# Farook v. State of U.P. & Anr

- **Citation:** (2024) 9 ILRA 6
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-26
- **Case number:** Criminal Misc. Bail Cancellation Application No. 69 of 2023
- **Bench:** Mayank Kumar Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/farook-v-state-of-u-p-anr-52398
- **Pages:** 12

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections
420,
406,
504
&
506
-
Cancellation of Bail - Code of Criminal
Procedure, 1973 - Section 82 - Informant
challenged
order
passed
by
learned
Additional District Judge granting bail to
opposite
party
-
Perusal
of
record
indicates opposite party cleverly filed
several legal proceedings with distinct
names
to
evade
his
arrest/presence
before
Police/Court
-
Such
conduct
demonstrates he did not approach Court
with clean hands. (Para 21, 32)

Criminal history and gravity of offence of
opposite party was not considered by
learned Court - Learned Court ignored fact
that opposite party had duped informant
for Rs.31,50,000/-. - Even after receiving
money, he did not execute sale deeds of
flats in favour of informant - He violated
undertaking given by him before Court -
Despite his admission that he received Rs.
4,40,000/- from informant, he never
offered to return money to him - He filed
incorrect affidavit knowing that it was not
a matrimonial dispute - To commit a
fraud,
he
gave
two
cheques
of
Rs.31,50,000/- to informant, dishonoured
due to insufficiency of fund in his account.
(Para 33, 34)

After granting bail, he visited house of
informant, threatened informant and his
father with life and asked them to
withdraw present case and pressurised for
amicable settlement - Captured in CCTV
footage - Misuse of liberty of bail by
opposite party - Impugned order set aside
- Directed to surrender before Court
concerned. (Para 37, 42)

Bail cancellation application allowed. (E13)

List of Cases cited:

## Text

6 INDIAN LAW REPORTS ALLAHABAD SERIES
(2024) 9 ILRA 6
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.09.2024

BEFORE

THE HON'BLE MAYANK KUMAR JAIN, J.

Criminal Misc. Bail Cancellation Application No.
69 of 2023

Farook ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Akash
Dwivedi,
Rajiv
Lochan
Shukla,
Sanjay Shukla

Counsel for the Opposite Parties:
Ambikesh Kumar Sharma, G.A., Shashi
Kant Shukla

Criminal Law - Indian Penal Code, 1860 -
Sections
420,
406,
504
&
506
-
Cancellation of Bail - Code of Criminal
Procedure, 1973 - Section 82 - Informant
challenged
order
passed
by
learned
Additional District Judge granting bail to
opposite
party
-
Perusal
of
record
indicates opposite party cleverly filed
several legal proceedings with distinct
names
to
evade
his
arrest/presence
before
Police/Court
-
Such
conduct
demonstrates he did not approach Court
with clean hands. (Para 21, 32)

Criminal history and gravity of offence of
opposite party was not considered by
learned Court - Learned Court ignored fact
that opposite party had duped informant
for Rs.31,50,000/-. - Even after receiving
money, he did not execute sale deeds of
flats in favour of informant - He violated
undertaking given by him before Court -
Despite his admission that he received Rs.
4,40,000/- from informant, he never
offered to return money to him - He filed
incorrect affidavit knowing that it was not
a matrimonial dispute - To commit a
fraud,
he
gave
two
cheques
of
Rs.31,50,000/- to informant, dishonoured
due to insufficiency of fund in his account.
(Para 33, 34)

After granting bail, he visited house of
informant, threatened informant and his
father with life and asked them to
withdraw present case and pressurised for
amicable settlement - Captured in CCTV
footage - Misuse of liberty of bail by
opposite party - Impugned order set aside
- Directed to surrender before Court
concerned. (Para 37, 42)

Bail cancellation application allowed. (E13)

List of Cases cited:

1. Satender Kumar Antil Vs Central Bureau of
Investigation & anr., 2022 SCC OnLine SC 825

2. Abdul Basit Vs Abdul Kadir Choudhary, 2015
SCC (Cri) 257

3. Panchanan Mishra Vs Digambar Mishra
passed in Criminal Appeal Nos.107108 of 2005
(Arising out of SLP (Crl.) Nos.33153316/2004)

4. Parul Tyagi Vs Guarav Tyagi, 2023 SCC
OnLine All 2684

5. Smt. Pooja Pal Vs St. of U.P., (Criminal Misc.
Bail Cancellation Application No.38904 of 2016)

6. Himanshu Sharma Vs St. of M.P. passed in
Criminal Appeal No(S). Nil of 2024, arising out
of SLP (Crl.) No (s). 786 of 2024, (Para 12)

7. Abdul Basit Vs Abdul Kadir Choudhary, 2015 1
SCC (Cri) 257, (Para 20 to 23)

(Delivered by Hon'ble Mayank Kumar
Jain, J.)

