Allahabad High Court
Aley Hasan Khan vs State Of U.P. on 31 August, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:141130 Reserved on: 06.08.2024 Delivered on: 31.08.2024 Court No. - 77 Case :- CRIMINAL APPEAL No. - 4766 of 2024 Appellant :- Aley Hasan Khan Respondent :- State of U.P. Counsel for Appellant :- Manu Srivastava,Sr. Advocate Counsel for Respondent :- G.A. Connected with Case :- CRIMINAL APPEAL No. - 3587 of 2024 Appellant :- Barquat Ali Thekedar @ Faqir Mohd Respondent :- State of U.P. Counsel for Appellant :- Brijesh Kumar Pandey Counsel for Respondent :- G.A. Connected with Case :- CRIMINAL APPEAL No. - 5070 of 2024 Appellant :- Mohammad Azam Khan Respondent :- State of U.P. Counsel for Appellant :- Imran Ullah,Mohammad Khalid Counsel for Respondent :- G.A. Connected with Case :- CRIMINAL APPEAL No. - 5094 of 2024 Appellant :- Azhar Khan Respondent :- State of U.P. Counsel for Appellant :- Tawvab Ahmed Khan Counsel for Respondent :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Manish Tiwary, the learned Senior Counsel assisted by Mr. Manu Srivastava, Mr. Wasim Khan and Mr. Zubair Ahmed, the learned counsel for applicant-appellant-Aley Hasan Khan, Mr. Imranullah, the learned counsel for applicant-appellant-Mohammad Azam Khan, Mr. T.A. Khan, the learned counsel for applicant-appellant-Azhar Khan, Mr. Brijesh Kumar Pandey, the learned counsel for applicant appellant-Barquat Ali Thekedar @ Faqir Mohd, and Mr. P.C. Srivastava, the learned Additional Advocate General assisted by Mr. J.K. Upadhyay, the learned A.G.A.-Ist, Mr. A.K. Sand, the learned Government Advocate along with Mr. Prashant Kumar, the learned A.G.A. for State-opposite party-1.
2. Counter affidavits filed by the learned A.G.A.-I to the applications for suspension of sentence in all the appeals on 6.8.2024 in Court were taken on record.
3. Rejoinder affidavit filed by Mr. Imranullah, the learned counsel for applicant-appellant in Criminal Appeal No. 5070 of 2024 (Mohammad Azam Khan Vs. State of U.P. through Secretary Home U.P. Shashan, Lucknow) in Court on 06.08.2024, was also taken on record.
4. Perused the record.
5. Aforementioned criminal appeals have been filed challenging the judgment and order dated 18.03.2024 passed by Dr. Vijay Kumar, Additional Sessions Judge/Special Judge (MP/MLA), Rampur in Sessions Trial No. 26 of 2021 (State of U.P. Vs. Mohd. Azam Khan and Others) as well as Sessions Trial No. 26-A of 2021 (State of U.P. Vs. Azhar Khan), whereby charge sheeted accused Zibran Ansari, Farman Ansar and Omendra Singh Chauhan have been acquitted of the charges alleged against them, whereas the other charge sheeted accused Mohd. Azam Khan, Barquat Ali Thekedar @ Faqir Mohd. Aley Hasan Khan and Azhar Khan have been convicted and consequently, sentenced under different Sections.
6. By means of above-mentioned impugned judgment and order, applicant-appellant-Aley Hasan Khan has been convicted, under Section 427 read with Section 34 IPC and consequently sentenced to one year simple imprisonment along with fine of Rs. 50,000/- and in case of default in payment of fine, applicant-appellant is to undergo one month additional simple imprisonment, under Section 452 IPC read with Section 34 IPC and consequently sentenced to 5 years rigorous imprisonment along with fine of Rs. 2,00,000/- and in case of default in payment of fine, applicant-appellant is to undergo three months additional simple imprisonment, under Section 504 IPC read with Section 34 IPC and consequently sentenced to one year simple imprisonment along with fine of Rs. 50,000/- and in case of default in payment of fine, applicant-appellant is to undergo one month additional simple imprisonment and under Section 506 IPC read with Section 34 IPC and consequently sentenced to one year simple imprisonment along with fine of Rs. 50,000/- and in case of default in payment of fine, applicant-appellant is to undergo one month additional simple imprisonment.
