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2020 DIGILAW 1425 (ALL)

Naimish Trivedi v. State of U. P.

2020-12-03

RAJESH SINGH CHAUHAN

body2020
JUDGMENT : RAJESH SINGH CHAUHAN, J. 1. Heard Ms. Samidha, learned counsel for the applicant, the learned Additional Government Advocate for the State and Sri. Arun Sinha, learned counsel for the complainant. 2. This is the second bail application filed by the applicant (Dr. Naimish Trivedi), who is languishing in jail since 02.03.2016 in Case Crime No. 0001 of 2016 under Sections 302, 34, 120-B and 420 of I.P.C. Police Station-Mahanagar, District-Lucknow. 3. The first bail application of the present applicant bearing Bail Application No. 6874 of 2016 has been rejected by this Court on merits on 07.10.206. For convenience, the order dated 07.10.2016 is being reproduced herein-below: “Rejoinder affidavit filed on behalf of the applicant today in Court is taken on record. Heard Shri Kunwar Mirdul Rakesh, learned Senior Advocate assisted by Shri Santosh Kumar, the learned counsel for the applicant, Shri Arun Sinha, learned counsel for the complainant and the learned A.G.A. for the State as well as perused the record. The applicant-Dr. Naimish Trivedi has sought bail in Crime No. 01 of 2016, under Sections 302/34, 120-B IPC, relating to Police Station Mahanagar, District Lucknow. It has been contended by the learned Senior Advocate that the applicant is not named in the FIR. During the course of investigation the applicant was made accused in this case on the ground that prior to the alleged occurrence, the applicant had agreed to sell his house to the deceased for a sum of Rs. 7.5 Crores and had received more than one crore as advance. A deed of agreement was also executed between the applicant and the deceased. It is said that since the applicant did not execute the sale deed and the deceased was pressurizing him to receive the balance amount of sale consideration and execute sale deed, the applicant in order to get rid of the deceased, engaged shooters and got him murdered. The submission of the learned Senior advocate is that the motive as alleged by the prosecution is not sufficient to cause death of any person. Even if it is believed to be true that the applicant had agreed to sell his house and had also received advance money, the dispute was purely of civil nature and the applicant could not get benefit by the death of the deceased. Even if it is believed to be true that the applicant had agreed to sell his house and had also received advance money, the dispute was purely of civil nature and the applicant could not get benefit by the death of the deceased. With regard to the telephonic conversation and call details record, the submission of the learned Senior Advocate is that the said call record and telephonic conversation placed on record by the complainant with the counter affidavit, is not an authentic document and cannot be made basis of presumption that the applicant had conspired to kill the deceased. The applicant is a renouned Dental Surgeon having his clinic in Mahanagar and it cannot be presumed that he would conspire to kill the deceased. The learned Senior Advocate has referred to the statement of the witnesses, who have been interrogated during the investigation and has submitted that it has come in evidence that the complainant, who is the daughter of the deceased, had relation with Haseeb @ Asif and he was following the car in which the deceased and the complainant were traveling soon before the occurrence. There is every possibility that Haseeb might have conspired to kill the deceased because being Muslim, his relation and affair with complainant was objected by the deceased. It is also a submission on behalf of the applicant that the only evidence against the applicant is the statement of co-accused and as per the provision of the Indian Evidence Act, the statement of the co-accused cannot be read in evidence against the applicant. It has lastly been submitted that co-accused Adnan has already been granted bail by this Court vide order dated 16.6.2016. The learned counsel for the complainant as well as the learned Additional Government Advocate, both have vehemently opposed the prayer for bail on the ground that it is admitted that the applicant had agreed to sell his house situated at Mahanagar, Lucknow to the deceased for a sum of Rs. 7.5 Crores and had also received 1.5 Crore as advance. The deceased was the owner of the Ritz Hotel and he had been continuously requesting the applicant to receive the balance amount and execute the sale deed but since the applicant had no intention to sell his house, therefore out of advance money, he spent Rs. 7.5 Crores and had also received 1.5 Crore as advance. The deceased was the owner of the Ritz Hotel and he had been continuously requesting the applicant to receive the balance amount and execute the sale deed but since the applicant had no intention to sell his house, therefore out of advance money, he spent Rs. 5,00,000/- (Five Lakhs) to engage shooters and got the deceased killed so that he may get rid of the deceased. The learned counsel for the complainant has taken the court to the call details record and the telephonic conversation annexed with the counter affidavit and has submitted that it has come in evidence that one Subhash Yadav was acting as mediator and on the instructions of the applicant, he