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Allahabad High Court · body

2008 DIGILAW 1831 (ALL)

RAM NARAIN RAI v. STATE OF U. P.

2008-08-29

SAROJ BALA

body2008
JUDGMENT Saroj Bala, J. These two applications moved by the complainant Ram Narain Rai and the Central Bureau of Investigation for cancellation of order dated 15,5.2008 passed by the Additional Sessions Judge/Fast Track Court No. I, Ghazipur whereby granting bail to the accused- Mansoor Ansari are being decided by a common order. 2. The opposite party No. 2 is an accused in S.T. No. 21 of 2008 (Crime No. 589 of 2005) - State v. Sanjeev Maheshwari and Anr., under Sections 302/120-B and 307/120-B I.P.C. The F.I.R. was lodged on 29.11.2005 naming Munna Bajrangi, Atta-Ur-Rahman alias Babu, Ejaz, Firdaus, Mukhtar Ansari and Afzal alleging that the convoy of late Krishnanand Rai was attacked with sophisticated weapons killing seven persons including Krishnanad Rai at the spot and many injured. On the basis of F.I.R. Crime case No. 589 of 2005 was registered under Sections 147 148 149 302 307 404 120-B I.P.C. and Section 7 of Criminal Law Amendment Act, at Police station Bhanwarkol, district Ghazipur. A writ petition was moved on 7.2.2006 by Smt. Alka Rai, wife of late Krishnand Rai. On 21.2.2006 two charge sheets were filed by the U.P. Police against the named accused Munna Bajrangi and others. After the filing of the charge sheets investigation was handed over to CBI in pursuance of the order of this Court dated 23.5.2006 passed in the aforesaid writ petition. 3. The C.B.I. submitted the first supplementary charge sheet dated 31.8.2006 in the Court of Special Judge, C.B.I. at Lucknow against accused Sanjeev Maheshwari alias Jeeva. Second supplementary charge sheet was filed by C.B.I. on 12.12.2006 against Rakesh Pandey and Ramu Mallah. The accused-opposite party was shown as absconding accused in the charge sheet dated 12.12.2006. The third supplementary charge sheet was filed against the accused-opposite party Mansoor Ansari on 23.3.2007. In the third charge sheet filed by the C.B.I. all the accused persons including those against whom charge sheets were filed earlier by the police, were nominated. The accused-opposite party surrendered before the Spl. Court at Lucknow on 23.12.2006. An application (Crl. Misc. Case No. 1897 of 2007) for bail moved on behalf of the accused-opposite party in the Court of Sessions Judge, Lucknow was rejected by the I/c Sessions Judge vide order dated 7.6.2007. The C.B.I. and complainant Ram Narain Rai filed Misc. The accused-opposite party surrendered before the Spl. Court at Lucknow on 23.12.2006. An application (Crl. Misc. Case No. 1897 of 2007) for bail moved on behalf of the accused-opposite party in the Court of Sessions Judge, Lucknow was rejected by the I/c Sessions Judge vide order dated 7.6.2007. The C.B.I. and complainant Ram Narain Rai filed Misc. transfer applications No. 743 of 2007 and 744 of 2007 for transfer of S.T. No. 253 of 2006 State v. Aizaz-ul-Haq and S.T. No. 254 of 2006 State v. Mukhtar Ansari from the Court of Additional Sessions Judge/F.T.C-1, Ghazipur to the designated C.B.I. Court at Lucknow. Rejecting both the transfer applications vide order dated 20.12.2007 this Court directed the Special Judge, C.B.I., Lucknow to transfer the supplementary charge sheets alongwith relevant record to the court of C.J.M., Ghazipui for committal of case to the Court of Additional Sessions Judge/F.T.C.-1, Ghazipur where Sessions trials of co-accused were pending. The cognizance against the five accused nominated in the F.I.R. was taken by C.J.M., Ghazipur on 25.2.2006 and the case was committed on' 25.5.2006 to the court of Sessions Judge, Ghazipur. After the framing of charges against the co-accused, thirteen witnesses were examined. 