Afzal Ansari vs State of U.P. and Another

Poonam Srivastava, J.—This is second bail application. The first bail application was rejected on 9.11.2006.

Heard Sri V.P. Srivastava and Sri G.S. Chaturvedi, Senior Advocates, assisted by Sri D.S. Mishra, Sri Vijay Shanker Mishra, Sri C.K. Mishra and Sri Ajay Srivastava on behalf of the applicant, Sri Ravi Kiran Jain, Senior Advocate, assisted by Sri Jagdish Singh Sengar and Sri Vinay Saran Advocates for the first informant, Sri G.S. Hajela Advocate on behalf of the C.B.I. and Sri Meva Lal Shukla, learned A.G.A. for the State.

Before arguments could be advanced on merits of the second bail application, Sri Vinay Saran filed a short counter affidavit raising preliminary objections that the co-accused Mukhtar Ansari has moved an application for clarification of the order dated 1.8.2008 passed by the Hon''ble Apex Court directing the trial court to consider and decide the bail application of the applicant and other accused persons on merits as contained in the order dated 24.4.2008. This order was passed in a transfer application, wherein the proceedings of the Session Trial Nos. 253 and 254 of 2006 were stayed. Subsequently the Apex Court passed an order on 24.4.2008 that the bail application of the applicant and other accused persons may be considered in accordance with law on merits by the trial court. The C.B.I. approached the Hon''ble Supreme Court subsequently since the trial court granted bail to certain co-accused on the basis of the permission allowed on 24.4.2008. The Sessions Court granted bail to some of the accused persons namely Mansoor Ansari, Ramu Mallah and Rakesh Pandey. The bail granted to the accused Mansoor Ansari by the trial court was sought to be cancelled in Criminal Misc. Bail Cancellation Application No. 15464 of 2008 and this application was rejected on 29.8.2008. However, in the bail cancellation application in respect of other accused notices have been issued to the learned Sessions Judge. A second bail cancellation application was moved in respect of co-accused Mansoor Ansari which has also been rejected. A SLP is pending in the Apex Court. The C.B.I. has also approached the Apex Court challenging the order dated 20.12.2007 passed in Criminal Misc. Transfer Application No. 743 of 2007. The primary objection on behalf of the opposite parties is that since the Apex Court granted liberty to the trial court to decide the bail applications while staying the proceedings in the session trials, the High Court has no jurisdiction.

Learned Counsel for the applicant has placed an order passed by this Court while deciding the preliminary objection on behalf of the C.B.I. in the first bail application of this very applicant regarding jurisdiction. A detailed order was passed holding that Allahabad High Court has jurisdiction to hear the bail application of the applicant though further investigation was subsequently transferred to the C.B.I. The applicant was taken into custody by the police of Ghazipur on 8.12.2005. The charge sheet was submitted on 21.2.2006. The case was committed to the court of session and an application for discharge was rejected. The charges were framed against the applicant and bail application was rejected by the learned District and Sessions Judge on 24.1.2006. A Division Bench of this Court passed an order in a Writ Petition handing over further investigation to the C.B.I. on 23.5.2006. Subsequently the C.B.I. registered a first information report on 22.7.2006 as C.B.I.S.C.B. at case crime No. R.C. 8/2006 (S) P.S. C.B.I. The notice of the first bail application was received by the learned Government Advocate at principal seat of Allahabad High Court on 28.1.2006 i.e. much before the order in the writ petition. This Court held that since the arguments in the first bail application were already continuing, therefore, handing over further investigation to the C.B.I. will ipso facto not take away the jurisdiction of Allahabad High Court sitting at Allahabad. The place of occurrence was within the jurisdiction of Allahabad High. Assuming further investigation was carried out by the C.B.I., it was held that this alone is not sufficient to take away the jurisdiction of this Court to continue to hear the pending bail application, in view of the principles laid down in the case of Sri Nasiruddin Vs. State Transport Appellate Tribunal, Dr. Balram Dutt Sharma v. State of U.P. XXXVIII 1999 A.C.C. 638(H.C.) and Sanjay Somani and Ors. v. State of U.P. and Ors. XXII 2002 A.C.C. 894(H.C.). This order was challenged in the Hon''ble Supreme Court and the SLP was dismissed.

