Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
I.A. NO.71580 OF 2022
IN/AND
M.A. NO.766 OF 2022
IN
WRIT PETITION (CRIMINAL) NO.39 OF 2022
MOHAMMAD AZAM KHAN ...APPLICANT/
PETITIONER
VERSUS
THE STATE OF UTTAR PRADESH ...RESPONDENT
WITH
WRIT PETITION (CRIMINAL) NO.188 OF 2022
O R D E R
1. Both the writ petition being Writ Petition (Criminal)
No.188 of 2022, as well as the Interlocutory Application
No.71580 of 2022 in Miscellaneous Application No.766 of 2022
Signature Not Verified
Digitally signed by
GEETA AHUJA
Date: 2022.05.19
14:27:27 IST
Reason:
in Writ Petition (Criminal) No. 39 of 2022 have been filed by the
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petitioner seeking interim bail in Case Crime No.70 of 2020,
registered with Police Station Kotwali, Rampur, Uttar Pradesh,
for the offences punishable under Sections 420 and 120B of the
Indian Penal Code, 1860 (“IPC” for short) [hereinafter referred to
as “the said FIR No.70 of 2020”). A direction is also sought
directing the respondent to seek prior permission of this Court
before arresting the petitioner in any other case. In Writ
Petition (Criminal) No.188 of 2022, an additional prayer is also
made for quashing and setting aside the proceedings qua the
petitioner in the said FIR No.70 of 2020.
The facts giving rise to the present matter are as under:
2.
3. The petitioner had filed Writ Petition (Criminal) No.39 of
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2022 in this Court on 22 January, 2022. It was contended in
the said writ petition that in all 87 criminal cases/FIRs have
been filed against the petitioner. It was further contended that
it was only after the present Government came into power in
2017, that 84 out of these 87 criminal cases/FIRs have been
filed against the petitioner. It was submitted that as on the
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date of filing of the said writ petition, he had secured bail in 84
cases, including 3 cases wherein orders have been passed by
this Court. It was the contention of the petitioner that the said
criminal cases/FIRs were filed by the Ruling Party with
mala
fide intention. It was further submitted that though in three
criminal cases, the bail applications were pending and heard,
but were either adjourned or not decided thereby depriving the
petitioner of his personal liberty. The said writ petition came
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up before this Court on 8 February, 2022, when the same was
disposed of by the following order:
“This writ petition has been filed for
grant of interim bail to the petitioner in the
following cases:
(i) Case Crime No.02/2018, dated
25.04.2018 registered under sections
409, 420, 120B, 201 IPC and Section
13(1) of the Prevention of Corruption
Act, 1988 at Police Station SIT,
Sadar, Lucknow, UP.;
(ii) Case Crime No.79/2019 dated
01.02.2019 under Sections500, 505
I.P.C. registered at Police Station –
Hazratganj, Lucknow, UP; and
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(iii) Case Crime No. 312/2019 dated
19.08.2019 under sections 420, 467,
468, 471, 447, 201 & 120B I.P.C.
and Section 3 of The Prevention of
Damage to the Public Property Act,
1984 registered at Police Station
Azeem Nagar, Rampur, UP.
Mr. Kapil Sibal, learned Senior
Counsel appearing for the petitioner
submitted that FIRs are registered just
before elections and most of them relate to
events that occurred long back. The
applications filed for bail are being
adjourned and the petitioner is suffering in
jail due to FIRs registered on false and
frivolous grounds.
The petitioner is at liberty to
approach the concerned court and request
for expeditious disposal of the bail
applications.
Needless to mention that the court
shall dispose of the bail applications
expeditiously.
The writ petition is dismissed.
Pending application(s) if any, shall stand
disposed of.”