4. After the transfer of the supplementary charge sheets filed by the C.B.I. and committal of case to the Court of Additional Sessions Judge/F.T.C-1, Ghazipur, second bail application was moved on behalf of the accused-opposite party Mansoor Ansari on the grounds that the accused-opposite party surrendered on 23.12.2006 before the Court of Special Judicial Magistrate, C.B I. Lucknow. The accused-opposite party contested the by election of M.L.A. from Mohammadabad constituency held in February, 2006 against Smt. Alka Rai, wife of slain M.L.A. Krishnanad Rai. During the canvassing of bye election Smt. Alka Rai made futile efforts to dissuade and pressurise the accused-opposite party to withdraw his candidature and he having not obliged, she was enraged and threatened to teach him a lesson, Smt. Alka Rai and her associates exercised political pressure and introduced two witnesses Ramesh Chandra Rai and Nand Lal Rai to implicate him in the instant case. The statements of witnesses were recorded by the C.B.I, on 17.9.2006 and 18.9.2006. Their statements u/s 164 Cr.P.C. were recorded in November, 2006. 5. The statements of witnesses were recorded by the C.B.I, on 17.9.2006 and 18.9.2006. Their statements u/s 164 Cr.P.C. were recorded in November, 2006. 5. The witness Ramesh Chandra Rai is a man of criminal antecedents involved in case crime No. 488 of 2005 u/s 135A of Representation of People Act and in case crime No. 15 of 2007 under Sections 323 307 504 506 I.P.C. The witness Nand Lal Rai is a pocket witness of late Krishnand Rai and his family. The incident took place at 2.45 P.M. The telephonic message was received at the police station Bhanwarkol at 3.20 P.M. that firing was going on near Basania village. It was quite improbable to reach at 4 P.M. at Yusufpur situated at a distance of 38-40 Kms. from Basania. It was pleaded that the accused-opposite party was not a man of criminal background and there was no likelihood of his interfering with the prosecution evidence. There is no creditworthy evidence to show that the accused-opposite party was party to any criminal conspiracy. Qualis vehicle in which the main assailants took to their heels was not connected with the accused-opposite. 6. The second bail application was resisted by the C.B.I. on the grounds that after rejection of first bail application on 7.6.2007 Criminal Misc. Bail Application No. 4488 (B) of 2007 was filed before the Bench of this Court at Lucknow. The said bail application was rejected after application of judicial mind. The contention was that after the rejection of first bail application no fresh grounds came into existence. Superior court having applied its judicial mind, High court alone was competent to entertain and consider the second bail application. It was alleged that the accused-opposite party absconded and his name was shown as absconding accused in column No. 2 of the second supplementary charge sheet. The name of the accused-opposite party came to surface during further investigation. The prosecution witnesses, namely, Shashi Kant Rai and Manoj Kumar Rai were killed during the period the accused-opposite party was at large, it was alleged that there was security threat to the prosecution witnesses. 7. The Additional Sessions Judge/F.T.C-1, Ghazipur after considering the submissions granted bail to accused-opposite party Mansoor An sari by the impugned order. 8. The prosecution witnesses, namely, Shashi Kant Rai and Manoj Kumar Rai were killed during the period the accused-opposite party was at large, it was alleged that there was security threat to the prosecution witnesses. 7. The Additional Sessions Judge/F.T.C-1, Ghazipur after considering the submissions granted bail to accused-opposite party Mansoor An sari by the impugned order. 8. The cancellation of bail order has been sought by the C.B.I. on the grounds that while granting bail the norms and guidelines set up by the Apex Court in various decisions were not followed. The Apex Court side order dated 22.4.2008 directed the trial court to hear the bail application of co-accused. There was no direction for the hearing of the bail application of the accused-opposite party. No fresh subsequent ground having arisen after the rejection of first bail application, the Additional Sessions Judge erred in considering and granting second bail prayer. The complainant has challenged the bail order on the grounds that the principles of adjudication of second bail application were not taken into consideration. The court of Special Judge, CBI, at Lucknow being a court of concurrent jurisdiction, the bail application moved before the court of Additional Sessions Judge/F.T.C-1 was second bail application and principles applicable for the disposal of second bail application were to be taken into account. The further investigation by the C.B.I. is still continuing, therefore, grant of bail caused serious prejudice. The bail application of co-accused (sic) Ansari was rejected by this Court. The bail application of co-accused is pending disposal. 