The present controversy and preliminary objection regarding the jurisdiction of this Court to hear second bail application is now based on the ground that since the Apex Court while staying the proceedings in the transfer application permitted hearing of the bail application by the trial court, therefore, it is the trial court alone who has the jurisdiction to hear the bail application. The trial court granted bail to two co-accused in respect of which bail cancellation was moved and notices were issued to the Sessions Judge. The bail cancellation of the co-accused Mansoor Ansari was rejected and the other co-accused namely Ramu Mallah and Rakesh Pandey is pending. The submissions made by Sri Ravi Kiran Jain and Sri Vinay Saran as well as Sri G.S. Hajela on behalf of the C.B.I. are without any substance. Admittedly the first bail application was rejected by the learned Sessions Judge thereafter a bail was moved in this High Court. The preliminary objection regarding jurisdiction was raised and the same was rejected by this Court and confirmed by the Apex Court.

This is second bail application and once the first bail application is rejected by the High Court, second bail shall be heard by the same Court on merits. It is for the same judge to reconsider the prayer for bail if the applicant is able to establish certain new ground for grant of bail. The High Court Rules provides that it is the same Court which has rejected the first bail application, is entitled to hear the second bail application unless it is released by the same Court or on the basis of certain orders of the Hon''ble Chief Justice. Learned Sessions Judge has already rejected the bail application of the present applicant and it was confirmed by the High Court and thus it is the same court which can decide the second bail application on merits, besides the Apex Court has not stayed hearing of the second bail of the present applicant. The preliminary objection raised is only on account of the reason that the Apex Court while clarifying in its previous order has permitted the trial court to hear the bail application. This observation alone does not bar the jurisdiction of this Court, specially once the High Court expressed its view on merits while rejecting the first bail application and confirmed the order of the learned Sessions Judge. It is the High Court alone which has the jurisdiction to hear the second bail application on new grounds and by no standard the trial court could override the findings recorded previously by the High Court in respect of merits of the bail application. In the circumstances, the preliminary objection raised by Sri Ravi Kiran Jain and Sri Vinay Saran are without any substance. I am satisfied that the jurisdiction to hear the second bail application is with the High Court and accordingly I proceed to hear the second bail application on merits.

Sri D.S. Mishra has placed the rejection order of the first bail application. The ground for rejection of the first bail application was;

(i) The first information report was prompt one though seven persons were done to death in a broad day light;

(ii) The allegation of hatching conspiracy has been made in the first information report itself which was very prompt, though the evidence of conspiracy was collected subsequently;

(iii) The motive has been disclosed in the first information report coupled with the letter written by the complainant to the Hon''ble Chief Minister and other authorities is clear indication that Krishna Nand Rai was apprehending his murder at the hands of the applicant; and

(iv) Two witnesses were killed and were also threatened previously with dire consequences. Finally they were eliminated despite the applicant was in jail.

Sri D.S. Mishra states that new grounds on which he proposes to advance arguments in the instant second bail application are enumerated below:

(1) The first information report was not in existence at 17.25 hours i.e. the time it is alleged to be lodged on 29.11.2005. Thus the F.I.R. is ante-timed and claim of prosecution that report was prompt is baseless.

(2) The two witnesses alleged to have been murdered and eliminated during pendency of the investigation is absolutely wrong as the documents and reports show and establish that the two witnesses died a natural death. These facts have been affirmed by two Hon''ble Judges of this High Court while deciding the bail cancellation application as well as Criminal Misc. Transfer application No. 743 of 2007-C.B.I. v. District and Sessions Judge, Ghazipur and Criminal Misc. Transfer Application No. 744 of 2007-Ram Narayan Rai v. State of U.P. and Ors. vide order dated 20.12.2007. A F.I.R. was lodged after death of witness Shashi Kant Rai but the police has submitted a Final Report u/s 173 Cr.P.C.

(3) Mansoor Ansari was also arrayed as an accused in the instant murder with the aid of Section 120B I.P.C. He has been allowed bail by the Fast Track Court Ist, pursuant to the order of the Apex Court dated 24.4.2008. The bail was allowed on 15.5.2008 and the bail cancellation application moved in this Court stands rejected by a well reasoned order and all the arguments on merits regarding conspiracy have been categorically discussed and discarded by Hon. Mrs. Saroj Bala, J. vide order dated 29.8.2008. The two shooters Ramu Mallah and Rakesh Pandey have also been granted bail by the Fast Track Court on 8.7.2008 and bail has not yet been cancelled though the notices have been issued to the court concerned.