7. Applicant-appellant-Barquat Ali Thekedar @ Faqir Mohd has been convicted under Section 427 read with Section 34 IPC and consequently sentenced to one year simple imprisonment along with fine of Rs. 50,000/- and in case of default in payment of fine, applicant-appellant is to undergo one month additional simple imprisonment, under Section 452 IPC read with Section 34 IPC and consequently sentenced to 5 years rigorous imprisonment along with fine of Rs. 2,00,000/- and in case of default in payment of fine, applicant-appellant is to undergo three months additional simple imprisonment, under Section 504 IPC read with Section 34 IPC and consequently sentenced to one year simple imprisonment along with fine of Rs. 50,000/- and in case of default in payment of fine, applicant-appellant is to undergo one month additional simple imprisonment and under Section 506 IPC read with Section 34 IPC and consequently sentenced to one year simple imprisonment along with fine of Rs. 50,000/- and in case of default in payment of fine, applicant-appellant is to undergo one month additional simple imprisonment.
8. Applicant-appellant-Mohammad Azam Khan has been convicted under 427 read with Section 120-B IPC and consequently sentenced to 2 years simple imprisonment along with fine of Rs. 1,00,000/- and in case of default in payment of fine, applicant-appellant is to undergo three months additional simple imprisonment, under Section 452 IPC read with Section 120-B IPC and consequently sentenced to 7 years rigorous imprisonment along with fine of Rs. 5,00,000/- and in case of default in payment of fine, applicant-appellant is to undergo six months additional simple imprisonment, under Section 504 IPC read with Section 120-B IPC and consequently sentenced to two years simple imprisonment along with fine of Rs. 1,00,000/- and in case of default in payment of fine, applicant-appellant is to undergo three months additional simple imprisonment and under Section 506 IPC read with Section 120-B IPC and consequently sentenced to two years simple imprisonment along with fine of Rs. 1,00,000/- and in case of default in payment of fine, applicant-appellant is to undergo three months additional simple imprisonment.
9. Applicant-appellant-Azhar Khan has been convicted under Section 427 read with Section 34 IPC and consequently sentenced to one year simple imprisonment along with fine of Rs. 50,000/- and in case of default in payment of fine, applicant-appellant is to undergo one month additional simple imprisonment, under Section 452 IPC read with Section 34 IPC and consequently sentenced to 5 years rigorous imprisonment along with fine of Rs. 2,00,000/- and in case of default in payment of fine, applicant-appellant is to undergo three months additional simple imprisonment, under Section 504 IPC read with Section 34 IPC and consequently sentenced to one year simple imprisonment along with fine of Rs. 50,000/- and in case of default in payment of fine, applicant-appellant is to undergo one month additional simple imprisonment and under Section 506 read with Section 34 IPC and consequently sentenced to one year simple imprisonment along with fine of Rs. 50,000/- and in case of default in payment of fine, applicant-appellant is to undergo one month additional simple imprisonment. The impugned judgment and order further records that all the sentences are to run concurrently.
10. Subsequent to aforementioned judgment and order dated 18.03.2024, applicants-appellants were taken into custody. They, accordingly, filed aforementioned application under Section 389(1) Cr.P.C. seeking suspension of sentence/enlargement on bail during the pendency of aforementioned criminal appeals.
11. Record shows that in respect of an incident, which is alleged to have occurred on 03.02.2019, a delayed FIR dated 25.07.2019 was lodged by first informant Ahtesham Khan and was registered as Case Crime No. 0508 of 2019, under Sections 447, 504, 506, 392, 427 and 452 IPC, Police Station-Ganj, District-Rampur. In the aforesaid FIR, three persons namely (1) Azhar Khan (Ex-Chairman, Nagar Palika, (2) Aley Hasan (Ex-CO City) and (3) Barquat Ali Thekedar have been nominated as named accused, whereas 20 to 25 police personnel have also been arraigned as accused.