1. Heard Sri Rajeev Lochan Shukla,
learned Counsel for the applicant/ informant,
Sri Shashikant Shukla, learned Counsel for the
opposite party No.2/accused and learned
A.G.A. for the State.
9 All. Farook Vs. State of U.P. & Anr.
7

2. The applicant Farook has filed the
present Criminal Misc. Bail Cancellation
Application seeking cancellation of bail
granted to opposite party no.2 namely Zakir
Ali @ Hazi Zakir (hereinafter referred to as
the opposite party) vide order dated
21.09.2022 passed by learned Special
Judge, SC/ST Act, Moradabad in Second
Bail Application No.3413 of 2022 arising
out of Case Crime No. 1166 of 2020, under
Sections 420, 406, 504, 506 of IPC relating
to Police Station Civil Line, District
Moradabad.

3. It would be pertinent to summarise
the case of the prosecution, unfolded in the
First Information Report. The applicant
Farook (hereinafter referred to as the
informant) lodged a First Information
Report against the opposite party and one
Vimal with the following avertments that:

3.1 The opposite party entered
into an agreement with the informant for
sale of three flats/houses ad-measuring 5259 square meter situated at Sonakpur,
Tehsil and District Moradabad @ Rs.8
lakhs
per
flat.
Rs.4,40,000/-
were
transferred through RTGS to the bank
account
of
the
opposite
party
on
03.10.2019. Two cheques amounting to
Rs.4,50,000 was given later which were
duly encashed. Cash was also paid to the
opposite party on different dates. In all,
Rs.31,50,000/- was paid by the informant
to the opposite party.

3.2 The informant repeatedly
requested the opposite party to execute a
sale deed. Based on the directions of the
opposite party, he prepared three sale
deeds. The opposite party signed and
affixed his thumb impression only on one
sale deed and said that remaining sale
deeds would be signed at the registry
office. The informant waited at the registry
office but the opposite party did not turn
up.

3.3 Thereafter, the informant
made regular requests with the opposite
party to execute the sale deeds. The
opposite
party
executed
a
document
promising to return the entire amount of
Rs. 31,50,000/- to the informant by
27.03.2020 but he failed to return the
money.

3.4 The opposite party gave two
cheques of Rs.15,00,000/- and 16,50,000/-
respectively. These cheques were presented
before the bank for payment but were
dishonoured due to insufficient funds in the
account of the opposite party. When the
informant informed the opposite party
about this, he promised to execute sale
deed in his favour in the near future.

3.5 Upon inspection of relevant
records in the registry office in relation to
the disputed property, the informant came
to know that the opposite party had already
executed a registered agreement for sale on
07.11.2019 in favour of Amar Pal and Prem
Pal, the real brothers of co-accused, Vimal,
much before the transaction with the
informant. When the informant confronted
the opposite party and asked to return his
money, he hurled abuses and threatened to
life. Kamal Ahmad and Farjand were the
witnesses before whom the money was
paid to the opposite party. The opposite
party and co-accused Vimal duped the
informant
for
a
huge
amount
of
Rs.31,50,000/-.

4. Sri Rajeev Lochan Shukla, learned
Counsel appearing on behalf of the
informant
submitted
that
even
after
receiving
Rs.31,50,000/-
from
the
informant, the opposite party neither
executed a sale deed of the flats nor
returned the money to the informant. The
8 INDIAN LAW REPORTS ALLAHABAD SERIES
opposite party committed fraud and cheated
the informant.

5. He submitted that to evade his
arrest and to avoid his appearance in the
trial and with malafide intentions, the
opposite party filed Criminal Misc. Writ
Petition No. 11964/2020. False information
was given to this Court that parties were at
advanced
stage
of
arriving
at
a
compromise. Based on this information, the
matter was adjourned. Since negotiations
for arriving at compromise never took
place, the said petition was dismissed on
25.11.2020. Thereafter, he filed a Criminal
Misc.
Anticipatory
Bail
Application
No.11760/2021 (Hazi Zakir Vs.State of
U.P.). An undertaking was given on behalf
of the opposite party that he would fulfill
his part of the contract provided the
payment was made. On such undertaking,
the opposite party was granted interim
protection by this Court. Finally, the
anticipatory bail application was dismissed
for want of prosecution. While on one hand
he misled the Court, on the other hand, he
violated the undertaking given before this
Court.

6. He further submitted that the
opposite party then moved a second
anticipatory bail application before the
District Judge, Moradabad which was
rejected vide order dated 28.03.2022. The
opposite
party
preferred
another
Anticipatory
Bail
Application
No.3956/2022 (Hazi Zakir @ Zakir Ali Vs.
State) before this Court. During the
pendency of aforesaid application, he filed
an
Application
u/s
482
Cr.P.C.
No.17053/2022 (Zakir Vs. State of U.P.
and Another) for quashing the proceedings.
This Court disposed off the said application
and granted liberty to the opposite party to
surrender before the trial Court within a
period of two weeks. The trial Court was
directed to decide his bail application in
view of the law laid down in the case of
Satender Kumar Antil vs. Central Bureau
of Investigation and another, 2022 SCC
OnLine SC 825. He misused the liberty
and did not surrender before the trial Court
within the stipulated time.

