Khushnaru @ Khushnoor Khan and 2 Others v. State of U.P

Court No. - 73 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 12181 of 2023 Applicant :- Khushnaru @ Khushnoor Khan And 2 Others Opposite Party :- State of U.P. Counsel for Applicant :- Rajeev Upadhyay Counsel for Opposite Party :- G.A. Hon'ble Nalin Kumar Srivastava,J.

¶1Supplementary affidavit filed today is taken on record.

¶2This application has been moved on behalf of the applicants Khushnaru @ Khushnoor Khan, Noor Mohammad and Shablu seeking anticipatory bail in Case Crime No.111 of 2023, under Sections 420, 467, 468, 471, 120-B IPC, P.S. Merapur, District Farrrukhabad.

¶3Heard learned counsel for the applicants, learned A.G.A. for the State and perused the record.

¶4It is submitted by the learned counsel for the applicants that applicants are innocent and they have apprehension of arrest in the above-mentioned case, whereas there is no credible evidence against them. Allegations levelled against the applicants are false. It is further submitted that no fraud has been committed by the present applicants. It is also submitted that the sale deed executed by the applicant nos. 1 and 2 on the one hand and by the applicant no.3 on the other hand does not relate to the same land. It is further submitted that the sale deed executed by the applicants nos. 1 and 2 in favour of Afsana Begum has also the same feature. It is further submitted that as a matter of fact a huge landed property is situated in the village and some parts thereof have been sold by way of different sale deeds and it is wrong to say that the same part of the land was sold to the same person after executing an earlier sale deed in respect thereof. The dispute relates to purely of civil nature. The investigation of the case is going-on and applicants are cooperating with the same. Criminal history of applicant no.3 has been explained by way of supplementary affidavit filed today. It has been submitted that in case applicants are granted anticipatory bail, they will not misuse the liberty of bail and will co-operate in the investigation and would obey all conditions of bail.

¶5Learned A.G.A. has opposed the prayer for anticipatory bail and submitted that fraud has been committed by the present applicants and ample evidence to this effect has been collected by the I.O. of the case. It is further submitted that the applicant no.3 has executed a conditional sale deed only with a view to commit fraud with the informant.

¶6I have considered the rival submissions made by the learned counsel for the parties.

¶7As per the contents of the F.I.R. the named accused persons played a fraud with the informant of the case by the sale of the same land again and again and thereby caused her a huge monetary loss. F.I.R. was lodged on 25.5.2023 and investigation started, which is still going. It reveals from the perusal of the record that the applicants are cooperating with the Investigating Officer. Prima facie the dispute relates to civil nature.

¶8In 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.

¶9In 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.

¶10Considering the settled principles of law regarding anticipatory bail, nature of accusation, role of applicants and all attending facts and circumstances of the case, without expressing any opinion on the merits of the case, in my view, it is a fit case for anticipatory bail to the applicants till filing of police report under Section 173(2) CrPC before the Competent Court.

¶11The application is allowed accordingly.

¶12In the event of arrest of the applicants in the aforesaid case crime, they shall be released on anticipatory bail 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 concerned with the following conditions :-

¶1The applicants shall make themselves available for interrogation by a police officer as and when required.

¶2The 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 them from disclosing such facts to the Court or to any police officer or tamper with the evidence.

¶3The applicants shall not pressurize/ intimidate the prosecution witness.

¶4The applicants shall not commit an offence similar to the offence of which they are accused, or suspected, of the commission of which they are suspected.

¶5The 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.

¶13In case of breach of any of the above conditions, the Investigating Officer shall be at liberty to file appropriate application for cancellation of anticipatory bail of applicants in accordance with law. Order Date :- 17.11.2023 safi High Court of Judicature at Allahabad