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2014 DIGILAW 1154 (RAJ)

Nisar Khan : Badri Prasad v. CBI : CBI

2014-05-16

NISHA GUPTA

body2014
JUDGMENT 1. - Heard the learned counsel for the petitioners as well as the learned Special Public Prosecutor for CBI so also counsel for the complainant and perused the material on record. 2. Both these bail applications arise out of a common FIR, hence are decided by this common order. 3. The contention of the petitioners is that in the present case, the complainant has been made accused, deceased Darlya died on 23.10.2006, in an encounter at Jaipur-Ajmer Road at 6.00 AM, Rajesh Choudhary was the complainant and it has been specifically stated in the First Information Report that Dariya and one other person were travelling in a bus on Seat No. 10 and 11 they were took down from the bus by S.O.G. Team. Dariya was a proclaimed offender and prise was also declared on him, SOG has tried to bring them but after getting down from the bus, they ran away and also fired on SOG Team and in cross-firing one person Dariya has died. After giving it political colour, wife of the deceased has lodged a complaint on which Investigation was handed over to CBI. The case of CBI is based on circumstantial evidence and assumption has been drawn without any basis that Dariya has been handed over to SOG on 22.10.2006, he has been confined secretly and thereafter liquidated somewhere by the S.O.G. A story of encounter has been coined. Present petitioners have been Implicated only on the basis of call details that they were found in the vicinity of Raghav Ji Das Ki Dhani where deceased was kept secretly after handing over it to S.O.G. S.O.G. has liquidated him which has been given the colour of fake encounter. 4. The contention of the petitioner Nisar is that similarly situated co-accused Surender Singh and Sardar Singh have been released on ball. The case of the prosecution is that Surender Singh has escorted the deceased Dariya from Fatehpur to Jaipur. The story of the prosecution has been discarded by the trial Court and one accused Rajendra Singh Rathore has been discharged. The present petitioner has not used any arm, he did not participate in the encounter and he was not present at the time of the death of deceased. He is behind the bars since 11.3.2011, hence be released on ball. 5. The present petitioner has not used any arm, he did not participate in the encounter and he was not present at the time of the death of deceased. He is behind the bars since 11.3.2011, hence be released on ball. 5. The contention of the counsel for petitioner Badri Prasad is that only on suspicion, the petitioner has been arrested. The case of the prosecution Itself is that conspiracy has been hatched between Rajendra Rathore, A.K. Jain and Arshad All was made field Incharge by these two persons. The present petitioner Badri Prasad is only the constable and he could not be made part of the conspiracy. As per the case of the prosecution, there was no reason for SOG to liquidate the deceased as the other wanted persons Vijendra @ Tiliya has saved his life by surrendering before the SOG and when as per the case of C.B.I., the custody of deceased Dariya was also handed over to SOG, there was no reason to liquidate him. The only anxiety of the SOG was to surrender the deceased to the law. The call details could not connect the petitioner with the crime as SOG Office is also in vicinity of Raghav Das ki Dhani and in SOG office, presence of the petitioner is natural. it has been stated that petitioner has also fired on the deceased and ballistic expert report has also been made part of the charge-sheet. As per Para No. 34 of the charge-sheet, the case of the prosecution is that Dariya was liquidated on the same place, Jaipur-Ajmer Road where it has been shown in the First Information Report and petitioner was acting under the directions of the senior officers, he was not having any knowledge about the conspiracy they took the deceased from Bus and in cross-firing he has died. Petitioner could not be said to be Involved in the offence, the prosecution has shown suspicion on the entries of Malkhana register in which particular weapon has been assigned to petitioners whereas on relying on the same entry, prosecution wants to Involve the petitioner, the prosecution cannot blow hot and cold at the same time. No mobile has been recovered at the Instance of the petitioner. No mobile has been recovered at the Instance of the petitioner. in F.I.R., it has been clearly stated that two persons were travelling in a bus but case of C.B.I. is that he was not deceased and a plot has been created to show false encounter but after Investigation, the C.B.I. could not search out those persons. Circumstantial evidence is cloudy the possibility of conviction are fragile. But Ticket No. 3309663 dated 23.10.2006 time 5.10 A.M. of seat No. 10 of Bus No. RJ 27-PA-0295 has also been recovered from the place of Incident. Total 254 witnesses has been shown as prosecution witnesses, out of them only 71 witnesses has been examined, trial will take time, the present petitioner is behind the bars since 25.7.2011. His two girls are of marriageable age, hence the petitioner should be released on ball. 6. Per contra, the contention of the Special Public Prosecutor is that there is reasonable connection of the present petitioners with the crime, charges have already been framed and meticulous evidence has been collected s against the petitioners, the role of the petitioners have started on 18.10.2006 when Vijay Choudhary has been persuaded to hand over the deceased Dariya to SOG which was handed over to SOG near the airport and thereafter he has been liquidated. During the course of arguments, the counsel for the CBI has submitted that there are two sets of accused, one who has hatched the conspiracy i.e. Rajendra Rathore, A.K. Jain and Arshad Ali was made field Incharge to execute the conspiracy. Admittedly, the present petitioners are not the party to the conspiracy, they have been shown members of the raiding party, the prosecution has also not collected evidence that if the deceased has not been liquidated at Jaipur- Ajmer Road, which was the other places where he has been put to death. The contention of the counsel for the prosecution is that present petitioner Badri Prasad has opened fire on deceased which caused his death. The trial is proceeding at a reasonable, fair speed if the witnesses are more it cannot be a ground for allowing ball to the culprits. Delay cannot be