7.

He
further
contended
that
concealing all the aforesaid chain of
litigation and the orders passed thereof, the
opposite
party
moved
second
bail
application before the District Judge,
Moradabad. The opposite party obtained
bail, concealing the material facts. The
impugned order dated 21.09.2022, granting
bail to the opposite party is challenged in
the
present
application,
seeking
cancellation of bail to the opposite party.

8. It is further submitted that the
learned Sessions Judge did not consider the
criminal history of the opposite party in the
correct
perspective.
Learned
Sessions
Judge erroneously passed the bail order
without considering the material aspect of
the matter. He completely lost sight of the
facts that the opposite party had received
Rs. 31,50,000 from the informant. The
opposite party defrauded the informant and
misrepresented that he had no criminal
history to his credit. He repeatedly made
false promises with the informant that he
would execute the sale deeds in his favour,
with malafide intentions and to not to
return the hard-earned money of the
informant. He intentionally gave two
cheques to him knowing that sufficient
funds were not available in his account to
honour those cheques. The learned Court
did not consider the conduct of the opposite
party
and
ignored
the
documentary
evidence about payment of Rs. 31,50,000
to him. The bail order has been passed in a
9 All. Farook Vs. State of U.P. & Anr.
9
casual manner. The learned Court did not
even consider the factual matrix of the
matter.

9. It is also submitted that the
opposite party was granted bail on
21.09.2022. Thereafter on 13.04.2023, at
around 2.00 PM, he visited the informant
and threatened him and his father to life, if
they did not withdraw the proceedings
instituted by them against him. On
15.04.2023,
he
again
pressurised
to
withdraw the case. These incidents were
captured
in
a
CCTV
footage.
On
19.04.2023 at around 10.00 AM, he
scolded the informant and said that if the
case is not withdrawn, he would kill him.
An FIR came to be registered against him
as Case Crime Number 0387/2023 under
Section 506 IPC at Police Station, Civil
Lines Moradabad. The opposite party is
making every effort to threaten and tamper
the witnesses. Learned Counsel drew the
attention of this Court to a letter sent by the
Court concerned to the S.S.P., Moradabad
to the effect that proper security be
provided to the informant so that he may
depose fearlessly before the trial Court.

10. It is also submitted by learned
counsel for the informant that there is a
history of Case Crime Number 252/2022,
under Section 420, 406, 323, 307, 504, 506,
315 and 354 of IPC, Police Station
Pakbada, District Moradabad. Charge sheet
came to be filed against the opposite party
after the investigation. In the present
proceedings, before this Court, it is pleaded
by the opposite party in his supplementary
counter affidavit, that it is a matrimonial
dispute. Perusal of the first information
report of the said case discloses that one
Mrs. Nazrana Khan is the informant of this
case. The opposite party was chargesheeted
under Section 406 of IPC. The facts of this
case are based on the transaction of money.
Thus, the opposite party filed wrong
affidavit and committed cheating with this
Court also.

11. It is further submitted that the
opposite party has admitted that he
received Rs.4,40,000 from the informant
but he never offered to return that amount
to the informant. He is keeping this amount
with him without any authority. The
opposite party never had any intention to
sell flats to the informant. The opposite
party violated the undertaking given before
this Court and obtained interim protection
on the basis of false statement.

12. Sri Rajeev Lochan Shukla,
learned Counsel made a straightforward
argument that documents are brought on
record to demonstrate the malpractices
adopted by the opposite party to further
deceive the informant by filing different
proceedings before this Court with distinct
names. It is argued that the opposite party
has cleverly filed a Criminal Misc. Writ
Petition No.11964/2020 as "Zakir Ali" as
the petitioner. He filed a Criminal Misc.
Anticipatory
Bail
Application
under
Section 438 Cr.P.C. No.11760/2021 as
applicant as "Hazi Zakir". Thereafter, he
filed Criminal Misc. Anticipatory Bail
Application under Section 438 Cr.P.C.
No.3956/2022 as 'Hazi Zakir @ Zakir Ali'.
Further,
Application
u/s
482
No.17053/2022 was filed as applicant
'Zakir'.
Instituting
these
proceedings
before this Court with distinct names
demonstrates the malafides of the opposite
party and indicates that he wanted to obtain
relief from this Court any how. He did it
deliberately so that the informant would not
know about these proceedings and could
not contest them. It is not controverted by
the opposite party in his pleadings.
10 INDIAN LAW REPORTS ALLAHABAD SERIES

13. To buttress his argument, learned
Counsel Sri learned counsel relied on the
following judgments:

(i) Abdul Basit Vs. Abdul Kadir
Choudhary, 2015 SCC (Cri) 257

(ii)
Panchanan
Mishra
Vs.
Digambar Mishra passed in Criminal
Appeal Nos.107108 of 2005(arising out of
Special
Leave
Petition
(Crl.)
Nos.33153316/2004)

Learned counsel also relied on
the following judgments of this Court:

(i) Parul Tyagi Vs. Guarav
Tyagi, 2023 SCC OnLine All 2684

14. Sri Rajeev Lochan Shukla,
learned counsel referred the judgment of
this Court passed in Smt. Pooja Pal Vs.
State of U.P. in Criminal Misc. Bail
Cancellation Application No.38904 of 2016
and submitted that the opposite party
appears to be manifestation of the age old
quote that 'too err is human to repent is
divine but to persist is devilish.'