arranged the shooters, namely, Adnan Ahmad and Wasif @ Saif. It has also come in evidence that co-accused Adnan provided his firearum and the co-accused Wasif @ Saif using that firearm, killed the deceased. The co-accused Adnan was granted bail on the ground that the only allegation against him was that he provided his gun to the actual shooter but so far as the case of the present applicant is concerned, he is master mind of the crime and the call detail record as well as telephonic conversation, clearly reveal that he had engaged shooters to execute the crime. With regard to call detail records and the telephonic conversation, the submission of Shri Arun Sinha is that the investigation of this case was conducted by Special Task Force and the voice call as well as the call detail record was sent to the expert from where the same were verified. It has also been submitted by the learned counsel for the complainant that during the course of investigation the Investigating Officer of STF sought permission of the Court to take the sample of voice of the applicant in order to tally the telephonic conversation but the applicant refused to give the sample of his voice and this circumstance should be treated as adverse to the applicant. The learned counsel for the complainant has also pointed out that prior to the occurrence, one Pappu was contacted for commission of crime but after the crime was committed and he came to know that work was done by some one else, he started negotiations with the applicant and demanded money because he had suffered a loss on account of crime being committed by some one else. The conversation between Pappu and the present applicant is on record and has also been verified. With regard to the affair of the complainant with Haseeb, the submission on behalf of the learned counsel for the complainant is that even if it is found that the complainant was having affairs with some Muslim Boy, there is no evidence to the effect that he had planned to kill the deceased and he could have benefited by the death of the deceased. After having heard learned counsel for the parties and after having gone through the material on record but without expressing any opinion on merit of the case, I find that on the basis of evidence on record, the applicant has no case for bail at this stage, hence his bail application is rejected.” 4. The instant second bail application has been filed on 20.06.2018. 5. This second bail application has been filed mainly on the ground that PW-1 the daughter of the deceased, who is informant, and PW-2, wife of the deceased, have not supported the prosecution case while recording their chief statement and the cross-examination. Further, the motive suggested by the prosecution is so week inasmuch as the present applicant shall not be gaining anything to eliminate the deceased on account of alleged agreement to sale entered into between the present applicant and the deceased along with his wife. 6. Ms. Samidha, learned counsel for the applicant has submitted that the material relating to the telephonic calls and the conversation are not authentic documents, therefore, those documents cannot be made the basis of presumption. It has also been submitted that the agreement to sale appears to be fictitious on the face of it inasmuch as neither the proper signatures have been made thereon nor the dates have correctly been indicated. Admittedly, the said agreement is subject matter of one civil suit wherein the original deed has been filed before the court concerned. 7. It has also been submitted that the agreement to sale appears to be fictitious on the face of it inasmuch as neither the proper signatures have been made thereon nor the dates have correctly been indicated. Admittedly, the said agreement is subject matter of one civil suit wherein the original deed has been filed before the court concerned. 7. On 02.09.2019, one supplementary affidavit has been filed on behalf of the accused-applicant reiterating the grounds taken in the second bail application. It has been submitted by Ms. Samidha referring the supplementary affidavit that there was one person namely Haseeb, who was having relation with the informant, who is daughter of the deceased, was chasing the vehicle of the deceased when the deceased was returning back to his home from his hotel at about 11:00 p.m. (night) on 01.01.2016 i.e. the date of incident. As per the statement recorded under Section 161 Cr.P.C. the Haseeb has admitted that he was having relation with the informant and on the date of incident the informant was willing to meet him. They met for sometime but in the meantime on account of another engagement of Haseeb, he told the informant that they shall meet another day. However, after sometime on the same day at about 10:45 p.m. Haseeb again rang the informant to meet her but she told that she was returning back to home with her father, therefore, she was unable to meet and told that if he was behind the car of the informant would not overtake as his father is with her. Thereafter, Haseeb returned back to his home. 8. Referring the aforesaid statement, learned counsel for the applicant has submitted that Haseeb might have conspired to kill the deceased for the reason that father of the informant was not happy for the relation of the informant with the Haseeb. Therefore, he should have been made either accused or one of the witnesses but nothing was done for the reason best know to the prosecution. 