12. The gravamen of the allegations made in the FIR is to the effect that first informant- Aehtesham is running a coaching centre in the name and style of Janta Coaching. In the year 2011-12, the first informant had purchased 370 yards of land in Doongarpur, Police Station-Ganj for opening a school. Subsequently, the first informant had constructed a small house on the land so purchased by him. The F.I.R. further records that the first informant along with his family was residing in the same. While the first informant was preparing to construct a school, on 3.2.2016 at arround 8:00 pm, Azhar Khan the Ex-Chairman of Nagar Palika Rampur, Aley Hasan the then C.O. City, Rampur, Bakqat Ali, Contractor along with 20-25 unknown Police personnel came to Doongarpur township, they, thereafter, forcibly entered the house of first informant and hurled abusive language and further exhorted to put him to death. Thereafter, the first informant and his family members were ousted from the house. The valuable goods were broken and ultimately the house of first informant was itself demolished by a bulldozer. They also took away Rs. 25,000/- cash kept in the house and the mobile of Intex Company belonging to the first informant.
13. After aforementioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. On the basis of material collected by Investigating Officer, during course of investigation, he came to the conclusion that complicity of named accused as well as other not named accused is also established in the crime in question. Consequently, Investigating Officer submitted the police report (Ext. Ka-5), whereby accused-applicant-appellant Mohd. Azam Khan was charge sheeted under Sections 447, 504, 506, 427, 452, 395 and 120-B IPC.
14. Subsequently, supplementary police report (Ext. Ka-7) was submitted, whereby named accused-applicants-appellants-Azhar Khan, Barquat Ali @ Faqir Mohammad and Aley Hasan as well as not named accused Omendra Singh Chauhan, Zibran Nasir and Farman Nasir were charge sheeted under Sections 447, 504, 506, 427, 452, 395 and 412 IPC respectively supplementary police report dated 16.10.2021 was submitted, whereby named accused Azhar Khan was also charge sheeted.
15. After the first police report, referred to above, was submitted, cognizance was taken upon same by concerned Magistrate, in exercise of jurisdiction under Section 190(1)(b) Cr.P.C. However, as offence complained of is triable exclusively by Court of Sessions, therefore, concerned Magistrate, in compliance of Section 209 Cr.P.C. committed the case to the Court of Sessions. Resultantly, Sessions Trial No. 26 of 2021 (State of U.P. Vs. Mohd. Azam Khan and Others) came to be registered.
16. Subsequently, after the supplementary police report was submitted, the procedure as detailed above, was followed and the trial of the charge sheeted accused against whom, supplementary charge sheet was submitted came to be registered as Sessions Trial No. 26-A of 2021 (State of U.P. Vs. Azhar Khan).
17. The concerned Sessions Judge, vide order dated 12.07.2022, consolidated both the Sessions Trial. Thereafter, in compliance of Section 211 Cr.P.C., he framed seperate and distinct charges against charge sheeted accused, who denied the same and demanded trial. The details of the charges framed against charge sheeted accused are as under;-
(i). Charges were framed against Azhar Khan on 11.07.2022, under Sections 447/34, 452/34, 504/34, 506/34, 395/34, 427/34 and 120-B IPC.
(ii). Charges were framed against Mohd. Azam Khan, Faqir Mohd @ Barquat Ali, Zibran Nasir, Farman Nasir and Omendra Singh Chauhan, under Sections 447/34, 452/34, 427/34, 504/34, 506/34, 395/34 and 120-B IPC. An additional charge under Section 412 IPC was framed against accused Faqir Mohammad @ Barquat Ali on 22.07.2022.
(iii). Charges were framed against Aley Hasan Khan on 25.07.2022, under Sections 447/34, 452/34, 427/34, 504/34, 506/34, 395/34 and 120-B IPC.
18. Prosecution in discharge of it’s burden to bring home the charges so framed against charge sheeted accused, relied upon the following documentary evidence:-
“Documentary Evidence of prosecution-
7. The following documents were presented in the form of documentary evidence on behalf of the prosecution:-
Sr.No.
Ext. No.
Ext. Name
Proved By
1
Ext. Ka-1
Typed Report/Tahrir
Complainant Aehetesham Khan (P.W.-1)
2
Ext. Ka-2
FIR
H.C. Parmendra Singh (P.W.-4)
3
Ext. Ka-3
G.D.