(4) Chunnu Pahalwan alias Afroz is said to be standing at a distance of 35-40 kilometers from the place of occurrence on 29.11.2005 and is alleged to have taken away the assailants in a Tata Qualis but it has come in the case diary that Afroz alias Chunnu Pahalwan was already sent to jail at 12.00 P.M. i.e. before the date of occurrence. He was already in jail prior to the occurrence.

(5) C.B.I. has submitted charge sheet against Afroz alias Chunnu Pahalwan as an absconder in the present case but the C.B.I. examined him on 25.2.2008 as Afroz was again sent to jail on 19.2.2008 u/s 25 Arms Act and he is in Ghazipur jail. After the information was given to the C.B.I. that Chunnu Pahalwan was sent to jail between 12-1.00 P.M. on the date of occurrence, the C.B.I. has not obtained custody warrant therefore, the charge sheet submitted against him as an absconder stands completely negated.

(6) The applicant is in jail since 29.12.2005 and the trail is stayed at the instance of the complainant. The applicant being a Member of Parliament, his constitutional liberty is being frustrated and the trial is not progressing.

(7) All the witnesses of so called conspiracy who have disclosed the knowledge of conspiracy after 13 days of the incident, have not been examined by the C.B.I. Rajnish, Manoj and Sanjeev were not examined by the C.B.I. Ramu Mallah was not identified during the identification parade.

(8) Lastly he proposes to argue that since the applicant has been implicated with the aid of Section 120B I.P.C., there is no evidence that the actual shooters were present at the time of conspiracy, therefore, the entire theory of conspiracy are false and;

(9) The present applicant has no criminal antecedent and the Lok Sabha elections are going to take place.

A number of witnesses have already been examined in the trial. Evidence of P.W.-12 is annexed with this bail application. It has been brought to my notice that PW-12 Om Prakash Singh, the then Head Moharrir who had registered the Chik first information report at crime No. 589 of 2005 of Police Station Bhanwarkol, District Ghazipur has already been examined by the trial judge on 23.2.2007, 27.2.2007 and 7.3.2007 and the cross examination has also been completed. The new grounds which were not available at the time of arguments advanced in the first bail application are:

PW-12 is not only the scribe but also the Incharge of the Police Station and on the date of occurrence he has received telephonic message at 3.20 P.M. who declined to disclose his identity but informed that firing by unknown person was going on slightly away from Basaniya Chatti. This information is entered in G.D. No. 20 dated 29.11.2005 at 15.20 P.M. and this information was at once given to the superior officers. C.P. Ravindra Nath and C.P. Harish Chandra Ram were directed immediately to leave for the place of occurrence. This G.D. entry discloses that the firing took place at 3.20 P.M. and the report has been lodged within 40 minutes by the first informant Ram Narayan Rai after covering a distance of 17 kilometers. The admission of the first informant is that he had also transported the dead bodies to his village Gandaur from the place of occurrence, this adds another 8 kilometers to the distance travelled. Thus the first informant travelled 25 kilometers and lodged the first information report at the time mentioned in the chik. The time taken for shifting some of the dead body in another car has also to be taken into account. However, these details may not be possible for me to take into consideration and sift evidence at the stage of hearing of the second bail application but the G.D. entry brought forth can not be overlooked even at this stage. The G.D. dated 29.11.2005 of Police Station Bhanwarkol was not in the printed format but was on a loose white sheet by drawing three columns by a pencil instead of five columns. Besides the signature of the first informant is missing at the foot of the chik report. Information u/s 157 Cr.P.C. which is the special report, was sent only on 3.12.2005 i.e. 4 days later. Learned Counsel has also drawn my attention to the fact that no cognizable offence has been registered in between 29.11.2005 and 2.12.2005, thus it is evident that no entry was made deliberately for obvious reasons and only after the special report was dispatched, the normal functioning of the police station started.

Taking into consideration the arguments, all these mandatory requirements are sufficient to establish that the first information report is ante-timed, at least it dislodges authenticity given to it while rejecting the first bail application only on the basis that the allegation of conspiracy is in the first information report itself which was prompt one. Learned Counsel has placed the relevant case law;

The Hon''ble Supreme Court of India citing several other cases in the case of Jagdish Murav v. State of U.P. LVI 2006 ACC 511 has held and observed in para 21 that "one of the checks is the receipt of the copy of the F.I.R. called a ''special report'' in a murder case, by the local Magistrate. If this report is received by the Magistrate late, it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded unless of course the prosecution can offer a satisfactory explanation for the delay in dispatching or receipt of the copy of the FIR by the local Magistrate.