4. It appears that thereafter the petitioner was granted bail
in two cases. However, in one case, i.e., pertaining to Case
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Crime No.312 of 2019, dated 19 August, 2019, for the offences
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punishable under Sections 420, 467, 468, 471, 447, 201 &
120B IPC and under Section 3 of the Prevention of Damage to
the Public Property Act, 1984, registered at Police Station
Azeem Nagar, Rampur, Uttar Pradesh (hereinafter referred to as
“the said FIR No.312 of 2019”), though the matter was heard by
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the learned Single Judge of the High Court on 4 December,
2021 and closed for orders, no orders were passed. Thereafter,
an application came to be filed on behalf of the State for
bringing out certain developments. On account of this, the said
matter got prolonged endlessly, resulting in the matter not
being decided and thereby depriving the petitioner of his
personal liberty. As such, the petitioner filed Miscellaneous
Application No.766 of 2022 in Writ Petition (Criminal) No.39 of
2022 (hereinafter referred to as “the said M.A.”). The petitioner
in the said M.A. had prayed for grant of interim bail with regard
to the said FIR No.312 of 2019. The said M.A. came to be filed
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on 23 April, 2022.
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5. It appears that one other FIR No.70 of 2020 was already
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registered on 18 March, 2020. However, the petitioner was
not named in the said FIR No.70 of 2020. A chargesheet after
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investigation in the said FIR No.70 of 2020 was filed on 10
September, 2020, wherein the wife of the petitioner and one
clerk of the Basic Shiksha Adhikari were arrayed as accused
persons. A letter was addressed by the complainant to the
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Investigating Officer (“I.O.” for short) on 24 April, 2022, stating
therein that though the petitioner was also liable to be made
accused in the said FIR No.70 of 2020, no action was taken
against him.
6. The said M.A. was orally mentioned before this Court on
th th
26 April, 2022 and on 29 April, 2022, seeking listing of the
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said M.A. On 2 May, 2022, though the said M.A. was listed,
the same could not be taken up and was directed to be listed on
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6 May, 2022.
7. It appears that during the pendency of the said M.A., an
application was made by I.O. to the Additional Chief Judicial
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Magistrate, Rampur on 5 May, 2022, seeking summoning of
the petitioner in FIR No. 70 of 2020. The learned Magistrate
passed an order summoning the petitioner on the very same
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day, i.e., on 5 May, 2022 in respect of the said FIR No.70 of
2020.
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8. When the said M.A. was listed on 6 May, 2022, it was
submitted before this Court by the respondentState that the
judgment had already been reserved by the Allahabad High
Court in relation to the bail application in respect of the said
FIR No.312 of 2019 and as such, the matter was adjourned to
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11 May, 2022.
9. The Additional Chief Judicial Magistrate, Rampur passed
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an order on 6 May, 2022 and arrayed the petitioner as an
accused in FIR No. 70 of 2020 and on the very same day,
passed an order remanding the petitioner to custody.
Accordingly, the Custody Warrant was issued, directing Sitapur
Jail Superintendent to keep the petitioner in custody.
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10. In light of the subsequent developments implicating the
petitioner in FIR No. 70 of 2020, the present writ petition came
to be filed by the petitioner being Writ Petition (Criminal)
No.188 of 2022 vide Diary No.14644 of 2022, seeking prayers
as stated above. An Interlocutory Application being I.A. No.
71580 of 2022 was also moved in the said M.A. to bring on
record these developments and to seek interim bail in respect of
FIR No.70 of 2020.
During the pendency of these proceedings, the Allahabad
11.
th
High Court, by a detailed order dated 10 May, 2022, granted
bail to the petitioner in the said FIR No. 312 of 2019, while
imposing severe conditions.
12. We have heard Shri Kapil Sibal, learned Senior Counsel
appearing on behalf of the applicant/petitioner and Shri S.V.
Raju, learned Additional Solicitor General appearing on behalf
of the State of Uttar Pradesh.
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13. Shri Kapil Sibal, learned Senior Counsel, submits that
from the facts, it is clear that the Ruling Party is making every
attempt possible to keep the petitioner behind the bars by
implicating him in one FIR after the other. He submits that
the present case is a case of political vendetta.