H.C. Parmendra Singh (P.W.-4)
4
Ext. Ka-4
Site Plan
S.I. Srikant Satyarthi/IO (P.W.-5)
5
Ext. Ka-5
Charge Sheet 76/21
Inspector Veerpal Singh/IO (P.W.-7)
6
Ext. Ka-6
Copy of Recovery Memo
Ram Kishore Gautam/IO P.W.-6
7
Ext. Ka-7
Charge sheet 76-A/21
Inspector Dharmendar Singh Solanki/IO P.W.-9
19. Apart from above, the prosecution also adduced oral evidence by producing the following witnesses:-
“Ocular Evidence of Prosecution –
8. To prove its version, the prosecution has examined the following witnesses in the form of oral evidence:-
Sr.No.
Name of Prosecution Witness
Examined as
1
Aehtesham (P.W.1)
Complainant
2
Mohd. Aslam (P.W.2)
Fact witness
3
Shaqeel Ahamad (P.W.3)
Fact witness
4
Parvendar Singh (P.W.4)
Formal witness
5
S.I. Shrikant Satyarathi (P.W.5)
Formal witness
6
S.I. Ram Kishore Gautam (P.W.6)
Formal witness
7
Inspector Veerpal Singh (P.W.7)
Formal witness
8
Inspector Sharad Pawar (P.W.8)
Formal witness
9
Inspector Dharmendar Singh Solanki (P.W.9)
Formal witness
10
Inspector Arvind Kumar Tyagi (P.W. 10)
Formal witness
11
Inspector Ramveer Singh (P.W. 11)
Formal witness
20. The defence in proof of it’s innocence adduced the following documents:-
Sr. No.
Documents
Case Crime No. & P.S.
1.
Certified photo copy of statement of P.W.3 Veerpal Singh
533/19 Ganj
2.
Certified photo copy of statement of P.W.8 Ramveer Singh
576/19 Ganj
3.
Certified photo copy of statement of P.W.8 R.V. Singh
513/19 Ganj
4.
Certified photo copy of statement of P.W.4 Ahetesham
538/19 Ganj
5.
Certified photo copy of statement of P.W.2 Ahetesham
513/19 Ganj
6.
Certified photo copy of statement of P.W.2 Ahetesham
507/19 Ganj
7.
Certified photo copy of statement of P.W.7 Mohd. Aslam
509/19 Ganj
8.
Certified photo copy of statement of P.W.4 Mohd. Aslam
536/19 Ganj
9.
Certified photo copy of statement of P.W.4 Mohd. Aslam
533/19 Ganj
10.
Certified photo copy of statement of P.W.5 Mohd. Aslam
507/19 Ganj
11.
Certified photo copy of statement of P.W.7 Mohd. Aslam
509/19 Ganj
12.
Certified photo copy of statement of P.W.7 R.K. Gautam
556/19 Ganj
21. It is apposite to mention here that no witness was adduced on behalf of defence.
22. The Trial Court upon appraisal and appreciation of the evidence on record, returned the following findings on each of the points that emerged for adjudication during course of trial:-
(a). Delayed FIR;- The Court below after evaluation and examination of the evidence on record qua the aforesaid issue returned a categorical finding that there is a delay of more than 3 years in lodging the FIR. However, the delay in lodging the FIR is well explained. The Court below referred to the judgment of Apex Court in Sekaran Vs. State of Tamilnadu, AIR 2024 SC 397 and considering the principles laid down therein, held that since the delay in lodging the FIR has been sufficiently explained, therefore, no good ground exists to terminate the prosecution of the accused on aforesaid ground.
(b). Testimonies of the Prosecution Witnesses;- While on behalf of the prosecution, it was urged that the prosecution witnesses have fully supported the prosecution story in their depositions before Court below. PW-1 Aehtesham i.e. first informant and PW-2 Mohd. Aslam along with PW-3 Shakeel Ahmad, who are witnesses of fact, have fully supported the prosecution story as set out in the FIR. On behalf of the defence i.e. accused, it was pleaded that since there are major contradictions in the statements of aforementioned witnesses, therefore, their testimonies are not worthy of credit and hence no reliance can be placed upon the same so as to infer the guilt of accused-appellants. Court below, ultimately, on the basis of evaluation of the statement-in-chief and examination-in-chief of aforesaid witnesses in the light of other evidence on record, returned a clear and categorical finding that PW-2 Mohd. Aslam and PW-3 Shakeel Ahmad in their depositions have fully supported the date, time, place and the manner of incident, which makes their testimonies reliable.