9. Heard Mr. Vinay Saran, learned Counsel for the complainant. Mr. G.S. Hajela, learned Counsel for the C.B.I., learned A.G.A. and Mr. D.S. Misra, learned Counsel for the accused-opposite party and have perused the material on record. 10. The learned counsels for the C.B.I. and complainant argued that irrelevant materials were taken into consideration by the trial court while granting second bail application on the same facts that were available at the time of earlier bail application. The parameters for grant of bail as highlighted by the Apex Court in various decisions were not followed by the trial court. The seriousness of offence and sentence to be imposed was not kept in mind while granting bail. The accused-opposite party being a relative of co-accused Mukhtar Ansari is in a position to influence the fitnesses and to tamper with prosecution evidence. Two witnesses were killed during investigation. The seriousness of offence and sentence to be imposed was not kept in mind while granting bail. The accused-opposite party being a relative of co-accused Mukhtar Ansari is in a position to influence the fitnesses and to tamper with prosecution evidence. Two witnesses were killed during investigation. There is sufficient evidence revealing the complicity of the accused-opposite party in entering into conspiracy with co-accused for elimination of late Krishnanand Rai. 11. The learned Counsel in support of their submissions relied on the decisions in Dr. Narendra K. Amin Vs. State of Gujarat and Another, (2008) 6 JT 205 , Dinesh M.N. (S.P.) Vs. State of Gujarat, AIR 2008 SC 2318 , Puran Vs. Rambilas and Another etc. etc., AIR 2001 SC 2023 , Anil Anil Kumar Tulsiyani Vs. State of U.P. and Another, (2006) 5 JT 411 , Afzal Ansari v. State of U.P. 2007 (57) ACC 124 and Satya Pal Vs. State of U.P., (1999) CriLJ 3709, 12. The learned Counsel for the accused-opposite party submitted that the parameters for grant of bail and cancellation of bail are entirely different as laid down by the Apex Court in State (Delhi Administration) v. Sanjay Gandhi 1978 SCC (Cri) 223, Bhagirathsinh v. State of Gujrat 1984 SCC (Cri) 63, Aslam Babalal Desai v. State of Maharashra 1992 SCC (Cri.) 870, Dolat Ram and Ors. v. State of Haryana 1995 SCC (Cri) 237 , Nityanand Rai Vs. State of Bihar and Another, AIR 2005 SC 2239 , State Vs. Amarmani Tripathi, AIR 2005 SC 3490 , Puran v. Rambilas and Anr. 2001 SCC (Cri.) 1124 and Dinesh M.N. (S.P.) v. State of Gujrat (2008) 2 SCC (Cri) 508. It was pointed out that in Amarmani Tripathi'scase (Supra), the bail was cancelled as it was established that there were serious attempt to tamper with evidence and to interfere and sidetrack the investigation and threatening to the witnesses. 13. It was argued that the bail granted cannot be cancelled by way of reappraisal of evidence. The complainant and C.B.I. have not made reference to any supervening circumstances requiring cancellation of bail. No irrelevant material was taken into consideration by the trial court while granting the bail. Both the prosecution witnesses by the natural circumstances and no F.I.R. was lodged nor any case is pending. The complainant and C.B.I. have not made reference to any supervening circumstances requiring cancellation of bail. No irrelevant material was taken into consideration by the trial court while granting the bail. Both the prosecution witnesses by the natural circumstances and no F.I.R. was lodged nor any case is pending. Security has been provided to the prosecution witnesses by the orders of this Court and further proceedings of the Sessions trials have been stayed by the orders of the Apex Court. The bail application pending be lore the High Court was not pressed as supplementary charge sheet and records were transferred to the Additional Sessions Judge/F.T.C.-1, Ghazipur. 