9. Ms. Samidha, learned counsel for the applicant has referred para-32 of the supplementary affidavit wherein it has been indicated that all the private witnesses have been examined and only the police officials are left to be examined, as such, the present applicant may be granted bail as he would not be in a position to affect the trial in any manner whatsoever. 10. Ms. 10. Ms. Samidha, learned counsel for the applicant has lastly contended that the present applicant is in jail since 02.03.2016 i.e. almost about four years and nine months period have passed, therefore, he may be enlarged on bail on the ground of long period of incarceration in the jail. 11. Per contra, learned Additional Government Advocate has opposed the second bail application by submitting that since no fresh grounds after rejection of the first bail application have been taken, therefore, the present applicant may not be granted bail. He has also submitted that the bail may not be granted on the grounds so raised by the learned counsel for the applicant that all the material witnesses including eye witness have been examined and there is no possibility of winning over or tampering the prosecution witnesses, for the reason that in the present case the eye witness has not turned hostile and all other witnesses have supported the prosecution case and considering the allegations made against the present applicant that he hired professional killers to eliminate the father of the informant (now deceased), therefore, the applicant may not be granted bail. He has also submitted that the relevant material e.g. the telephonic calls and the conversations of present applicant with the accused-persons have been filed before the trial court, therefore, those material evidence shall be examined by the learned trial court strictly in accordance with law. 12. Learned Additional Government Advocate has also submitted that without the actual change in the circumstances after rejection of the first bail application, the second bail application would be deemed to be seeking review of the earlier order, which is not permissible under law. He has also submitted that it has been the view of Hon'ble Supreme Court as well as this Court that mere long period of incarceration in jail by itself will not make out a case for grant of any indulgence, therefore, taking into consideration the facts and circumstances of the present case and gravity of the offence, the present applicant may not be enlarged on bail on the ground of long period of incarceration in jail. 13. Sri. 13. Sri. Arun Sinha, learned counsel for the complainant has vehemently opposed the second bail application by submitting that golden rule for maintaining the second bail application is that it can only be entertained when some fresh grounds or events have come up after the disposal of the first bail application. The hearing of the second bail application is not the review of the order which was passed on merit. He has further submitted that the law is settled that if the second bail application is entertained on the grounds which were already existed, it will create no ending process and even, the day if the bail application is rejected, the second bail application will be moved and in that case the precious time of the court will unnecessarily be wasted. He has drawn attention of this Court towards the order dated 07.10.2016, the rejection order of first bail application, whereby almost all the grounds so taken by the learned counsel for the applicant by filing the second bail application have been considered thoroughly e.g. the factum of agreement to sale; motive; role of Haseeb statement of the co-accused; call details/record and telephonic conversation etc. Even the charge-sheet was filed on 27.05.2016 and the first bail application has been rejected thereafter on 07.10.2016. Therefore, as submitted by Sri. Sinha, in the absence of raising fresh grounds or events those might have been emerged after disposal of the first bail application, this second bail application may not be entertained and may therefore be rejected. 14. Sri. Arun Sinha, learned counsel for the complainant has drawn attention of this Court towards Annexure No. CA-1 to the counter affidavit, which is a deed i.e. agreement to sale. The internal page-3 of agreement to sale indicates that one cheque worth Rs. 51.00 lacs vide Cheque No. 792599 dated 11.04.2015 has been paid as advance to the present applicant by the deceased in consideration to the property in question which was to be purchased in worthy Rs. 7.50 crores. Thereafter, he has drawn attention of this Court towards Annexure No. CA-18 to the counter affidavit, which is a bank details of the deceased, which indicates that the same cheque worth Rs. 51.00 lacs was debited from the account of the deceased for the present applicant. Not only the above, another cheque of Rs. 7.50 crores. Thereafter, he has drawn attention of this Court towards Annexure No. CA-18 to the counter affidavit, which is a bank details of the deceased, which indicates that the same cheque worth Rs. 51.00 lacs was debited from the account of the deceased for the present applicant. Not only the above, another cheque of Rs. 25.00 lacs was given to the present applicant and the said amount of Rs. 25.00 lacs was also debited from the account of the deceased for the present applicant. 