In this context the Hon''ble Allahabad High Court has also while considering a 2nd bail application in bail matter of Ahmad Nabi v. State of UP XXIII 1986 ACC 119 in para 8 has thus observed "I am of the opinion that the intention of the legislature in enacting Section 157 Cr.P.C. was to make this provision and that of Section 158 Cr.P.C. mandatory. It is mandatory that the station officer shall send a report of the First Information Report to the Magistrate empowered to take cognizance of such an offence. u/s 157 Cr.P.C. the words ''''the same'' qualify the word ''''information'' which substantially means the same contents of the information for being sent to the magistrate and also to the superior officers of the police as required u/s 158 Cr.P.C. but in the instant case the correct time was not noted in the radiogram nor the names of all the accused or the prosecution witnesses were mentioned, hence I am of the opinion that the report sent by the station officer was not in compliance with the provisions of Section 157 and 158 Cr.P.C." Ahmad Nabi was granted bail.

It is argued next by the learned Counsel that it is absolutely false that the complainant has received any threat from the accused. Shashi Kant Rai was an injured witness but did not support the case during the investigation but he died a natural death. The report received subsequently after the rejection of the first bail application goes to show that it was not a mysterious death as alleged by the complainant. During the post mortem examination of Shashi Kant Rai no cause of death could be ascertained and subsequently viscera report also did not show any presence of poison. No doubt a F.I.R. was lodged but the police has submitted Final Report u/s 173 Cr.P.C. The second witness Manoj Gond died during the treatment in the government hospital. He was admitted by his real brother. Not even a single FIR was lodged alleging that the death was unnatural. Bed Head Ticket of Manoj Gond as well as viscera report of Shashi Kant Rai has also been brought before me and on the basis of these two medical reports the argument is that while rejecting the first bail application, one of the grounds for rejection that the witnesses have been eliminated stands negated.

I have perused the documents and also heard the respective counsels at length. The prosecution has not been able to negate this argument though the contention that these facts stand confirmed by two Hon''ble Judges of this Court in two different matter does not have much bearing as these were not main point in issue. After hearing the counsels on this point, I am satisfied that the two witnesses who died during the pendency of the trial or investigation have not been eliminated by the accused as alleged who are admittedly in custody since the time of lodging of the report. However, this may not be taken as an opinion on merits of the case during trial.

Sri D.S. Mishra further submitted that the bail was allowed to accused Mansoor Ansari by the Fast Track Court Ist on 15.5.2008 on merits though he is also arrayed as an accused by aid of Section 120B I.P.C. The Fast Track Court heard the bail application in compliance of the order dated 24.4.2008 and since the bail cancellation application was rejected by this Hon''ble Court on 29.8.2008, the submission on behalf of the applicant is that the order granting bail merged with the High Court''s order and as such the applicant''s implication being with the aid of Section 120B I.P.C. stands at par with that of the accused Mansoor Ansari who has already been granted bail and consequently the applicant is entitled for the same order on the ground of parity. It is also argued that so far bail of Ramu Mallah and Rakesh Pandey granted by Fast Track Court, who are the actual shooters granted by the Fast Track Court, cancellation of the order dated 8.7.2008 is still pending. However, so far the actual shooters are concerned, their case can not be equated with that of the present applicant. Learned Counsel for the applicant has also tried to emphasize on a number of discrepancies in the material collected during the investigation by the C.B.I. on which the present prosecuting agency is placing reliance. The C.B.I. has submitted a charge sheet against the accused Chunnu Pahalwan alias Afroz. The allegation against him is that he was standing with a Tata Sumo at the date and time of occurrence infront of Langara Phatak and after the occurrence when the accused fled away, he had taken away the shooters in the vehicle at about 4.00 P.M. The evidence of Nand Lal Rai and Ramesh Rai is relied by the prosecution that they had seen Afroz at Langara Phatak on the fatal day. The submission on behalf of the C.B.I. is that he is an accused who was declared as an absconder but the documentary evidence completely belies these allegations. This accused was sent to jail in another case in between 12.00-1.00 P.M. on 29.11.2005 i.e. date of occurrence. The C.B.I. has neither obtained any custody warrant and finally Afroz was examined by the C.B.I. on 25.2.2008 in Ghazipur jail after seeking permission from the Chief Judicial Magistrate. The C.B.I. has perused the jail register on 25.2.2008 and found that the aforesaid fact that the accused Chunnu Pahalwan alias Afroz was in jail at the time when it is alleged that he had taken away the assailants after the shoot out to be correct. The conclusion drawn by the learned Counsel on behalf of the applicant is that it is for this reason that no custody warrant or supplementary charge sheet was given though the C.B.I. declared him as an absconder at the time of submission of the charge sheet. Thus the argument is that Afroz is also a witness of conspiracy and has been arrayed as an accused only by aid of Section 120B I.P.C.

