Madhya Pradesh High Court
Haji Abdul Razzak vs The State Of Madhya Pradesh on 13 April, 2022
Author: Vivek Agarwal
Bench: Vivek Agarwal
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 13th OF APRIL, 2022
MISC. CRIMINAL CASE No. 62436 of 2021
Between:-
HAJI ABDUL RAZZAK S/O SHRI HAJI ABDUL WAHEED, AGED
ABOUT 63 YEARS, OCCUPATION: CULTIVATOR DAIRY AND MINES
BUSINESS R/O 910 BDI OMTI P.S. OMTI JABALPUR M.P. (MADHYA
PRADESH)
.....PETITIONER
SHRI MANISH DATT, LEARNED SENIOR COUNSEL ASSISTED BY SHRI
AHMAD SHAHID HUSAIN, ADVOCATE FOR APPLICANT
AND
THE STATE OF MADHYA PRADESH THR. P.S. OMTI DISTT.
JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
SHRI BRAMHADATT SINGH, LEARNED GOVERNMENT ADVOCATE
FOR THE STATE
This bail application is taken up for hearing and the Court
has passed following:
ORDER
This is first bail application filed under Section 439 of the Code of Criminal Procedure, 1973 (for brevity "Cr.P.C") for grant of bail to applicant Haji Abdul Razzak S/o. Shri Haji Abdul Waheed, who is in custody since 27.8.2021 in connection with Crime No.424/2021 registered at Police Station Omti, District Jabalpur for the offence under Section 25(1-AA), 25, 27, 25(1A), 25(1B)(a) & 30 of the Arms Act, 1959 (for brevity "Arms Act").
Signature SAN Not Verified Digitally signed by MOHD TABISH KHAN Date: 2022.04.18 18:13:09 IST 2
It is submitted by Shri Manish Datt, learned Senior Counsel for the applicant that five arms were recovered from the house of the present applicant. They all are licensed firearms. Taking this Court through the seizure memo and the copies of licenses brought on record, he points out that two of the firearms are in the name of the applicant's wife Shabina Begum and one license is in the name of the son of the present applicant, namely, Mohammad Afraz. Two of the licenses were in the name of Security Guards, namely, Umesh and Santosh. He submits that besides these fifteen knives have been recovered from the house of the applicant, which are used while celebrating the festival of Bakar Eid. None of the knives were used in public place and, therefore, as per Notification No.6312-6552-II-B(i) dated 22.11.1974 providing for regulating the acquisition possession and carrying of sharp edged weapons with a blade more than 6 inches long and 2 inches wide and spring actuated knives with a blade of any size in public places, the State Government directed that the provisions of Section 4 of the Arms Act shall apply with effect from the date of publication of the notification in the Madhya Pradesh Gazette to the whole of the State of Madhya Pradesh in respect of the acquisition possession, and carrying of sharp edged weapons with a blade more than 6 inches long and 2 inches wide and spring actuated knives with a blade of any size in public 3 places. Shri Datt submits that the applicant's house is not a public place and, therefore, the provisions of the aforesaid Notification will be of no assistance to the State and no offence can be made out for keeping the knives inside the house.
Learned Senior Counsel for the applicant submits that the matter was committed to the Court of 12th Additional Sessions Judge, Jabalpur whereby vide order dated 5.1.2022 passed in Sessions Trial No.662/2021 (State of Madhya Pradesh Through Police Station Omti, District Jabalpur versus Abdul Razzak S/o.Shri Abdul Waheed), the learned 12th Additional Sessions Judge, Jabalpur observed that there is no material on record to frame charges for the offence under Sections 25(1)(1-A) & 25(1)(1-AA) of the Arms Act and remanded the matter to the learned Judicial Magistrate First Class, Jabalpur holding that the offence under Section 25(1-B)(A), 27, 30 is triable by the Judicial Magistrate First Class. Placing reliance on the aforesaid order, Shri Manish Datt submits that Section 2(i) of the Arms Act deals with prohibited arms and prohibits arms are described as under:-
(i) firearms so designed or adapted that, if pressure is applied to the trigger, missiles continue to be discharged until pressure is 4 removed from the trigger or the magazine containing the missiles is empty, or
(ii) weapons of any description designed or adapted for the discharge of any noxious liquid, gas or other such thing, and includes artillery, anti-aircraft and anti-
tank firearms and such Official Gazette, specify to be prohibited arms.
