Fakhruddin vs State Of U.P. & Another

The present bail application under Section 438 Cr.P.C. has been filed for grant of anticipatory bail as the applicant is apprehending his arrest in connection with F.I.R./Case Crime No.704 of 2020 under Sections 419, 420, 467, 468, 471 IPC, Police Station Kotwali, Barabanki.

On 17.12.2020, this Court passed the following order:-

"Heard Yogesh Kesarwani, learned counsel for the applicant and heard learned AGA for the State.

The present bail application under Section 438 Cr.P.C. has been filed for grant of anticipatory bail as the accused-applicant is apprehending his arrest in connection with FIR/Case Crime No. 704/2020, under Sections 419,420,467,468,471 I.P.C. Police Station Kotwali, District Barabanki.

Issue notice to opposite party no. 2 returnable at an early date.

Steps within a week.

Office to proceed accordingly.

The learned counsel for the applicant has contended that for the property in question the case is pending before the Additional District Magistrate, Barabanki, but the F.I.R. has been lodged so as to harass the present applicant. Learned counsel for the petitioner has drawn attention towards Annexure no. 3 which is an order dated 29.6.2020 passed by the C.J.M., Barabanki whereby the application of the opposite party no. 2 u/s 156(3) Cr.P.C. has been rejected for the reason that the issue is sub-judice before the learned A.D.M., Barabanki, therefore, no direction for lodging F.I.R. under section 156(3) Cr.P.C. may be issued. The aforesaid order has been assailed by filing Criminal Revision which is Annexure no. 4 to this petition whereby the learned Sessions Judge, Barabanki passed an order dated 15.10.2020 rejecting the revision of the opposite party no. 2 hereto upholding the order of C.J.M., Barabanki observing that since the suit for cancellation of lease is pending before the Additional District Magistrate, Barabanki which a suit of civil nature, therefore, the F.I.R. should not be directed to be lodged in the same matter. The C.J.M. has passed the order dated 29.6.2020 and Sessions Judge passed the order on 15.10.2020 but in the interregnum period the F.I.R. has been lodged on 10.9.2020 which indicates that the aforesaid F.I.R. has been lodged in the teeth of the orders being passed by the C.J.M. and Sessions Judge.

Learned AGA, however, opposes the submissions advanced by learned counsel for the accused-aaplicant but could not dispute the contention made by learned counsel for the applicant.

Having heard learned counsel for the parties and having perused the record, I am of the considered opinion that the matter requires consideration.

Till the next date of listing, accused-applicant, namely, Fakhruddin in the event of his arrest in connection with aforesaid case crime, shall forthwith be released on bail on furnishing a personal bond and two sureties in the like amount to the satisfaction of the Arresting officer/Investigating Officer/ S.H.O. concerned on the following conditions:-

(i) That the accused-applicant shall make himself available for interrogation by police authorities as and when required and will cooperate with the investigation;

(ii). That the accused-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 officer; and

(iii). That the accused-applicant shall not leave India without the previous permission of the Court.

The papers regarding bail submitted to the police officer on behalf of the accused/applicant shall form part of the case diary and would be submitted to the court concerned along with same at the time of submission of report under Section 173(2) Cr.P.C. Under Part-III, Chapter-XVIII, Rule 18 3 (a) of the Allahabad High Court Rules, 1952 (Amended), a copy of the bail application along with its enclosures be provided to the learned A.G.A. by learned counsel for applicant, within two days from today, without fail.

In the meantime, learned A.G.A. may also procure complete instructions in the matter and may also file counter affidavit within three weeks.

earned counsel for applicant may also file rejoinder affidavit in one week thereafter.

List this case in the week commencing 18.1.2021."

After hearing the learned counsel for the accused-applicant and, going through the entire record, I find substance in the argument advanced on behalf of the accused-applicant.

Thus, the interim order dated 17.12.2020 is hereby confirmed. However, the accused-applicant is directed to surrender before the trial Court, if charge-sheet is filed and, he is summoned to face trial for offence in question. The accused-applicant shall be released on bail by the trial Court on furnishing a personal bond and, two sureties each in the like amount to the satisfaction of the trial Court concerned with the following conditions:-

(i) the applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in Court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law;

(ii). the applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code;

(iii). in case, the applicant misuses the liberty of bail and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the Court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him in accordance with law, under Section 174-A of the Indian Penal Code; and

(iv) the applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.

This application, thus, stands disposed of.