15. Sri. Sinha has further submitted that besides the aforesaid amount, Rs. 8.00 lacs, Rs. 4.00 lacs, Rs. 10.00 lacs, Rs. 15. 00 lacs, Rs. 10.00 lacs and Rs. 10.00 lacs respectively have been given to the present applicant by the deceased through cash from time to time. Those receipts have been enclosed with the counter affidavit. 16. Sri. Sinha has therefore submitted that the total Rs. 1.33 crores was paid to the present applicant by the deceased. As per Sri. Sinha, after sometime, as soon as the deceased managed the remaining considering amount, he asked the present applicant to execute the sale-deed in his favour pursuant to the agreement to sale but the present applicant refused to execute the sale-deed by apprising that value of the house property in question is much more than Rs. 7.50 crores. 17. Sri. Sinha has submitted that having mala-fide intention and ulterior motives in his mind to usurp the amount, which was paid to the present applicant through cash, he approached the sharp shooter for eliminating the deceased. There is no doubt that Rs. 76.00 lacs was given to the present applicant through cheques and remaining Rs. 57.00 lacs was given by cash. The present applicant was willing to usurp the said amount which was paid by the deceased through cash. Not only the above, during the concurrence of agreement to sale the present applicant came to know that the value of his property is more than Rs. 8.00 crores, therefore, he was not willing to execute the sale-deed in favour of the deceased. Hence, the motives of the present applicant was clear as submitted by Sri. Sinha. 18. Sri. Not only the above, during the concurrence of agreement to sale the present applicant came to know that the value of his property is more than Rs. 8.00 crores, therefore, he was not willing to execute the sale-deed in favour of the deceased. Hence, the motives of the present applicant was clear as submitted by Sri. Sinha. 18. Sri. Sinha, learned counsel for the complainant has drawn attention of this Court towards other material which was filed with the counter affidavit however the said material was available before the Court at the time of disposal of the first bail application e.g. conversation details of Pappu Yadav, whereby the said Pappu Yadav had talked with the present applicant. Besides, so as to verify the voice of the present applicant with the calls/ conversations filed before the Court in the form of CD the voice sample of the present applicant was required and firstly he agreed to provide his voice sample but later on, he refused, therefore, the factum of such refusal would be considered against the present applicant, as the adverse inference would be drawn against the present applicant. Since all these materials have been considered by this Court while rejecting the first bail application on 07.10.2026, therefore, there is no need to discuss those things in detail again. 19. Sri. Arun Singh, learned counsel for the complainant has submitted that the accused-applicant is delaying the trial for no cogent reasons inasmuch as the chief statement of the informant was recorded on 01.08.2017 and cross-examination has been completed by the counsel on 27.08.2018. Thereafter, the trial court had closed the opportunity of cross-examination of the accused two times, however, the application was moved from the side of the present applicant under Section 311 Cr.P.C. which was allowed by the trial court. Further, the chief statement of PW-1 Mrs. Usha Khanna was recorded on 25.09.2017 and after taking adjournment by the accused, the cross-examination of the said witness was completed on 06.01.2018. He has also submitted that five witnesses including the eye witness have been examined and all the witnesses have supported the prosecution story. 20. Sri. Further, the chief statement of PW-1 Mrs. Usha Khanna was recorded on 25.09.2017 and after taking adjournment by the accused, the cross-examination of the said witness was completed on 06.01.2018. He has also submitted that five witnesses including the eye witness have been examined and all the witnesses have supported the prosecution story. 20. Sri. Arun Sinha, learned counsel for the complainant has referred the judgment of Hon'ble Supreme Court dated 18.01.2005 in Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav and Another, delivered in Appeal (Crl.) No. 1129 of 2004, whereby the Hon'ble Supreme Court has held that the second bail application can only be entertained if there are fresh grounds or events which have been emerged after disposal of the first bail application. The Hon'ble Supreme Court has turned down the plea of the period of long incarceration in jail by observing that “this Court held since the above factors go to the root of the right of the accused to seek bail, non consideration of the same and grant of bail solely on the ground of long incarceration vitiated the order of the High Court granting bail.” 21. The Division Bench of this Court in Criminal Appeal No. 3495 of 2009, Anees Miya vs. State of U.P. has turned down the plea of long incarceration in jail. In the case of Anees Miya (supra), the appellant was in jail since 17.07.2007 and at the time of final disposal of the aforesaid case by the Division Bench of this Court vide order dated 25.04.2018, about 11 years period had lapsed but this Court referring the