The next submission is that according to the prosecution, brother of the applicant Mukhtar Ansari surrendered before Ghazipur court on 25.10.2005 in another case and while talking to some other persons around him regarding murder of his arch enemy Krishna Nand Rai, the person alleged to be present in the near vicinity assured the conspirators that if Krishna Nand Rai is murdered, the applicant would take care of them. The murder took place only on 29.11.2005 i.e. approximately after lapse of 34 days after Mukhtar Ansari was remanded to judicial custody. The Investigating Officer recorded the statement of the first informant on 3.12.2005 u/s 161 Cr.P.C. i.e. after lapse of 4 days of the occurrence and it is for the first time when he came up with the statement and perusal of the said statement does not mention anything which has been mentioned in the first information report, so far the alleged exhortation by some accused at the relevant time of occurrence naming the present applicant and his brother to be behind the murder. Learned Counsel has vehemently submitted that this is one of the circumstances which substantiate his argument that the first information report was registered after 4 days after great deliberation. With all this delay the actual witnesses have come with the story of conspiracy for the first time only after lapse of several days in the 13th Parcha of the case diary. It is submitted that the statement of Ram Narayan Rai shows that the knowledge of conspiracy to murder Krishna Nand Rai was disseminated for the first time on 25.10.2005 to Ram Narayan Rai and two other persons and Rajnish Rai and Sanjeev Rai had communicated about the conspiracy to the deceased Krishna Nand Rai in presence of Ramanand Rai, as recorded by the first Investigating Officer in Parcha No. 5. Subsequently the statements of two witnesses namely Rajnish Rai and Sanjeev Rai were recorded only in Parcha No. 13 on 11.12.2005 and the present applicant was charge sheeted on 21.2.2006. However, later the investigating agency has changed its version and recorded the statement of Brijesh Rai who was already examined previously in Parcha No. 4 and the name of two witnesses of conspiracy, namely Manoj Gond and Prem Chandra Rai was introduced and two witnesses Rajnish Rai and Sanjeev Rai were abandoned and thus the names of Rajnish Rai and Sanjeev Rai were deleted from the list of witnesses filed by the C.B.I. The learned Counsel has tried to lay emphasis on these contradictory stands regarding proof of conspiracy adopted by the prosecution as well as C.B.I. which has come to light only after the investigation was continued by C.B.I. the supplementary charge sheet was filed. According to the C.B.I., the investigation is still continuing.

Sri D.S. Mishra has placed Section 39(5) Cr.P.C. to establish that in view of what has been argued the C.B.I. was liable to examine all the witnesses but surprisingly the names of two witnesses do not find place in the list of witnesses besides, the argument that the actual shooters were not part of the conspiracy. Learned Counsel has placed Section 10 of the Evidence Act, it provides that where there is reasonable ground to believe that two or more persons have conspired altogether to commit an offence or an actionable wrong, anything said, done or written by one of such person in reference to the common intention, after the time when such intention was first entertained by one them, is relevant fact as against each of persons believe to be so conspiring as well as for the purposes of showing that any such person was party to it. Learned Counsel has tried to canvass that there was no proof to establish that the actual shooters were members of the conspiracy in furtherance of the common intention. There is no consent or connection between the accused persons but in absence of any agreement between conspirators and shooters, specially there is nothing to establish that there was any nexus between the applicant and actual shooters, the entire allegations falls like a pack of cards. Learned Counsel has cited a number of decisions on the basis of evidence of PW-12 that the F.I.R. is ante-timed who has admitted that he had received a telephonic message that firing by unknown person and later the registration of the so called prompt F.I.R. have no legs to stand. In support of the argument Sri D.S. Mishra has cited two cases; Jagdish Murav v. State of U.P. and Ors. (2007) 2 S.C.C. 234 and Budh Singh and Ors. v. State of U.P. 2007 (1) J.I.C. 111. Learned Counsel has also placed the extract of the statement, Annexure-3 in support of his argument that the F.I.R. has not been sent along with the papers when the dead bodies were sent for post mortem. Thus once the F.I.R. was not in existence at the actual time when it is alleged to have been written, the entire situation changes from the time when the first bail application was rejected. Lastly it has been argued by Sri D.S. Mishra that the applicant is in jail since more than three years. The trial is not progressing only on account of interference by the complainant as petitions and applications after applications are being filed before this Court as well as the Apex Court at the instance of opposite parties and the lingering of the trial itself is sufficient for grant of bail. The applicant is a sitting M.P. and the elections are approaching. There is no likelihood of absconding and also he is prepared to give an undertaking that he will cooperate in the trial in case he is enlarged on bail. Another submission while replying the objection of the counsel for the C.B.I. that the bail will cause prejudice as investigation by the C.B.I. is continuing, counsel for the applicant states that in the event this argument is accepted, the applicant who is in jail since more than three years, is entitled for the benefit of Section 167(2) Cr.P.C.

