Suresh Chandra (In Jail) vs State of U.P.

Amar Saran, J.—Heard learned counsel for the applicant and the learned A.G.A. appearing for the State of U.P.

It has been mentioned in paragraph 24 of the affidavit to the bail application that this is the second bail application of the applicant before this Hon''ble Court for consideration of bail. Learned counsel for the applicant states that this is a typing mistake and the present one is the first bail application against the order of the learned Sessions Judge dated 28.7.2005 rejecting the applicant''s bail in crime No. 489 of 2004 u/s 408 I.P.C., P.S. Cantt., district Allahabad.

In this case, the record of file of Criminal Appeal No. 2308 of 1979, which was on the list on 12.9.2003 in Court No. 38 of High Court before a Bench consisting of Hon''ble U.S. Tripathi, J. and Hon''ble M. Chaudhary, J. has become traceless. The F.I.R. in that connection was lodged on 28.10.2004, by the Registrar General of the Allahabad High Court. The applicant was the sole surviving appellant in the aforementioned Criminal Appeal No. 2308 of 1979, as Ashok Kumar the other appellant had died about 10 years back.

It was contended by Sri V.P. Srivastava, learned counsel for the applicant that the co-accused R.B. Singh, who was the Bench Secretary in Court No. 38 at the material time has been granted bail in this case by the order of the learned Sessions Judge, Allahabad dated 16.8.2005, a certified copy of which order was produced before me and the applicant should also be granted bail on the ground of parity.

It may be noted that so far as R.B. Singh was concerned, when this case was initially investigated by the first Investigating Officer, he came to the conclusion that R.B. Singh was not involved in this case and did not even submit charge sheet against R.B. Singh. So far as the applicant is concerned, it cannot be denied that he is the principal beneficiary in this case and whether anyone else would be interested in the disappearance of the file and record of the case, the applicant would certainly have an interest in its disappearance. It was argued by the learned counsel for the applicant that it might be possible, the file would have been lost somewhere in the registry and it was not neccessary that it had been criminally misappropriated. As the ramifications of file being lost are grave, as some of the High Court officials may even loose jobs in consequence of disapprearance of the file, it is not probable that the file may simply be missing in spite of such a strenuous search and that it has not been removed. There was also evidence, in this case, of the statement of R.B. Singh u/s 161 Cr.P.C., wherein he has made an application to the Investigating Officer dated 02.05.2005, in which he has mentioned that Rajaram Dubey a Clerk of Sri A.D. Giri, the previous counsel of the appellant (who had died) had come to his Court and asked him to get the case passed over. However, R.B. Singh has told him that if counsel did not appear then an N.B.W. would be issued and that if he wanted to get the case adjourned, he should get the appearance slip of another counsel filed. At that time, Gopal Awasthi, a peon, was sitting on the table behind his chair. Rajaram Dubey had told him on 5.9.2003 that if he got the work done, he would be paid Rs. 50,000/-, but R.B. Singh replied that he would not get even the work of 50 paise done. However, it is argued by Sri Srivastava that this fact was not mentioned in the first and second 161 Cr.P.C. statements of the witness and therefore, this version of the Rajaram Dubey offering Rs. 50,000/- could not be relied on. It is quite possible that initially R.B. Singh might have been reluctant to involve a clerk and fellow peon, because normally friendly relations prevail between these person and the Bench Secretary R.B. Singh might have blurted out these facts when he felt the noose tightening around him. In any case, even if, this material fact about the talk of Rajaram Dubey and R.B. Singh and offer of Rs. 50,000/- is excluded from consideration, this fact cannot be denied that a very important record, namely the record in a murder appeal has disappeared either from the office where the record is kept or from the Court room and whether there was any complicity of any other accused in this offence, in all likelihood the applicant, who was the main beneficiary, if the record of the case could have been made to disappear, would certainly have an interest in its disappearance and therefore, there is prima facie material for establishing his complicity in the offence.

The observation made hereinabove are only for the purpose of disposal of this bail application and the trial court must dispose of the trial of this case on merits uninfluenced by the observations.

Looking to the gravity of allegation that the record in a pending criminal appeal has been removed, I do not think it a fit case to release the applicant on bail. Accordingly, the application is rejected.