Allahabad High Court
Shaukat Ali vs State Of U.P. on 25 April, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 49 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 14800 of 2023 Applicant :- Shaukat Ali Opposite Party :- State of U.P. Counsel for Applicant :- Anil Kumar Mehrotra,Sunil Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Anil Kumar Mehrotra, the learned counsel for applicant and Mr. A. K. Sand, the learned A.G.A.-1st for State.
2. Perused the record.
3. This application for bail has been filed by applicant-Shaukat Ali seeking his enlargement on bail in Case Crime No. 0127 of 2022 under Sections 436, 506, 147, 327, 427, 386, 504, 120B I.P.C., Police Station-Jajmau, District-Kanpur Nagar during the pendency of trial..
4. Record shows that in respect of an incident, which is alleged to have occurred on 07.11.2022, a delayed F.I.R. dated 08.11.2022 was lodged by first informant Nazir Fatma and was registered as Case Crime No. 0127 of 2022 under Sections 436, 506 I.P.C., Police Station-Jajmau, District-Kanpur Nagar. In the aforesaid F.I.R., two persons namely-Razwan Solanki and Irfan Solandi (M.L.A. of Samajbadi Party) have been nominated as named accused.
5. The gravamen of the allegations made in the F.I.R is to the effect that the named accused alongwith their henchman want to grab the land of first informant on which her house was standing by torching it.
6. After registration of aforesaid F.I.R., Investigating Officer proceeded with statutory investigation of aforementioned case crime number in terms of Chapter XII Cr.P.C. During course of investigating, he examined various witnesses under Section 161 Cr.P.C. After a period of one and a half months from the date of occurrence, the Investigating Officer examined two witnesses, namely Mohd. Ashif and Sariq Ali Barkadi under Section 161 Cr.P.C. The complicity of present applicant surfaced in the statements of these two aforementioned witnesses, who alleged that they heard the named accused Irfan Solanki (M.L.A. of Samajbadi Party) stating that house of applicant Saukat Ali is to be constructed at the disputed plot. Except for this part of their statements, there is no other evidence on record against applicant. Investigating Officer on the basis of aforesaid statements of witnesses as recorded under Section 161 Cr.P.C. and other material collected by him during course of investigation, came to the conclusion that complicity of present applicant including named accused and other is prime facie established in the crime in question. He accordingly opined to submit a charge sheet. As a result, charge sheet dated 09.12.2022 was submitted whereby named accused i.e. Razwan Solanki and Irfan Solandi (M.L.A. of Samajbadi Party) have been charge sheeted. Thereafter, Investigating Officer submitted the supplementary charge-sheet dated 19.12.2022 whereby applicant (herein) and other not named accused have also been charge-sheeted.
7. At the very outset, Mr. A. K. Sand, the learned A.G.A.-1st representing opposite party submits that charge-sheeted accused namely Razwan Solanki and Irfan Solandi (M.L.A. of Samajbadi Party) have already approached this Court by means of Criminal Misc. Bail Application No. 607 of 2023 (Irfan Solanki) Vs. State of U.P. and Criminal Misc. Bail Application No.758 of 2023 (Rizwan Solanki Vs. State of U.P.). However, their bail applications were rejected by this Court vide orders dated 19.01.2023 and 25.01.2023, respectively.
8. For ready reference order dated 19.01.2023 passed in Criminal Misc. Bail Application No. 607 of 2023 (Irfan Solanki) Vs. State of U.P.) is reproduced herein-under:
"1. Heard Mr. Ram Lal Mishra, learned counsel for the applicant, Mr.Anuj Kumar Mishra, learned counsel appearing for the complainant, Mr.Devesh Nath Tiwari, learned A.G.A. for the State and perused the record.
2. The present bail application under Section 439 Cr.P.C. has been filed by the applicant seeking bail in FIR No.127 of 2022 under Sections 436, 506, 147, 327, 427, 386, 504 and 120B IPC, Police Station Jajmau, District Kanpur.
3. The accused-applicant is 3rd time Member of Legislature Assembly of the State of U.P. As per the FIR, the accused-applicant and his brother, co-accused Rizwan Solanki have been torturing, harassing and intimidating the complainant to grab her property. It is further alleged that these people had conspired, and as a result of criminal conspiracy, three members of the family of the complainant were killed including her husband and two sons. Several times, the accused-applicant, his brother and his goons have given threats to the complainant to leave the premises where she has got small residence and transfer land to his brother. On 07.11.2022 when the complainant and his family had gone to attend a wedding, allegedly brother of the accused-applicant and his goons came there and set the house on fire.
