Ajay Pandey @ Ajay Kumar Pandey vs The State Of Bihar on 5 January, 2022

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Patna High Court - Orders

Ajay Pandey @ Ajay Kumar Pandey vs The State Of Bihar on 5 January, 2022

This case was heard afresh after the case being remanded by the Apex Court by order dated 25.11.2019, passed in Criminal Appeal No.1755 of 2019, Special Leave Petition (Crl) No.6793 of 2019 by which order dated 8.2.2019 passed in Cr. Misc. No.3386 of 2019 was set aside. The order of the Apex Court reads as follows:-

"Heard the learned counsel for the parties. Leave granted.

There were following five cases pending against respondent no.2:-

1. Bela P.S. Case No.32/2017 u/s 341/323/353/504/34 IPC.

2. Mithanpura P.S. Case No.115/2017 u/s 290, 34 IPC and 30(a) Bihar Excise Act.

3. Budha Colony P.S. Case No.124/2010 u/s 347, 420, 467, 468, 471, 472, 323, 504, 364(A) IPC.

Patna High Court CR. MISC. No.3386 of 2019(9) dt.05-01-2022 2/12

4. Mithapur Thana Case No.92/98 u/s 399, 402, 307, 353, 332 r/w Section 27 of Arms Act.

5. Mithapur Case No.93/98 dated 15.06.98 u/s 25(1-B), 26, 35 of Arms Act.

In the bail application which was filed before the High Court, only the first three cases were disclosed and not the latter two. It appears that there was suppression of facts before the High Court. It was contended by the learned senior counsel appearing for respondent No.2 that there was no suppression. The Parokar was not aware of the other two cases.

Be that as it may, as the cases were not truthfully disclosed before the High court, we set aside the order dated 08.02.2010 passed by the High Court and request the High Court to decide the bail application afresh and the complainant may also be heard in the matter. We request the Chief Justice of the High Court to assign the case to an appropriate Bench.

The impugned order is thus set aside and the appeal is allowed.

Pending interlocutory application(s), if any, is / are disposed of."

After notice, informant has filed an interlocutory application being I.A. No.2 of 2020 dated 02.03.2020 with following averments:-

1. That, this interlocutory application on behalf of the opposite party no.2 (informant) is being filed for cancellation of the Vakaltnama executed by the opposite party no.2 (informant) earlier on 03.02.2019 in criminal miscellaneous no.3386 of 2019 and further for permission to allow informant to file fresh Vakaltnama so that his case may be properly represented in the Hon'ble court as per direction of the Patna High Court CR. MISC. No.3386 of 2019(9) dt.05-01-2022 3/12 Hon'ble apex court given in order dated 25.11.2019 in criminal Appeal No.1755 of 2019 (arising out of S.L.P. (Crl.) No.6793 of 2019.

2. That, it is humbly submitted that informant had executed vakaltnama on 03.02.2019 in favour a learned counsel engaging her to represent his case in criminal miscellaneous no.3386 of 2019 but the learned counsel engaged by him has not appeared in the court to represent the case of the opposite party no.2 (informant) as a result of which he suffered injustice.

3. That, it is respectfully submitted that petitioner in criminal miscellaneous no.3386 of 2019 had misrepresented before this Hon'ble Court by suppressing his criminal antecedents and thereby obtained bail from this Hon'ble court.

4. That, the opposite party no.2 challenged the order dated 08.02.2019 passed in criminal miscellaneous No.3386 of 2019 before the Hon'ble Apex Court vide Criminal Appeal No.1755 of 2019 (arising out of SLP(Cr.) No.6793 of 2019).

5. That, the Hon'ble apex court vide its order dated 25.11.2019 in Criminal appeal no.1755 of 2019 (arising out of S.L.P. (Cr.) No.6793 of 2019, cancelled the bail granted to the petitioner and remitted the case back to the Hon'ble High Court Patna, on the ground of suppression of material facts by the petitioner, for fresh hearing with a direction to give proper opportunity to the informant of hearing.

6. That, compliance of the order dated 25.11.2019 passed by the Hon'ble Apex Court, the criminal miscellaneous got revived and the case was posted for hearing on 5 th February 2020 but the learned counsel engaged by the informant did not appear before this court.

7. That, the case was again posted for hearing on 26.02.2019, but the case of the informant remain non represented as a result of which the Hon'ble court was pleased to grant no coercive step against the petitioner as far arrest is concerned.

Patna High Court CR. MISC. No.3386 of 2019(9) dt.05-01-2022 4/12

8. That, thus it is quite evident from order dated 18.06.2019, 05.02.2020, 26.02.2020 the learned counsel engaged by the opposite party no.2 has not prosecuted his case in the Hon'ble court since the date of first Hearing, hence it would in the interest of justice to cancel the original vakaltnama and allow him to execute fresh Vakalatnama so that he can engage a new counsel to represent his case." Further in the counter affidavit dated 20.9.2021 filed on behalf of informant, it has been stated that petitioner is not entitled for grant of regular bail on account of following incriminating material found during investigation:-

(I) co-accused Pankaj Kumar has deposed under Section 164 of Cr.P.C. that he sold the mobile SIM No.7361907855 to the petitioner.

