Allowed

Aamir Mahmood v. State of U.P.

Allahabad HC2 May 2023BAIL/52820/2022

Case brief

AI extract

What is this about?

The Allahabad High Court allowed a bail application in a criminal matter where the applicant was accused of lodging false FIRs and selling the same land repeatedly. The court held that mere criminal history and pending proceedings are insufficient to deny bail without evidence of tampering, witness intimidation, or established false complaints.

What did the court decide?

The applicant was released on bail by furnishing a personal bond and two sureties subject to conditions prohibiting evidence tampering, witness intimidation, and flight.

Aamir Mahmood Vs State of U.P. — Bail and Remand | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:101428

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Court No. - 88

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 52820 of 2022

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Applicant :- Aamir Mahmood Opposite Party :- State of U.P. Counsel for Applicant :- Yogesh Narayan Shukla,Mohammad Sadab Khan,Rajiv Lochan Shukla

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Counsel for Opposite Party :- G.A.,Aushim Luthra,Deepak Dubey

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Hon'ble Vikram D. Chauhan,J.

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Learned A.G.A. submits that instructions have been received and he has no objection in case the bail application is heard on merits.

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Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

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It is submitted by learned counsel for the applicant that the first information report has been lodged against 16 persons including the applicant on the ground that the applicant and the other co-accused persons are selling the same piece of land on several occasions illegally. The another allegation in the aforesaid first information report pertains to the fact that the applicant has been lodging false cases against several persons and in this respect, they are recovering huge amount in order to defer the criminal cases. In this respect, the applicant is involved with the police personnel for submission of the charge

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sheet after investigation. The first information report also indicates two persons namely Rizwan Ahmad and Aziz Akhtar as the persons who have been used by the applicant in this respect.

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Learned counsel for the applicant submits that the applicant has lodged first information report in several cases including the first information report against the informant. The details of the first information report lodged by the applicant has been stated in paragraph 9 of the affidavit which are as follows:

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(i) Case Crime No. 109 of 2019, under Sections 323, 504, 506, 341 and 354(kha) of I.P.C., at P.S.- Kotwali, District- Prayagraj.

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(ii) Case Crime No. 889 of 2020 under Sections 147, 452, 352, 323, 504, 506, 427 of I.P.C. P.S- Mauaima, District- Prayagraj. (iii) Case Crime No. 96 of 2022, under Section 504 and 506 of I.P.C. at P.S.- Mauaima, District- Prayagraj.

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(iv) Case Crime No. 42/2019, under Section 147/323/ 504/506/427/336 I.P.C. against Mujib son Moin and four persons unknown was registered at P.S.- Mauaima, DistrictPrayagraj.

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It is further submitted by learned counsel for the applicant that the applicant has further lodged 9 cases against different persons at Police Station- Mauaima, Prayagraj, which are detailed in paragraph 10 of the affidavit in support of the bail application which are as follows:

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(i) Case Crime No. 114/2017 under Section 380/504/506 of I.P.C. against Vishal Soni son of Naina Soni, at P.S.- Mauaima, District- Prayagraj.

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(ii) Case Crime No. 26/2018 under Section 452/323/504/506/427 of I.P.C. against Munna alias Shahid Bahaj S/o Bahap was registered at P.S.- Mauima, District Prayagraj.

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(iii) Case Crime No. 431/18, under Section 147/307 of I.P.C. against Mosin son Munna alias Wahajuddin, Nadeem son of Kayyum and three persons unknown, was registred at P.S.Mauima, District Prayagraj.

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(iv) Case Crime No. 42/2019, under Section 147/323/504/506/427/336 I.P.C. against Mujib son Moin and four persons unknown was registered at P.S.- Mauima, District Prayagraj.

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(v) Case Crime No. 392/2019 under Section 147/352/427/452/323/504/506 of I.P.C. against Salim was registered at P.S. Mauima, District- Pryagraj.