4. During the course of investigation, burnt articles have been recovered and were sent to forensic science examination. In forensic science examination, it was found that these articles were burnt by some inflammatory substance. The accused-applicant has following cases to his credit:-
"(i) FIR/Case Crime No.198 of 2022 under Sections 212, 419, 420, 467, 468, 471, 120B, 34 IPC, Gwaltoli, Kanpur Nagar;
(ii) FIR/Case Crime No.127 of 2022 under Sections 147, 436, 506, 327, 427, 386, 504, 120B IPC, Police Station Jajmau, Kanpur Nagar;
(iii) FIR/Case Crime No.151 of 2022 under Section 386 IPC, Police Station Jajmau, Kanpur Nagar;?
(iv) FIR/Case Crime No.152 of 2022 under Sections 147, 323, 327, 504, 448 IPC, Police Station Jajmau, Kanpur Nagar;
(v) FIR/Case Crime No.155 of 2022 under Sections 386, 419, 420, 427, 504 IPC, 3/4 Prevention of Damages to Public Property Act, Police Station Jajmau, Kanpur Nagar;
(vi) FIR/Case Crime No.156 of 2022 under Section 3(1) U.P. Gangsters and Anti Social Activities Act, Police Station Jajmau, Kanpur Nagar;
(vii) FIR/Case Crime No.286 of 2010 under Section 2(1) P.I.N.H. Act, Police Station Gwaltoli, Kanpur Nagar;
(viii) FIR/Case Crime No.10 of 2017 under Section 171H, 171G, 188 IPC, 127A Prevention of Damages to Public Property Act, Police Station Colonelganj, Kanpur Nagar;
(ix) FIR/Case Crime No.244 of 2020 under Sections 188, 279, 270 IPC, Police Station Anwarganj, Kanpur Nagar;
(x) FIR/Case Crime No.10 of 2022 under Sections 188, 269, 271 IPC, Police Station Anwarganj, Kanpur Nagar;
(xi) FIR/Case Crime No.23 of 2022 under Sections 171H, 186, 188, 323, 336, 504, 506 IPC, Police Station Gwaltoli, Kanpur Nagar;
(xii) FIR/Case Crime No.243 of 2011 under Sections 147, 186, 189, 253, 504, 506 IPC, Police Station Gwaltoli, Kanpur Nagar;
(xiii) FIR/Case Crime No.40 of 2014 under Sections 143, 186, 189, 253, 504, 506 IPC, Police Station Gwaltoli, Kanpur Nagar;
(xiv) FIR/Case Crime No.48 of 2014 under Sections 147, 279, 323, 342, 427, 452 IPC, Police Station Swaroop Nagar, Kanpur Nagar;
(xv) FIR/Case Crime No.42 of 2014 under Sections 147, 148, 149, 307, 323, 504, 506, 452 IPC, Police Station Swaroop Nagar, Kanpur Nagar."
5. A law maker cannot become a law breaker. Considering the long checkered criminal history of the accused-applicant and the fact that he is a law maker, who allegedly has broken and taken the law in his hand, this Court does not consider it to be a fit case for enlarging the accused-applicant on bail at this stage. This bail application is thus, rejected.
Order Date :- 19.1.2023 "
9. Similarly the order dated 25.01.2023 passed in Criminal Misc. Bail Application No.758 of 2023 (Rizwan Solanki Vs. State of U.P.) is reproduced herein-under:
"Heard Sri Gaurav Dixit,learned counsel for the applicant and Sri Paritosh Kumar Malviya, learned AGA-I for the State.
By means of this bail application the applicant has prayed to be enlarged on bail in Case Crime No. 127 of 2022 at Police Station Jamau, District Kanpur Nagar under Sections 436, 506, 147, 327, 427, 386, 504 and 120B IPC. The applicant is in jail since 02.12.2022.
The bail application of the applicant was rejected by learned trial court on 22.12.2022.
The applicant has been identified as the principal offender who forcefully entered the house of the victim and ransacked the house & destroyed property. The incident has created terror. Prosecution evidence connects the applicant with the offence. The offence is grave in nature. There is likelihood that the applicant has committed the offence. At this stage, no case for bail is made out.
Without going into the merits of the case, the bail application is dismissed.
Shri Gaurav Dixit, learned counsel for the applicant contends that the applicant is in jail since 02.12.2022. The trial is moving at a snail's pace and is not likely to conclude anytime in the near future. Inordinate delay in concluding trial had lead to virtually an indefinite imprisonment of the applicant and violates the rights of the applicant to speedy trial.
The trial court has also to be conscious of the rights of the accused persons and is under obligation of law to ensure that all expeditious, necessary and coercive measures as per law are adopted to ensure the presence of witnesses. Counsels or parties who delay or impede the proceedings should not only be discouraged from doing so but in appropriate cases exemplary costs should also be imposed on such parties/ counsel.
