The Lucknow Bench of the Allahabad High Court while allowing an anticipatory bail application observed that the mere rejection of an application under Section 482 Cr.P.C filed by the applicant will not be a ground for rejecting his anticipatory bail application.
A Single Bench of Justice Subhash Vidyarthi passed this order while hearing a Criminal Misc Anticipatory Bail Application filed by Mohd Adeeb Ahmad.
The application has been filed by the applicant seeking anticipatory bail in F.I.R bearing Case under Sections 420, 467, 468, 471, 504, 506, 354 I.P.C, registered at Police Station Kotwali City, District Hardoi.
The aforesaid case has been registered on the basis of an F.I.R lodged on 17.12.2019 against four persons, including the applicant in furtherance of an application under Section 156 (3) Cr.P.C, stating that the informant and her daughter had agreed to sell an immovable property to co-accused Mahmood Alam for an agreed consideration of Rs 45,00,000/-. Mahmood Alam paid a sum of Rs 10,00,000/- through a cheque dated 12.06.2019 and after receipt of the amount, registered agreement was executed regarding sell of the property on 16.06.2019 but the informant was not allowed to read the contents of the agreement and merely this much was asked by Registrar as to whether she has received the earnest money of Rs 10,00,000/-. When the co accused Mahmood Alam did not pay the balance amount of sale consideration, the informant entered into another agreement with some other person to sell the same property for a higher sale consideration of Rs 48,00,000/- and she executed the sale deed dated 18.08.2019 in respect of the same property.
The F.I.R alleged that on the very next day i.e. on 19.08.2019, the other accused persons, including the applicant, who are sons of co-accused Mahmood Alam threatened and misbehaved with the informant and her daughter. It is mentioned in the F.I.R that on 21.08.2019 the informant had lodged an online complaint on Jansunwai Portal but the Sadar Chowki Incharge submitted a wrong report and disposed of the complaint.
The counsel for the applicant has submitted that the application it has been stated that co-accused Mahmood Alam has already filed a suit for specific performance of contract bearing Original Suit, in the Court of the Civil Judge (Senior Division), Hardoi and the application under Section 156 (3) Cr.P.C was lodged by the informant five days after filing of the aforesaid suit.
In the affidavit filed in support of the anticipatory bail-application it has been contended that the applicant is innocent, he has no criminal history and he has falsely been implicated in the case.
The A.G.A has opposed the prayer for bail on the ground that earlier the applicant had approached this court by filing an application under Section 482 Cr.P.C, which was disposed off leaving it open for the applicant appears to applies for bail within 30 days and it was directed that the prayer shall be considered and decided in accordance with law.
He has submitted that since the applicant has not surrendered before the trial court his anticipatory bail cannot be entertained.
It has also been submitted that the non-bailable warrant has already been issued against all the accused persons, although the date of issuance of warrant has not been mentioned in the instructions of the A.G.A.
The mere rejection of an application under Section 482 Cr.P.C filed by the applicant will not be a ground for rejecting his anticipatory bail application and the application has to be considered and decided on its merits taking into consideration all the relevant factors, including nature of allegations and the material relied upon, the Court observed.
The Court noted that,
The allegations leveled in the F.I.R are that the informant had entered into a registered agreement to sell her property to the applicant’s father – co-accused Mahmood Alam on 16.06.2019. She claims that as per her understanding the period during which the purchaser was required to pay the balance sale consideration, was one month, whereas the period mentioned in the agreement is one year. However, the informant is not an illiterate person and she had signed the agreement and had presented it before the Sub-registrar, who made the requisite endorsements under Section 58 of the Indian Registration Act regarding admission of execution of the agreement by the informant and admission of receipt of consideration by her. Therefore, the allegations leveled in the F.I.R appear to be against the provisions of law.
The informant claims that when the co-accused Mahmood Alam did not pay her the balance amount of sale consideration, she executed a sale deed of the property in question in favour some other person on 18.08.2019. The informant did not send any notice to the purchaser demanding performance of his obligations under the registered agreement dated 16.06.2019. Even if the informant was under a misunderstanding regarding the period mentioned in the agreement for payment of balance consideration was one year, she could not have simply ignored the registered agreement without seeking its cancellation by the Court.
The informant has not initiated any proceedings for specific performance of the agreement or for cancellation of agreement and she has executed the sale deed in breach of conditions of the registered agreement without the same having been cancelled. The informant has not even refunded the amount of Rs 10,00,000/- paid by the applicant’s father under the agreement dated 16.06.2019.
The Court observed that,
The aforesaid facts prima facie make out a civil wrong committed by the informant herself and it appears that she is abusing the process of law by filing an F.I.R against the purchaser and his sons. The aforesaid facts evident from the F.I.R itself certainly call for interference by this court for protecting the personal liberty of the applicant.
It is also relevant to notice that it is stated in the F.I.R that the police had conducted an enquiry pursuant to the earlier complaint lodged by the informant on Jansunwai Portal and had disposed of the same without lodging an F.I.R, which appears to be the right course that was adopted by the Police.
“So far as the question of rejection of the anticipatory bail application of the co-accused Mohd Muzammil Ahmad is concerned, it is settled law that the principle of parity does not apply to rejection of bail application or to that of anticipatory bail application. Moreover, while dismissing the anticipatory bail application of the aforesaid co accused the coordinate bench has not taken into consideration the aforesaid aspects of the matter. Therefore I am not inclined to reject the anticipatory bail application of the applicant on the ground of parity.
Having considered the aforesaid facts and circumstances of the case and also keeping in view the fact that the applicant has no criminal history and without making any observations which may affect the outcome of the case, I am of the view that the aforesaid facts are sufficient for making out a case for granting anticipatory bail to the applicant”, the Court further observed while allowing the anticipatory bail application.
“In the event of arrest / appearance of applicant – before the S.H.O/ the Trial Court in the aforesaid case, he shall be released on bail on his furnishing a personal bond and two sureties, to the satisfaction of S.H.O/Court concerned”, the Court ordered.