favour of son of his younger daughter, namely, Surendra Singh @ Goldi, Jagjeet Singh and Raj Singh @ Amit Singh on 26.06.1991, and thereafter, another unregistered sale deed was executed by Sardar Shamsher Singh on 25.11.1994, by which, all the property was given to sons of Indrajeet Kaur (daughter of Sardar Shmasher Singh), and thereafter, will deed was placed before the Tehsildar and case was registered as Mutation Case No.517, in which, notices were issued and second daughter-Daljit Kaur appeared before Tehsildar and given her statement that she has no objection in case the property is transferred in favour of the sons of her deceased younger daughter-Inderjeet Kaur, thereafter, mutation order was passed by the then Tehsildar Sadar, Raibareli, vide order dated 30.12.2003 and all these statements were discussed in the mutation order and applicant and his brother were in the possession over the property in question and all of sudden in the year of 2013, appeal was filed along with delay condonation application by Mohit Singh and Shobhit Singh, sons of Bijendra Singh.
Learned counsel for the applicant also drew attention of the Court in para-8 of the bail application i.e. family tree and submitted that Bijendra Singh is elder son of Sardar Shamsher Singh and he was married with one Narendra Kumari and out of their wedlock, one daughter, namely, Neeta Kumari was born. Bijendra Singh was also live in relation with one Madhu Shukla, and three children, namely, Ruchi, Mohit Singh and Shobhit Singh were born, and due to his behavior he was ousted from the property by Sardar Shamsher Singh, therefore, his alleged daughter-Ruchi and his sons, namely, Mohit Singh and Shobhit Singh had no right in the property as they never challenged the alleged will deed executed by Sardar Shamsher Singh. The appeal was filed before Sub Divisional Officer, Sadar, Raebareli on 19.01.2013 challenging the mutation order dated 30.12.2003 along with the application under Section 5 of Limitation Act, but Sub Divisional Officer, without taking cognizance on the application under Section 5 of the Limitation Act, passed the order for admitting the appeal, and thereafter, on 28.01.2013 parties were restrained from alienating the property in question. He further submitted that on the basis of incorrect fact, one FIR No.188 of 2017, under Sections 419, 420, 467, 468 and 471 I.P.C. was lodged with the identical facts and after detailed investigation, closer report was submitted by the Investigating Officer on 20.04.2022. In the meantime, aforesaid appeal was filed by informant of the present case was dismissed in default on 13.09.2022 and it was restored on 17.10.2022 without restoring the interim protection granted earlier. He further submitted that vide order dated 26.12.2022 interim protection granted earlier was extended, which was was set aside by the Divisional Commissioner in revision on 15.02.2023 and matter was remanded to Sub Divisional Officer for fresh consideration, which is still pending.
Learned counsel for the applicant also submitted that it is well settled that prior to admission of appeal or revision it is obligatory on the Presiding Officer to consider the application under Section 5 of limitation Act, as only with intention to grab the property with the collusion of some officials of the District Administration, FIR of the present case was lodged on 30.12.2022. He further submitted that during the course of investigation, applicant was taken into custody on 02.03.2023 as the Investigating Officer was not sure that what is the offence against the applicant, and thereafter, on 13.04.2023 after about one month from the date of arrest, he moved an application before the C.J.M. Raibareli with the averments that during the course of investigation no offence under Sections 419, 467, 468, 471 I.P.C. is made out and only offence under Section 420/34 IP.C. is made out against him on the basis of evidence collected by the Investigating Officer. He further submitted that alleged offences are punishable upto seven years. In such circumstances, applicant is entitled for bail.
List this case on 05.05.2023 at 11:00 A.M. On the next date, Investigating Officer as well as Circle Officer of the concerned police station shall appear in person before this Court along with complete case diary and relevant documents."
In pursuance of the order dated 03.05.2023, Ms. Vandana Singh, Circle Officer, P.S. Kotwali Nagar, District Raebareli (Monitoring Officer) as well as Mr. Vishwas Sharma, Investigating Officer are present before this Court along with the case diary.
It is evident from the case diary that in the parcha dated 2nd March, 2023, there is no description that the alleged offences under Sections 419, 467, 468, 471 I.P.C., as mentioned in the F.I.R., are made out. When the specific question was asked from the Investigating Officer that as to why the applicant was taken into custody, when there was no material of forgery, it is informed that on the basis of mutation order, which was obtained by placing the forged Will deed, the applicant was selling the property and crores of rupees was collected by him. However, later on, it was found that no offence under Sections 419, 467, 468, 471 I.P.C. was made out and, therefore, the same was deleted and it was informed to the Chief Judicial Magistrate on 13th April, 2023.
Learned counsel for the applicant submits that the investigation was conducted only on the whims of the higher officials. It is further submitted that earlier the alleged Will deed was sent to F.S.L. in relation to the case Crime No. 188 of 2017, under Sections 419, 420, 467, 468, 471 I.P.C., in which, the F.S.L. has categorically given a finding that the Will deed in question was not forged, which was duly verified by the signatures provided on behalf of Late Sardar Shamsher Singh. Thereafter, the closure report was submitted on 20.04.2022. It is vehemently submitted that in the aforesaid case, earlier the charge sheet was filed in hasty manner, on which, the cognizance was also taken, but though the aforesaid report of F.S.L. was submitted later on, the same was not considered and the said case is pending. It is also submitted that the court below will be apprised about the report of the F.S.L. It is next submitted by the learned counsel for the applicant that in the mechanical manner, the present F.I.R. No. 937 of 2022 (supra) has been lodged only with the intention to victimize the applicant. Learned counsel for the applicant also submits that a number of F.I.R.s were lodged by the informant of the present case against the applicant and his associates only with the intention to make pressure on the applicant for grabbing the property. It is lastly submitted that the applicant, who is in jail since 02.03.2023, is entitled for bail. It is also submitted that the applicant will never misuse the liberty of bail and shall fully cooperate in the investigation.
Learned A.G.A. as well as learned counsel for the complainant oppose the prayer for grant of bail to the applicant and submit that the issue related to validity of mutation order was pending in the court of Sub Divisional Officer, but in the meantime, the applicant was selling the property in question and, therefore, the offence is clearly made out. However, they are unable to explain that as to how the offence under Section 420 I.P.C. is made out.
Considering the arguments advanced by the learned counsel for the applicant, learned A.G.A., learned counsel for the complainant and going through the contents of F.I.R., bail application, supplementary affidavit as well as other relevant documents, I am of the view that the applicant is entitled to be released on bail.
Application stands allowed.
Let applicant -Kunwar Surendra Singh be released on bail in F.I.R. No. 937 of 2022, on his furnishing personal bond and two reliable sureties each of the like amount to the satisfaction of the court concerned subject to following conditions:-
(1) The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.
(2) 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 him from disclosing such facts to the Court or to any police office or tamper with the evidence.
(3) The applicant shall file an undertaking to the effect that he 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.
(4) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A IPC.
(5) In case, the applicant misuses the liberty of bail during trial and in order to secure his 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 him, in accordance with law, under Section 174-A IPC.
(6) The applicant shall remain present, in person, before the trial court on dates fixed for (a) opening of the case, (b) framing of charge; and (c) 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 him in accordance with law.
Any violation of above conditions will be treated misuse of bail and learned Court below will be at liberty to pass appropriate order in the matter regarding cancellation of bail.
Order Date :- 5.5.2023 VKS