The issue whether controversial Rashtriya Janata Dal leader Shahabuddin would remain free or go back to jail will be decided on Friday with the Supreme Court on Thursday reserving its verdict on two appeals challenging the grant of bail to him by the Patna high court in a murder case.
The apex court also rebuked Nitish Kumar-led Bihar government, which has the RJD as its coalition partner, for its lax approach in opposing bail granted to the RJD strongman in various cases at different judicial forums including the high court.
The Bihar government, which drew flak from the court since the beginning of the hearing on appeals, was on Thursday again questioned for not providing a copy of the chargesheet to him for 17 months in the murder case of Rajiv Roshan.
Roshan, the eye witness to the gruesome killings of two of his younger siblings, was also killed few days before his proposed testimony in the murder case of his brothers.
A bench comprising Justices P C Ghose and Amitava Roy, which heard the parties for nearly three days, referred to the trial court records and said it cannot simply go by "inferences" drawn from various happenings in lower courts, as the order sheets revealed that police records were not provided to the accused.
"We have to act as per records. We have an onerous duty to perform. What kind of prosecution is this that for one-and-half years the trial court kept on saying: provide the police records. You (Government) can't say the prosecution has no role in the proceedings. It can't be a one-sided affair," the bench said.
Dissatisfied with the response of the state government, the bench said, "It is not that the trial court proceedings are alien to us."
Lawyer Prashant Bhushan, appearing for Siwan-based Chandrakeshwar Prasad who lost his three sons in two separate crimes, vehemently opposed the contention of Shahabuddin that he was not provided the case records including chargesheet for 17 months after it was filed in the trial court.
"It is a cock-and-bull story which has been told in the Supreme Court for first time, that too orally without any affidavit," Bhushan said adding that Shahabuddin had challenged the trial court order taking cognizance of the offence in the sessions court.
There was not "even a whisper" that Shahabuddin was not supplied with the copy of chargesheet, he said.
Bhushan also mentioned that the revision plea of the RJD leader had details of the chargesheet and hence, the plea of non-supply of records was "unsustainable and cannot be taken note of".
He cited the high court order by which his bail plea was dismissed in February this year and said that too recorded the submission of Shahabuddin having details of the chargehsheet.
"This makes crystal clear that Shahabuddin had the chargesheet and the case diary or else how can he cites the paragraphs of the chargesheet," Bhushan said.
Senior advocate Shekhar Naphade, appearing for the controversial leader, said there was concerted efforts to delay the trial and for that reason, the chargesheet was not provided to him.
Moreover, the prosecution did not have evidence to prove Shahabuddin's involvement in the conspiracy to murder, he said.
"This is perversity writ large. The charge is that I was involved in the killing of Rajiv Roshan but how can I do that when evidence suggests that I was in judicial custody," Naphade said.
He said it is for the Bihar government to specify its stand on the allegation that an undertrial prisoner went out of jail and took part in the killing.
The senior advocate further alleged that shifting Shahabuddin to Bhagalpur jail from Siwan was another effort to delay the trial and said the administrative order to transfer him was "illegal", "void" and "contrary to law".
"I have the fundamental right to have speedy trial but by shifting me to another jail, they had made concerted efforts to delay it," he said.
"We in Bihar know how to follow law and also know how not to follow the law," Naphade said while taking a pot shot at Bihar government.
Naphade said there was "much more than what meets the eye" and claimed concerted efforts have been made from the start to delay the trial and that was why "I was shifted to Bhagalpur by an administrative order which was 'void'".
Shahabuddin's counsel referred to his shifting from Siwan to Bhagalpur jail without any order of the court, saying "an undertrial prisoner is in the custody of court. In this case, we do not know whether any order was passed by the court from one jail to another".
Delay in trial is an extremely relevant material for grant of bail, Naphade said, adding that Shahabuddin should not be sent back to jail.
Senior advocate Dinesh Dwivedi, representing Bihar government, said every factor should be taken into account and court should not "unleash this man to the society" as "liberty is not absolute" and only one eye witness remained.
To this, one of the judges of the bench said, "everything depends on what inference we draw tomorrow".
Shahabuddin, who was granted bail by the Patna high court on September 7, was released from Bhagalpur jail on September 10. He was in jail for 11 years in connection with dozens of cases against him.
On September 19, the apex court had sought a response from Shahabuddin on a separate plea filed by Siwan resident Chandrakeshwar Prasad, challenging the bail granted to him by Patna high court, in the murder case of his third son.
The apex court is also hearing a separate plea filed by the widow of journalist Rajdev Ranjan, who was murdered in Siwan allegedly at the instance of Shahabuddin, seeking transfer of the case to Delhi.
Kalawati Devi, wife of Chandrakeshwar Prasad and the mother of three youths who were brutally killed by henchmen of the controversial politician, had also moved the Supreme Court seeking cancellation of bail granted to him in the case in which he has already been sentenced to life.
