Allahabad High Court
Syed Moin Hasan And 3 Others vs State Of U.P Thru Secretary Home Lknw. ... on 23 May, 2022
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?E-Court. Court No. - 71 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 19521 of 2021 Applicant :- Syed Moin Hasan And 3 Others Opposite Party :- State Of U.P Thru Secretary Home Lknw. And Another Counsel for Applicant :- Syed Ahmed Faizan,Sr. Advocate,Zaheer Asghar Counsel for Opposite Party :- G.A.,Md. Aman Khan Hon'ble Samit Gopal,J.
Heard Sri Syed Ahmed Faizan, learned counsel for the applicants, Sri Md. Aman Khan, learned counsel for the first informant, Sri Sanjay Kumar Singh, learned A.G.A. for the State and perused the record.
This second anticipatory bail application under Section 438 Cr.P.C. has been filed by the applicants Syed Moin Hasan, Syed Hadi Hasan, Rafique Hasan and Mohammad Ahmad, seeking anticipatory bail, in the event of arrest in Case Crime No. 331 of 2021, under Sections 419, 420, 467, 468, 471, 506, 457, 380 I.P.C., Police Station- Colonelganj, District Allahabad, during the pendency of trial.
The first anticipatory bail application of the applicants being Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 15749 of 2021 was rejected by this Court vide order dated 2.11.2021 for want of prosecution.
Prior notice of this anticipatory bail application was served in the office of Government Advocate and as per Chapter XVIII, Rule 18 of the Allahabad High Court Rules and as per direction dated 20.11.2020 of this Court in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 8072 of 2020, Govind Mishra @ Chhotu Versus State of U.P. This anticipatory bail application is thus being heard. Grant of further time to the learned A.G.A as per Section 438 (3) Cr.P.C. (U.P. Amendment) is not required.
Learned counsel for the applicants states that the prayer in the present applicants be confined only during the pendency of investigation/submission of police report and he presses the same only.
The First Information Report of the present case was lodged on 23.6.2021 by Syed Fahim Hasan against the applicants and some other unknown persons alleging therein that Syed Nazir Hasan father of the first informant, died on 04.7.2005. He executed a Will on 07.5.2005 alienating his property including business amongst the first informant and his brothers, in which his business was given to the first informant and his elder brother the applicant no. 1 in half to each. Will is a registered document. After death of his father business was going on without any problems and then slowly-slowly the applicant no. 1 started committing cheating in it and started distancing the first informant from business and his share in the property. The first informant used to sign the forms, cheques and other documents in good faith of the applicant no. 1. Later on he became suspicious of misdeeds of the applicant no. 1 and then started enquiry from him about business and property to which he used to avoid. In 2015 the applicant no. 1 stopped giving pocket money to the first informant which was opposed by him and he was ousted from the joint business. He then filed a civil suit being Suit No. 763 of 2015 which is pending before the appropriate court. In the meantime, the first informant got married. The expenses for marriage was borne by the relatives and his sister. The applicant no. 1 refused to give any share in the property. He was unhappy with the first informant as he wanted his sister-in-law's daughter to get married with him. Later on the applicant no. 1 assaulted the first informant in which he received injuries and an F.I.R. as Case Crime No. 447 of 2007, P.S.- Colonelganj, District Allahabad was lodged. In the meantime, the first informant got some papers in the house of his father which stated that father was the sole owner of the property and the applicant no.1 used to help him. In the year 1996 the applicant no. 1 forged some papers and showed himself as the sole owner of business. He had also opened various bank accounts in various banks, got LICs Policies and F.Ds. and Mutual Funds and had purchased property in Allahabad and Lucknow. He had made business bankrupt. LIC policies and other investments are at different address whereas the applicant lives in Allahabad. The same has been done with an intention so that other persons may not know of investments. His father during his last days, has suspected misdeeds of the applicant no. 1 and as such had revoked his Power of Attorney and had cancelled it. In the meantime, some unknown persons came to his property in Allahabad and committed theft which was informed to the police and an application was also given to police on 22.4.2018, but no F.I.R. was lodged. The present F.I.R. has thus been lodged.
