Allahabad High Court
Ahtesham Ahmad Zaidi vs State Of U.P. on 11 November, 2019
Author: Rajul Bhargava
Bench: Rajul Bhargava
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 66 A.F.R. Case :- CRIMINAL MISC. BAIL APPLICATION No. - 18724 of 2019 Applicant :- Ahtesham Ahmad Zaidi Opposite Party :- State of U.P. Counsel for Applicant :- Pradeep Kumar Rai,Sri Kamal Krishna, Senior Adv. Counsel for Opposite Party :- G.A.,Vindeshwari Prasad Gupta Hon'ble Rajul Bhargava,J.
Heard Sri Kamal Krishna, learned Senior Advocate assisted by Sri Pradeep Kumar Rai, learned counsel for the applicant and Sri Vindeshwari Prasad Gupta, learned counsel for the first informant and Shri Pankaj Saxena, learned A.G.A. for the State and perused the record.
The present bail application has been filed by the applicant- Ahtesham Ahmad Zaidi in Case Crime No.132 of 2018, under Sections 147, 148, 149, 302, 307, 120-B I.P.C. and 7 Criminal Law Amendment Act, Police Station Phoolpur, District-Allahabad with the prayer to enlarge him on bail.
According to the prosecution, the incident took placed on 8.05.2018 at 9.30 p.m. whose F.I.R. was lodged on the next day at 10.55 a.m. by the brother of the deceased against two named and two unknown persons. During investigation, names of unknown accused were also disclosed by the witnesses.
Learned Senior Advocate appearing for the applicant has submitted that none of the eye-witnesses cited in the F.I.R. and other witnesses have stated a word against the applicant to have taken part in the incident. However, statement of Sajan alias Babar alias Irshad was recorded, who in his confessional statement stated that amount of Rs.25 lacs was paid by Sattar through the applicant to co-accused Sonu and Sanu to commit the murder of the deceased, Pawan Kesari. It is stated that except aforesaid confessional statement of co-accused, Sajan alias Babbar alias Irshad before the police, the investigating officer could not collect an iota of evidence that any money was passed on by the applicant to the named assailants and his bail application has been refused by the court only on the basis of his involvement in 14 criminal cases. Learned Senior Counsel has argued that in the absence of any reliable and cogent evidence to connect the applicant with the present crime of hatching conspiracy with the main assailants, his bail may not be rejected solely on the basis of criminal history of the applicant.
Learned counsel has relied upon the Constitution Bench judgement of Hon'ble Apex Court in Haricharan Kurmi Versus State of Bihar, AIR 1964 Supreme Court 1184 (V 51 C 149) which is quoted below:
"Thus, the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the Court is inclined to accept other evidence and in support its conclusion deducible from the said evidence. In criminal trials, there is no scope for applying the principle of moral conviction or grave suspicion. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisdiction assists the accused-person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt."
The aforesaid judgement has been relied upon by Apex Court in the recent judgement rendered in Surinder Kumar Khanna Versus Intellligence Officer, Directorate of Revenue Intelligence, (2018) 8 Supreme Court Cases, 271. Thus in the light of aforesaid judgement, it is stated that confessional statement of co-accused before police cannot be relied upon in the absence of any other supporting evidence to reject bail to the applicant. Therefore, the applicant, who is in jail since 29.03.2019, may be released on bail.
Per contra, learned counsel for the informant as well as learned A.G.A. appearing for the State have vehemently opposed the bail and submitted that the applicant is a hardened criminal and he is involved in the cases of extortion from businessmen and grabbing land of poor persons after forming a gang. However, in the counter affidavit by the first informant except repetition of criminal history of applicant, the informant could not point out any evidence of passing on of Rs.25 lacs to the main assailants for eliminating the deceased. In para-18 of the counter affidavit, he has reaffirmed the defence argument that in the confessional statement of co-accused, Sajan alias Babar alias Irshad stated that it is the applicant who was made culprit in the case and murder was committed after obtaining Rs.25 lacs from the accused, applicant. However, he has not disclosed any witness or any person whose presence the money was passed on by the applicant to the assailants. Learned counsel for the informant has placed reliance on the judgment of Hon'ble Apex Court in the case of Neeru Yadav Versus State of U.P. and another passed in the Criminal Appeal No.1272 of 2015 (@ SLP (Crl) No.1596 of 2016) decided on 29.09.2015.
Before dealing with the ratio of said case, I may record that it was a murder case in which the applicant along with other accused were actively involved in the commission of crime. However, the bail was granted to the accused-respondent no.2 on the ground of parity that other co-accused were enlarged on bail. The Apex Court, however, cancelled the bail of the accused-respondent no.2 on the ground that criminal history of seven cases was not taken into account by the High Court. In Neeru Yadav's case, the Apex Court has held that while dealing with the application for grant of bail, it is the duty of the Court to take into consideration certain factors i.e. the nature of accusation and the severity of punishment in cases of conviction and the nature of supporting evidence and the criminal antecedent of the accused. Similarly in the case of State o Orissa Versus Mahimananda Mishra, 2018 LawSuit (SC) 902, the Hon'ble Apex Court has held: it is by now well settled that at the time of considering an application for bail, the Court must take into account certain factors such as the existence of a prima facie case against the accused including the criminal history. The existence of a prima facie case showing the involvement of accused is absolutely necessary for the Court to decide the bail application. Hon'ble Apex Court though has held in various judgements that the criminal antecedent of the accused carries a huge importance as to whether bail should be allowed to hardened criminal or not but, in my considered opinion, merely on the basis of the criminal history of accused, bail cannot be denied to him. The prosecution must prima facie place some evidence before Court regarding his involvement in a case and thus the bail cannot be refused to accused merely on the basis of criminal history or his past antecedents. Learned counsel for the informant except laying strong emphasis on the criminal history of the applicant-accused, could not establish a prima facie case except confessional statement of co-accused which, too, has no legal sanctity in the eye of law. in the light of judgement of Full Bench apex court (supra).
Considering the facts and circumstances of the case as also the submissions advanced by learned counsel for the parties, without expressing any opinion on merits of the case, I am of the view that the applicant is entitled to be released on bail.
Let applicant-Ahtesham Ahmad Zaidi be released on bail in the aforesaid case crime number on his furnishing a personal bond of Rs.5,00,000/- and two reliable sureties of the like amount to the satisfaction of the court concerned subject to following conditions that:-
1.The applicant shall not tamper with the prosecution evidence;
2.The applicant shall not pressurize the prosecution witnesses;
3.The applicant shall appear on the date fixed by the trial court.
In case of default of any of the conditions enumerated above, the courts below shall be at liberty to cancel bail of the applicant.
Order Date :- 11.11.2019 MN/-