(c). Existence of the House;- On behalf of defence, it was strenuously urged that there did not exist any house of the first informant Aehtesham at Dungarpur. The said defence was strongly contradicted by the prosecution with reference to the material on record. Court below referred to the defence documentary evidence on record i.e. paper no. 51, 52. Upon evaluation of aforementioned evidence, which is the copy of the earlier FIR i.e. Case Crime No. 0082 of 2016, wherein the first informant of the present case crime number has been shown as accused no.-1 and his address has been mentioned as Dungarpur, Ganj, Rampur, U.P. The place of incident in both the FIRs is same. Court below thus concluded that at the time of occurrence, the first informant Aehtesham was residing in his house at Dungarpur.
(d). Conspiracy;- In order to find out whether conspiracy as alleged by the prosecution against the charge sheeted accused is established from the material on record as well as evidence that has emerged during course of trial, court below referred to the oral evidence on record and more particularly to the depositions of PW-1, PW-5 and PW-8. On the basis of above, Court below came to the conclusion that no incident relating to assault/abuse has taken place at Janta Darbar by charge sheeted accused Zibran, Farman and Omendra Singh Chauhan. Moreover, there is no evidence on record relating to assault/abuse/threats against these three accused. Furthermore, their presence could not be established by the prosecution. No prosecution witness has even uttered a single sentence in his testimony regarding aforementioned accused, on the basis of which, an inference could be drawn regarding the presence of aforementioned accused at the place of incident i.e. Dungarpur. As such, the charge of conspiracy does not stand established against charge sheeted accused Zibran, Farman and Omendra Singh Chauhan.
(e). Punishment of criminal conspiracy;- The Court upon evaluation of the material on record has returned a clear and cogent finding that accused Mohd. Azam Khan is the conspirator of the incident alleged by the prosecution.
(f). Defective Investigation;- In respect of above, the Court below analyzed the evidence on record and considered the same in the light of judgment of Supreme Court in Leela Ram (D) Through Dulichand VS. State of Haryana and Others. After having undertaken a detailed exercise in the light of above, Court below concluded that the irregularity in investigation, if any, is not fatal to the case of the prosecution.
(g). Compliance of Section 197 Cr.P.C.;- Court below examined the implication of Section 197 Cr.P.C. qua named and charge sheeted accused Aley Hasan, who was C.O. (City), Rampur at the relevant point of time. Considering the material on record and the judgment of Supreme Court in Rajib Ranjan Vs. R. Vijay Kumar, (2015) 1 SCC 513, the Court below came to the conclusion that since act of accused-applicant-appellant-Aley Hasan does not come under the purview of discharging his official duties as he was not empowered/authorized to remove possession of the first informant from his house and demolish it. Furthermore, no document has been filed by the defence to show that there was any judgment and order of any Court by which, possession of the first informant was declared illegal.
(h). Robbery/Dacoity;- On behalf of defence, it was urged before Court below that no offence of robbery/dacoity is made out against charge sheeted accused as per the material on record. The Court below in order to answer the said defence raised on behalf of charge sheeted accused analysed the deposition of PW-1 first informant Aehtesham and also the written report (Tahrir) (Exhibit-Ka-1). Upon evaluation of the aforesaid, Court below returned a clear and categorical finding that the first informant in his written report (Tahrir), has not given any description about the currency notes, serial number, name of the Sim company and IMEI number. There is no description regarding the role of specific accused regarding loot of money/mobile nor the place, where the said loot was committed, has been disclosed. After the occurrence, which of the accused took possession of the looted articles, has also not been mentioned. Court below then referred to the judgment of Supreme Court in State of Karnataka Vs. Subarnma (2015) 1 SCC 323 and considering the facts of present case in the light of the observations made in above mentioned judgement, concluded that the charge of robbery/dacoity against charge sheeted accused is not established. It thus exonerated the charge sheeted accused qua the said charge but also observed that simply on the ground that part of the prosecution story/part of the statements of the witnesses is false will not lead to the conclusion that the entire prosecution case or the entire prosecution evidence is false.