14. The copy of the first bail application has not been annexed to show that the grounds taken in the second bail application were similar to those raised in the first bail application. Ii was argued that the direction of the Apex Court to decide the bail application of accused-opposite parts on merits was a fresh ground. The accused-opposite party came to know that Afro/Khan was in jail on the date and time of offence when his custody was transferred from Lucknow to Ghazipur jail. Co-accused Mukhtar Ansari was in jail a month before the incident and there is no evidence that the accused-opposite party met him m jail. According to the learned Counsel there is no evidence of entering into conspiracy against the accused opposite. It was pointed out that Afroz Khan and Chunnu Pahalwan have not been arraigned as accused m this case. 15. The bail granted to the accused u/s 439(1) Cr.P.C. can be cancelled u/s 439(2) Cr.P.C. where the accused misuses his liberty by indulging in similar criminal activity; interferes with the course of investigation; attempts to tamper with evidence or witnesses; threatens witnesses or indulges in similar activities which would hamper smooth investigation; likelihood of his fleeing to another country; attempts to make himself scarce by going underground; attempts to place himself beyond the reach of his surety; perverse order passed ignoring the material, and evidence on record and conduct subsequent to release on bail and supervening circumstances. The power vested in the Court u/s 439(2) Cr.P.C. can be invoked by the State or investigating agency or Public prosecutor or any aggrieved party. The power vested in the Court u/s 439(2) Cr.P.C. can be invoked by the State or investigating agency or Public prosecutor or any aggrieved party. The Apex Court in the case of Puran (Supra) has held that there is nothing to indicate that the power conferred u/s 439(2) Cr.P.C. can be exercised only if the Suite, investigating agency or Public prosecutor moves a petition. The power so tested in the High Court can be invoked either by the State or by any aggrieved party. The contention of the learned Counsel for the accused-opposite party about the maintainability of the application at the instance of complainant is devoid of substance in view of the decision in Puran's case. 16. The I/c Sessions Judge, Lucknow while rejecting the bail application of accused-opposite party Mansoor Ansari observed that ii is a case of criminal conspiracy headed by influential persons and the investigation is still on. The accused-opposite party was not named in the F.I.R. nor was charge sheeted by the police. His name figured for the first time in the second supplementary charge sheet filed by the C.B.I. on 12.1.2006 wherein he was shown as absconding accused. He surrendered on 23.12.2006 and third supplementary charge sheet was filed on 23.3.2007 against him and rest of the accused. The supplemental charge sheet and relevant records were transferred to the Court of Additional Sessions Judge/F.T.C.-1, Ghazipur by the orders of this Court and thereafter the bail application was moved. One of the ground taken was that Afroz Khan alongwith whom the accused-opposite party was seen standing with a vehicle was lodged in jail on 26.11.2005 at 1.38 P.M. 17. Certified copy of the orders of the Chief Judicial Magistrate, surrender certificate and jail papers were annexed with the second bail application. The two prosecution witnesses having died a natural death, there was no tampering with the prosecution evidence. The order dated 20.12 2007 passed by this Court on the transfer applications of C.B.I. and complainant is under challenge before the Apex Court and proceedings of Sessions trials having been stayed, there is no question of tampering with prosecution evidence at this stage. The Additional Sessions Judge has not taken into consideration any irrelevant material while granting bail. For these reasons the judicial discretion exercised by the Additional Sessions Judge/F.T.C-1. Ghazipur in granting bail cannot be said to be perverse. 18. The Additional Sessions Judge has not taken into consideration any irrelevant material while granting bail. For these reasons the judicial discretion exercised by the Additional Sessions Judge/F.T.C-1. Ghazipur in granting bail cannot be said to be perverse. 18. In view of the above discussion, both the applications for cancellation of bail order dated 15.5.2008 are rejected.