Reading the aforesaid provisions of the Arms Act, learned Senior Counsel for the applicant submits that since none of the arms recovered from the possession of the present applicant or the use of the present applicant fall within the category of prohibited arms and the learned 12th Additional Sessions Judge has rightly shown indulgence and to the best of his knowledge, no appeal or revision is pending against the order dated 5.1.2022.
Learned Senior Counsel for the applicant has produced copy of arms license issued in favour of Umesh Kumar Ojha by the District Magistrate, Rewa, copy of arms license issued in favour of Santosh by the District Magistrate Morena, copy of arms license issued in favour of the wife of the applicant by the District Magistrate Katni and copy of the arms license 5 issued in favour of the son of the applicant by the District Magistrate, Anuppur. Placing the aforesaid documents on record, Shri Manish Datt submits that none of the offences are made out and the applicant is being unnecessarily harassed on account of certain criminal history.
Learned Senior Counsel for the applicant draws attention of this Court to the criminal history enclosed by learned Government Advocate for the State alongwith his reply/objection dated 7.2.2022 and points out that the first case was registered against the applicant pertaining to Crime No.59/1991 registered at Police Station Mandla for the offence under Sections 147, 148, 506 of the I.P.C and in that case the applicant was acquitted vide order dated 28.8.2001 as is evident from the copy of Khatma Register available at Page No.136 of the Compilation filed by the applicant on 3.3.2022.
The case pertaining to Crime No.499/1991 was registered against the applicant at Police Station Omti, District Jabalpur for the offence under Sections 147, 148, 294, 506, 335 of the I.P.C and Section 3/5 of the Explosive Substances Act. The aforesaid case was tried by the 1 st Additional Sessions Judge, Jabalpur as Sessions Case No.294/1994 and in that case also, vide order dated 24.9.1994, the applicant was exonerated and the copy of the 6 aforesaid order is available on record from Page Nos.137 to 140 of the Paper Book.
The case pertaining to Crime No.696/1991 was registered against the applicant at Police Station Omti, District Jabalpur for the offence under Sections 147, 148, 149, 364, 307 of the I.P.C where too the applicant was acquitted on the basis of the compromise recorded by the Court of Chief Judicial Magistrate (Ms.Sushma Khosla) and the copy of the said order is available on record at Page No.141 of the Paper Book.
The case pertaining to Crime No.164/1994 was registered at Police Station Omti, District Jabalpur for the offence under Section 379 of the I.P.C and Section 51 of the Wild Life (Protection) Act, 1972 and in that case a four months' old live Cheetal was recovered from the applicant and on attaining the age of majority that Cheetal was handed over to the Officer of Forest Department, who released that Cheetal in Polipathar, District Jabalpur and the case was closed by the Range Officer, Forest Range, Jabalpur (General) and the copy of the information is enclosed at Page 143 of the Paper Book. ] The case pertaining to Crime No.41/1996 was registered against the applicant at Police Station Madan Mahal, District Jabalpur for the offence under Sections 147, 148, 149, 294, 307 of the I.P.C and vide order dated 7 8.12.2006 passed in Sessions Case No.681/2003, the applicant was convicted by the Court of Additional Sessions Judge, Jabalpur for the offence under Section 326 of the I.P.C and was sentenced to two years' rigorous imprisonment. Shri Manish Datt submits that against the said order, the appeal is still pending before the High Court.
The case pertaining to Crime No.579/2003 was registered against the applicant at Police Station Gorakhpur, District Jabalpur for the offence under Sections 147, 148, 149, 307, 302, 120B of the I.P.C and Section 25 of the Arms Act and in the said case also, the applicant & other co- accused persons were acquitted and in Paragraph No.45 of the order, the learned Additional Sessions Judge, Jabalpur observed that the present applicant and other co-accused persons were falsely implicated as actual assailants were not identified by the complainant party and accordingly the Trial Court had recorded a finding of acquittal in favour of the applicant and other co-accused persons.
The case pertaining to Crime No.490/2011 was registered against the applicant at Police Station Omti, District Jabalpur for the offence under Section 212 & 216 of the I.P.C and in that case also, the learned Chief Judicial Magistrate, Jabalpur in Criminal Case No.15638/2011 acquitted the applicant vide judgment dated 14.10.2016 8 holding that the First Information Report was not found proved.
Learned Senior Counsel for the applicant points out that the case pertaining to Crime No.3/2016 was registered against the applicant at Police Station Omti, District Jabalpur for the offence under Sections 506, 507, 294 of the I.P.C in which the Police itself had filed final report closing the case against the applicant.