(i). Recovery;- On behalf of the prosecution, it was alleged that cash and jewellery was recovered from accused Barquat Ali. However, the prosecution failed to connect the said recovery with the crime in question nor could it prove the recovery so made from aforesaid accused. Court below upon evaluation of the submissions raised on behalf of the prosecution as well as the defence as well as the evidence on record concluded that in view of the inherent defects, it cannot be said that the recovery made from accused Barquat Ali stands proved. As such, no benefit can be derived by the prosecution from the same.
(j). Motive;- On behalf of defence, it was strenuously pleaded before Court below that no motive can be assigned to some of the accused for committing the crime in question. The prosecution, on the other hand, strongly urged that motive behind the occurrence is clearly apparent and attributable to some of the accused. Court blow upon appraisal and appreciation of material on record, came to the conclusion that the ultimate motive of some of the accused was to establish ASARA AWAS COLONY at Dungarpur after demolishing the house of first informant Aehtesham. Accused Mohd. Azam Khan at that point of time was Urban Development Minister in Government of U.P., Barquat Ali was the contractor for constructing ASARA AWAS COLONY, Azhar Khan was the chairman of the Nagar Palika, Rampur and accused Aley Hasan was the CO (City), Rampur at the relevant time. There was a strong motive with the accused i.e. to remove every hurdle, which came in the construction of ASARA AWAS COLONY and this was actually done by demolishing the house of first informant with the use of bulldozer. As such, clear motive can be attributed to some of the accused for committing the crime in question.
(k). Finding in respect of the offence under Sections 447/34 IPC i.e. Criminal Trespass with common object and Sections 395/34 i.e. dacoity with common object;- The Court below, on the basis of the findings aforementioned, came to the conclusion that no offence under Sections 447/34 and 395/34 IPC is made out against accused Mohd. Azam Khan, Azhar Khan, Aley Hasan, Faqir Mohammad @ Barquat Ali, Zibran Nasir, Farman Nasir and Omendra Singh Chauhan. It, accordingly, acquitted the above mentioned accused of the aforesaid charges.
(l). Charge under Section 412 IPC against accused Barquat Ali @ Faqir Mohammad Thekedar;- In view of the findings as noted above, the Court below acquitted accused Barquat Ali @ Faqir Mohammad Thekedar of the charge under Section 412 IPC.
(m). Finding regarding the guilt of accused Zibran Nasir, Farman Nasir and Omendra Singh Chauhan;- Court below, on the basis of material on record including oral and documentary evidence, came to the conclusion that prosecution has failed to establish it’s case beyond reasonable doubt against aforementioned accused. Consequently, aforementioned accused were acquitted of all the charges levelled against them.
23. On the basis of aforesaid findings, Court below has convicted accused Aley Hasan, Barquat Ali and Azhar Khan under Sections 427/34, 452/34, 504/34 and 506/34 IPC, whereas accused Mohd. Azam Khan has been convicted under Sections 427, 452, 504, 506 IPC read with Section 120-B IPC.
24. Mr. Manish Tiwary, the learned Senior Counsel assisted by Mr. Manu Srivastava, Mr. Wasim Khan and Mr. Zubair Ahmed, the learned counsel for appellant-Aley Hasan Khan, Mr. Imranullah, the learned counsel for appellant-Mohammad Azam Khan, Mr. T.A. Khan, the learned counsel for appellant-Azhar Khan and Mr. Brijesh Kumar Pandey, the learned counsel for appellant-Barquat Ali Thekedar @ Faqir Mohd. submit that though applicants-appellants are convicted accused yet they are liable to be enlarged on bail. The maximum sentence awarded to acccused-applicants-appellants-Aley Hasan Khan, Barquat Ali Thekedar and Azhar Khan is 5 years, whereas in the case of accused-applicant-appellant-Mohd. Azam Khan, it is 7 years. Since the sentences awarded to accused-applicants-appellants is not above 7 years, therefore, they are liable to be enlarged on bail.
