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AFZAL ANSARI versus STATE OF U.P.

High Court of Judicature at Allahabad

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Afzal Ansari v. State Of U.P. - CRIMINAL MISC. BAIL APPLICATION No. 3600 of 2006 [2006] RD-AH 18392 (1 November 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

CRIMINAL MISC. BAIL APPLICATION NO. 3600 OF 2006

        Afzal Ansari Vs. State of U.P.

Hon. Mrs. Poonam Srivastav, J.

This bail application has come before this Court after nomination by Hon'ble The Chief Justice on 20.4.2006. During the continuation of arguments, the investigation was transferred to Central Bureau of Investigation (C.B.I.) by a Division Bench of this Court in Writ Petition No. 1552 of 2006 vide judgment dated 23.5.2006. However the argument continued and judgment was reserved. Subsequently a number of applications and affidavits were placed on record by permission of the Court. In the circumstances, the bail application was listed for ''further hearing'.

A preliminary objection was raised by the State as well as counsel for the C.B.I. Sri V.P. Srivastava, Senior advocate heard on behalf of the applicant. Sri G.S. Hajela Advocate for the C.B.I., Sri Adish Agrawal, Additional Advocate General, Government Advocate for the State of U.P. and Sri Jagdish Singh Sengar Advocate on behalf of the complainant. The objection on behalf of the C.B.I. is that after the decision of the Division Bench in Writ Petition No. 1552 of 2006, the C.B.I. has taken over the investigation on 22.8.2006 and it is still in progress. The C.B.I. Court is situated at Lucknow and, therefore, Allahabad High Court has no jurisdiction to hear the bail application and it should be transferred to the C.B.I. Court. It is also submitted by the counsel for the C.B.I. as well as Sri J.S. Sengar that the order rejecting bail application of the applicant dated 24.1.2006 by the Special Judge S.C./S.T. Act/Additional Sessions Judge, Ghazipur in Bail Application No. 41 of 2006 became non-est and the applicant should approach the court at C.B.I. and move afresh bail application. A Notification/order issued by Government of Uttar Pradesh Home Department (Criminal) Miscellaneous October 5, 1951 has been placed before me which reads as follows:-

1. No. 2533/VI-1694-50---In modification of notification No. 698/VI-1694-50 dated March 12, 1951, read with notification No. 1498/VI-1694-50, dated June 14, 1951, and in exercises of the powers conferred by Section 178 of the Code of Criminal Procedure, 1898 (Act V of 1898), the Governor is pleased to order that all Special Police Establishment cases committed to the Court of Sessions in any district in Uttar Pradesh shall be tried in the Lucknow Sessions Division.

2. Under sub-section (2) of Section 193 of the same Code, the Governor is further pleased to order that the Sessions Judge, Lucknow as Additional Sessions Judge for all other Sessions Division in Uttar Pradesh, shall try such cases.

Another Notification issued by the High Court of Judicature at Allahabad dated July, 25, 2005 appointing officers as Presiding Officers of the Special Court and Judicial Magistrate, Ist Class mentioned in Column No. 3 established under Government Notification No. 1686/VII-Nyaya-2/2001-739/87-T.C. II dated December 20, 2001 to exercise jurisdiction in the local area specified in Column No. 5 to try or commit to the court of Sessions all such cases enquired into within the said local area in which investigations are made, charge sheet is filed by the Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (Act No. 25 of 1946).

It is thus emphatically disputed that now it is the Lucknow Bench of this Court which can hear and dispose off the bail application and also that the applicant is now liable to move the C.B.I. Court and apply for bail afresh. Reliance has been placed on two Division Bench decisions of this Court. The first decision is Dr. Balram Dutt Sharma Vs. State of U.P., 1999 A.L.J., 1478. In this case a number of first information reports were filed against the accused in different districts of this State. The investigation commenced on the basis of the first F.I.R. lodged by the C.B.I. and the accused were arrested by the C.B.I. at Lucknow in connection with Ayurvedic scam. A number of bail applications were moved in different districts and subsequently bail applications were pending. The question of jurisdiction was raised and a Division Bench of this Court decided the question whether the jurisdiction to hear the bail applications was with the Lucknow Bench or the principal seat at Allahabad. The Division Bench decided the matter on the basis of guidelines in the case of Nasiruddin Vs. State Transport Appellate Tribunal, (1975) 2 Supreme Court Cases, 671. The Division Bench examined as to what is the cause of action for the bail application in the said case and came to a conclusion that though the materials on record indicate that the first information reports have been registered at different districts, the basis of the first F.I.R. is one lodged by the C.B.I. at Lucknow, the investigation was initiated on the basis of the said F.I.R. The accused was detained admittedly in relation to the C.B.I. FIR and thus concluded that the cause of action for every applicant would be in connection with the investigation/charge sheet by the C.B.I. that was lodged at Lucknow. The Court came to a conclusion that in view of the provisions of the Amalgamation Order and the conclusions by the Apex Court in Nasiruddin's case, the bail application may not be heard at the principal seat of the Allahabad High Court. The other decision relied upon by Sri J.S. Sengar and counsel for the C.B.I. is, Sanjay Somani and others Vs. Sate of U.P. and others, 2002 (1) JIC, 913. A Division Bench of this Court decided that it is the location of the criminal Court which will be determinative, whether the challenge of the orders passed by it can be entertained by principal seat at Allahabad or Lucknow Bench of the Allahabad High Court and place of commission of offence is not relevant.