It is pointed out that the cases mentioned from Serial No.9 to Serial No.18 are Istagasa for the offence under Sections 107 & 116(3) of the Cr.P.C and they were registered between 1996 to 2012 and they all have come to an end.
Istagasa No.01/2012 was registered against the applicant for the offence under Section 3(2) of the National Security Act and being dissatisfied, the applicant had approached Hon'ble the Supreme Court in Special Leave Petition (Criminal) No.8597/2012 (Criminal Appeal No.215/2013) wherein vide order dated 31.1.2013, the Supreme Court had granted leave and observed that the offences mentioned in the said order were remote in point of time and had no live link between the said offences and the detention order. Making such observations, the impugned appeal was allowed and the detention order was quashed.
Learned Senior Counsel for the applicant submits that if dispassionately the whole chronology of event is seen then 9 it will be evident that after 2011, there is no case bearing the name of the present applicant till 2021 when four cases came to be registered simultaneously. Shri Manish Datt submits that the case pertaining to Crime No.364/2021 was registered against the applicant at Police Station Vijay Nagar, District Jabalpur for the offence under Sections 147, 149, 294, 307, 506, 120B of the I.P.C and points out that the applicant's car was broken by some miscreant elements and when the applicant's relatives had gone there to get their car then the aforesaid case was registered as a counterblast. The applicant was granted bail by the learned 12 th Additional Sessions Judge, Jabalpur vide order dated 4.1.2022 as is available at Page 127 of the Paper Book.
In the case pertaining to Crime No.429/2021 registered at Police Station Omti, District Jabalpur for the offence under Sections 147, 186, 294, 225, 332, 333, 353, 506, 120B, 109 of the I.P.C and Sections 3(1)(d), 3(2)(v-a), 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the bail was granted to the applicant by the learned Special Judge, SC/ST (Prevention of Atrocities) Act vide order dated 7.12.2021.
The case pertaining to Crime No.12/2021 under the provisions of the National Security Act was registered against the applicant in which the Advisory Board had not given approval as a result of which vide order dated 6.10.2021, the 10 State Government had revoked the detention order dated 27.8.2021 and released the applicant.
Learned Senior Counsel for the applicant submits that now in this backdrop, only one case pertaining to Crime No.424/2021 for the offence under Section 25(1-AA), 25, 27, 25(1A), 25(1B)(a) & 30 of the Arms Act, 1959 (for brevity "Arms Act") is pending at Police Station Omti, District Jabalpur. He, however, submits that Section 30 of the Arms Act will be applicable against the licensee and not against the present applicant. The minimum punishment for the offence under Section 27 of the Arms Act is three years and the maximum punishment is upto seven years.
Reliance is placed by learned Senior Counsel for the applicant on the judgment of the Supreme Court in the case of Prabhakar Tewari versus State of Uttar Pradesh & Another (2020) 11 SCC 648 wherein it is held that if there is non-application of mind on the part of the Court granting bail or opinion of Court in granting bail is not borne out prima facie from evidence on record then only the order granting bail can be interfered with.
Similarly reliance is placed by learned Senior Counsel for the applicant on the judgment of the Supreme Court in the case of Maulana Mohammed Amir Rashadi versus State of Uttar Pradesh & Another (2012) 2 SCC 382 wherein it is held that the High Court granting conditional bail to the 11 accused provides sufficient safeguards in respect of apprehensions raised by him.
Shri Bramhadatt Singh, learned Government Advocate appearing for the non-applicant/State, in his turn, submits that the applicant is a history sheeter. Five arms were recovered from his room. Fifteen knives were also recovered. The applicant had not given any intimation to any Police Authority that he is keeping such a large stock of arms & ammunition. No Security Guard was present over there. The so-called arms were not recovered from the Security Guard but from the room of the present applicant. The applicant has a checkered history. He is bound to escape and temper with the evidence. Out of fear of the applicant, people were hesitant in lodging report against him but recently a case Crime No.27/2022 for the offence under Sections 308, 365, 386, 294, 452, 342, 506, 34, 120B of IPC and Section 25/27 of the Arms Act has been registered against the present applicant at Police Station, Hanumantal, District Jabalpur on 12.01.2022. Complainant Mohammad Shabeeb has categorically mentioned that he was afraid of the present applicant and did not gather courage to lodge report for over a period of one year when the incident took place on 19.9.2020, but now, as the State Authorities have started acting, therefore, he has gathered courage and lodged the report against the present applicant. Reading from the First 12 Information Report, Shri Bramhadatt Singh submits that if the applicant is allowed to be released on bail then he will try to influence the prosecution witnesses and temper with the evidence.
