AFZAL ANSARI Vs. STATE OF U P

JUDGEMENT

(1.) MRS. Poonam Srivastava, 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'.

(2.) 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/v1-1694-50, 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.

(3.) 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 areas 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. "