The Lucknow Bench of the Allahabad High Court has rejected the bail plea of Dr Vijay Kumar, the then Bahujan Samaj Party (BSP) MLA from Bansgaon, Gorakhpur, in the 2015 Shikhar murder case.
A single-judge bench of Justice Dinesh Kumar Singh passed this order while hearing a Criminal Misc Bail Application filed by Dr Vijay Kumar.
The application under Section 439 CrPC has been filed seeking bail in FIR under Sections 147, 148, 149, 364, 302, 201 & 216 IPC, Police Station Badosari, district Barabanki registered against the accused applicant and other co-accused.
The accused-applicant was a sitting MLA from Bansgaon constituency of Gorakhpur district. He had also unsuccessfully contested the election for Member of Parliament from Bahraich Parliamentary Constituency in 2014. The co-accused and wife of the accused-applicant was posted in district Bahraich as District Inspectors of Schools in 2014.
The allegations in the FIR are that the accused-applicant and his wife had taken an amount of Rs 3,50,000 from the deceased, the son of the complainant, to secure a government job. However, despite assurances, no government job was ever offered to the deceased, Shikhar Srivastava. The deceased started demanding his money back. The father of the deceased also met the accused-applicant and his wife, who assured him that either the deceased would be given a government job or they would return the money back.
On 19-01-2015 at around 05.45 p.m, the deceased had come to Lucknow after he had received a call from the accused-applicant for refund of the due amount. The deceased reached Lucknow, but he did not return home and his mobile phone was found switched off. The younger son of the complainant/ younger brother of the deceased went to the official residence of the accused-applicant at Nishatganj, Lucknow where the servants of the accused-applicant informed him that the accused-applicant, his wife and 4-5 other persons had forcibly taken the deceased in the car. The younger son of the informant, Shivam Srivastava, approached the police station and gave a written complaint on which Sub Inspector Manoj Kumar went to the house of the accused applicant along with Shivam Srivastava. The Sub Inspector Manoj Kumar tried to contact the accused-applicant, his wife, but their mobile phones were found switched off.
Thereafter, the Sub Inspector enquired from the gunner of the accused-applicant on mobile phone and also made enquiries from the servants present at the residence of the accused-applicant. The servants assured the Sub Inspector, Manoj Kumar and Shivam Srivastava that they would be able to meet the deceased next morning at 08.30 A.M. On this assurance, the younger son, Shivam Srivastava, came back to Bahraich. On the very next day i.e 20-01-2015 at around 08.20 a.m, the dead body of the deceased was found lying at road side at Badosari, Ramnagar, district Barabanki. The complainant was given information by the police regarding the dead body of his son.
The inquest of the deceased was conducted on 20-01-2015 and the inquest witnesses had opined the cause of death of the deceased due to antemortem injuries, which could have been caused by assaulting him mercilessly.
The cause of death of the deceased was due to hemorrhage and shock as a result of antemortem injuries.
The investigation of the case was carried out by the local police and the police were making efforts to arrest the accused-applicant, his wife and other co-accused. The Investigating Officer moved an application to the Chief Judicial Magistrate, Barabanki on 28-01-2015 for issuance of non-bailable warrants and for initiation of proceedings under section 82 CrPC.
The Chief Judicial Magistrate, Barabanki order dated 28-01-2015 issued non-bailable warrants against the accused persons and on 03- 02-2015, the proceedings under section 82 CrPC were also initiated.
When investigation of the case was being carried out by the police, an order dated 05-02- 2015 was passed by the Deputy Secretary(Home), Section-4, Civil Secretariat, Lucknow for transferring the investigation of the case from local police to CBCID under the influence of the accused-applicant and other co-accused persons, being sitting MLA and having good political connections. The Deputy Secretary (Home), passed an order for transferring the investigation from civil police to CBCID on recommendation of the then leader of opposition at Vidhan Sabha, Swami Prasad Maurya, who on his letter head dated 27-01-2015 forwarded the application of the accused-application for transferring the investigation of the case to the CBCID. On the said letter of Swami Prasad Maurya, the Principal Secretary of the then Chief Minister of Uttar Pradesh, directed the Principal Secretary (Home) to pass order for transferring the investigation to CBCID.
The complainant filed a Writ Petition bearing impugning the order dated 05-02-2015 transferring the investigation to CBCID and the Division Bench of the court order dated 22-08-2017 allowed the said writ petition and held that the investigation of the case from local police to CBCID was transferred on the influence of the accused persons with the assistance of the then opposition leader, Swami Prasad Maurya, under political influence.
The Division Bench quashed the order dated 05-02- 2015, and the Superintendent of Police, Barabanki was directed to ensure that the investigation of the case was carried out in a fair and proper manner by the Investigating Officer of the local police, and further, to ensure that the police report be submitted in the competent court within six weeks from production of a certified copy of the order.