Reliance is placed by Shri Bramhadatt Singh, learned Government Advocate for the non-applicant/State on the judgment of the Supreme Court in the case of Naveen Singh versus State of Uttar Pradesh & Another (2021) 6 SCC 191 wherein it is held that seriousness of offence is one of the relevant considerations while granting bail. Reading from Paragraph Nos.5&9 of the judgment of the Apex Court, Shri Bramhadatt Singh submits that if an offence is triable by the Magistrate then that alone cannot be a ground to extend benefit of bail. The Supreme Court in Paragraph No.9 has discussed the aspect of a history sheeter and held that in such cases, the High Court ought not to have released the accused on bail on the principle of parity.
Similarly, reliance is placed by Shri Bramhadatt Singh, learned Government Advocate for the non-applicant/state on the judgment of Supreme Court in case Neeru Yadav versus State of Uttar Pradesh and Others (2014) 16 SCC 508 wherein it is held that if the accused was a history sheeter then it was imperative on the part of the High Court to scrutinize every aspect and not capriciously record that the accused is entitled to be admitted to bail on ground of parity.
13Shri Bramhadatt Singh refers to Paragraph No.13 of the said judgment wherein it is held that the criminal antecedents of the second resopndent and non-applicability of the principles of parity on the foundation that the accusation against and the second respondent are different needs to have been taken into consideration.
Placing reliance on the judgments of the Supreme Court in the cases of Naveen Singh versus State of Uttar Pradesh & Another (supra) and Neeru Yadav versus State of Uttar Pradesh and Others (supra), it is submitted by Shri Bramhadatt Singh, learned Government Advocate for the non-applicant/State that the applicant being a history sheeter, should not be shown any indulgence and, therefore, this bail application may be rejected at the threshold.
Shri Bramhadatt Singh, learned Government Advocate for the non-applicant/State vehemently argues that the use of word 'should also' in the Gazette Notification dated 22.11.1974 should be read to mean that there was already a regulation of not keeping prohibited knives as mentioned in the Notification at home and the aforesaid Notification was brought only to regulate use of such knives in public places. However, when Shri Bramhadatt Singh was requested to place on record copy of any Notification of the State Government or the Union of India prohibiting or regulating use of such knives at home also then he is unable to place 14 anything on record though time was granted to him during the Lunch Break to procure such document and place it on record.
I have heard learned counsel for the parties and gone through the record.
It is evident from the order of Hon'ble the Supreme Court in Criminal Appeal No.215/2013 (Haji Abdul Rajjak versus State of M.P & Others) decided on 31.01.2013 that the offences allegedly committed by the applicant between the years 1991 and 1996 are rather remote in point of time and accordingly the Apex Court observed that they do not reflect any live link between the said offences and quashed the detention order. The second detention order was not approved by the Advisory Board and the State Government revoked it vide order dated 6.10.2021. There is a long list of cases from Serial No. 9 to Serial No.18 and then Serial Nos.20 and 21 enclosed by the State Counsel, which have been registered under Section 107, 116(3) the Cr.P.C and they are all over with efflux of time. The applicant has been acquitted in most of the cases except for one which was of the year 1996 wherein the applicant was convicted for the offence under Section 326 of the I.P.C and was sentenced to 2 years of rigorous imprisonment and in the remaining cases, the applicant is on bail.
15The Supreme Court in Paragraph No.11 of the judgment rendered in the case of Naveen Singh versus State of Uttar Pradesh & Antoher (supra) has held that three aspects while granting bail need to be seen: (i) can the accused temper with the evidence (ii) can he influence witness; (iii) can he evade trial/investigation.
Shri Bramhadatt Singh, learned Government Advocate for the non-applicant/State himself submits & admits that the applicant has huge property. He also admits that it was the District Magistrate of Katni and Anuppur, who were at fault in issuing the arm licenses in favour of the applicant's wife and son respectively without going into the antecedents of their spouse/father. It is also brought on record that these licenses have been revoked by the competent authority, therefore, there is an admission that as far as five firearms, which have been recovered from the residence of the applicant, were all licensed arms, therefore, if there was any violation of the terms and conditions of the license then the action can be taken against the licensees invoking the provisions as contained in Section 30 of the Arms Act.
Shri Bramhadatt Singh, learned Government Advocate for the non-applicant/State himself submits that the applicant is an influential person having interest in mining and other activities & having huge capital created for himself. This takes care of the fact that a person admittedly having huge 16 capital and immovable assets will not evade the trial/investigation leaving his property behind.