various dictums of Hon'ble Supreme Court and this Court has held that mere long detention in jail does not entitle a convict of bail pending appeal. In the case of Anees Miya (supra), the Division Bench of this Court has held that “however, the fact remains that the Hon'ble Supreme Court in a number of cases has taken a consistant view that ignoring the facts and circumstances of the case mere long period of incarceration in jail by itself will not make out a case for grant of any indulgence.” Referring the judgment of Hon'ble Supreme Court in Rajesh Ranjan Yadav vs. CBI through its Director, 2007 (1) SCC 70 , some portion thereof has been narrated as under:- “......None of the decisions cited can be said to have laid down any absolute and unconditional rule about when bail should be granted by the Court and when it should not. It all depends on the facts and circumstances of each case and it cannot be said there is any absolute rule that the mere fact that the accused has undergone a long period of incarceration by itself would entitle him to be enlarged on bail. In the case of Anees Miya (supra), the judgment of Hon'ble Supreme Court in Pramod Kumar Saxena vs. Union of India and Others, 2008 (63) ACC 115 has been quoted whereby the Hon'ble Supreme Court has held that “mere long period of incarceration in jail would not be per se illegal. If the accused has committed an offence, he has to remain behind bars. Such detention in jail even as an under trial prisoner would not be violative of Article 21 of the Constitution.” 22. The Hon'ble Supreme Court in State of Madhya Pradesh vs. Kajad vide judgment dated 06.09.2001 in Appeal (Crl.) No. 907 of 2001 has held as under:- “It has further to be noted that the factum of the rejection of his earlier bail application bearing Misc. Case No. 2052 of 2000 on 05.06.2000 has not been denied by the respondent. It is true that successive bail applications are permissible under the changed circumstances. But without the change in the circumstances the second application would be deemed to be seeking review of the earlier judgment which is not permissible under criminal law as has been held by this Court in Hari Singh Mann vs. Harbhajan Singh Wajwa and Another, 2001 (1) SCC 169 and various other judgments.” 23. In view of the above, learned Additional Government Advocate as well as Sri. In view of the above, learned Additional Government Advocate as well as Sri. Arun Sinha, learned counsel for the complainant have submitted with vehemence that since no fresh grounds or events have come up after disposal of the first bail application and none of the witnesses have turned hostile rather those witnesses have supported the prosecution case and the trial in question is reaching to complete, therefore, the present applicant may not be granted bail. They have also submitted that the submission of learned counsel for the applicant in respect of long period of incarceration in jail i.e. about four years and nine months may not be sufficient in view of the dictums of Hon'ble Supreme Court as well as of this Court as cited above, therefore, the present second bail application may be rejected. 24. Having heard learned counsel for the parties and having perused the material available on record, I am of the considered opinion that in the light of the settled proposition of law for filing second bail application, there is no merit in the submissions of learned counsel for the applicant inasmuch as no fresh grounds or events have been raised which are emerged after disposal of the first bail application. As a matter of fact, all the grounds taken in the second bail application and material shown to the Court, have already been considered by this Court while rejecting the first bail application on 07.10.2016. So far as the submission on the point of long period of incarceration in jail is concerned, I am of the view that in the light of the facts and circumstances of the issue in question such ground is not tenable in the eyes of law. It is made clear that I am not expressing my opinion on merits of the case as I have only considered the merit of the second bail application. It is clarified that my aforesaid observation shall not affect the trial proceedings in any manner whatsoever as the learned trial court shall not take any adverse inference out of my aforesaid observations while conducting and concluding the trial. 25. Since the learned counsel for the parties have submitted that all the relevant witnesses have already been examined including the eye witness and only the police officials etc. 25. Since the learned counsel for the parties have submitted that all the relevant witnesses have already been examined including the eye witness and only the police officials etc. are left to be examined, therefore, I hereby direct the learned trial court to conclude the trial expeditiously, preferably within a period of six months by fixing short dates and ensuring the remaining witnesses to be examined at the earliest. While ensuring the witnesses to be examined, the coercive steps as prescribed under the law may be adopted keeping in view the guidelines issued from time to time to meet out the situation of Covid-19, if any witness deliberately avoids the trial proceedings. In any case, the trial shall be concluded by 31st of May, 2021. 26. Accordingly, the instant second bail application stands rejected.