Sri Ravi Kiran Jain while countering each and every argument submits that the order rejecting the bail cancellation application is of no help. The principles of merger will not apply and the evidence of conspiracy is evident coupled with the dying declaration of the accused. The next submission is that four orders have been passed by this Court in the bail cancellation application of Ramu Mallah and Rakesh Pandey on 29.8.2008, 18.9.2008, 22.9.2008 and 20.10.2008. These four orders have been placed before me. These orders are in Criminal Misc. Bail Cancellation Application Nos. 213594 of 2008-Ramanand Rai v. State and 25596 of 2008-C.B.I. v. State of U.P. to establish that severe strictures have been passed against the Sessions Judge. The arguments in respect of first point canvassed on behalf of the applicant that the F.I.R. is ante-timed, Sri Ravi Kiran Jain submits that none of the arguments is sufficient reason to come to a conclusion that the F.I.R. is ante-timed. Mere irregularity will not lead to conclusion that the F.I.R. is ante-timed. In support of his contention he has placed a decision of the Apex Court in the case of Mahmood and Anr. v. State of U.P. J.T. 2007 (13) S.C. 68 . On the basis of this judgment, the submission is that the delay in lodging the F.I.R. may blemish the prosecution case but delay in dispatch may not throw out the prosecution case completely. So far the arguments of criminal conspiracy, the submission on behalf of the prosecution is that the conspiracy was on account of political rivalry and there are four witnesses of conspiracy namely Rajnish Rai, Sanjeev Rai, Prem Chandra Rai and Manoj Gond who is no more alive and two letters by the deceased to the State Government. Learned Counsel has placed reliance on a decision of the Apex Court, Sharad Birdhichand Sarda Vs. State of Maharashtra, and also the statement of Sri Ramesh Chandra Rai and Manoj Kumar Sinha, Ex-M.P. who has proved the two letters and they have given statement u/s 164 Cr.P.C. to the effect that the accused including the present applicant were harboring the shooters. The statement recorded by Ramesh Chandra in English has been placed before me where he has stated that during his visit to Mohammadabad in the month of October and November, he saw a number of new faces residing at Phatak as well as a silver grey colour Tata Sumo. These persons were very cordial with Mansoor, Zafar Misbahuddin and Afroz. The shooters were also seen by him moving with Mukhtar Ansari accused prior to his surrender and it is because of this, the witnesses came to know about the name of Firdaus, Sanjeev Maheshwari alias Jeeva, Ramu Mallah, Rakesh Pandey and Guddu Nepali. Reliance has also been placed in the decision of Kalyan Chandra Sarkar etc. Vs. Rajesh Ranjan @ Pappu Yadav and Another, and also Dinesh M.N. (S.P.) Vs. State of Gujarat,

