1. Present application under Section 439 Cr.P.C. has been filed seeking bail in FIR No.49 of 2020 under Sections 420, 467, 468, 471, 120B IPC, Police Station Saadatganj, Lucknow.
2. The complainant has alleged that she is co-owner of the land in Khasra Nos.671, 672, 673 situated at Mohalla Rustamnagar, Wazirgbagh Road, Police Station Saadatganj, Lucknow. This land is her ancestral property. A Regular Civil Suit No.272 of 1990 was filed in the Court of Civil Judge, Malihabad, District Lucknow in respect of the said land. This land was declared as ancestral property of the complainant by the Civil Judge.
3. An appeal filed against the judgment and decree was dismissed on 19.04.2019. Accused-Ajhad Hussain Naqvi, was a party in the said suit and his appeal got rejected. He knew fully well that he had no right, title or interest in the said land. The accused-applicant kept quite till the life time of the brother of the complainant. After death of the brother of the complainant, the accused-applicant started making conspiracies to usurp the land in question. To give effect to the conspiracy, accused-Ajhad Hussain Naqvi on 21.01.2020 and 01.02.2020 transferred the said land in favour of his daughters, Ms. Nilofar Ajhad Naqvi, Ms. Naima Ajhad Naqvi and his sons, Aarjoo Ajhad Naqvi and Ali Ajhad Naqvi and they became witnesses of each others' sale-deeds.
4. It is further stated that the father of the accused-applicant has criminal history of fourteen cases and and he had been in jail for several times. The whole family is jointly living in one house.
5. Learned counsel for the accused-applicant submits that the father of the accused-applicant is power of attorney holder of Smt.Tazdar Fatima. The accused-applicant has not been named in the FIR. Sister of the father of the applicant, Late Iltifat Hussain was owner of the land in dispute being Khasra Nos.671, 672, 673 situated at Mohalla Rustamnagar, Wazirgbagh Road, Police Station Saadatganj, Lucknow and said Smt.Tazdar Fatima had executed power of attorney dated 01.06.1986 registered in the office of Registrar Stamp Tehsil Nawabganj, District Barabanki in favour of the Ajhad Hussain Naqvi, father of the applicant authorizing him to sell the properties.
He has further submitted that a Civil Suit No.272 of 1990 was filed by Iftidar Mirza for permanent injunction in respect of the property in question against Ajhad Hussain Naqvi, father of the present accused-applicant. The said civil suit got dismissed vide order dated 26.02.1997 by Additional Civil Judge (Senior Division)-4, Lucknow. It is further stated that Civil Appeal No.51 of 1993 has not been dismissed on merit vide order dated 19.04.1999 as alleged but it was dismissed in default.
6. It is further stated that after the death of Smt.Tazdar Fatima, Ajhad Hussain Naqvi the father of the accused-applicant in order to ensure equal distribution of the property, executed registered sale-deeds in favour of two sisters and two brothers of the accused-applicant. The accused-applicant is marginal witness to the sale-deed dated 01.02.2020 executed by his father Ajhad Hussain Naqvi. It is also alleged that the complainant was never owner of the property in dispute and she has lodged false FIR with ulterior motive to usurp the property. Smt. Tazdar Fatima lodged an FIR on 26.04.2010 which was registered at FIR No.172 of 2020 under Sections 420, 467, 468, 471, 379 IPC, Police Staiton Sadatganj, Lucknow against Haider Yakoob, her real brother and her three sisters including the complainant alleging that the accused-applicant has prepared forged khatauni of land and were triying to grab her property. He has no criminal history and he has been in jail since 31.05.2020 and, therefore, he may be enlarged on bail.
7. On the other hand, Mr.Rao Narendra Singh, learned A.G.A. has opposed the bail application and has submitted that Smt. Tazdar Fatima died on 26.09.2016. The accused-applicant is the son of Ajhad Hussain Naqvi who had executed the sale-deed in favour of his two daughters and two sons of the properties in question in the year 2020. He has no authority or competence to execute the sale-deed but in furtherance of criminal conspiracy all accused got sale-deed executed amongst the family members. After the death of Smt. Tazhar Fatima the alleged power of attorney became null and void and on that basis no property could have been transferred.
8. It is further submitted that the present accused-applicant is son of accused-Ajhad Hussain Naqvi. Accused-Ajhad Hussain Naqvi in the sale-deed had claimed that the properties in question were his ancestral property which he had inherited after the death of his mother whereas Smt.Tazda Fatima was the sister of his father and not the mother who died on 29.06.2016. From the evidence available in the charge-sheet, offence against the accused-applicant and the co-accused is prima facie established. The accused-applicant has tried to divest real owner of their land in question by entering into criminal conspiracy, on the basis of forged document and, therefore, this bail application is liable to be rejected.
9. I have considered the submissions advanced on behalf of the accused-applicant and learned A.G.A. for the State and perused the record.
10. In the sale-deeds in question, the accused-Ajhad Hussain Naqvi has claimed to be the power of attorney holder of Smt. Tazdar Fatima.
Para 15 of the affidavit filed in support of bail application is reproduced hereunder:-
"15. That after the death of Smt. Tazdar Fatima, Ajhad Hussain Naqvi, father of applicant in order to ensure the equal distribution of the property, executed registered sale deed of the property in favour of two sisters and two brothers of the applicant."
11. Thus, the case of the accused-applicant is that after the death of Smt.Tazdar Fatima in order to ensure equal distribution of property, father of the accused executed the registered sale-deed in favour of his two daughters and two sons. In para 7, it has been stated that Smt. Tazdar Fatima has executed registered power of attorney in favour of the father of the present accused-applicant on 01.06.1986 in respect of the property in question. The investigating officer during the course of investigation has found that Smt.Tazdar Fatima had died on 29.06.2016. However, in the sale-deed he claimed that it is his ancestral property and after death of his mother, he became the successor of the property as such he has executed the sale-deed. This stand of the accused-applicant completely falsifies the case of the accused-applicant.
12. Considering the nature of the allegations, involvement of the accused-applicant in commission of the offence and without commenting anything on the merit of the case, I do not find it to be a fit case for grant of bail to the accused-applicant. This bail application is thus, rejected.
Order Date :- 29.1.2021/prateek