15. Sri Shukla concluded his
arguments that the impugned order dated
21.09.2022, granting bail to the opposite
party, is liable to be cancelled because of
his misconduct, and concealment and
misrepresentation of the facts, before
district Courts as well as before this Court.
While enjoying the liberty of bail, he is
threatening and tampering the witnesses.
The opposite party has a criminal history of
11 cases that have not been properly
considered by the learned Court granting
him bail.

16. Sri Shashi Kant Shukla, learned
Counsel
for
the
opposite
party,
vehemently opposed the prayer for
cancellation of bail application. It is
submitted that the informant and the
opposite
parties
are
neighbours.
Therefore, no question arises for the
opposite party to create a dispute with the
informant. Due to 'parti bandi' of the
village and at the instance of the persons
having
vested
interest
against
the
opposite party, false allegations have
been made against him. Since the
informant has already initiated criminal
proceedings against the opposite party,
therefore, he had no occasion to visit the
house of the informant. The opposite
party never threatened the applicant or
his father. The first information report
lodged by the informant under Section
506 IPC is based on concocted facts. It is
also submitted that so far as the criminal
history to the credit of the opposite party
is concerned, most of the cases have been
lodged against him after registering the
present case. The criminal history is
properly explained by the opposite party.
Learned Court while granting bail to the
opposite
party
has
considered
the
criminal history to his credit. So far as
the cases registered under the Negotiable
Instrument Act are concerned, in some
cases, the opposite party has been
acquitted and some cases are still pending
for consideration. The informant has paid
Rs.4,40,000/-as advance to the opposite
party through RTGS but the remaining
amount as per agreement was not paid by
him. The opposite party never denied to
execute sale deeds in his favour.

17. It is submitted that so far as the
receipt of Rs.31,50,000/- is concerned, it
is a forged document prepared by the
informant. Civil proceedings are also
pending before the competent Court
being the matter of civil nature. The
opposite party is cooperating before the
trial Court. He never misused the liberty
of bail.
9 All. Farook Vs. State of U.P. & Anr.
11

18. I have perused the record.

19. The Hon'ble Apex Court in
Himanshu Sharma Vs. State of Madhya
Pradesh passed in Criminal Appeal No(S).
Nil of 2024 arising out of SLP (Crl.) No
(s). 786 of 2024 dealt with powers vested
under Section 439(2) Cr.P.C. to cancel the
bail of an accused. The Hon'ble Court
observed that:

"12. Law is well settled by a
catena of judgments rendered by this Court
that the considerations for grant of bail and
cancellation thereof are entirely different.
Bail granted to an accused can only be
cancelled if the Court is satisfied that after
being released on bail, (a) the accused has
misused the liberty granted to him; (b)
flouted the conditions of bail order; (c )
that the bail was granted in ignorance of
statutory provisions restricting the powers
of the Court to grant bail; (d) or that the
bail was procured by misrepresentation or
fraud."

20. In Abdul Basit Vs. Abdul Kadir
Choudhary, 2015 1 SCC (Cri) 257, the
Hon'ble Apex Court further observed that:

"20. In Gurcharan Singh case
(supra) this Court has succinctly explained
the provision regarding cancellation of bail
under the Code, culled out the differences
from the Code of Criminal Procedure, 1898
(for short, "old Code") and elucidated the
position of law vis-à-vis powers of the
Courts granting and cancelling the bail.
This Court observed as under:

"16. Section 439 of the new Code
confers special powers on High Court or
Court of Session regarding bail. This was
also the position under Section 498,
Cr.P.C. of the old Code. That is to say,
even if a Magistrate refuses to grant bail to
an accused person, the High Court or the
Court of Session may order for grant of
bail in appropriate cases. Similarly under
Section 439(2) of the new Code, the High
Court or the Court of Session may direct
any person who has been released on bail
to be arrested and committed to custody. In
the old Code, Section 498(2) was worded hi
somewhat different language when it said
that a High Court or Court of Session may
cause any person who has been admitted to
bail under Sub-section (1) to be arrested
and may commit him to custody. In other
words, under Section 498(2) of the old
Code, a person who had been admitted to
bail by the High Court could be committed
to custody only by the High Court.
Similarly, if a person was admitted to bail
by a Court of Session, it was only the Court
of Session that could commit him to
custody. This restriction upon the power of
entertainment
of
an
application
for
committing a person, already admitted to
bail, to custody, is lifted in the new Code
under Section 489(2).Under Section 439(2)
of the new Code a High Court may commit
a person released on bail under Chapter
XXXIIL by any Court including the Court
of Session to custody, if it thinks
appropriate to do so, it must, however, be
made clear that a Court of Session cannot
cancel a bail which has already been
granted by the High Court unless new
circumstances arise during the progress of
the trial after an accused, person has been
admitted to bail by the High Court. If,
however, a Court of Session had admitted
an accused person to bail, the State has two
options. It may move the Sessions Judge if
certain new circumstances have arisen
which were not earlier known to the State
and necessarily,' therefore, to that Court.
The State may as well approach the High
Court being the superior Court under
Section 439(2) to commit the accused to
12 INDIAN LAW REPORTS ALLAHABAD SERIES
custody. When, however, the State is
aggrieved by the order of the Sessions
Judge granting bail and there are no new
circumstances that have cropped up except
those already existed, it is futile for the
State to move the Sessions Judge again and
it is competent in law to move the High
Court for cancellation of the bail. This
position follows from the subordinate
position of the Court of Session vis-a-vis
the High Court."

21. In this context, it is profitable
to render reliance upon the decision of this
Court in Puran v. Rambilas and Anr.,
(2001) 6 SCC 318. In the said case, this
Court held that the concept of setting aside
an unjustified, illegal or perverse order is
absolutely different from the cancelling an
order of bail on the ground that the
accused has misconducted himself or
because
of
some
supervening
circumstances
warranting
such
cancellation. In Dr. Narendra K. Amin v.
State of Gujarat and Anr., (2008) 13 SCC
584, the three-Judge Bench of this Court
has reiterated the aforesaid principle and
further drawn the distinction between the
two in respect of relief available in review
or appeal. In this case, the High Court had
cancelled the bail granted to the appellant
in exercise of power under Section 439(2)
of the Code. In appeal, it was contended
before this Court that the High Court had
erred by not appreciating the distinction
between the parameters for grant of bail
and cancellation of bail. The Bench while
affirming the principle laid down in Puran
case (supra) has observed that when
irrelevant materials have been taken into
consideration by the Court granting order
of bail, the same makes the said order
vulnerable and subject to scrutiny by the
appellate Court and that no review would
lie under Section 362 of the Code. In
essence, this Court has opined that if the
order of grant of bail is perverse, the same
can be set at naught only by the superior
Court and has left no room for a review by
the same Court.

22. Reverberating the aforesaid
principle, this Court in the recent decision
in Ranjit Singh v. State of M.P. and Ors.,
2013 (12) SCALE 190 has observed that:

"20....There is also a distinction
between the concept of setting aside an
unjustified, illegal or perverse order and
cancellation of an order of bail on the
ground that the accused has misconducted
himself
or
certain
supervening
circumstances warrant such cancellation. If
the order granting bail is a perverse one or
passed on irrelevant materials, it can be
annulled by the superior Court."

23. Therefore, the concept of
setting aside an unjustified, illegal or
perverse order is different from the concept
of cancellation of a bail on the ground of
accused's misconduct or new adverse facts
having surfaced after the grant of bail
which require such cancellation and a
perusal of the aforesaid decisions would
present before us that an order granting
bail can only be set aside on grounds of
being illegal or contrary to law by the
Court superior to the Court which granted
the bail and not by the same Court."

21. The informant is challenging the
order dated 21.09.2022 passed by the
learned Additional District Judge granting
bail to the opposite party. After being
released on bail the opposite party
threatened the informant and his father to
withdraw present proceedings otherwise
they would be killed by him. Resultantly,
an FIR under Section 506 IPC came to be
registered against the opposite party.
After the investigation, he was chargesheeted.
9 All. Farook Vs. State of U.P. & Anr.
13

22. The opposite party filed
Criminal Miscellaneous Writ Petition No.
11964 of 2020 Zakir Ali vs State of U P
and 2 others. Considering the arguments of
the petitioner Counsel, the following order
was passed on 10.11.2020 ;-

"Learned
Counsel
for
the
petitioner states that parties are at an
advance stage of arriving at a compromise,
and, therefore, the matter be adjourned.

As prayed by him, put up as fresh
on 25.11.2020."

