Allowed

Waseem Sultan and 2 Others v. State of Up

Allahabad HC21 Aug 2024ABAIL/5651/2024

Case brief

AI extract

What is this about?

Applicants sought anticipatory bail in a fraud case over an agreement to sale where a charge sheet had been filed but no proclamation process issued and they had cooperated with investigation. Relying on Sushila Aggarwal, the court granted anticipatory bail till conclusion of trial on conditions including no tampering and surrender of passport.

What did the court decide?

Anticipatory bail till conclusion of trial on personal bond of Rs. 50,000/- with two sureties each, subject to conditions.

Waseem Sultan and 2 Others vs State of Up — Cheating and Forgery | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:134157

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Court No. - 86

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Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 5651 of 2024

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Applicant :- Waseem Sultan And 2 Others Opposite Party :- State of U.P. Counsel for Applicant :- Krishna Mohan Tripathi Counsel for Opposite Party :- G.A.

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Hon'ble Nalin Kumar Srivastava,J.

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Heard learned counsel for the applicants, learned AGA and perused the material available on record.

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This application for anticipatory bail has been filed by applicants- 1. Waseem Sultan, 2. Sakib Sultan and 3. Tasnim Sultan in connection with Criminal Case No. 7066 of 2017 arising out of Case Crime No. 927 of 2016, under sections 406, 420, 467, 468, 471 IPC, P.S. Kotwali Nagar, District Muzaffar Nagar.

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It is alleged in the F.I.R. that an agreement to sale was executed by the present applicants along with other co-accused persons in favour of the informant but however, no sale deed was executed in pursuance of the aforesaid agreement to sale and the consideration amount paid by the informant was also grabbed by the applicants and the other co-accused persons. It is also alleged that prior to the execution of the aforesaid sale deed in respect of a portion of the case property an agreement to sale had already been executed by the applicants and other co-accused persons in favour of some other persons and in that way, the fraud was committed by the applicants and other co-accused persons. F.I.R. was lodged on 09.05.2016 and investigation started, which is culminated into charge sheet.

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It has been 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. Charge sheet in the matter has been submitted. It is further submitted that earlier, an Application U/s 482 Cr.P.C. Nos. 14067 of 2018 &747 of 2020 was moved by the present applicants and other co-accused persons before this Court wherein vide orders dated 24.04.2018, 09.01.2020 & 26.02.2020, an interim protection

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was granted to all the accused persons but subsequently, the said protection order was not extended. It is further submitted that pending Application U/s 482 Cr.P.C. No. 14067 of 2018, since the interim protection was not extended by this Court, the trial court proceeded with the matter following the law laid down by the Hon'ble Apex Court in Asian Resurfacing case and subsequently, another Application U/s 482 Cr.P.C. No.747 of 2020 was moved by the applicants and other co-accused persons wherein an interim protection was granted by this Court vide order dated 09.01.2020. However, the said order was not extended. Subsequently, the trial court again proceeded with the matter following with the dictum of the law laid down by the Hon'ble Apex Court in Asian Resurfacing case vide order dated 03.10.2022 and at present, the applicants have not been declared as a proclaimed offender and no process under Sections 82/83 Cr.P.C. has been issued against them by the trial court. It is further submitted that subsequently a sale deed of another property was executed by the present applicants in favour of the informant and no objection was raised by the informant at the time of execution of the sale deed regarding the earlier agreement to sale. It is further submitted that no civil suit for specific performance of contract in the light of the alleged agreement to sale has been filed so far by the informant of this case. It is further submitted that co-accused Smt. Arshi has already been granted anticipatory bail by this Court in Cr. Misc. Anticipatory Bail Application U/S 438 CR.P.C. No. - 10150 of 2023 by order dated22.9.2023. It is next submitted that the dispute relates to purely of civil nature, which has been given a colour of criminal case. It is further submitted that the accused applicants has no criminal antecedents to their credit and as such, they are entitled for anticipatory bail. In case applicants is granted anticipatory bail, they shall not misuse the liberty of bail and would obey all conditions of bail.

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Learned A.G.A. has opposed the prayer for anticipatory bail and it is vehemently submitted that the property which was subject matter of the agreement to sale was already been sold prior to the execution of the said agreement by the accused applicants in favour of some other persons, in that way they committed the fraud, however it has not been disputed by the learned A.G.A. that no civil suit for specific performance of contract has been filed by the informant of this case so far.

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It reveals from the perusal of the record that no process under Section 82/83 Cr.P.C. has been issued against the applicants till date and they have cooperated during the investigation.

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Although the charge sheet has been submitted in this matter, but in Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1, the Hon'ble Apex Court has settled the controversy finally by holding the anticipatory bail need not be of limited duration invariably. In appropriate case, it can continue upto conclusion of trial.

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It has been further held therein that anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial.

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It has been further held by the Hon'ble Apex Court 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, llikelihood 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.

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Hence, considering 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 conclusion of trial in the matter.

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9. The anticipatory bail application is allowed .

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In the event of arrest of the applicant in the aforesaid case crime, she shall be released on anticipatory bail on her furnishing a personal bond of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the Court concerned with the following conditions :-

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(i) 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 her from disclosing such facts to the Court or to any police officer or tamper with the evidence.

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(ii) The applicant shall not pressurize/ intimidate the prosecution witness.

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(iii) The applicant shall not commit an offence similar to the offence of which she is accused, or suspected, of the commission of which she is suspected.

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(iv) The applicant shall not leave India without prior permission of the Court and if she has passport, the same shall be deposited by her before the S.S.P./S.P. concerned.

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In 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 the applicant in accordance with law.

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Order Date :- 21.8.2024 Fhd

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Digitally signed by :- FAHAD NIYAZ High Court of Judicature at Allahabad

Waseem Sultan and 2 Others v. State of Up

Case brief

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Waseem Sultan and 2 Others v. State of Up

Case brief

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