Sri D.S. Mishra has argued while replying the argument of the counsel for the first informant and C.B.I. that so called statement u/s 164 Cr.P.C. placed by the C.B.I. regarding the evidence of conspiracy and the presence of shooters at the residence of the applicant and his brother, the argument is that though these statements have been recorded after the submission of charge sheet and therefore, since their names do not figure as a witness in the list of witnesses, the evidence can not be considered at this stage. It is only during the trial if the court feels necessity, it can call any person as a witness. The next argument that the two letters treated to be dying declaration written by slained politician Krishna Nand Rai can not be said to be dying declaration specially when the original two letters have neither been traced by the investigating agency nor it finds place in the record, it can not be read in evidence. The submission is that the original letters have not seen the light of the day. So far the above citations cited by Sri Ravi Kiran Jain have all been considered by Hon. Mrs. Saroj Bala, J. while rejecting the bail cancellation application and it is of no value and no support to the prosecution. Lastly it has been submitted that this is a case where the applicant has been considerably detained in jail. He has no criminal history and he is a sitting M.P. There are all likelihood of him participating in the coming parliamentary elections and therefore, he is entitled to be enlarged on bail as there is no chances of the trial coming to a conclusion in near future.

I have considered each and every arguments of the respective counsels for the parties. So far the question of jurisdiction is concerned, I have already given my view in the earlier paragraphs of this judgment that I am not satisfied with the objection raised on behalf of the opposite parties. I am of the view that the first bail application was rejected by this Court. The Apex Court has not restrained the High Court from hearing the second bail application on merits. Though while staying the proceedings of the session trial liberty to hear bail was given to the trial court but since on previous occasion the trial court had already rejected the bail application of the present applicant and thereafter the order was challenged in the High Court u/s 439 Cr.P.C. and the first bail application was rejected. It is only this Court which can consider afresh for grant of bail to the applicant if it is satisfied that new grounds or circumstances exists to do so. Thus the objection raised regarding hearing of the second bail application by the High Court has no force and the arguments are accordingly rejected.

So far the merits of the second bail is concerned, a number of points have been raised which were not available to the applicant at the time when the first bail application was heard and rejected.

The emphasis by the counsel appearing on behalf of the opposite parties regarding issuance of notice and stricture against the learned Sessions Judge in the bail cancellation applications of Ramu Mallah and Rakesh Pandey is not relevant so far the consideration of the second bail application of the present applicant Afzal Ansari is concerned. The reasons have already been discussed in the foregoing paragraphs of this judgment and I am not in agreement with the submissions made by Sri Ravi Kiran Jain and Sri Vinay Saran that the issuance of notice in bail cancellation applications of other co-accused amounts to an embargo in hearing of the second bail application of the applicant. The arguments in respect of first two points that the F.I.R. is ante-timed and that two witnesses were eliminated during investigation are concerned, I am not inclined to give any opinion on merits but since these factors weighed having in my mind while rejecting the first bail application, stands considerably nullified in view of the new developments brought to my notice. No doubt the allegation of conspiracy by two brothers is mentioned in the first information report but in case the F.I.R. is ante-timed then this allegation alone is not sufficient to reject the arguments at the stage of consideration of bail application and confirm that there was apprehension in the mind of the deceased and his supporters that the applicant and his brother are conspiring to eliminate them. This allegation in the F.I.R. alone will not be sufficient unless and until it is supported by cogent evidence, which is yet to be recorded during the trial. The trial is no doubt stayed and, therefore, I refrain to record any definite opinion regarding hatching of conspiracy and the F.I.R. being ante-timed. It is not proper to express my view but at the same time sufficient to consider for grant of second bail at this stage. The findings regarding the first two points have already been given in the earlier paragraphs of this judgment coupled with the fact that the applicant is detained in jail since considerable length of time and there is no criminal history so far the present applicant is concerned and his case is distinguishable.

Taking into consideration all the aspects, arguments of learned Counsels for the parties and circumstances of the case, the bail application of the applicant is allowed subject to an undertaking filed by the applicant before the Chief Judicial Magistrate concerned with an unequivocal assertion that he will fulfill following conditions:

a. The applicant shall not tamper with evidence or intimidate the witnesses.

b. The applicant shall co-operate in the trial pending before the Sessions Judge concerned. He shall not be absent on any date fixed during the trial.

In the event, he is found to flout any of the above undertakings, it will be open for the prosecution to move this Court for cancellation of this bail.

Let the applicant Afzal Ansari, S/o Sri Subhan Ullah Ansari involved in case crime No. 589 of 2005, under Sections 147, 148, 149, 307, 302, 404, 120-B I.P.C. and Section 7 of U.P. Criminal Law Amendment Act, Police Station Bhanwar Koal, District Ghazipur be released on bail on furnishing a personal bond and two sureties of Rs. 1.5 lacs each in the like amount to the satisfaction of the court concerned.