The trial court is directed to conclude the trial within a period of six month from the date of receipt of a certified copy of this order. The learned trial court shall proceed with the hearing on a day to day basis to ensure that the above stipulated timeline of six month is strictly adhered to. All witnesses and counsels are directed to cooperate with the trial proceedings.
The learned trial court shall promptly take out all strict coercive measures against all the witnesses in accordance with law who fail to appear in the trial proceeding. Counsels or parties who delay or impede the proceedings should not only be discouraged from doing so but in appropriate cases exemplary costs should also be imposed on such parties/ counsel.
Police and administrative authorities of the State are also directed to ensure that the coercive measures adopted by the court are promptly executed to ensure the presence of the witnesses on the appointed date before the trial court.
The trial judge shall submit a fortnightly report on the progress of trial and the steps taken to comply with this order to the learned District Judge.
A copy of this order be communicated to the learned trial judge through the learned District Judge, Kanpur Nagar by the Registrar (Compliance) by FAX.
Order Date :- 25.1.2023 "
10. On the above premise, Mr. A. K. Sand, the learned A.G.A. 1st submits that since applicant is the beneficiary of the criminality committed by charge-sheeted accused, therefore, applicant does not deserve any indulgence by this Court. He thus strenuously submits that present application for bail is liable to be rejected by this Court.
11. When confronted with above, the learned counsel for applicant submits that applicant is not named in the F.I.R. Complicity of applicant has surfaced in the crime in question after expiry of a period of one and half months from the date of occurrence and that too in the statements of two witnesses namely Mohd. Asif and Sariq Ali Barkadi examined under Section 161 Cr.P.C. He further contends that except for the recital contained in the statements of these two aforementioned witnesses there is no other evidence on record against applicant. On the above premise, the learned counsel for applicant submits that whether the applicant conspired in the conspiracy or not is a question of fact which can be decided only during the course of trial. Offence of conspiracy hatched by a conspirator comes under Section 120B I.P.C and is subject to trial evidence. He further submits that applicant has been falsely implicated in the crime in question on account of political rivalry as aforementioned two witnesses in order to fulfil their political ambition that to contest the election of Corporate Municipal Corporation, Kanpur Nagar as the wife of the applicant is Sitting Corporator. Applicant has criminal history to hid credit but the same has been duly explained in paragraph-9 of the affidavit filed in support of present application for bail. Applicant is in jail since 17.12.2022. As such, he has undergone more than four months of incarceration. Charge sheet has already been submitted against applicant. As such, evidence sought to be relied upon by the prosecution against applicant stands crystallised. He, therefore submits that there is no such circumstance warranting custodial arrest of applicant during course of trial. On the above premise, the learned counsel for applicant contends that applicant is liable to be enlarged on bail. In case applicant is enlarged on bail he shall not misuse the liberty of bail and shall co-operate with the trial.
12. Having heard the learned counsel for applicant, Mr. A. K. Sand, the learned A.G.A.-Ist for State, upon consideration of evidence on record, accusations made as well as complicity of applicant coupled with the fact that applicant is not named in the F.I.R., complicity of applicant in the crime in question has surfaced after expiry of a period of one and a half months form the date of F.I.R. in the statements of two witnesses namely Mohd. Asif and Sariq Ali Barkadi, the statements of aforesaid witnesses are only to the effect that they have heard the named and charge sheeted accused Irfan Solanki alleging that multi-storey building of applicant shall be constructed on the disputed plot, except for above, there is no other evidence on record to connect the applicant with the crime in question regarding any overt or covert act committed by applicant in fulfilment of the objective, offence under Section 120B I.P.C being subject to trial evidence, criminal history having been duly explained, the charge sheet having been submitted and therefore the evidence sought to be relied upon by the prosecution against applicant stands crystallized, there is no such circumstance warranting custodial arrest of applicant during the course of trial but without expressing any opinion on the merits of the case, applicant has made out a case for bail.
13. Accordingly, present application for bail is allowed.
14. Let the applicant-Shaukat Ali involved in aforesaid case crime number be released on bail on his furnishing a personal bond of Rs. 1 Lakh and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
(i) Applicant will not tamper with prosecution evidence.
(ii) Applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) Applicant will not indulge in any unlawful activities.
(iv) Applicant will not misuse the liberty of bail in any manner whatsoever.
15. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of applicant and send him to prison
16. It is made clear that the orders passed by this Court in the earlier bail applications referred to above with regard to expedition disposal of the trial shall also be applicable in the case of present applicant.
Order Date :- 25.4.2023 Y