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(vi) Case Crime No. 559/2019 under Section 386/452/504/506/427 I.P.C. against Aziz Akhtar alias Ajju and others etc. was registered at P.S.- Mauima, District Prayagraj. (vii) Case Crime No. 158/2020, under Section Shekhu Halwai and others was registered at P.S.- Mauima, District Prayagraj.

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(viii) Case Crime No 459/2020 under Section 323/504/506/354Kha of I.P.C. against Saif Mehmood and others was registred at P.S.- Mauima, District Prayagraj.

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(ix) Case Crime No. 889/2020 under Section 147/452/352/323/504/506/427 of I.P.C. against Nanhe and others was registered at P.S.- Mauima, District Prayagraj.

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It is submitted by learned counsel for the applicant that the Case Crime No. 109 of 2019 has been lodged against the informant and a charge sheet dated 18.06.2019 has been submitted and the cognizance has been taken by the court concerned. Case Crime No. 889 of 2020, in which the charge sheet has been filed against the informant on 08.01.2021 and cognizance has been taken. Case Crime No. 96 of 2022 has been lodged against the informant. The Case Crime No. 42 of 2019 has been lodged and the informant has been chargesheeted. The other 9 cases pertaining to different persons. According to the learned counsel for the applicant, in all the 9 cases charge-sheet has been submitted.

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The submission of learned counsel for the applicant is that the perusal of the statements of the informant as well as the victim Rizwan Ahmad demonstrate that the allegations are wholly vague in nature. There is no specification that which property has been illegally sold by the applicant repeatedly. It is further submitted by learned counsel for the applicant that the police officials along with whom the applicant is alleged to have colluded for criminal prosecution of the innocent persons, has not been detailed. Even the case crime numbers have not been given in the statement under Section 161 Cr.P.C.

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Learned counsel for the applicant further submits that one Original Suit No. 914 of 2022 for cancellation of sale deed dated 07.01.2008 and an injunction has been preferred by the

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applicant against the third person and the same is pending consideration. It is further submitted that one other Original Suit No. 827 of 2011 has been filed by the maternal uncle of the applicant against the father of the informant. The aforesaid suit is also pending consideration. It is submitted that there is a series of litigation between the applicant and the informant, and in the aforesaid series of litigation in the criminal cases, the charge sheet has been filed against the informant.

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Learned counsel for the informant submits that during investigation, it has not come into picture as to what was the date of the sale deed which has been executed by the applicant in respect of the same land repeatedly. Learned counsel for the applicant further submits that in case, any false first information report has been lodged by the applicant, then there should be finding of any public servant or of the investigating officer, but in this respect, there is no finding till date against the applicant that the applicant has lodged any false complaint or criminal cases against the innocent persons.

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Learned counsel for the applicant further submits that even otherwise in case, any false complaint is made, then the Section 182 of the Indian Penal Code comes into picture and as per Section 195 of Cr.P.C. such a false criminal proceedings could have been taken care of by the court concerned and the first information report in this respect could not have been proceeded with.

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It is submitted that if a false first information report is lodged, the same is lodged before the police officers and as such a finding that the first information report is a false and

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fabricated report, has to be recorded prior to proceeding against the applicant. It is further submitted by learned counsel for the applicant that even otherwise in case, the false complaint is filed, the same shall be proceeded with as a complaint case and no first information report could have been lodged. The criminal history of the applicant has been explained in paragraph 44 of the affidavit.

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Learned counsel for the informant Sri Deepak Dubey, Advocate, has vehemently opposed the bail application. He further submits that the applicant is running a gang and is implicating innocent persons in criminal cases. He submits that even the informant has been implicated in false cases. Learned counsel for the informant submits that a racket of this magnitude is being run by the applicant at police station Mauaima where the applicant has lodged about 35 cases against various persons including the informant.

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Learned counsel for the informant has further relied upon Pg-196 of the bail application to demonstrate the cases lodged by the informant other than those stated in paragraphs 9 and 10 of the affidavit in support of the bail application.

