Allahabad High Court
Wajid Khan vs State Of U.P. Thru. Prin. Secy. Home, ... on 10 January, 2023
Author: Karunesh Singh Pawar
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 12 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 1876 of 2022 Applicant :- Wajid Khan Opposite Party :- State Of U.P. Thru. Prin. Secy. Home, Lko. And Another Counsel for Applicant :- Aishwarya Pratap Singh,Sandeep Kumar(Trivedi) Counsel for Opposite Party :- G.A. Hon'ble Karunesh Singh Pawar,J.
This Criminal Misc. Anticipatory Bail Application under section 438 Cr.P.C. has been moved by the applicant after rejecting his anticipatory bail application by the order dated 17.10.2022 passed by learned Sessions Judge, Lucknow, seeking Anticipatory Bail in case crime no. 40 of 2022, under section 120-B, 420, 467, 468, 471 IPC, Police Station Hazrat Ganj, District Lucknow.
Heard learned Counsel for the applicant and learned A.G.A. for the State/respondent as well as perusal of the record.
Vide order dated 11.11.2022, the applicant was granted interim protection by coordinate Bench of this Court. Gist of the issue involved in the present matter is given in the said order, which is extracted below :-
"Heard learned counsel for the applicant, learned Additional Government Advocate for the State of U.P. This Criminal Misc. Anticipatory Bail Application under section 438 Cr.P.C. has been moved by the applicant after rejecting his anticipatory bail application by the order dated 03.10.2022 passed by learned Sessions Judge, Lucknow, seeking Anticipatory Bail in case crime no. 40 of 2022, under section 120-B, 420, 467, 468, 471 IPC, Police Station Hazrat Ganj, District Lucknow.
It is submitted by learned counsel for the applicant that a pet animal, elephant namely Golapi was handed over in the ownership and possession of Ausaaf Ahmad by Chief Wildlife Warden, Jorahat. After completing the entire formalities, Ausaaf Ahmad executed a Power of Attorney in favour of the applicant-Sohanlal with an intent to take care of the elephant. Thereafter, applicant upon issuance of legal and valid transit pass to carry the elephant Golapi from Assam to Uttar Pradesh has brought the elephant to Barsana, Mathura, U.P. He has also applied for transportation license of his elephant for transportation from Barsana, District Mathura to Jaipur, Rajasthan in the office of Deputy Conservator of Forest (Wildlife), Zoo, Jaipur, Rajasthan whereupon he has forwarded the application of the applicant along with his covering letter dated 12.02.2021 to the Additional Principal Chief Conservator of Forest and Chief Wild Life Forestor, Jaipur, Rajasthan. During this process, Atul Bairagi, Shubham Kusvah, Digvijay Das met him and they introduced Devendra Pratap, clerk in the office of license issuing authority to the applicant and assured him and other co-accused persons that they will help in assisting and getting the required documents. The applicant in good faith, believing their words and considering the assurance given by those persons, given an amount of Rs. 4,00,000/- for each elephant as a processing expenses on the demand of concerned clerk and his other colleagues. Thereafter, license no. 6030/UKT dated 21.10.2021 was issued to the applicant. On the way to Jaipur, the flying squad checked the transit license as well as other relevant documents and found them totally valid but subsequently, applicant came to know that those documents issued to him were forged, as such, applicant lodged an FIR on 18.01.2022 being FIR No. 0052 for the offence under Sections 420, 406, 467, 468, 471 and 120-B IPC against Atul Bairagi, Shubham Kusvah, Digvijay Das and Dr. A.P. Singh. Thereafter, Deepak Kumar Sharma, concerned Forest Range Officer in collusion with aforesaid accused persons who are real culprits in this case, lodged the FIR dated 20.01.2022 being FIR No. 0040 of 2022 against the applicant as a counterblast case in order to save their skin.
The main substratum of argument of learned counsel for the applicant is that the aforesaid persons are tout of the department concerned and they are the main culprit as they have extracted an amount of Rs. 4,00,000/- from the applicant by giving a forged documents to him, as such, applicant has been made victim in this case. It is further asserted that since those persons are very influential, therefore, the investigating officer in collusion with them submitted a final report pursuant to the FIR lodged by the applicant in which the applicant has also filed protest application which is still pending.
On the other hand, learned A.G.A. opposed the prayer for granting interim relief to the applicant by contending that it is an admitted case that the documents in question are found to be forged but he does not dispute the factum of the case as argued on behalf of the applicant.
Having heard the submission of learned counsel for the applicant and learned A.G.A., this Court feels that under the facts of the case, possibility of false implication of the applicant and giving forged documents to him by the persons who have extracted an amount of Rs. 4,00,000/- from him cannot be ruled out, therefore, applicant has made out a prima-facie case for granting interim relief in his favour.
List this case on 20.12.2022.
Till the next date of listing, no coercive action shall be taken against the applicant in the aforesaid case subject to condition that the applicant-Wajid Khan shall appear before the investigating officer on 16.11.2022 at 11:00 AM.
In case the applicant does not appear on the said date and time as mentioned above, the interim protection granted to the applicant by this Court shall automatically stands vacated."
Learned counsel for the applicant submits that the applicant is poor Mahawat in fact he is victim in this case. He has lodged First Information Report against the touts on 18.1.2022 being FIR No.0052 for the offence under Sections 420, 406, 467, 468,471 and 120-B Indian Penal Code. After two days, with the collusion of the opposite party no.2, present First Information Report came to be lodged against the applicant. He submits that the applicant has no criminal history and has cooperated in the investigation. The Investigating Officer, in collusion with the real culprit who are the accused in the First Information Report lodged by the applicant side, has not filed police report in this case as yet. Learned counsel for the applicant undertakes that the applicant shall cooperate in the investigation.
Learned A.G.A. has opposed the prayer made by the applicant's counsel. He submits that the investigation is going on.
Without entering into the merits of the issue and considering the arguments of learned counsel for the parties, and the undertaking of the applicant that he shall cooperate in the investigation so also the fact that First Information Report on behalf of the applicant was lodged first and subsequently the present First Information Report in which the applicant has been made accused has been lodged, it would be expedient in the interest of justice that the liberty of the applicant may be protected till filing of police report u/s 173(2) Cr.P.C in view of dictum of Apex Court in re: Sushila Aggarwal Vs. State (NCT of Delhi)-2020 SCC online SC 98.
Therefore, the anticipatory bail application is allowed. In the event of arrest, applicant shall be released on anticipatory bail in the aforesaid Case Crime number on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the arresting officer/investigating officer/S.H.O. concerned with the following conditions:-
(1) The applicant shall cooperate in the investigation and he will not influence the witnesses.
(2) The accused-applicant will remain present as and when the arresting officer/I.O./S.H.O. concerned call (s) for investigation/interrogation.
(3) The applicant shall not leave India without previous permission of the Court.
(4) In case of default, it would be open for the investigating agency to move application for vacation of this interim protection.
Order Date :- 10.1.2023 Madhu