(ii) Co-accused Manish Kumar has deposed under Section 164 of Cr.P.C. that he had taken the cheque from Sanjay Rai, staff of informant and given to second wife of petitioner. Co-accused Manish Kumar has been identified in TI Parade by Sanjay Rai, the staff of the informant as the person who took cheque from him.

(iii) Petitioner has threatened the informant to withdraw the case for which he has lodged an FIR being Karja P.S. Case No. 106/2019.

(iv) Co-accused, Priyanka, second wife of petitioner, Patna High Court CR. MISC. No.3386 of 2019(9) dt.05-01-2022 5/12 refused to undergo voice spectrograph test.

I.A. No. 1 of 2020 dated 22.01.2020 and supplementary affidavit dated 29.01.2020 was filed on behalf of petitioner in which it is stated that in para 195 of case diary, 5 criminal antecedents has been reported, which are as follows:-

1. Bela P.S. Case No.32/2017 u/s 341/323/353/504/34 IPC.

2. Mithanpura P.S. Case No.115/2017 u/s 290, 34 IPC and 30(a) Bihar Excise Act.

3. Budha Colony P.S. Case No.124/2010 u/s 347, 420, 467, 468, 471, 472, 323, 504, 364(A) IPC.

4. Mithanpura Thana Case No.92/10 u/s 399, 402, 307, 353, 332 r/w Section 27 of Arms Act.

5. Mithanpura Case No.93/10 dated 9.9.10 u/s 25(1-B), 26, 35 of Arms Act.

Petitioner has disclosed first three cases in his bail application but in remaining two cases, he was neither accused nor charge-sheeted and police had submitted final form in these two cases and there was a bonafide confusion in the mind of Parvikar with respect to Mithanpura P.S. Case No.93/10 and Mithanpura P.S. Case No.93/98 as well as Mithanpura P.S. Case No.92/10 and Mithanpura P.S. Case No.92/98, as such, both cases, i.e., Mithanpura P.S. Case No.92/98 and Mithanpura P.S. Case No. 93/98 were not disclosed in bail application and the mistake was bonafide and not deliberate.

Patna High Court CR. MISC. No.3386 of 2019(9) dt.05-01-2022 6/12 Petitioner was accused in five criminal cases but on account of confusion, due to wrong year given in paragraph no.195 of the case diary and on verification by the Parivikar of the petitioner from the police station that petitioner is neither an accused nor charge-sheeted and police has submitted final form in said cases, only three cases were disclosed in criminal antecedent, although petitioner was accused in five cases.

The mistake was bonafide and not deliberate. Further, same was never raised by the counsel for the informant before the High Court.

The case diary was called for in this case and this Court went through the entire case diary and reconsidered grant of bail to petitioner on merit also. Gist of allegations made in FIR has been elaborately stated in the order passed by learned ADJ which reads as follows:-

"Prosecution story in short is that on the basis of written application given by informant Rampukar Bhagat, FIR was lodged u/s 363, 364 and added section 302 IPC against unknown alleging therein that on 30.09.2018 at about 8:30 a.m., a phone call was received by his son Jay Prakash Narayan for finalizing land deal on that Jai Prakash Narayan went for inquiring the said land on his bullet motorcycle thereafter he called his wife on phone and told her that he was going to Patna and would come on the next morning at his shop and on 01.10.2018, he called his younger brother Om Prakash on phone and told him that he would come by 10:00 Patna High Court CR. MISC. No.3386 of 2019(9) dt.05-01-2022 7/12 a.m. and thereafter Om Prakash called him then Jai Prakash told to send his staff Sanjay Rai or Kaushal Rai with cheque book and seal at Bhagwanpur then Sanjay Rai took the same to Bhagwanpur where he was told by Jay Prakash to stay at Bhama Sah Dwar and give the cheque book and seal to a person riding on pulsar motorcycle who put cream colour shirt thereafter Sanjay Rai gave the same to that person and after 40 to 45 minutes the same person came with changed dress and gave cheques to Sanjay Rai who returned thereafter to him with signed cheque of Jay Prakash. It is further stated that the informant produced the four cheques given by Jai Prakash two in his name and two in the name of his staff Sanjay Rai but the same were not honoured as the amount was only Rs.44000/- in the account and the cheques were two Rs.50,00,000/- and two of Rs.25,00,000/- on suspicion he called Jai Prakash regarding issuance of cheques then he replied to call Bablu Bhaiya thereafter on every call, he replied to come back within two-three hours thereafter he informed his relatives and other about the incidents then he came to know that several calls were made on the mobile of Jai Prakash from unknown number 7361907855."

During investigation, it came that SIM No.7361907855 was issued from the shop of Pankaj Kumar and said SIM was activated on 12.02.2018 and Pankaj Kumar had sold this SIM number to Ganour Kumar of Muzaffarpur and Ganour Kumar admitted that he had purchased another SIM from Pankaj Kumar but present SIM was not purchased by him and Pankaj Kumar had taken his LTI and it appears that same was misused by Pankaj Kumar. Pankaj Kumar was arrested from his house Patna High Court CR. MISC. No.3386 of 2019(9) dt.05-01-2022 8/12 on 13.10.2018 and the mobile, from which said SIM was initially used on 10.03.2018, was also recovered from his house and it was stated that same was being used by family members, however, accused / Pankaj Kumar did not disclose the name of petitioner.