Despite the order dated 22-8-2017 passed by the court, the accused-applicant, his wife evaded the arrest.
During the course of investigation, it could be revealed that co-accused, Mradula Anand, and the deceased were having illicit relations. In his confessional statement given to the police, the accused-applicant said that when he came to know about the illicit relations between the deceased and his wife, Mradula Anand, then he tried to reason the deceased through co-accused, Amit, Rinkoo and Sangam, who warned the deceased not to have any relation with Mradula Anand.
However, the deceased did not stop, and then the accused-applicant asked his wife, Mradula Anand, to call the deceased on the date of the incident and when he reached, he was killed with bricks and stones and his dead body was thrown away. On the pointing out of the accused-applicant, a Safari car in which the dead body was carried away after murdering the deceased, was recovered.
It is further stated that said witness, Rajendra Kumar, was told about the murder of the deceased. Mukthar Ali, driver of co-accused, Mradula Anand said that he had seen the deceased coming to the office of the co-accused and the deceased would sit with the co-accused, Mradula Anand for a long time. The police has also collected the call details report of the deceased and co-accused, Mradula Anand, which would show that they used to talk for a long duration and they would make calls to each other regularly for several times in a day. From 01-05-2014 to 29-08-2014, the deceased and co-accused had spoken over their mobile phones 198 times.
Vijay Vikram Singh, counsel for the accused-applicant, however, submits that the accused applicant has been in jail for more than three and half years and trial has not yet progressed.
The court therefore, vide order dated 26-07- 2022 called for a report from the trial court regarding the reasons for delay in the trial.
The Court noted,
Trial Judge, Additional District/Special Judge, MP/MLA, Barabanki has submitted a detailed report dated 06-08-2022. The said report would suggest that co-accused-Mradula Anand, wife of the accused-applicant was granted Short Term Bail on medical ground for period of four months vide order dated 23rd March, 2021 passed in Bail No 14769 of 2021, and after expiry of period of four months, the co-accused, Mradula Anand was directed to surrender before the trial court on 29-07-2022.
However, she did not appear and after taking the short term bail for four months, on each and every date, the co-accused had been seeking adjournment on the ground of one pretext or another. In the meantime, the court order dated 29-07-2022 had again given one month more time for medical treatment to the co accused-Mradula Anand, and her short term bail has been extended upto 31-08-2022. She has been directed to surrender before the trial court on 31-08-2022. The co-accused, Nand Kishore @ Rinkoo had filed an application under section 227 CrPC and the other co-accused have also filed the similar applications. The said applications were posted for disposal on 08-08-2022. Because the co-accused, Mradula Anand, wife of the accused-applicant, has been evading the process of the court on one pretext or other, therefore, the charge has not yet been framed.
The court is of the view that the accused cannot take advantage of their own wrongs. If they do not cooperate in the trial, they cannot complain of delay in the trial.
Vijay Vikram Singh, counsel for the accused-applicant has also submitted that co accused, Rinkoo @ Nand Kishore has been granted bail by the Supreme Court order dated 25-10- 2021 and therefore, the accused-applicant may also be enlarged on bail.
The Court observed that,
The accused-applicant is a resourceful person as is evident from the facts narrated above. He could evade his arrest for four long years in the case. He is the main accused. He could manage the transfer of the investigation from civil police to CBCID. But, for the intervention by the court, he could have managed the investigation as well. The witnesses are his two servants, one who gave him shelter at Gorakhpur as well as the Driver besides other witnesses.
Considering the status of the accused-applicant, who was an MLA and contested the election for Lok Sabha and the status of witnesses, who come from a poor background, the prosecution apprehension of influencing the witnesses and tampering with the evidence by the accused-applicant cannot be ruled out. The accused applicant could not have been arrested had the court not intervened in the contempt proceedings as he could evade his arrest for four years.
The accused are not allowing the trial court to proceed with the trial. The co-accused, Mradula Anand after her bail application got rejected by this court, could get short term bail on medical grounds and on one pretext or other, she is not appearing before the trial court so that the trial could not proceed as is evident from the report submitted by the trial court.
“In view thereof, without commenting on the merit of the case, this court finds substance in the arguments of the prosecution that the accused applicant will be in a position to influence the witnesses and tamper with the evidence if he is released on bail. The accused themselves are responsible for not allowing the trial to proceed. The case of the accused-applicant is different on facts with the case of co-accused, Rinkoo, who has been granted bail by the Supreme Court and therefore, he cannot claim parity.
In view thereof, I am of the opinion that the accused-applicant is not entitled to be enlarged on bail at this stage,” the Court further observed while rejecting the bail application.