Learned counsel for the applicants argued that the allegations, if any, in the present case are purely civil in nature on the own showing of the F.I.R. There is a civil dispute going on between the parties for which a suit for permanent injunction has been filed by the first informant against the applicant no. 1. The dispute is with regard to partition of property which was of their late father and they being legal heirs, are claiming it as such and even on the basis of his Will. It is argued that the civil suit as has been filed by the first informant is pending disposal before the concerned court. Para-15 of the affidavit and copy of plaint have been placed before the Court which has been annexed as annexure no. 8 to the affidavit for the same. It is argued that the applicant no. 1 had appeared in the said suit and had filed written statement denying the allegations therein for which para-16 of the affidavit has been placed.
It is further argued while placing para-19 and 20 of the affidavit that previously there were two cases in which the applicant no. 1 was involved, the said case was lodged by the first informant himself in which in the first case final report has been submitted and the second case is with regard to boundary wall which has also been resolved between them. While placing para-2 of the supplementary affidavit dated 09.5.2022, it is argued that the applicant no. 2 was shown to be involved in a case being Case Crime No. 447 of 2017, P.S.- Colonelgang, District Prayagraj but till date he has not received any summons and even the case is under Sections 323, 324, 504 I.P.C. Further para-2 of the supplementary affidavit dated 18.5.2022 has been placed and it is argued that the applicant no. 3 was involved in one case being Case Crime No. 249 of 2017, under Sections 420, 465, 385 I.P.C., P.S.- Hazratgunj, District Lucknow, in which final report has been submitted in his favour. It is argued that investigation in regards to present matter is pending. The applicant no. 4 has no reported criminal antecedent.
Per contra, learned State counsel and learned counsel for the first informant opposed the prayer for anticipatory bail. It is argued that initially the applicant no. 1 and the first informant had honoured the Will of their late father on the basis of which property was distributed amongst them equally. Subsequently, in a succession suit all family members had admitted the Will of late father, but later on the applicant no. 1 got a forged partnership deed prepared in which he showed himself partner of 25% of share of the business of late father and thus had claimed a different status in the property. It is argued that the said document is a forged document.
It is argued that the applicant no. 1 had also opened many bank accounts in different banks and has swindled money of business. The bank accounts were opened without knowledge and consent of the first informant even in spite of the fact that he was a partner of equal share in the said business. It is argued that the matter is although under investigation, but the investigation may take some time as there has been cheating and forgery in accounts and proceeds of accounts have been invested by the applicant no. 1 in various districts for which the police has to go and investigate them. It is argued that the applicant nos. 1, 2 and 3 are previously involved in criminal case and hence, the prayer for anticipatory bail be rejected.
After having heard learned counsels for the parties and perusing the record, it is evident that the parties are family members except for the applicant no. 4 who is an employee of the applicant no. 1. There is a civil suit pending between the parties. Investigation in the present matter is pending.
Without expressing any opinion on the merits of the case, considering the nature of accusation and looking to the facts and circumstances of the case, the applicants are entitled to be released on anticipatory bail in this case.
In the event of arrest of the applicants Syed Moin Hasan, Syed Hadi Hasan, Rafique Hasan and Mohammad Ahmad, in the aforementioned case crime number, they 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 their 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 applicants shall make themselves available for interrogation by a police office as and when required;
(ii) the applicants 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 officer;
(iii) the applicants shall not leave India without the previous permission of the Court and if they have passport the same shall be deposited by them before the S.S.P./S.P. concerned.
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 applicants.
The Investigating Officer is directed to conclude the investigation of the present case in accordance with law expeditiously preferably within a period of three months from the date of production of a copy of this order independently without being prejudice by any observation made by this Court while considering and deciding the present anticipatory bail application of the applicants.
The applicants are directed to produce a copy of this order before the S.S.P./S.P. concerned within ten days from today, who shall ensure the compliance of present order.
The present anticipatory bail application under Section 438 Cr.P.C. is allowed.
(Samit Gopal,J.) Order Date :- 23.5.2022/e-Court Naresh