Sri V.P. Srivastava, Senior Advocate, assisted by Sri Ajay Srivastava has emphatically disputed each and every argument of the counsel for the opposite party. The submission on behalf of the applicant so far the question of jurisdiction is concerned, he has placed the relevant dates after the commission of crime and registration of the first information report at Police Station Bhanwar Koal, District Ghazipur on 29.11.2005. The applicant was taken into custody by the police of Ghazipur on 8.12.2005. Charge sheet was submitted on 21.2.2006 thereafter the case was committed to the court of Session. The application for discharge was rejected and charges were framed against the applicant. The bail application was rejected by the learned District and Sessions Judge, Ghazipur on 24.1.2006. Investigation was transferred to the C.B.I. by a Division Bench of this Court on 23.5.2006. The C.B.I. registered the first information report on 22.7.2006 as CBI SCB at case Crime No. RC 8/2006 (S) P.S. CBI. The notice of the present bail application was given to the Government Advocate at principal seat at Allahabad 28.1.2006. While replying to the objections, reliance has been placed on a number of decisions. The first case is of Nasiruddin case (Supra). The Apex Court interpreted paragraphs 7 and 14 of the United Provinces High Courts (Amalgamation) Order, 1948. Paragraph 14 of the said Order is quoted below:-

"14. The new High Court, and the judges and division courts thereof, shall sit at Allahabad or at such other places in the United Provinces as the Chief Justice may, with the approval of the Governor of the United Provinces, appoint:

Provided that unless the Governor of the United Provinces with the concurrence of the Chief Justice, otherwise directs, such judges of the new High Court, not less than two in number, as the Chief Justice may, from time to time nominate, shall sit at Lucknow in order to exercise in respect of cases arising in such aresa in Oudh, as the Chief Justice may direct, the jurisdiction and power for the time being vested in the new High Court:

Provided further that the Chief Justice may in his discretion order that any case or class of cases arising in the said areas shall be heard at Allahabad."

The Apex Court concluded in paragraph 38 of the said decision which is as under:-

"38. To sum up. Our conclusions are as follows. First, there is no permanent seat of the High Court at Allahabad. The seats at Allahabad and at Lucknow may be changed in accordance with the provisions of the Order. Second, the Chief Justice of the High Court has no power to increase or decrease the areas in Oudh from time to time. The areas in Oudh have been determined once by the Chief Justice and, therefore, there is no scope for changing the areas. Third, the Chief Justice has power under the second proviso to paragraph 14 of the Order to direct in his discretion that any case or class of cases arising in Oudh areas shall be heard at Allahabad. Any case or class of cases are those which are instituted at Lucknow. The interpretation given by the High Court that the word "heard" confers powers on the Chief Justice to order that any case or class of cases arising in Oudh areas shall be instituted or filed at Allahabad, instead of Lucknow is wrong. The word "heard" means that cases which have already been instituted or filed at Lucknow may in the discretion of the Chief Justice under the second proviso to paragraph 14 of the Order be directed to be heard at Allahabad. Fourth, the expression "cause of action" with regard to a civil matter means that it should be left to the litigant to institute cases at Lucknow Bench or at Allahabad Bench according to the cause of action arising wholly or in part within either of the areas. If the cause of action arises wholly within Oudh areas then the Lucknow Bench will have jurisdiction. Similarly, if the cause of action arises wholly outside the specified areas in Oudh then Allahabad will have jurisdiction. If the cause of action in part arises in the specified Oudh area and part of the cause of action arises outside the specified areas, it will be open to the litigant to frame the case appropriately to attract the jurisdiction either at Lucknow or at Allahabad. Fifth, a criminal case arise when the offence has been committed or otherwise as provided in the Criminal Procedure Code. That will attract the jurisdiction of the Court at Allahabad or Lucknow. In some cases depending on the facts and the provision regarding jurisdiction, it may arise in either place."

       

There are other cases relied upon by Sri V.P. Srivastava decided by the Apex Court; U.P. Rashtriya Chini Mill Adhikari Parishad, Lucknow Vs. State of U.P. and others, (1995) 4 Supreme Court Cases, 738, Ramesh Thakur Vs. State of U.P. and another, 1999 (2) JIC, 156, Dr. Balram Dutt Sharma and others. Vs. State of U.P., 1999(2) JIC, 353, Mukhtar Ansari Vs. C.B.I. S.I.V. New Delhi and another, 1999(2) JIC, 502, Manju Varma (Dr.) Vs. State of U.P. and others, (2005) 1 Supreme Court Cases, 73 and also Sanjay Somani and others Vs. Sate of U.P. and others, 2002 (1) JIC, 913.