attributed to CBI. Looking to the gravity of the offence, Involvement of the petitioners, antecedents and conduct, their role and Impact on society, the petitioners should not be released on ball. The trial is proceeding at a reasonable, fair speed if the witnesses are more it cannot be a ground for allowing ball to the culprits. Delay cannot be attributed to CBI. Looking to the gravity of the offence, Involvement of the petitioners, antecedents and conduct, their role and Impact on society, the petitioners should not be released on ball. The other contention of the prosecution is that petitioner Badri Prasad has been declared proclaimed offender on 14.5.2011 and he surrendered on 25.7.2011, hence earlier he has not co-operated with the authorities. On earlier occasion he has a been released on ball on the ground of marriage of daughter, now again on same ground, he should not be released on ball. The ball application of co-accused Arvind Kumar Jain, A. Ponnuchami, Arshad All and Naresh Sharma are rejected and against the orders of bail in favour of Surendra Singh, petition before the Apex Court is pending and notices have been Issued, hence on the parity, the present petitioners are not entitled for ball. 7. The counsel for the prosecution has relied upon State of Maharashtra v. Captain Buddhikota Subha Rao, 1989 AIR SC 2292 ; Gurcharan Singh & ors. v. State (Delhi Admn.), AIR 1978 SC 179 where general principles for consideration of ball have been explained. The Other contention of the 'counsel for the prosecution is that in fake encounter cases one cannot plead that he was carrying the orders of their superiors and reliance has been placed on Prakash Kadam etc. v. Rampraaad Vlshwanath Gupta & Anr., II (2011) CCR 386 (SC) and on the point of delay in trial, reliance has been placed on Niranjan Hemchandra Sashittla & Anr. v. State of Maharashtra, II (2013) CCR 114 (SC) and contention of the prosecution is that delay could not be attributed to CBI. The further contention of the prosecution is that there are chances that witnesses may be tampered with as most of the police officers have been turned hostile, as regards delay, the counsel for the petitioners have relied upon Sanghlan Pandlan Rajkumar v. Central Bureau of Investigation & Anr., 2014 (4) SCALE 74 . 8. The further contention of the prosecution is that there are chances that witnesses may be tampered with as most of the police officers have been turned hostile, as regards delay, the counsel for the petitioners have relied upon Sanghlan Pandlan Rajkumar v. Central Bureau of Investigation & Anr., 2014 (4) SCALE 74 . 8. The prosecution has relied upon statement of Sawanta Ram who has testified the fact that deceased was seen with co-accused Surender, Biju Thekadar and other persons, reliance has also been placed on the statements of Babulal and Saurabh Kumar, who has narrated the fact as regards the custody and use of Mobile No. 9928355530 by petitioner Badri Prasad, reliance has also been on ballistic report and location of the tower to prove presence of petitioners Badri Prasad and Nisar Khan in the same vicinity. 9. Per contra, the counsel for the petitioners have submitted that as Raghavji Das Ki Dhani and SOG office are in same location, the presence of petitioners is natural there. There is no evidence that the deceased has been handed over to SOG at Airport or any other place. Reliance has also been placed on statement of N.R. Meena, Inspector of Police who has categorically stated that as per analysis of Mobile No. 9928355530, Badri Prasad was found to be near Vardman Nagar, Hirapura which shows genuineness of the encounter and Babulal, PW/27 who was the head constable and in charge, Malkhana has clearly testified that on the day of occurrence, Badri Prasad and Jag Ram were left, the SOG office after having Issued their weapons and entry Ex. 164 has been testified by him and as regards petitioner Nisar, it has also been stated by the said witness that on 22.10.2006 at 4.00 AM in the morning, Nisar has opened his Roza. The material contention of the counsel for the petitioners is that Khayali Ram, PW/60 who is driver of the bus in which Dariya and one other person were travelling has specifically stated that two persons who have put veil on their faces have been travelling in the bus they were taken out of the bus by S.O.G. Team. The material contention of the counsel for the petitioners is that Khayali Ram, PW/60 who is driver of the bus in which Dariya and one other person were travelling has specifically stated that two persons who have put veil on their faces have been travelling in the bus they were taken out of the bus by S.O.G. Team. After seeing the photo of deceased Ex.R/59 the witness has stated that face of the person was same but it was not having the Injury mark thereafter on 18.4.2014 in cross-examination, he has specifically stated that it is the same person which has been taken' by SOG from the bus and the contention of the counsel for the petitioners is that evidence of PW/60 totally dismantles the case of CBI and the petitioners may be released on ball. 10. In view of the above, without expressing any opinion on merits of the case, looking to the fact that similarly situated co-accused Surender Singh and Sardar Singh have been released on ball, the petitioners are on lowest end in the hierarchy in S.O.G. Nisar is S.I. and Badri Prasad a constable only. The case of other co-accused Arvind Kumar Jain, A. Ponnuchami, Arshad All and Naresh Sharma are not on similar footing and otherwise also the settled proposition of law is that accused can claim only positive parity and reliance has been placed on Shobha Ram v. State of U.P., 1992 Cr.L.J. 1371 and considering the statements of PW/60, it is a fit case to release the petitioners on bail. The ball applications are allowed. 11. It is ordered that the accused-petitioners (i) Nisar Khan S/o Abdul Gaffar Khan; and (ii) Badri Prasad S/o late Ram Chandra, in the matter of F.I.R. No. CBI CASE RC 2 (S) 2010-SCU. V/SC-II/CBI/NEW DELHI be released on ball; provided each of them furnishes a personal bond of Rs. 1,00,000/- and two surety bonds of Rs. 50,000/- each to the satisfaction of the learned trial court with the stipulation to appear before that Court on all dates of hearing and as and when called upon to do so with further conditions that present petitioners, If having passport, it should be deposited with the trial Court and they will not leave India without prior permission of the trial Court.Bail Application Allowed. *******