Allahabad High Court
Smt. Kamla Pathak vs State Of U.P. on 24 September, 2020
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 1 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 1185 of 2020 Applicant :- Smt. Kamla Pathak Opposite Party :- State of U.P. Counsel for Applicant :- Suresh Chandra Pandey Counsel for Opposite Party :- G.A.,Sikandar B. Kochar Hon'ble Ramesh Sinha,J.
Heard Sri Suresh Chandra Pandey, learned counsel for the applicant, Km. Meena, learned A.G.A. appearing for the State and perused the record.
On 13.2.2020, the following interim order was passed by the co-ordinate Bench:
"Supplementary-Affidavit has been filed by learned counsel for the applicant and the same is taken on record.
Heard Sri Suresh Chandra Pandey, learned counsel for the applicant, Sri Sikandar B. Kochar, learned counsel for the complainant and Sri G.P. Singh, learned A.G.A. for the State.
This anticipatory bail application (u/s 438 Cr.P.C.) has been moved seeking bail in Case Crime No. 780 of 2019 under sections 420, 467, 468 and 471 I.P.C., Police Station Vrindavan, District Mathura during pendency of investigation.
As per F.I.R. which has been lodged by informant (Kailashnath Mishra), Bimlendra Mohan Pratap Mishra and Shailendra Mohan Pratap Mishra were holders of power of attorney and there is a temple located on Khewat No. 30, Mauja, Vrindawan, Khadar Mohalla Gyan Gudri, District Mathura belonging to Bimlendra Mohan Pratap Mishra and Shailendra Mohan Pratap Mishra, old house number of which was 360 and the new house no. is 373. The said property is owned by Bimlendra Mohan Pratap Mishra and Shailendra Mohan Pratap Mishra and their names are also entered in Khatauni and Khewat (Revenue Record) as owners. The accused applicant, Smt. Kamla Pathak S/o Vidyasagar Pathak R/o Gyan Gudri, P.S. Kotwali, Vrindawan, Tehsil and District, Mathura and her husband have nothing to do with the said property and they, in conspiracy/collusion with Mithilesh Kumar Singh and Sunil Singh @ Ajay in order to cause loss to Raja Bimlendra Mohan Pratap Mishra, had executed an agreement to sell on 14.08.2019 without possession which is a registered document. It is further mentioned therein that prior to this also, accused applicant had entered into an agreement to sell of the same property on 20.11.2014 which was executed in favour of some other persons regarding which an F.I.R. dated 03.12.2014 was lodged being Crime No. 1017 of 2014 under Sections 420, 467, 468 and 471 I.P.C. in which the accused have got the bail from this Court.
The submission made by the learned counsel for the applicant is that he has apprehension of imminent arrest. It is next submitted that the applicant was owner of the said property and attention is drawn of the Court towards page no. 18 of the paper book which is Gift Deed executed by Maharaja Pratap Narayan Singh in favour of Chaubey Bhal Chand Mukatiya, thereafter Sri Gopal Chaubey who is son of Chaubey Bhal Chand Mukatiya had executed a will in the name of Draupadi Devi who is his wife, documents regarding which is annexed at page nos. 21-22 of the paper book, thereafter Draupadi Devi had executed a power of attorney in favour of co-accused, Vidya Sagar Pathak who is husband of the accused applicant, documents regarding which are annexed at page nos. 27 to 29 of the paper book, thereafter Draupadi Devi had transferred the ownership rights of the said property to the accused applicant, Kamla Pathak by will dated 9.11.1990, documents regarding which are annexed at page nos. 31-36 of the paper book. Further he has drawn attention of the Court towards the address of the applicant which is shown from the Voter I.D. issued by Election Commission of India, Electricity Supply Bill, Ration-Card and the receipts of payment of House-Tax of the concerned property, document regarding which are annexed at page no. 38, 40 and 43 of the paper book. On the basis of these documents, it is argued that applicant was owner of the said property who had earlier executed an agreement to sell on 20.11.2014 in favour of Inder Singh and others. On 14.08.2019, applicant had executed an agreement to sell in favour of Dhanendra Pal, Mithilesh Kumar Singh and Sunil Singh @ Ajay (all the co-accused named in the F.I.R.). It is further argued that no execution of sale was made in pursuance to this agreement of sale rather the money which was advanced, has been returned which is clear by the observation made by this Court passed on 10.02.2016 in Application under Section 482 Cr.P.C. No. 3713 of 2016, fact regarding which is mentioned in para 5 of the Supplementary-Affidavit. It is next submitted that in respect of same property, he has executed another agreement to sell in favour of the accused, Dharmendra Pal Singh, Sunil Singh and Mithilesh Kumar Singh and it is emphasized by him that applicant had full right to sell no cheating has been committed by her as alleged by O.P. No. 2. She has no criminal history. If released on anticipatory bail, she would cooperate with the investigation.