25. It is next contended that accused-applicants-appellants-Aley Hasan Khan, Barquat Ali Thekedar @ Faqir Mohammad and Mohd. Azam Khan were on bail during the pendency of trial. There is no likelihood of the appeal being heard in near future on account of heavy pendency of criminal appeals before this Court. As such, applicants-appellants- Aley Hasan Khan, Barquat Ali Thekedar @ Faqir Mohammad and Mohd. Azam Khan are liable to be enlarged on bail.
26. It is then contended that accused-applicant-appellant-Azhar Khan is in jail since 16.03.2022, in an another case. Applicant was enlarged on bail in concerned case crime number, vide order dated 5.7.2022, passed by this Court in Criminal Misc. Bail Application No. 20279 of 2022 (Azhar Khan Vs. State of U.P.). However, it is urged by Mr. T.A. Khan, the learned counsel for applicant-appellant-Azhar Khan that there is no likelihood of the present appeal being heard in near future on account of heavy pendency of criminal appeals before this Court. As such, applicant-appellant-Azhar Khan is also liable to be enlarged on bail.
27. It is jointly contended by the learned counsel for parties that applicants-appellants have not been convicted for a heinous offence. The nature and gravity of offence is an important factor, which needs to be taken note of, while considering the bail application of a convicted accused. On the above premise, they submit that in view of the nature and gravity of offence as well as the period of sentence awarded by Court below the applicants-appellants are liable to be enlarged on bail.
28. Mr. Manish Tiwari, the learned Senior Counsel for applicant-appellant Aley Hasan Khan and Mr. Imranullah, the learned counsel for applicant-appellant Mohd. Azam Khan have submitted that all the applicants-appellants have been acquitted of the charge under Section 447 IPC i.e. criminal trespass but they have been convicted for an offence under Section 452 IPC i.e. house trespass. With reference to the provisions contained in Sections 441, 442, 447 and 452 IPC, they submit that the conviction of the applicants-appellants under section 452 IPC is manifestly illegal.
29. Elaborating the above submission urged by them, reference was made to the provisions contained in Sections 441, 442, 447 and 452 IPC, which are, accordingly, reproduced herein below:-
“Section 441 Criminal Trespass- Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property,
or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence,
is said to commit “criminal trespass”.
STATE AMENDMENT
Amendment of section 441.–In the Indian Penal Code, 1860 (45 of 1860), for section 441, the following section shall be substituted, namely:–
“441. Criminal trespass.-Whoever enters into or upon property in possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property
Or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person or with intent to commit an offence.
Or having lawfully entered into or upon such property, remains there with the intention of taking unauthorized possession or making unauthorized use of such property and fails to withdraw from such property or its possession or use, when called upon to do so by that another person by notice in writing, duly served on him,by the date specified in the notice.
Is said to commit criminal trespass.”
Section-442- House Trespass:- Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit “house-trespass”.
Explanation- The introduction of any part of the criminal trespasser’s body is entering sufficient to constitute house-trespass.
Section-447 IPC:- Punishment for criminal trespass.- Whoever commits criminal trespass shall be punished with imprisonment of either description for a term which may extend to three months, with fine or which may extend to five hundred rupees, or with both.
CLASSIFICATION OF OFFENCE
Punishment–Imprisonment for 3 months, or fine of 500 rupees, or both–Cognizable–Bailable–Triable by any Magistrate–Compoundable by the person in possession of the property trespassed upon.
Section 452 IPC- House-trespass afteer preparation for hurt, assault or wrongful restraint.- Whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting and person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
CLASSIFICATION OF OFFENCE
Punishment – Imprisonment for 7 years and finie – Cognizance – Non-bailable – Triable by any Magistrate – Non-compoundable.”
30. On a conjoint reading of the above quoted provisions, it was urged that Section 441 IPC defines criminal trespass and 447 IPC provides for punishment for criminal trespass. Whereas Section 442 IPC defines house trespass and Section 452 IPC provides for punishment for house trespass. With reference to above, they submit that for an offence under section 452 IPC, the existence of house trespass is a sine-qua-non. The term house trespass occurring in section 452 IPC is to be understood with reference to section 442 IPC, which defines house trespass. Section 442 IPC begins with the words- “whoever commits criminal trespass”, therefore, on the derivative analogy, they contend that only when criminal trespass has been committed, there shall be commission of an offence of house trespass. They, therefore, submit that since the applicants-appellants have already been acquitted of an offence under sections 447 IPC, therefore, no conviction under section 452 IPC could have been awarded against applicants-appellants by Court below. As such, the impugned judgment and order passed by Court below is liable to be set aside by this Court.