On 25.11.2020, in the aforesaid
writ petition, following order was also
passed:-

"Heard Sri Krishna Dutt Tiwari, learned
Counsel for the petitioner, Shri Pawan
Kumar Shukla & Shri Sanjay Shukla
learned Counsel for the informant and the
learned A.G.A.
This writ petition has been filed, seeking a
writ of mandamus, directing the respondent
concerned, not to arrest the petitioner, with
a further prayer for quashing the impugned
FIR dated 23.08.2020 registered as Case
Crime No.1166 of 2020 under Sections
420, 406, 504 and 506 I.P.C., P.S. Civil
Lines, district Moradabad.
Learned Counsel for the petitioner submits
that FIR has been lodged on false /
vexatious / mischievous allegations, no
offences are made out, FIR be quashed.
Learned AGA has opposed the submission.
The correctness of the allegations would
have to be tested on the basis of the
materials collected during the course of
investigation as by insertion of notification
No.1058/79-V-1-19-1 (Ka)-20-2018 dated
6th June 2019, an alternate remedy is
available to the petitioner to seek for an
anticipatory bail/bail as he may be advised.

The writ petition is dismissed."

23. Perusal of the aforesaid order
discloses that wrong information was given
to this Court that the parties were at an
advanced stage of a compromise. On the
next date of the hearing, the Court was not
informed about the outcome of the alleged
compromise proceedings. It is also to be
noted that on 25. 11. 2020, the opposite
party argued the Writ Petition on its merits.

24. After disposal of the aforesaid
proceedings, the opposite party filed
Criminal
Misc.
Anticipatory
Bail
Application u/s 438 Cr.PC No. 11760 of
2021 Hazi Zakir vs State of U P. The
opposite party gave an undertaking, which
is noted in the order dated 18.06.2021. It
reads thus:-

"Learned
Counsel
for
the
applicant on behalf of the applicant on
taking instructions undertakes that the
applicant shall fulfil his part of the contract
provided the payment is made. Counsel for
the first informant also was present when
the undertaking was given.

Place this case on 6.7.2021 as
fresh. In the meantime, the parties may try
to conclude the matter amicably.

In the meantime, it is provided
that no coercive measures shall be taken
against the applicant in the aforesaid case
provided: (a) the applicant has already not
been arrested; and (b) the applicant
continues
to
cooperate
with
the
Investigating Officer by presenting himself
before him as and when required for the
purpose of investigation."

25. It appears that on the basis of the
undertaking given by the opposite party, an
interim protection was granted to him by
this Court. On the next date of hearing,
none appeared for the opposite party and on
14 INDIAN LAW REPORTS ALLAHABAD SERIES
30.07.2021 & 14.12.2021 following orders
were passed:-

30.07.2021

"Inspite of repeated calls, no one
is present on behalf of the applicant to
extend the argument. Sri Hari Om Sharan
Tiwari, learned Counsel for the informant
is present.

Since no one is present on behalf
of the applicant, therefore, interim order
granted by coordinate Bench of this Court
dated 18.06.2021 comes to an end.

Put up this case on 30th August,
2021 as fresh."

14.12.2021

"1. Case called out in revised list.
No one appears on behalf of applicant to
press this application for anticipatory bail.

2. However, learned A.G.A. for
State and Mr. Hari Om Sharn, learned
Counsel representing first informant are
present.

3. Record shows that applicant
was not present on 03.07.2021 and
24.09.2021 when the matter was taken up.

4. In view of above, present
application
for
anticipatory
bail
is
dismissed for want of prosecution."

26. Thereafter, the opposite party
filed an Anticipatory Bail Application
before learned Session Judge, Moradabad.
It was dismissed on 28.03.2022.

27. Feeling aggrieved by the aforesaid
order, the opposite party filed Criminal
Misc. Anticipatory Bail Application u/s
438 Cr.PC No. 3956 of 2022 before this
Court.

28. During the pendency of the
aforesaid application, the opposite party
filed another application under Section 482
No. 17053 of 2022, Zakir vs State of U P
and another. This application was disposed
off vide order dated 06.07.2022 of this
Court with the following observation:-

"On due consideration to the
submissions of learned Counsel for the
parties', it is provided that in case, the
applicant appears before the trial Court
within a period of two weeks from today
and files bail application, the same shall be
decided expeditiously in view of law laid
down in the case of Satender Kumar Antil
versus Central Bureau of Investigation and
another (supra).

The
application
is
disposed
off
accordingly."

29. Pursuant to the aforesaid order of
this Court, the opposite party did not
surrender before the Court concerned.
Process u/s 82 Cr.PC was issued by the
Court to ensure his appearance. It appears
that the opposite party moved second bail
application before the court concerned after
the expiry of the period of two weeks
granted by this Court. The learned Special
Judge (SC/ST Act), Moradabad, by the
impugned order dated 21.09.2022, allowed
the
application
with
the
following
observation:-