Learned counsel for the complainant and learned A.G.A. have opposed the prayer of grant of anticipatory bail and learned counsel for the complainant has argued that it is being disputed that the will-deed executed by Gopal Chaubey in favour of Draupadi (his wife) does not belong to the property in dispute as the said property is different from the one involved in the present case. He has also submitted that the statement made by the applicant that the amount has been returned, is true or not, cannot be ascertained because no prove thereof has been annexed in this regard. He has also disputed that power of attorney was given only for contesting the case and not for sale of said property. He has further stated that Maharaja Pratap Narayan Singh has purchased the said property in 1889, hence it could not have been given to the applicant in the year 1862.
Taking into consideration the gravity of accusation, there being no criminal antecedents of the applicant, looking to the fact that dispute is of civil nature related to the property and already litigation is pending between the two sides and there being no possibility of his fleeing from justice, without expressing any opinion on the merits of the case, the applicant is entitled to be released on interim anticipatory bail in this case.
List this case on 06.04.2020 and by the said date, counter affidavit be filed from the side of learned A.G.A.
In the event of arrest of the applicant, Smt. Kamla Pathak involved in aforesaid case, she shall be released on interim anticipatory bail during investigation till the date fixed, on her furnishing a personal bond of Rs. 50,000/- with two sureties of the like amount to the satisfaction of the Station House Officer of the police station concerned on the on the following conditions:
1. that the applicant shall make himself available for interrogation by a police officer as and when required;
2. that 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/them from disclosing such facts to the court or to any police officer or tamper with the evidence;
3. that the applicant shall not leave India without the previous permission of the court;
4. that in default of any of the conditions mentioned above, the investigating officer shall be at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicant."
Learned counsel for the applicant states that the applicant has no other reported criminal antecedent. The said fact is mentioned in para no. 37 of the affidavit.
Inspite of the time granted, learned A.G.A. has not filed any counter affidavit in the matter and also could not point out any further incriminating material against the applicant.
Without expressing any opinion on the merits of the case and considering the nature of accusation and his antecedents, the applicant is entitled to be released on bail in this case.
In the event of arrest of the applicant Smt. Kamla Pathak involved in Case Crime No. 780 of 2019 under sections 420, 467, 468 and 471 I.P.C., Police Station Vrindavan, District Mathura, he shall be released on bail till the submission of police report if any under section 173 (2) Cr.P.C. before the competent Court on his 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 applicant shall make himself available for interrogation by a police office as and when required;
(ii) 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;
(iii) the applicant shall not leave India without the previous permission of the Court and if he has passport the same shall be deposited by him 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 applicant.
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 applicant.
The applicant is 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 party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by it alongwith a self attested identity proof of the said person(s) (preferably Aadhar Card) mentioning the mobile number(s) to which the said Aadhar Card is linked before the concerned Court/Authority/Official.
The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 24.9.2020 Deepika