Thereafter, IO was changed on 02.11.2018 and the Officer-in-Charge himself took the investigation and arrested petitioner next day, i.e., on 03.11.2018 on the information given by the spy that petitioner is involved in this case.

It came during investigation that the deceased with his family was residing in a separate tenanted house in Lakridhai Nagar, P.S. Mithanpura, Muzaffarpur where deceased came in the night of 29.9.2018 and thereafter next day morning on 30.09.2018, he received a call from said mobile No. 7361907855 on his mobile No.8051807676 and thereafter left his tenanted house but this vital information was not disclosed in FIR instituted by father of deceased on 02.10.2018 although it was a written complaint and lodged after deliberations within family members, as admitted by widow of deceased Sangita Devi in her statement.

Initially, statement of widow of deceased Sangita Devi was recorded on 3.10.2018 in which she stated that mobile No. Patna High Court CR. MISC. No.3386 of 2019(9) dt.05-01-2022 9/12 7361907855 is of Shivani from whom deceased used to interact frequently, however, when the new IO took investigation, he went to the house of informant on 03.11.2018 where informant produced the mobile of widow Sangita Devi having mobile No. 9199404130 on which, it was stated for the first time that accused had called on this mobile on 30.09.2018 which was picked up by Sangita Devi, however, from call details on said phone, it was revealed that on said mobile number on 28.09.2018, there was conversation between widow Sangita Devi with holder of mobile No. 7361907855 and thereafter, there had been conversation from 28.09.2018 to 01.10.2018 of mobile of deceased which shows that holder of mobile No. 7361907855 was not unknown person but well-known to the deceased as well as widow of deceased. It has also come during investigation that widow of deceased had also recorded conversation on her mobile on 28.09.2018 made from mobile No. 7361907855 and such vital information were also concealed at the time of institution of FIR and same was revealed after one month when the SHO himself took over the investigation. The recovery of motorcycle of deceased from Muzaffarpur railway station also remained unexplained. Petitioner has been implicated in this case on the basis of his confession and Patna High Court CR. MISC. No.3386 of 2019(9) dt.05-01-2022 10/12 statement of other co-accused in which, it was confessed that petitioner and deceased were well known to eachother and petitioner on some pretext, called the deceased at his house and, thereafter, confined him for ransom which is contrary to the case as made out by the prosecution where FIR had been instituted against unknown.

In the counter affidavit, the incriminating material referred by the informant is with respect to other co-accused, i.e., Shivani and Manish Kumar, who are already on bail and except confessional statement of petitioner and other co- accused, there is no any other material found against petitioner. Surprisingly, the name of business partner of deceased, Bablu Bhaiya, to whom deceased asked his family members to talk during conversation was never interrogated by the police.

Having heard counsel for the petitioner, counsel for the State as well as counsel for the informant, it is an admitted fact that petitioner is accused in five criminal cases but in his bail petition, he has disclosed about three cases and for other two cases, reasons has been assigned for its non-disclosure due to confusion in the mind of Parvikar on account of wrong year mentioned in paragraph no.195 of case diary and it is submitted that same was not intentional but on account of confusion in the Patna High Court CR. MISC. No.3386 of 2019(9) dt.05-01-2022 11/12 mind of Parvikar for the reasons as explained.

After going through the entire case diary, it appears that deceased and widow of deceased were well known to the holder of mobile No. 7361907855 and there were several times conversation by the deceased as well as widow of deceased with holder of mobile No.7361907855, yet his name was not disclosed in the FIR and FIR was instituted against the unknown. Statement that deceased was carrying four lakh rupees also came much after during investigation. The mobile of widow of deceased from which also there was conversation with holder of mobile No. 7361907855 was also produced one month after institution of FIR in which it is also stated that the conversation between widow of deceased and holder of mobile No. 7361907855 was recorded. The name of Shivani, alleged holder of mobile No. 7361907855, was known to widow of deceased, yet FIR was instituted against unknown. Petitioner has admitted hostility with police (Annexure 2).

Petitioner has remained in custody since 05.11.2018 and was granted bail by this Court by order dated 24.09.2021, as such, he remained in custody for about 2 years and 10 months, and in the facts and circumstances of the present case, this Court is of the view that petitioner is entitled to remain on bail, as Patna High Court CR. MISC. No.3386 of 2019(9) dt.05-01-2022 12/12 granted by this Court on 24.09.2021. Since bail bond has already been furnished by the petitioner while being released on regular bail, no further bail bond is required to be furnished by the petitioner, however, trial court is directed to expedite and conclude the trial within one year from the date of receipt/production of a copy of order passed by this Court with similar terms and conditions, as imposed vide order dated 24.09.2021 by this Court.

(S. Kumar, J) ranjan/-

U          T

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Patna High Court - Orders