"प्रस्तुत मामलेेे में प्रार्थी/अभियुक्त व अन्य सह
अभियुक्त भवमल के भवरूद्ध प्रर्थम सूचना रिपोर्ट दर्ट किायी गयी र्थी,
भकन्तु दोिाने भववेचना कभर्थत भवमल के भवरूद्ध कोई साक्ष्य न पाते
हुये उसका नाम भववेचना से पृर्थक कि भदया गया है। प्रस्तुत मामले
में आिोप पत्र न्यायालय में प्रस्तुत भकया र्ा चुका है। मामले में अब
कोई भववेचना शेष नहीं है। प्रार्थी/ अभियुक्त के भवरूद्ध धािा 138
एन०आई० एक्र् से सम्बभन्धत नौ प्रकिण तर्था उक्त प्रकिण के
अभतरिक्त एक अन्य आपिाभधक प्रकिण पंर्ीकृत होने का
आपिाभधक इभतहास अभियोर्न की ओि से प्रस्तुत भकया गया है,
भकन्तु अभियोर्न द्वािा भकसी िी मामले में दोषभसद्ध होना नहीं
बताया गया है। मामला मभर्स्रेर् न्यायालय द्वािा भवचािणीय है।
प्रार्थी/ अभियुक्त भदनांक 21-7-2022 से न्याभयक अभििक्षा में
9 All. Farook Vs. State of U.P. & Anr.
15
कािागाि में भनरूद्ध है। अतः अभियुक्त के कािागाि में भनरूद्ध होने
तर्था मामले के समस्त तथ्यों परिभस्र्थभतयों को दृभिगत िखते हुए केस
के गुण-दोष पि कोई भर्प्पणी भकये भबना मेिा िाय में
आवेदक/अभियुक्त को भनम्न शतो के अधीन र्मानत पि छोडे र्ाने
का पयाटप्त आधाि है।"

30. It is pertinent to mention here that
it was averred by the opposite party in his
bail application that he had no criminal
history to his credit. Perusal of the record,
it emerges that the opposite party had
criminal history of as many as 11 cases to
his credit. He misrepresented his criminal
history in his bail application.

31. Another aspect about the conduct
of the opposite party is brought to the
notice of this Court by Sri Rajiv Lochan
Shukla, learned Counsel for the informant
that the opposite party filed a Criminal
Misc. Writ Petition No.11964/2020 as
"Zakir Ali" (as petitioner). He filed a
Criminal
Misc.
Anticipatory
Bail
Application under Section 438 Cr.P.C.
No.11760/2021 as applicant as "Hazi
Zakir", thereafter, he filed Criminal Misc.
Anticipatory
Bail
Application
under
Section 438 Cr.P.C. No.3956/2022 as 'Hazi
Zakir @ Zakir Ali'. another Application u/s
482 No.17053/2022 was filed by him as
'Zakir'.( applicant)

32. Perusal of the relevant record of
aforesaid proceedings indicates that the
opposite party very cleverly filed several
legal proceedings before this Court with
distinct names to mislead not only the
informant but also this Court. It seems that
he did so for two reasons. Firstly, to
anyhow obtain relief from this Court and
secondly, to prevent the informant from
contesting those proceedings. Such conduct
of the opposite party demonstrates that he
did not approach this Court with clean
hands.

33. So far as the impugned order
dated 22.09.2022 is concerned, it reflects
that the criminal history of the opposite
party was not duly considered by the
learned Court. Besides, learned Court did
not express any opinion that it has duly
considered the merits of the case. Learned
Court completely lost sight that the
opposite party had duped the informant for
Rs.31,50,000/-. The opposite party, even
after receiving the aforesaid money, did not
execute the sale deeds of flats in favour of
the informant. The opposite party violated
the undertaking given by him before this
Court. He filed several petitions just to
evade his arrest during the investigation
and the trial. Despite his admission that he
received Rs. 4,40,000/- from the informant,
he never offered to return the said money to
him. He continued to enjoy the fruits of this
money and continues to do so till today.
The intention of the opposite party was
clearly apparent to not return the money to
the informant.

34. Further, the opposite party referred
to the criminal case registered against him as
a matrimonial dispute. Perusal of the record
goes to show that it was an incorrect
pleading. It was a dispute based on a money
transaction. A charge-sheet under Section
406 of IPC came to be filed against him. The
opposite party filed an incorrect affidavit
before this Court knowing that it was not a
matrimonial dispute.

35. In view of the above, the entire
conduct of the opposite party shows about
his modus operandi to dupe innocent
persons and to obtain the favourable orders
from the Court concerned, either by hook
or by crook.

36. On behalf of the informant, a
document executed on a stamp of Rs.100/-
16 INDIAN LAW REPORTS ALLAHABAD SERIES
is brought on record. It is submitted that
this
document
is
the
receipt
of
Rs.31,50,000/- given by the opposite party.
This document bears the signatures of the
informant and the opposite party. The
learned trial Court completely ignored this
document and the fact that in this matter,
the transaction of Rs.31,50,000/- was
involved. It was a specific allegation of the
informant
that
even
after
receiving
Rs.31,50,000/- the opposite party did not
execute sale deed of flats in favour of the
informant. He did not return the money to
the informant. To commit a fraud, he gave
two cheques of Rs.31,50,000/- to the
informant which were dishonoured due to
insufficiency of fund in the account of the
opposite party. This conduct also indicates
the intention of the opposite party that he
never wanted to repay the amount of
Rs.31,50,000/- to the informant.

