Mohammad Azam Khan vs The State Of Uttar Pradesh

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

ORDER

1. Both the writ petition being Writ Petition (Criminal)

No.188 of 2022, as well as the Interlocutory Application

Signature Not Verified No.71580 of 2022 in Miscellaneous Application No.766 of 2022 Digitally signed by GEETA AHUJA

in Writ Petition (Criminal) No. 39 of 2022 have been filed by the Date: 2022.05.19 14:27:27 IST Reason:

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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.

2. The facts giving rise to the present matter are as under:

3. The petitioner had filed Writ Petition (Criminal) No.39 of

2022 in this Court on 22nd 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

2 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

up before this Court on 8 th 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

Crime No.312 of 2019, dated 19 th August, 2019, for the offences

4 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

the learned Single Judge of the High Court on 4 th 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

on 23rd April, 2022.

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5. It appears that one other FIR No.70 of 2020 was already

registered on 18th March, 2020. However, the petitioner was

not named in the said FIR No.70 of 2020. A charge­sheet after

investigation in the said FIR No.70 of 2020 was filed on 10 th

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

Investigating Officer (“I.O.” for short) on 24 th 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

26th April, 2022 and on 29th April, 2022, seeking listing of the

said M.A. On 2nd May, 2022, though the said M.A. was listed,

the same could not be taken up and was directed to be listed on

6th 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

6 Magistrate, Rampur on 5th 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

day, i.e., on 5th May, 2022 in respect of the said FIR No.70 of

2020.

8. When the said M.A. was listed on 6th 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

11th May, 2022.

9. The Additional Chief Judicial Magistrate, Rampur passed

an order on 6th 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.

11. During the pendency of these proceedings, the Allahabad

High Court, by a detailed order dated 10 th 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

that in the said crime, not only the FIR is registered on 18 th

March, 2020, but a charge­sheet in the said FIR was also filed

long ago, i.e., on 10th 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

such, this Court passed the order dated 8 th 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

Crime No. 02 of 2018 dated 25 th 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

2019, dated 1st 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

Bail Application for orders on 4th 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

from time to time. When we heard the said M.A. on 6 th May,

2022, we simply adjourned it to 11th 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 the same day, i.e., 6th 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.

19. After the said M.A. was adjourned, the I.O. started acting

on the letter dated 24th 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

day when we adjourned the said M.A., i.e., on 6 th May, 2022, an

order was passed by the Additional Chief Judicial Magistrate,

Rampur, remanding the petitioner to judicial custody in FIR

No.70 of 2020. Thereafter on 10 th 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

High Court dated 10th May, 2020 runs into 40 pages. Stringent

13 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

14 in FIR No. 70 of 2020 that he would be denied his personal

liberty. Though FIR No. 70 of 2020 was registered on 18 th

March, 2020 and the charge­sheet in the said FIR was filed on

10th September, 2020, the petitioner in the said FIR has only

now been implicated, i.e., after a period of 1 year and 7 months,

by order dated 6th 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

15 cases/FIRs, which were the subject matter of Writ Petition

(Criminal) No. 39 of 2022, he has already been released on bail.

The last of such bail order has been passed on 10 th 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,

i.e., 4th 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

with regard to said threats is registered on 17 th 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

16 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

17 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)