# Ahtesham Ahmad Zaidi (In Jail Since 29.03.2019) v. State of U.P

- **Citation:** (2019) 4 ILRA 855
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-11
- **Case number:** Crl. Misc. Ist Bail Application No. 18724 of 2019
- **Bench:** Rajul Bhargava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ahtesham-ahmad-zaidi-in-jail-since-29-03-2019-v-state-of-u-p-44962
- **Pages:** 4

## Headnote

A. Criminal Law - Indian Penal Code,
1860- Sections 147, 148, 149, 302, 307
& 120-B and 7 Criminal Law Amendment
Act-application-rejection-bail refused by
the court merely on the basis of the
856 INDIAN LAW REPORTS ALLAHABAD SERIES
criminal
history
of
accused-
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-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. (Para 8)

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.(Para 5)

Crl. Misc. Ist Bail application allowed. (E-6)

List of cases cited: -

## Text

4 All. Ahtesham Ahmad Zaidi Vs. State of U.P.
855
application
for
revision
under
the
Criminal Procedure Code 1898. In the
definition clause of the Limitation Act
1963 the word 'application' under Section
2(b) includes a petition. The intention is
manifest that motions apart from the Civil
Procedure
Code
were
contemplated
which required initiation by petitions.
Under the Civil Procedure Code motions
by petitions are not contemplated. In the
statement of Objects and Reasons when
introducing the Bill it was stated that : "A
new definition of 'application' is being
inserted so as to include a petition,
original or otherwise. The object is to
provide a period of limitation for original
applications and petitions under special
laws as there is no such provision now.
Consequential changes have been made
in the definition of 'appellant'." It appears
to me that there is no good reason why
should the residuary Article 137 of the
Schedule to the Limitation Act, 1963 be
not held to cover in its ambit applications
and objections under the special laws or
any other law and its language ought not
to be interpreted narrowly so as to keep it
confined to applications under the Civil
Procedure Code, there being no warrant
for it in the phraseology of that Article or
in the scheme of the schedule to the New
Limitation Act. Even if it be held that the
remedy for the first time was available to
the Board when Act of 1960 came into
force the application under Section 63(5)
of the Act should have been filed much
earlier and there was so justification for
the Board not to act for 6 years almost. I
am in agreement with the finding of the
court below that the application of the
Board under Section 63(5) of the Act was
time barred."

7. The above clearly shows that
Courts have already laid down the law
that Articel 137 of the Limitation Act is
applicable on proceedings held under any
Special Act for which no period of
limitation is provided. In the present case
also, the revision is filed under Section
83(9) of the Waqf Act for which no
period of limitation is provided in the said
Act. Article 137 of the Limitation Act
would be applicable to such revisions
filed under Section 83(9) of the Waqf Act,
1995 and, therefore, limitation for filing
such revision is three years and not three
months.

8. In view thereof, the objections of
the registry are set aside and the revision
is treated to be filed within time.

9.

List
this
case
in
week
commencing 03.01.2020.
----------
(2019)12 ILR A855

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.11.2019

BEFORE
THE HON'BLE RAJUL BHARGAVA, J.

Crl. Misc. Ist Bail Application No. 18724 of
2019

Ahtesham Ahmad Zaidi ...Applicant
 (In Jail Since 29.03.2019)
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Pradeep Kumar Rai, Sri Kamal Krishna

Counsel for the Opposite Party:
A.G.A., Sri Vindeshwari Prasad Gupta

A. Criminal Law - Indian Penal Code,
1860- Sections 147, 148, 149, 302, 307
& 120-B and 7 Criminal Law Amendment
Act-application-rejection-bail refused by
the court merely on the basis of the
856 INDIAN LAW REPORTS ALLAHABAD SERIES
criminal
history
of
accused-
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-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. (Para 8)

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.(Para 5)

Crl. Misc. Ist Bail application allowed. (E-6)

List of cases cited: -

1. Haricharan Kurmi Versus State of Bihar, AIR
1964 Supreme Court 1184 (V 51 C 149)

2. Surinder Kumar Khanna Versus Intellligence
Officer, Directorate of Revenue Intelligence,
(2018) 8 Supreme Court Cases, 271

3. 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.

4. State of Orissa Versus Mahimananda
Mishra, 2018 Law Suit (SC) 902

(Delivered by Hon'ble Rajul Bhargava,J.)

1. 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.

2. 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.

3. 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.

4.

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
4 All. Ahtesham Ahmad Zaidi Vs. State of U.P.
857
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.

5. 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 coaccused 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."

6. 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.

7. 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.

8. 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
858 INDIAN LAW REPORTS ALLAHABAD SERIES
in the commission of crime. However, the
bail
was
granted
to
the
accusedrespondent 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).

9. 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.

10. 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.

11. In case of default of any of the
conditions enumerated above, the courts
below shall be at liberty to cancel bail of
the applicant.
----------

(2019)12 ILR A858

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.11.2019

BEFORE
THE HON'BLE RAHUL CHATURVEDI, J.

Crl. Misc. Bail Application No. 30621 of 2019