HONBLE OM PRAKASH-VII,J. - (1.) This is second bail application on behalf of the applicant.
(2.) Heard S/Shri G.S. Chaturvedi and Dileep Kumar, learned Senior Advocates assisted by S/Shri Rajrshi Gupta and Ajay Kumar Srivastava, learned counsel for the applicant and Shri R.K. Rai, learned counsel for the complainant as well as Shri Vikash Sahai, learned AGA through video conferencing.
(3.) It is submitted by the learned Senior Counsel appearing for the applicant that though this is second bail application on behalf of the applicant yet there are sufficient grounds to allow the same. It is next contended that almost all prosecution witnesses have been examined, applicant has fully cooperated with the trial and cross-examination of prosecution witnesses has also been completed. While deciding the first bail application moved on behalf of the applicant this Court has specifically observed that since the prosecutrix was still to be examined, therefore, bail application moved by the applicant was not liable to be allowed at that stage. Referring to this fact, it is further submitted that since prosecutrix and other fact witnesses have been examined, application under Section 311 CrPC moved by the prosecution for re-examination of prosecution witness Satyam Prakash has been rejected, therefore, there is no occasion for further detention of the applicant in jail. It is next contended that applicant is innocent and has not committed the present offence. He has been falsely implicated in this case due to conspiracy hatched by one Angad Rai and Satyam Prakash with a view to deter the applicant for contesting the parliamentary election from Ghosi constituency. Referring to whatsapp message sent by the prosecutrix, application moved to the Inspector General of Police concerned as well as the Director General of Police, U.P. and date of lodging the F.I.R. it is further submitted that present F.I.R. was lodged in conspiracy hatched against the applicant by the aforesaid persons only to falsely implicate the applicant so that he could not contest the parliamentary election from said constituency. It is further submitted that applicant is the elected candidate of the parliamentary election from Ghosi Constituency. He was arrested and is in jail. He took oath on the basis of the order passed by this Court. Referring to the affidavits as well as the compliance affidavit annexed with the application it is next contended that on the application moved by the father of the applicant regarding the conspiracy hatched by one Angad Rai and Satyam Prakash, an enquiry was conducted by an officer of the rank of Dy. S.P. who submitted a report to the effect that present F.I.R. was lodged hatching conspiracy by Angad Rai and Satyam Prakash. Learned Senior Counsel appearing for the applicant further submitted that the report submitted by the Investigating Officer (Dy. S.P.) concerned was not accepted and again an enquiry was entrusted to S.P. (City) Varansi. Referring to the enquiry report submitted by the S.P. (City), Varanasi, annexed with the compliance affidavit, learned Senior Counsel appearing for the applicant drew the attention of Court towards the audio clip of conversation made between Angad Rai, Satyam Prakash and prosecutrix and further submitted that this audio clip came into existence prior to the F.I.R. lodged against the applicant. Aforesaid reports were submitted before the Court on the direction of this Court. While conducting the enquiry, the S.P. (City), Varanasi ensured the genuineness of the said clip by obtaining expert opinion and found the voice / sound in the said audio clip belonging to Angad Rai, Satyam Prakash and also of the prosecutrix, which were made on the mobile of Satyam Prakash and prosecutrix. It is next contended that a format of F.I.R. was supplied by Angad Rai to Satyam Prakash and prosecutrix which itself shows that before lodging the F.I.R. a conspiracy was hatched against the applicant to implicate him in the present matter falsely. Learned Senior Counsel referred to conversation made through the audio clip, emphasized mobile number said to have been used by Angad Rai, Satyam Prakash and prosecutrix and further submitted that applicant is an elected Member of Parliament from Ghosi Constituency. He is in jail in a false case. Development work of the constituency concerned is held up and due to this reason public interest is suffering. Applicant is also a reputed person. He was running a established business. Criminal cases shown as criminal history were lodged against the applicant due to political rivalry. In most of the cases applicant has been acquitted and in some of them trial is going on. It is further submitted that no charge sheet has been submitted against go-accused Anuj Rai. The Investigating Officer submitted final report. No protest petition was filed and even during trial application under Section 319 CrPC was not moved to summon him to face trial. Referring to statement of PW-7 it is also submitted that the Investigating Officer has also been examined. Effort made by the prosecutrix to transfer the case from the Court concerned was also turned down by this Court and same was also upheld by the Apex Court. It is next contended that victim has earlier withdrawn the prosecution in one case in the statement recorded under Section 164 CrPC manipulating High School Certificate showing her age as major. One F.I.R. was lodged against the prosecutrix in that case. Victim has not cooperated at any point of time to the Investigating Officer concerned. Election Petition is also pending against the applicant. F.I.R. was lodged in this matter after a considerable delay and same is the result of after thought and due consultation. New facts of the investigation done under Section 173(8) CrPC are on record which itself are sufficient to allow this second bail application. No prima facie case is made out against the applicant. At this juncture, learned Senior Counsel referred to documents annexed with the application and also the affidavits filed in the matter and prayed for bail of the applicant. It is lastly contended that applicant has not approached the Apex Court at any point of time for his bail.;