Irfan and Another v. State of U.P

Court No. - 73 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 11255 of 2023 Applicant :- Irfan And Another Opposite Party :- State of U.P. Counsel for Applicant :- Neeraj Srivastava,Sudhir Kumar Rai Counsel for Opposite Party :- G.A. Hon'ble Nalin Kumar Srivastava,J.

¶1Heard learned counsel for the applicants, learned A.G.A. for the State as well as learned counsel for the informant and perused the record.

¶2This application has been moved on behalf of the applicants - Irfan and Sharif seeking anticipatory bail in Case Crime No.0222 of 2023, under Sections 420, 467, 468, 471, 120-B, 504, 506 IPC, Police Station Swar, District Rampur.

¶3As per prosecution version, the ancestral property, which falls into the share of the informant, was sold by the co-accused Munshi in favour of his own wife Smt. Hasina and he appeared as an imposter for real owner of the property Mohd. Hussain, who was not alive on the date of execution of the sale deed and accused applicants Irfan and Sharif appeared as witnesses to the aforesaid forged sale deed. F.I.R. was lodged on 18.6.2023 and investigation started, which is going on.

¶4Learned counsel for the applicants submits that that applicants are innocent and they have apprehension of arrest in the above-mentioned case, whereas there is no credible evidence against them. They have been falsely implicated in this matter. Allegations levelled against the applicant are false. Investigation is going on in the matter. It is further submitted that the applicants are only the witnesses of the alleged sale deed. They are neither vendor nor vendee. It is further submitted that so far as the execution of sale deed by some imposter in the name of Mohd. Hussain is concerned, the said person was very well alive on the date of execution of the sale deed on 27.7.2022. It is further submitted that a civil suit has been filed by Smt. Hasina against the said Mohd. Hussain and others for permanent injunction as O.S. No.335 of 2023 before the Court of Civil Judge (J.D.), Rampur and Mohd. Hussain as defendant no.1 has submitted his written statement in the aforesaid case on 26.7.2023, which denotes that the said Mohd. Hussain was in fact alive on the date of execution of the alleged sale deed on 27.7.2022. It is further submitted that another sale deed has also been filed by the informant side against the applicants for cancellation of sale deed and permanent injunction before the Civil Court at Rampur and the said suit is also still pending. It is also submitted that the matter is subjudice before the competent Civil Court and it cannot be concluded that the said Mohd. Hussain was not alive on the date of execution of the sale deed.

¶5Learned A.G.A. as well as learned counsel for the informant opposed the prayer for anticipatory bail and it has been vehemently argued that according to death certificate issued by the Nagar Palika Parishad, the date of death of Mohd. Hussain is entered as 20.3.2001, which clarifies that on 27.7.2022, which is the date of execution of the alleged sale deed, Mohd. Hussain was dead. It is further submitted that the appearance of Mohd. Hussain as defendant no.1 in the Civil Court at Rampur is forged and has been filed through a fabricated vakalatnama.

¶6However, from the applicants' side, a question has been raised about the genuineness of the death certificate issued by Nagar Palika Parishad.

¶7In Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1, the Hon'ble Apex Court has held that while considering an application for grant of anticipatory bail, the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence including intimidating witnesses, likelihood of fleeing justice, such as leaving the country, etc. It has further been held that Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion.

¶8In Siddharth Vs. State of Uttar Pradesh & Another, (2022) 1 Supreme Court Cases 676, the Hon'ble Apex Court has held that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation, then there is no compulsion on the officer to arrest the accused.

¶9Considering the settled principles of law regarding anticipatory bail, submissions of the learned counsel for the parties, nature of accusation, role of applicant and all attending facts and circumstances of the case, without expressing any opinion of the merits of the case, in my view, it is a fit case for anticipatory bail to the applicant till the filing of police report under section 173 (2) Cr.P.C. before the competent Court.

¶10The anticipatory bail application is allowed..

¶11In the event of arrest of the applicants in the aforesaid case crime, they shall be released on anticipatory bail till the filing of police report 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 Station House Officer of the police station concerned with the following conditions:-

(i) The applicants shall make themselves available for interrogation by a police officer 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/her from disclosing such facts to the Court or to any police office.

(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.

¶12In case of default of any of the conditions, the Investigating Officer shall be at liberty to file appropriate application for cancellation of protection granted to the applicants. Order Date :- 6.11.2023 ss High Court of Judicature at Allahabad