JUDGMENT :

1. Heard Sri. Zia Uddin Ahmad, learned counsel for the applicant and Sri Sanjay Kumar Singh, learned AGA for the State and perused the material on record.

2. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Sher Ali, seeking enlargement on bail during trial in connection with Case Crime No. C-37 of 1997, under Sections 364, 304, 506 IPC, registered at Police Station Phoolpur, District Varanasi.

3. The prosecution case as per the First Information Report registered by Sanjay Kumar Gupta the son of the deceased Gokrakhnath @ Om Prakash Gupta against Shankhdhar Dwivedi Sub-Inspector, Sher Ali, Digvijay Pandey, Jagat Singh, R. Rajan, Suresh Prasad Agarwal, Mahesh Chandra Agarwal and one unknown person of Kumar Guest House, Lanka, Varanasi and some other persons on 28.02.1997 at about 04:00 AM is as follows:-

(i) On 27.02.1997 at about 07:00 PM, one person whose name is not known but can be identified by the first informant and lives in Kumar Guest House, Lanka, Varanasi who if appears can be identified along with Mahesh Chandra Agarwal the brother of a transporter Suresh Prasad Agarwal of Shahdol, Madhya Pradesh came to the house of the first informant and inquired about his father to which he stated that his father will come in the night. On asking about the work the said person replied that he has to place an order for bricks.

(ii) On 28.02.1997 at about 04:00 AM, the same person of Kumar Guest House came along with Shankhdhar Dwivedi Sub-Inspector, Police Station Kotwali, District Shahdol, Madhya Pradesh and the police personnels of the said Police Station namely Sher Ali (the present applicant), Digvijay Pandey, Jagat Singh along with the transporter of Shahdol Suresh Prasad Agarwal and Mahesh Chandra Agarwal and some unknown persons in three vehicles being a Maruti Van No. M.P. 20A 9700, a Commander Jeep No. M.P.18 2399 and one Trax Jeep having a closed body of white colour to the house of the first informant and shouted Om Prakash Gupta the name of the father of the first informant, called him, on which, father of the first informant came out and then the said persons forcibly caught hold of his father, and while assaulting took him inside the Commander Jeep. The first informant, his brothers Ajay, Vijay, Arvind and his mother Smt. Nirmala Devi inquired about the reason for the same, to which, the persons did not tell them anything and kidnapped his father and also the cleaner of Truck No. URH 8449 Kariya Yadav and also took away the truck.

(iii) The first informant then went to Police Station Phoolpur and to different Police Stations in District Varanasi to know the whereabouts of his father and even at the district court and other places but could not know anything and then in the afternoon informed the S.S.P., Varanasi through a telegram. On an inquiry from Kumar Guest House, Lanka he came to know that the police of District Shahdol have taken away his father. The said unknown persons who had come to his house were also not available at the Guest House. On 01.03.1997 he sent a telegram to the S.S.P., Varanasi and S.P. Shahdol.

(iv) He kept on inquiring about his father and subsequently on 02.03.1997 at about 08:00 AM, a police constable from Police Station Phoolpur came and told him that a wireless message was received from Shahdol that his father has died due to heart attack. On getting the said information, the first informant along with his relatives Umashankar Jaiswal, Rajendra Prasad Jaiswal, Pratap Narayan Kanaujia, Om Prakash Gupta and Arvind Kumar Singh went to Shahdol on a Jeep and reached their in the morning of 03.03.1997. From the newspaper in Shahdol, he came to know that the dead body of his father is lying in the District Hospital and the postmortem examination has been conducted. He came to know in Shahdol that his father have brought from Varanasi to Police Station Kotwali, District Shahdol by the District Inspector, Kotwali Incharge R. Rajan, Sub-I