The cases cited by the respective counsels relate to the question of jurisdiction of the Bench situated at Lucknow or the principal seat at Allahabad. This Court as well as the Apex Court have all along adhered to the principle laid down in the first case of Nasiruddin decided on this question by the Apex Court. It is cause of action, which is the deciding factor on the question of jurisdiction. If the cause of action arises wholly within the Oudh areas then the Lucknow Bench will have jurisdiction and if it is outside the Oudh areas then the principal seat at Allahabad will have jurisdiction. No doubt the case of Nasiruddin was regarding a writ petition but the Apex Court had also considered the jurisdiction in a criminal case and conclusion arrived at was the place of commission of the crime or otherwise provided in the Criminal Procedure Code. In the instant case, the occurrence had taken place in the district of Ghazipur. The investigation commenced by the police situated at Ghazipur. Charge sheet was submitted and the applicant was taken into custody by the police of Ghazipur. The bail application was rejected by the Sessions Judge, Ghazipur and, therefore, there was no question of any dispute regarding maintainability of the bail application at the principal seat at Allahabad. The controversy came in existence only when a Division Bench of this Court sitting at Allahabad entertained the writ petition transferred the investigation to the C.B.I. coming to a conclusion that the State Police failed to conduct the investigation in an impartial manner. The C.B.I. has given a new crime number after the judgment by the Division Bench of this Court and according to the counsel for the C.B.I., the investigation is still continuing. I can not loose sight of the fact that the first remand after the applicant was taken into custody was taken by Ghazipur police and the applicant is in custody since 8.12.2005. In the case of Sanjay Somani (Supra), the first information report was registered at Police Station Pheelkhana Kanpur Nagar and the case was investigated by the C.B.I. The charge sheet was submitted in the court of Special Judge (Ante-Corruption) Central U.P. Lucknow. At the stage of framing of the charge, an application was moved for summoning certain documents which was rejected by the Special Judge, which was challenged before this Court in an application under Section 482 Cr.P.C. for a direction to the Special Judge sitting at Lucknow to summon the documents. The Division Bench in the said case allowed the objection on behalf of CBI that since the petitioners seek quashing of an order passed by a criminal court (Sessions Judge at Lucknow). The writ petition could not be entertained by the principal seat of the High Court at Allahabad. This Court refused to accept the arguments and assertions made in the said case that since the cause of action arose at Kanpur which was outside the Oudh jurisdiction and, therefore, the principal seat at Allahabad was fully competent to entertain the Misc. Application. In the instant case, the bail application was rejected by the learned Sessions Judge, Ghazipur and the notice of the bail application was given at Allahabad. Hon'ble the Chief Justice nominated this Bench and, therefore, subsequent transfer of investigation cannot be said to be sufficient to take away the jurisdiction of this Court to hear the bail application. The notification relied upon by the counsel for the C.B.I. clearly speaks about the establishment of the Special Sessions Courts for trying the cases investigated by the C.B.I. There can be no two opinion about the continuation of the trial in the CBI Court at Lucknow and no other court will have jurisdiction to conduct the trial but so far the question of bail application, which has come up before this Court and arguments were being continued, can not be stopped half way as contended by the counsel for the opposite party. Also I do not agree with the submission that the order rejecting the bail application by the learned Sessions Judge, Ghazipur has become no-nest and applicant should move afresh before the C.B.I. before approaching the High Court. The order passed by the learned Sessions Judge, Ghazipur on 24.1.2006 rejecting the bail application No. 41 of 2006 is a judicial order and its effect can not be taken away by subsequent development such as transferring the investigation to a different agency or further investigation is being carried out by the C.B.I. even if a different crime number has been allotted by the C.B.I. A judicial order can be set at naught only by another judicial order passed by a superior court but not in the manner as contended by the counsel for the C.B.I.

Taking into consideration the arguments advanced by the respective counsel for the parties and decisions cited by them, it is evident that the place of occurrence i.e. cause of action is within the jurisdiction of Allahabad High Court. The applicant was arrested and the first remand was obtained within the very same jurisdiction. Charge sheet was submitted and the bail application was being heard by this Court. I come to a conclusion that the jurisdiction can not be taken away only for the reason that now the matter is being further investigated by the C.B.I. The argument in the bail application was continuing and judgment was reserved, it was on the request of the respective counsels, the matter is now taken up for further hearing. This by itself is not sufficient to take away the jurisdiction of this Court. The principle laid down in the case of Nasiruddin (Supra) by the Apex Court after taking into consideration the second proviso to paragraph 14 of the Amalgamation Order, 1948 provides that the Chief Justice may in his discretion order that any case or class of cases arising in the said areas shall be heard at Allahabad. It can not be said that the Chief Justice has passed an order in violation of the provisions of the Amalgamation Order. I come to a conclusion that the bail application can be heard by the principal seat at Allahabad. The preliminary objections raised by the C.B.I. and counsel for the complainant has no force and therefore rejected.

Dt/-1.11.2006.

Rmk.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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