The Allahabad High Court has dismissed the petition challenging the attachment order issued by the court against Saharanpur gangster and mining mafia former MLC Haji Iqbal.
A Single Bench of Justice Raj Beer Singh passed this order while hearing an application under section 482 filed by Haji Iqbal @ Bala.
The application under section 482 Cr.P.C has been preferred by one Tanseef, on behalf of accused Haji Iqbal @ Bala, on the basis of power attorney, against the order dated 13.04.2023, passed by the Special Judge (M.P/M.L.A)/ Additional District & Sessions Judge, Saharanpur in Case under Section 2/3 Gangster Act, Police Station-Mirzapur, District-Saharanpur, whereby, on the application of the investigating officer, process under Section 82 Cr.P.C has been issued against the applicant/accused Haji Iqbal @ Bala.
The Court noted that the first information report of this case was lodged on 09.04.2022 under Section 2/3 Gangster Act against applicant/accused Haji Iqbal @ Bala and six others, alleging that the applicant/accused is running a gang and co-accused persons are members of the said gang and that they, acting singly or collectively, indulge in commission of offences like threat, criminal intimidation, illegal mining, smuggling of forest produce, illegal possession over property and other antisocial activities, for gaining undue temporal, pecuniary, material gains.
After investigation, a charge-sheet has been submitted against six co-accused persons but investigation against applicant/accused is pending, as he is absconding.
The Court further noted that as the applicant/accused was absconding thus, non-bailable warrants were issued against the applicant/accused Haji Iqbal @ Bala but the same could not be executed. Thereafter, on the application of the investigating officer, the Court of Special Judge (M.P/M.L.A)/ Additional District & Sessions Judge, Saharanpur has issued process under Section 82 Cr.P.C against the applicant/accused vide order dated 13.04.2023, which is being impugned by the applicant/accused Haji Iqbal @ Bala through his power of attorney holder Tanseef.
Counsel for the applicant has raised several contentions but the Additional Advocate General raised a preliminary objection that the accused Haji Iqbal @ Bala is continuously absconding and this application on his behalf, by his power of attorney holder, is not maintainable. In the affidavit filed support of the application under section 482 CrPC, except a vague averment that the accused Haji Iqbal @ Bala is residing out of country, no other reason has been shown that why the accused Haji Iqbal @ Bala cannot file the petition.
Counsel for the accused-applicant submitted that as the accused Haji Iqbal @ Bala is residing out of the country, thus, his duly appointed attorney can file the application under section 482 CrPC. It was pointed out that the accused Haji Iqbal @ Bala has duly executed a special power of attorney in favour of Tanseef and thus, the application by the attorney holder is maintainable.
The Court observed that,
It may be seen that in the power of attorney there is no such version that the accused Haji Iqbal @ Bala is out of country, due to which he is unable to file his case, rather the version in power of attorney is that the accused Haji Iqbal @ Bala and other executors of the power of attorney remain busy in their business and due to that reason they cannot do ‘pairvi’ in their cases. It has also not been clarified in this application under section 482 Cr.P.C that when the accused Haji Iqbal @ Bala has left India and in which country he is residing. Merely a vague statement has been made that the accused Haji Iqbal @ Bala is out of the country and thus, this case is being filed by his attorney. Here it would be pertinent to mention that in this application, the order passed under 82 Cr.P.C against the accused Haji Iqbal @ Bala is being challenged.
In view of aforesaid, it appears that the grounds on which the instant application is being filed by the attorney holder of the accused Haji Iqbal @ Bala, are not sustainable and it appears that the accused Haji Iqbal @ Bala is playing hide and seek. It is also apparent that neither there is any witness on the alleged power of attorney nor it has been executed on the stamp of prescribed amount.
In such facts and circumstances, the question arises whether this application filed by the accused Haji Iqbal @ Bala through his special power of attorney is maintainable?
Thus, it clearly emerges that in such matters, the petition filed on behalf of the accused by his power of attorney holder would not be maintainable. As stated above, in the instant matter not only the power of attorney is defective but it is contradictory with the averment made in the affidavit filed in support of application under Section 482 CrPC.
“The only reason shown in the application under Section 482 Cr.P.C regarding absence of accused Haji Iqbal @ Bala, is that he is out of country, whereas, in power of attorney, it was mentioned that accused and other executors of power of attorney remain busy in their business and thus, they cannot do ‘pairvi’ of their cases. There is no such version in the power of attorney that applicant Haji Iqbal @ Bala is out of the country. It has also not been specified when the accused Haji Iqbal @ Bala left India and in which country he is residing.
Thus, it is apparent that material facts have been concealed and this application has not been filed with clean hands. Even no permission is being sought by the alleged Tanseef to file this application under Section 482 Cr.P.C on behalf of accused Haji Iqbal @ Bala. As stated above in this application, order passed by the Court below under Section 82 Cr.P.C against Haji Iqbal @ Bala, is being challenged. In view of these facts and circumstances, the instant application under section 482 Cr.P.C filed on behalf of the accused by the power of attorney holder, is not maintainable. Thus, the application under section 482 Cr.P.C is liable to be dismissed without considering the matter on merits”, the Court further observed while dismissing the application.