31. On the above conspectus, the learned counsel for applicants-appellants contend that since prima facie the appeal is liable to be allowed, therefore, the applicants-appellants are liable to be admitted to bail.
32. Per contra, Mr. P.C. Srivastava, the learned Additional Advocate General, assisted by Mr. A.K. Sand, the learned Governement Advocate, along with Mr. J.K. Upadhyay, the learned A.G.A. -I and Mr. Prashant Kumar the learned A.G.A. submits that the judgement and order passed by Court below is pefectly just and legal. In the case in hand, the applicants-appellants are guilty of demolishing the house of the first informant. A clear and cogent finding regarding above has been returned by Court below. Upto this stage, neither any submission has been urged to dislodge the said finding as being illegal, perverse or erroneous nor reference has been made to any such material on record/oral evidence on record to even prima facie indicate that no demolition of the house of first informant at the behest of the accused-applicants-appellants took place. Therefore, simply on the basis of an artificial dichotomy drawn by the learned counsel for applicants-appellants, as noted herein above, no case for grant of bail is made out.
33. Having heard the learned Senior Counsel/counsel for applicants-appellants, the learned Additional Advocate General for State/opposite party and upon perusal of record, this Court finds that the principal issue involved in these appeals is as to whether the impugned judgement and order, whereby applicants-appellants have also been convicted under sections 452/34 IPC can be sustained, when admittedly the applicants-appellants have already been acquitted of the charge under section 447/34 IPC. In short, the guilt of the applicants-appellants shall fall within the definition of house trespass or criminal trespass.
34. Before proceeding to evaluate the rival submissions urged by learned counsel for the parties, it would be apt to refer to the observations made by the Apex Court in paragraph 33 of the judgement in Omprakash Sahni Vs. Jai Shankar Chaudhary and Another, (2023) 6 SCC 123. For ready reference, paragraph 33 of the report is reproduced herein below:
“33. Bearing in mind the aforesaid principles of law, the endeavour on the part of the court, therefore, should be to see as to whether the case presented by the prosecution and accepted by the trial court can be said to be a case in which, ultimately the convict stands for fair chances of acquittal. If the answer to the abovesaid question is to be in the affirmative, as a necessary corollary, we shall have to say that, if ultimately the convict appears to be entitled to have an acquittal at the hands of this Court, he should not be kept behind the bars for a pretty long time till the conclusion of the appeal, which usually takes very long for decision and disposal. However, while undertaking the exercise to ascertain whether the convict has fair chances of acquittal, what is to be looked into is something palpable. To put it in other words, something which is very apparent or gross on the face of the record, on the basis of which, the court can arrive at a prima facie satisfaction that the conviction may not be sustainable. The appellate court should not reappreciate the evidence at the stage of Section 389 CrPC and try to pick up a few lacunae or loopholes here or there in the case of the prosecution. Such would not be a correct approach.”
35. This Court is not hearing the appeal by which substantive sentence has been awarded to applicants-appellants. The Court is only dealing with the application for suspension of sentence/bail during the pendency of appeal.
36. The principal question that has emerged for adjudication in these appeals cannot be answered one way or the other at the interim stage. Apart from above, any finding returned by this Court on the principal question that has emerged in these appeals and as noted above shall pre-empt the adjudication of the appeal itself. This Court is not unmindful of the dictates of prudence that at the interim stage, the Court should be cautious and should not return a finding which will have ultimate bearing on the decision of the appeal.
37. In view of the conundrum with which the court is faced, the inexcapable conclusion is that no definite finding can be returned by this Court at this stage to the effect that prima faice the appeals are liable to be allowed.
38. As a result, the applications for suspension of sentence/bail fail and are liable to be rejected.
39. They are, accordingly, rejected.
Order Date :- 31.08.2024
Vinay