As far as influencing the witness and tempering the evidence is concerned, the applicant is admittedly in custody since 27.08.2021 and the charge-sheet was filed on 23.11.2021 and for over four months, none of the witnesses have been examined by the prosecution. If the prosecution was so apprehensive of the applicant wielding influence on their witnesses or winning over their witnesses then the prosecution would have been vigilant to get their witnesses examined when the applicant is still in custody and, therefore, even these two aspects of tempering with the evidence and influencing the witnesses are not made out especially in view of the relaxed manner in which the prosecution is proceeding with the trial.
In Paragraph No.9 of the judgment rendered in the case of Naveen Singh versus State of Uttar Pradesh & Another (supra), the Supreme Court has noted that many cases of murder, attempt to murder, Gangsters Act etc are pending against the accused and in that backdrop, it is held that history sheet of the applicant should have been taken into consideration but in the present case, except for cases registered in the year 2021 & 2022, there are no live cases and none of them can be termed to be heinous in nature and, therefore, the ratio of law laid down by the Supreme Court in 17 case of Naveen Singh versus State of Uttar Pradesh & Another (supra) is distinguishable.
In Paragraph No.14 of the judgment rendered in the case of Neeru Yadav versus State of Uttar Pradesh and Others (supra), the Supreme Court observed a list of 15 cases against the applicant and held that "however, in the course of hearing, we have been apprised that most of the cases instituted against the respondent No.2 are still pending and some of them are under Section 302 of the I.P.C and other heinous offences". The Supreme Court in Paragraph No.16 observed that "We are not oblivious of the fact that the liberty is a priceless treasure for a human being. It is founded on the bedrock of the constitutional right and accentuated further on the human rights principle. It is basically a natural right".
The ratio of law laid down by the Supreme Court is that the right of an accused and that of the society needs to be balanced. In the present case, there is a long criminal history of the applicant of about twenty-six cases but in most of them, either he was acquitted or the cases have come to an end. In one of these cases, he was convicted & sentenced for the offence under Section 326 I.P.C but in that case also, he is on bail. As far as four other cases are concerned, none of them is heinous in nature and the applicant is already on bail 18 in all of them, infact in three of them, he was granted bail by the Trial Court itself.
In my opinion, although the State Government has tried to make out a case for showing indulgence and not allowing the applicant to enjoy his freedom and not admit him to bail but has failed to make out a case for not showing indulgence and allowing bail to the applicant in view of the facts as discussed above especially the fact that in most of the cases, he has been acquitted and none of the offences for which the cases are pending are heinous in nature and in view of this fact so also taking into consideration the conduct of prosecution that despite filing of charge-sheet on 23.11.2021, they have not produced any witness before the Trial Court and the trial has yet not commenced, but without commenting anything on the merits of the case, this bail application is allowed.
It is directed that applicant Hazi Abdul Razzak S/o.Shri Haji Abdul Waheed shall be released on bail on his furnishing a personal bond in sum of Rs.1,00,000/- (Rupees One Lakh Only) with two solvent sureties in the like amount to the satisfaction of the Trial Court for his appearance before the said Court on the dates given by the concerned Court during pendency of trial. It is further directed that the applicant shall comply with the provisions of Section 437(3) of the Cr. P. C. 19 It is directed that applicant Hazi Abdul Razzak S/o. Shri Haji Abdul Waheed shall report before the concerned Police Station Omti of District Jabalpur on every first day of each month till the completion of trial and his signature be obtained on Rojnamcha of concerned Police Station. Looking to his criminal background, he shall surrender his passport before the Trial Court within a period of seven days from today and shall not leave local area of Jabalpur Municipality without prior permission of the concerned Trial Court and shall appear before the Trial Court regularly without fail and shall not make any attempt to influence any witness or contact him/her/them directly or indirectly and in case he indulges himself in any other offence of similar nature then prosecution will be free to move an application for cancellation of his bail. It is also directed that the applicant shall comply with the provisions of Section 437(3) of the Cr.P.C.
This order shall be effective till the end of the trial, however, in case of bail jump and breach of any of the pre- condition of bail, it shall become ineffective.
In view of the outbreak of new mutant Omicron of COVID-19, the jail authorities and the State Government are directed to follow the guidelines issued by the Health Ministry in the wake of Novel Corona Virus before and after releasing the applicant.
20In above terms, M.Cr.C No.62436/2021 stands allowed & disposed of.
(VIVEK AGARWAL) JUDGE amit