14. Shri Sibal further submits that when the petitioner
approached this Court by way of the said M.A. pointing out to
this court that though the High Court had heard the bail
application concerning the said FIR No.312 of 2019 and
reserved the same for orders for number of months, no orders
were passed. He submits that anticipating that the petitioner
would be granted bail in the said matter, he has been falsely
implicated as an accused in FIR No. 70 of 2020. He submits
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that in the said crime, not only the FIR is registered on 18
March, 2020, but a chargesheet in the said FIR was also filed
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long ago, i.e., on 10 September, 2020. It is therefore
submitted that the petitioner has been implicated in the said
matter only in order to deny him his personal liberty.
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15. Shri S.V. Raju, learned Additional Solicitor General,
vehemently opposed the application(s)/petition. He submits
that under Section 173(8) of the Code of Criminal Procedure,
1973, the Investigating Agency is always free to file a charge
sheet against an additional accused if during the investigation,
material is found against him. He submits that the petitioner is
a heavyweight politician and due to his pressure, though he
was involved in number of criminal acts, no FIRs were
registered against him. It is submitted that the petitioner is a
landgrabber and is a habitual offender. He submits that
merely because the petitioner is a politician, he cannot be
permitted to bypass the remedy of filing regular bail
application before the appropriate Court. Shri Raju further
submits that when the petitioner’s statement was recorded by
the I.O. in respect of FIR No.70 of 2020, he threatened the I.O.
with dire consequences. He therefore submits that both the
Interlocutory Application as well as the writ petition deserve to
be dismissed.
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16. In ordinary circumstances, we would not have entertained
the present writ petition. The petitioner would have been
directed to take recourse to the remedy available to him in law.
However, the facts in the present case are very peculiar.
17. The petitioner approached this Court by way of Writ
Petition (Criminal) No. 39 of 2022, stating therein that though
in 84 FIRs he had already been granted bail, insofar as 3 FIRs
are concerned, though the applications for bail were filed, they
were either adjourned or heard and no orders were passed. As
th
such, this Court passed the order dated 8 February, 2022 in
the said Writ Petition (Criminal) No. 39 of 2022, granting liberty
to the petitioner to approach the concerned court and request
for expeditious disposal of the bail applications. Though it was
sought to be urged before this Court that FIRs were registered
just before elections and most of them related to events that
occurred long back, this Court had declined to entertain the
writ petition and requested the concerned Court to dispose of
the bail applications expeditiously.
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18. Subsequently, though the petitioner was granted bail in
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Crime No. 02 of 2018 dated 25 April, 2018, registered at Police
Station SIT, Sadar, Lucknow, UP for the offences punishable
under Sections 409, 420, 120B, 201 IPC and Section 13(1) of
the Prevention of Corruption Act, 1988 and Crime No.79 of
st
2019, dated 1 February, 2019, registered with Police Station
Hazratganj, Lucknow, UP for the offences punishable under
Section 500 and 505 IPC, insofar as FIR No.312 of 2019 is
concerned, though the Allahabad High Court had closed the
th
Bail Application for orders on 4 December, 2021, no orders
were passed. In this background, the petitioner had
approached this Court by way of said M.A., praying for interim
bail in the said FIR No.312 of 2019. The said M.A. was listed
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from time to time. When we heard the said M.A. on 6 May,
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2022, we simply adjourned it to 11 May, 2022 as it was
informed to this Court that the Allahabad High Court was likely
to pass the order shortly in the Criminal Misc. Bail Application
No. 40580 of 2021 relating to the said FIR No. 312 of 2019. On
12
th
the same day, i.e., 6 May, 2022, on which date we adjourned
the said M.A., an order was passed by the Additional Chief
Judicial Magistrate remanding the petitioner to custody.
After the said M.A. was adjourned, the I.O. started acting
19.
th
on the letter dated 24 April, 2022 of the complainant, stating
therein that though the petitioner was involved in the crime
reported in FIR No.70 of 2020, no action was taken against
him. During the pendency of the said M.A., the statements
came to be recorded implicating the petitioner. On the same
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day when we adjourned the said M.A., i.e., on 6 May, 2022, an
order was passed by the Additional Chief Judicial Magistrate,
Rampur, remanding the petitioner to judicial custody in FIR
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No.70 of 2020. Thereafter on 10 May, 2022, the learned
Single Judge of the Allahabad High Court has passed an order
in Criminal Misc. Bail Application No.40580 of 2021, thereby
granting bail to the petitioner in the said FIR No.312 of 2019.