37. Vide the impugned order, the
opposite party was granted bail on
21.09.2022. An FIR relating to Crime
No.387/2023 is brought on record. Perusal
of this FIR goes to show that on
13.04.2023, at around 2.00 pm,the opposite
party visited the house of the informant. He
threatened the informant and his father with
life and asked them to withdraw the present
case. Further, on 15.04.2023 at around 8.30
hours he pressurised the informant for
amicable settlement. The visit of the opposite
party to the house of informant was captured
in CCTV footage. After the investigation, a
charge sheet came to be filed against the
opposite party. This conduct shows that the
opposite party has misused the liberty of the
bail and he is repeatedly trying to tamper the
witnesses so that they cannot depose before
the Court against him.

38. It is also submitted on behalf of
the informant that the opposite party has
criminal history of 11 cases. Perusal of the
impugned order dated 21.09.2022 goes to
show the Court was informed that there
was no criminal history to the credit of the
opposite party. The learned trial Court
while passing the impugned order, merely
on the basis that although opposite party
has criminal history to his credit but he was
not convicted so far in any case, granted
bail to the opposite party. The learned trial
Court did not even consider the gravity of
the offence.

39. So far as the argument advanced
by the learned Counsel for the opposite
party that opposite party had not misused
the liberty of the bail is concerned, it is
apparent that charge sheet under Section
506 of IPC came to be filed against him.
He extended life threats to the informant
and his father. He mounted pressure upon
them to arrive at an amicable solution in
the matter. In his supplementary counter
affidavit filed before this Court, the
opposite party submitted that the Case
Crime No.252/2022 under Sections 420,
406, 323, 307, 504, 307, 506, 315, 354 of
IPC was a matrimonial dispute. Whereas
perusal of the conclusion arrived by the
Investigating Officer while submitting the
charge sheet, does not seem to be correct.
Therefore, it is apparent that the opposite
party filed the affidavit with wrong facts
before this Court also.

40. In view of above, I am of the
considered view that the opposite party has
misused the liberty of bail. He tampered
with the evidence and harassed the
witnesses by threatening the informant and
his father. The conduct of the opposite
party also shows that he filed several
litigation one after another with distinct
names to evade his arrest/presence before
the Police/Court. Learned trial Court also
9 All. Anil Kumar Vs. State of U.P. & Ors.
17
sent a letter to S.S.P., Moradabad for
providing
adequate
security
to
the
informant so that he can fearlessly attend
the Court to record his statement.

41. The learned trial Court while
passing the impugned order did not
consider the material aspect of the matter
and ignored certain documents as well the
criminal history of the opposite party. The
learned trial Court passed the impugned
bail order taking into consideration the
incorrect facts of the case, therefore, the
bail cancellation application deserves to be
allowed.

42. Having considered the facts and
circumstances of the case, the material
available on record and the observations
made above, the Court is of the opinion that
the impugned bail order dated 21.09.2022
passed by learned Special Judge, SC/ST
Act, Moradabad in the aforesaid case crime
cannot be sustained. Accordingly, the bail
cancellation application is allowed and the
impugned bail order dated 21.09.2022 is
hereby set aside. The bail granted to
opposite party no.2-Zakir Ali @ Hazi Zakir
in aforesaid case crime stands cancelled.

43. The opposite party Zakir Ali @
Hazi Zakir is hereby directed to surrender
within 10 days before the Court concerned.

44. Any observation made above shall
not be treated as any finding on the merit
and shall not prejudice the trial.

45. Registrar (Compliance) is also
directed to communicate this order to the
Chief Judicial Magistrate, Moradabad for
necessary compliance forthwith.
----------
(2024) 9 ILRA 17
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.09.2024

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Criminal Misc. IInd Bail Application No. 1174 of
2024

Anil Kumar ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Ravikant Shukla, Sri Santosh Kumar
Pandey, Sri Yadavendra Dwivedi

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Criminal Procedure
Code,1973-Section
439-Indian
Penal
Code,1860-Sections 376,506 & 452 -
Sections 3/4 of the POCSO Act-PW-1 and
PW-2 did not support the prosecution in
court,
reducing
the
likelihood
of
conviction-the prosecution pointed out
that the victim initially testified against
the applicant, but during a delayed crossexamination(conducted after two months
nine
days),
she
resiled
from
her
statement-Held, the evidence of hostile
witnesses
should
not
be
entirely
disregarded
if
found
credible
upon
scrutiny-cited concern over delays in
cross-examinations,
which
could
undermine fair trial principles by enabling
undue influence on witnesses-The court
directed the trial court to expedite the
case proceedings.(Para 1 to 12)

The application is rejected. (E-6)

List of Cases cited:
1.
C.
Muniappan
&
ors.
.Vs
St.
of
T.N.(2010)INSC 553
2. Vinod Kumar Vs St. of Punj.(2014) INSC 670