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Learned counsel for the applicant submits that the aforesaid matter is under investigation by the police authorities as to whether the first information report was lodged on false allegations with the help of the police officials. It is further submitted by learned counsel for the informant that in one case the co-accused Ratibhan Singh, whose final report was submitted, the court concerned has set aside the aforesaid final

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report and has taken cognizance and has further directed for action against the Investigating Officer.

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Learned counsel for the informant relied upon the order dated 10.10.2022 of this Court in application under Section 482 Cr.P.C. No. 20438 of 2022 to demonstrate that in a similar circumstance another person was indulged in false cases and the matter was referred to for C.B.I. investigation.

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Learned counsel for the informant has further relied upon Pg.169 of the counter affidavit to demonstrate that an investigation into the affairs of conduct of the police personnels, is under way in departmental proceedings. Learned counsel for the informant has further drawn attention to paragraph 3 of the counter affidavit to submit that the complaint case has been lodged by the applicant against various persons. The aforesaid complaint cases are to the extent of 9 cases. On the aforesaid basis, learned counsel for the informant submits that lodging of the criminal cases against different persons including the informant would go to show that the applicant is indulged in lodging of false criminal cases against innocent persons and as such the applicant is not entitled to be released on bail.

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Learned A.G.A. submits that the first information has been lodged against the applicant on the ground that false criminal cases have been lodged by the applicant against innocent persons and that the applicant is indulging in selling of same property to different persons.

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In the present case, it is to be seen that the first information report has been lodged under Sections 419, 420,

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467, 468, 386, 504 and 506 I.P.C and primary allegation in the first information report lodged by the informant is to the effect that the applicant has indulged in selling of the same property to different persons repeatedly. The second primary allegation pertains to lodging of criminal proceedings and thereafter threatening and taking money from the accused persons in those criminal proceedings and getting the criminal proceedings closed down. In case, the persons did not give money, then criminal proceedings are vehemently taken up against the innocent persons. It is further to be seen that in paragraph 9 and 10 of the affidavit in support of the bail application, the details of the criminal cases lodged by the applicant are provided. In some of the cases the informant himself is an accused where charge sheet has been submitted. Learned counsel for the informant has also filed details in paragraph 3 of the counter affidavit of 9 criminal complaint cases lodged by the applicant.

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A right of the litigant to lodge criminal proceedings where an offence has been committed is established principle of law. Mere lodging of criminal proceedings does not amount to offence under Section 182. For this, a finding has to be recorded by the authority concerned that the first information report or criminal proceedings were lodged on false and fabricated basis. In the present case on a pointed query being made to learned counsel for the informant and to the learned A.G.A. as to whether any findings of any court or the police officials investigating the case has been recorded with regard to the applicant having lodged false cases, learned counsel for the informant and learned A.G.A. submits that no such finding has been recorded by any officer or the court concerned as the

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applicant himself was having relationship with the police personnel and therefore findings could not have been recorded.

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On a further pointed query being made to learned counsel for the informant as well as the learned A.G.A. as to whether in the investigation, the witnesses have stated the details of the cases and the police personnel in collusion with whom the applicant was running the racket, learned counsel for the informant as well as learned A.G.A. could not show any document or statement under Section 161 Cr.P.C. to demonstrate that any such detail has been given. Although, the witness Rizwan Ahmad in his statement under Section 162 Cr.P.C. has stated that they have paid some amount to the applicant, however, in the aforesaid statement, neither there are any details of police personnel along with whom the applicant is in collusion nor the details of the cases in respect of which the aforesaid amount was paid. In the present case the details with regard to the criminal offence committed has not been provided. Even otherwise under Section 195 Cr.P.C. the court concerned is empowered to take action, in case, any false case has been lodged by the applicant. Aforesaid stage has not been reached according to the learned counsel for the parties as in the matter charge sheets have been filed in the cases lodged by the applicant and the matter is still going on. The applicant is in jail since 05.10.2022.