20. The order of the learned Single Judge of the Allahabad
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High Court dated 10 May, 2020 runs into 40 pages. Stringent
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conditions have been imposed by the learned Single Judge of
the Allahabad High Court while releasing the petitioner on bail.
We do not wish to make any comments with regard to the said
bail order. The least that could be said is that this Court has
repeatedly held that while deciding a bail application, the Court
should not embark upon a detailed enquiry with regard to the
merits of the matter. The learned Single Judge of the Allahabad
High Court rightly observed that bail is a right of any accused
and jail is an exception and therefore, on humanitarian
grounds and keeping in view the applicant’s/petitioner’s
deteriorating health, old age and the period undergone in jail,
considered it just to grant bail by imposing stringent
conditions.
21. It could thus be seen that the petitioner, who was accused
in 87 criminal cases when he approached this Court by way of
Writ Petition (Criminal) No. 39 of 2022 and was granted bail in
84 cases at that point of time, has now been granted bail in all
87 cases. It is only on account of implication of the petitioner
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in FIR No. 70 of 2020 that he would be denied his personal
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liberty. Though FIR No. 70 of 2020 was registered on 18
March, 2020 and the chargesheet in the said FIR was filed on
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10 September, 2020, the petitioner in the said FIR has only
now been implicated, i.e., after a period of 1 year and 7 months,
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by order dated 6 May, 2022 passed by the Additional Chief
Judicial Magistrate, Rampur. It is not as if that the allegations
which are now sought to be made against the petitioner could
not have been made at that point of time. The main allegation
against the petitioner in the said FIR No.70 of 2020 is that the
certificates are forged. Further allegation is that the person
who had issued the certificates was not authorized to issue
those certificates.
22. Taking into consideration the delay in implication of the
petitioner in FIR No. 70 of 2020 and the nature of the
allegations made therein, we are of the considered view that it
will not be in the interest of justice to deprive the petitioner of
his personal liberty, particularly when in respect of 87 criminal
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cases/FIRs, which were the subject matter of Writ Petition
(Criminal) No. 39 of 2022, he has already been released on bail.
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The last of such bail order has been passed on 10 May, 2022
by the learned Single Judge of the Allahabad High Court after a
gap of so many months from the date of reserving the order,
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i.e., 4 December, 2021.
23. Insofar as the contention that the petitioner threatened
the I.O. is concerned, we may only observe that it appears to be
a matter of sheer coincidence that the General Diary (GD) entry
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with regard to said threats is registered on 17 May, 2022 at
03:04 hrs., i.e., the date on which the present proceedings were
to come up for hearing and were heard. We therefore do not
find it necessary to make any further comments thereon.
24. We are therefore of the view that this is a fit case wherein
this Court should exercise its jurisdiction under Article 142 of
the Constitution of India and grant interim bail to the petitioner
in the peculiar facts and circumstances of the case, till he files
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the application for regular bail and the same is considered by
the Competent Court.
25. Insofar as the other reliefs being sought in Writ Petition
(Criminal) No.188 of 2022 are concerned, we are not inclined to
consider the same.
26. In the result, we pass the following order:
(i) The Writ Petition (Criminal) No.188 of 2022 is partly
allowed;
(ii) The petitioner is directed to be released on interim bail
in respect of FIR being Case Crime No.70 of 2020,
registered with Police Station Kotwali, Rampur, Uttar
Pradesh for the offences punishable under Sections 420
and 120B of the IPC on such terms and conditions as
found appropriate by the trial Court;
(iii) The petitioner is directed to file an application for
regular bail before the Competent Court within a period
of two weeks from today. The same shall be decided by
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the Competent Court on its own merits without being
influenced by any of the observations made in the
present order;
(iv) The interim bail granted to the petitioner by the present
order shall continue to operate till the decision of the
Competent Court in the application for regular bail and
in the event that the regular bail application is decided
against the interest of the petitioner, the present
interim bail shall continue to operate for a further
period of two weeks from the date of the order passed
by the Competent Court in the application for regular
bail;
(v) No orders are necessary to be passed in Miscellaneous
Application No. 766 of 2022 in Writ Petition (Criminal)
No. 39 of 2022 and I.A. No. 71580 of 2022 in
Miscellaneous Application No. 766 of 2022 in Writ
Petition (Criminal) No. 39 of 2022. The same are
accordingly disposed of.
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27. Pending application(s) if any, including the application(s)
for directions, shall stand disposed of in the above terms.
…..….......................J.
[L. NAGESWARA RAO]
…….........................J.
[B.R. GAVAI]
…….........................J.
[A.S. BOPANNA]
NEW DELHI;
MAY 19, 2022.
19
1
ITEM NO.1503 COURT NO.5 SECTION X
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
I.A. No.71580 OF 2022 IN/AND Miscellaneous Application No.766/2022
in W.P.(Crl.) No.39/2022
MOHAMMAD AZAM KHAN Applicant/
Petitioner(s)
VERSUS
THE STATE OF UTTAR PRADESH Respondent(s)
(IA No.62399/2022-EXEMPTION FROM FILING O.T. and IA No.62398/2022-
APPROPRIATE ORDERS/DIRECTIONS)
WITH
W.P.(Crl.) No. 188/2022 (X)
Date : 19-05-2022 These matters were called on for pronouncement of
order today.
For Petitioner(s) Mr. Kapil Sibal, Sr. Adv.
Mr. Lzafeer Ahmad B. F., AOR
Mr. Nizam Pasha, Adv.
Mr. Jubair Khan, Adv.
Mr. Aditya Samaddar, Adv.
Mr. Ahmad Ibrahim, Adv.
For Respondent(s) Mr. S V Raju, Ld. ASG
Ms. Garima Prasad Sr. Adv./AAG
Mr. Ajay Vikram Singh, AOR.
Mr. Divyanshu Sahay, Adv
Ms. Priyanka Singh, Adv
Mr. Narender Rana, Adv
Mr. Neelambar Jha, Adv
The Order is pronounced by the Bench comprising
Hon’ble Mr. Justice L. Nageswara Rao, Hon’ble Mr. Justice
B.R. Gavai and Hon’ble Mr. Justice A.S. Bopanna.
This Court inter alia passed the following
order:
(i)
The Writ Petition (Criminal) No.188 of
2
2022 is partly allowed;
(ii)
The petitioner is directed to be
released on interim bail in respect of FIR being
Case Crime No.70 of 2020, registered with Police
Station Kotwali, Rampur, Uttar Pradesh for the
offences punishable under Sections 420 and 120B of
the IPC on such terms and conditions as found
appropriate by the trial Court;
(iii)
The petitioner is directed to file an
application for regular bail before the Competent
Court within a period of two weeks from today. The
same shall be decided by the Competent Court on its
own merits without being influenced by any of the
observations made in the present order;
(iv)
The interim bail granted to the
petitioner by the present order shall continue to
operate till the decision of the Competent Court in
the application for regular bail and in the event
that the regular bail application is decided against
the interest of the petitioner, the present interim
bail shall continue to operate for a further period
of two weeks from the date of the order passed by
the Competent Court in the application for regular
bail;
(v)
No orders are necessary to be passed in
Miscellaneous Application No. 766 of 2022 in Writ
Petition (Criminal) No. 39 of 2022 and I.A. No.
3
71580 of 2022 in Miscellaneous Application No. 766
of 2022 in Writ Petition (Criminal) No. 39 of 2022.
The same are accordingly disposed of.”
Pending application(s) if any, including the
application(s) for directions, shall stand disposed
of in the above terms.
(Geeta Ahuja) (Anand Prakash)
Court Master Assistant Registrar
(Signed non reportable order is placed on the file)