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It is further to be noted that delivery of any movable property or valuable security in terms of forged document is held to be punishable, however, no such documents has been brought on record before this Court to demonstrate as to why

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Section 467 I.P.C. would be attracted in the present case. Section 467 I.P.C. is quoted herein below:

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" Forgery of valuable security, will, etc.— Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

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Even otherwise Section 467 I.P.C. would only attract in case of a movable property, however, in the present case, land has alleged to have been resold. As such, prima facie the applicant is entitled to be released on bail. The criminal history of the applicant has been explained in paragraph 44 of the affidavit, one of which is of the year 2008 and the other one is of year 2022. No material has been brought on record before this Court which would disentitle the applicant from being released on bail. Applicant is languishing in jail since 05.10.2022.

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Learned A.G.A. for the State opposed the prayer for bail but does not dispute factual matrix of the case.

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Learned AGA has pointed out the criminal antecedents of the Applicant. No material or circumstance has been brought to the notice of this court with regard to tampering of evidence or intimidating of witness in previous criminal cases. In Ash Mohammad v. Shiv Raj Singh, (2012) 9 SCC 446 , the Apex Court in para 30 has observed:

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"We may hasten to add that when we state that the accused is a history-sheeter we may not be understood to have said that a history-sheeter is never entitled to bail. But, it is a significant factor to be taken note of regard being had to the nature of crime in respect of which he has been booked."

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In the case of Prabhakar Tewari Vs. State of U.P. and another 2020 (11) SCC 648 , the Hon'ble Supreme Court has observed that pendency of several criminal cases against the accused may itself cannot be a basis for refusal of bail.

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In so far as criminal antecedents of the applicant is concerned, it is not the case of the State that applicant might tamper with or otherwise adversely influence the investigation, or that he might intimidate witnesses before or during the trial. The State has also not placed any material that applicant in past attempted to evade the process of law. If the accused is otherwise found to be entitled to bail, he cannot be denied bail only on the ground of criminal history, no exceptional circumstances on basis of criminal antecedents have been shown to deny bail to accused, hence, the Court does not feel it proper to deny bail to the applicant just on the ground that he had criminal antecedent.

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The principle that Bail is a rule and Jail is an exception has been well recognised by Apex Court more specifically on the touch stone of Article 21 of the Constitution. The said principle has been reiterated by the Apex Court in Satyendra Kumar Antil Vs Central Bureau of Investigation and another , 2022 (10) SCC 51 . Learned A.G.A. has not shown any exceptional circumstances which would warrant denial of bail to the applicant.

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No material, facts or circumstances has been shown by learned A.G.A. that the accused may tamper with the evidence or witnesses or the accused is of such character that his mere presence at large would intimidate the witnesses or that accused will use his liberty to subvert justice or tamper with the evidence.

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It is settled principle of law that the object of bail is to secure the attendance of the accused at the trial. No material particulars or circumstances suggestive of the applicant fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like have been shown by learned AGA for the State.

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Learned A.G.A. for the State has not shown any material or circumstances that the accused/applicant is not entitled to bail in larger interests of the public or State.

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Considering the facts and circumstances of the case, nature of offence, evidence, complicity of the accused, submissions of learned counsel for the parties and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed .

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Let the applicant Aamir Mahmood involved in Case Crime No. 541 of 2022, under Sections 419, 420, 467, 468, 386, 504 and 506 I.P.C. Police Station- Mauaima, DistrictPrayagraj be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:-

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The applicant will not tamper with the evidence during the trial.

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The applicant will not pressurize/intimidate the prosecution witness.

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The applicant will appear before the trial court on the date fixed, unless personal presence is exempted and/or the applicant shall make himself available for interrogation by a police officer as and when required.

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The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.

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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 officer or tamper with the evidence.

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The applicant shall not leave India without the previous permission of the Court.

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In case of breach of any of the above condition, the prosecution shall be at liberty to move bail cancellation application before this Court.

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Order Date :- 2.5.2023 Sumit Kumar

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Digitally signed by :- SUMIT KUMAR High Court of Judicature at Allahabad

Aamir Mahmood v. State of U.P.

Case brief

What is this about?

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Aamir Mahmood v. State of U.P.

Case brief

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