Gujarat High Court
Basir Amad Kaji vs State Of Gujarat on 6 August, 2020
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
R/CR.MA/4458/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 4458 of 2020
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BASIR AMAD KAJI
Versus
STATE OF GUJARAT
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Appearance:
MR AMBRISH V JANI(8674) for the Applicant(s) No. 1
MR RONAK RAVAL, ADDITIONAL PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 06/08/2020
ORAL ORDER
1. This is second successive anticipatory bail application filed by the applicant under Section 438 of the Code of Criminal Procedure, 1973 ("the Code" for short) with a prayer that he be enlarged on anticipatory bail in the event of his arrest in connection with FIR being C.R. No.I-117 of 2018 lodged before the Olpad Police Station, District Surat, for the alleged offences punishable under Sections 307, 427 447, 120B and 34 of the Indian Penal Code read with Section 25(1-B)(A), 27 and 29 of the Arms Act as well as Section 135 of the Gujarat Police Act.
2. Heard learned advocate, Mr.Ambrish V. Jani, for the applicant and learned Additional Public Prosecutor, Mr.Ronak Raval, for the respondent State.
3. Learned advocate for the applicant mainly Page 1 of 11 Downloaded on : Sun Feb 21 19:16:57 IST 2021 R/CR.MA/4458/2020 ORDER submitted that this is second successive anticipatory bail application is filed by the applicant It is submitted by the learned advocate for the applicant that earlier, the applicant had preferred an application under Section 438 of the Code being Criminal Misc. Application No.24284 of 2018 seeking anticipatory bail before this Court. However, since this Court was not inclined to entertain such application, the applicant had withdrawn the said application on 17.01.2019. Thereafter, the applicant had preferred successive anticipatory bail application before this Court being Criminal Misc. Application No.12820 of 2019. However, the said application also came to be withdrawn on 22.07.2019. It is further submitted that thereafter, the applicant filed an application under Section 482 of the Code for quashing and setting aside the aforesaid FIR by filing Criminal Misc. Application No.14223 of 2019. However, the co- ordinate Bench of this Court (Coram: S.H. Vora, J.) dismissed the said petition vide order dated 06.12.2019. It is submitted that against the said order passed by this Court, the applicant filed Special Leave to Appeal (Cri.) No.11680 of 2019 before the Honourable Supreme Court. The Honourable Supreme Court was not inclined to interfere with the order dated 06.12.2019 passed by this Court and, therefore, the said Special Leave Petition was disposed of. However, protection was granted to the applicant for a period of six weeks and it was also observed that the applicant is at liberty to work out the remedy in accordance with law. Thereafter, the applicant filed an application before Page 2 of 11 Downloaded on : Sun Feb 21 19:16:57 IST 2021 R/CR.MA/4458/2020 ORDER the Sessions Court under Section 438 of the Code. However, the Sessions Court vide order dated 20.02.2020 dismissed the said application and, therefore, the present application is filed. It is conceded by learned advocate for the applicant that the applicant had not disclosed before the Hon'ble Supreme Court about withdrawal of the anticipatory bail application before this Court twice.
3.1 It is submitted that the applicant is falsely implicated in the FIR in question because of land dispute and in fact, the applicant was not present at the place of incident and, therefore, this Court may enlarge the applicant on anticipatory bail.
4. On the other hand, learned Additional Public Prosecutor, Mr.Ronak Raval, appearing for the respondent State has vehemently opposed this application. It is submitted that there is no change of circumstance, as contended by the learned advocate for the applicant and, therefore, once the applicant had withdrawn the application filed under Section 438 of the Code before this Court twice and the said orders are not challenged before the Honourable Supreme Court, it is not open for the applicant to again file successive anticipatory bail application before this Court.
4.1 Learned Additional Public Prosecutor has thereafter placed on record the counter of the charge-
sheet filed against the co-accused as well as the Page 3 of 11 Downloaded on : Sun Feb 21 19:16:57 IST 2021 R/CR.MA/4458/2020 ORDER
report given by the concerned Investigating Officer to the learned Additional Public Prosecutor. From the aforesaid material, it is pointed out that the applicant is the main accused, who has hatched conspiracy with the other co-accused with a view to see that the land dispute is settled with the complainant. In fact, the applicant was in constant touch with the accused Nazir @ Guddu Firing S/o Saed Saiyed, who has opened fire from his revolver. Prior to the incident and at the time of incident also, the applicant was in constant touch with the said accused and CDRs are collected. It is also submitted that the present applicant was also in constant touch with the other wanted co-accused Zuber Husein Ghadiyali. Call details are also collected by the Investigating Agency. Learned Additional Public Prosecutor has thereafter contended that there are other four FIRs registered against the applicant, a reference of which is also made in the order of the Sessions Court on the basis of the affidavit filed by the Investigating Officer before it. Learned Additional Public Prosecutor, therefore, urged that this Court may not entertain this application.
5. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it has emerged that the FIR being C.R. No.I-117 of 2018 is registered with Olpad Police Station, District Surat for the offences punishable under Sections 307, 427 447, 120B and 34 of the Indian Penal Code read with Section 25(1-B)(A), 27 and 29 of the Arms Act as well as Section 135 of the Gujarat Police Page 4 of 11 Downloaded on : Sun Feb 21 19:16:57 IST 2021 R/CR.MA/4458/2020 ORDER Act against the applicant. In the FIR itself, the applicant is shown as suspect by the complainant. The co-accused Nazir @ Guddu Firing has opened fire. It is a specific case of the prosecution that the applicant was in constant touch with the co-accused Zuber Husein Ghadiyali. CDRs are collected by the Investigating Agency. At this stage, it is pertinent to note that after the registration of the FIR, the applicant filed application being Criminal Misc. Application No.24284 of 2018 before this Court under Section 438 of the Code. However, since this Court was not inclined to entertain the said application, the applicant had withdrawn the said application on 17.01.2019. Copy of the said order is placed on record at Page-22. Thereafter, successive anticipatory bail application was filed by the applicant being Criminal Misc. Application No.12820 of 2019. Once again, this Court was not inclined to entertain the said application and, therefore, the applicant had withdrawn the same on 22.07.2019. Copy of the said order is placed on record at Page-30. It is not in dispute that the applicant has accepted the aforesaid orders and not carried the said orders before the Honourable Supreme Court. It has emerged from the record that thereafter, the applicant filed an application under Section 482 of the Code being Criminal Misc. Application No.14223 of 2019. However, the said application was dismissed on 06.12.2019 by the co-ordinate Bench of this Court. Copy of the said order is placed on record at Page-31. It has further emerged that the applicant filed Special Leave to Appeal (Cri.) No.11680 of 2019 before the Page 5 of 11 Downloaded on : Sun Feb 21 19:16:57 IST 2021 R/CR.MA/4458/2020 ORDER Honourable Supreme Court wherein the applicant had challenged the order dated 06.12.2019 passed by the co- ordinate Bench of this Court whereby the application filed under Section 482 of the Code was rejected. The Honourable Supreme Court did not interfere with the said order passed by this Court and disposed of the said Special Leave Petition vide order dated 24.01.2020. Copy of the said order is placed on record at Page-34, which reads as under:
"We have heard learned counsel for the petitioner and perused the impugned judgment and relevant materials.
We are not inclined to interfere with the impugned order. The special leave petition is disposed of by giving liberty to the petitioner to raise all the contentions in the trial at the appropriate stage.
It is alleged that the police are taking coercive steps against the petitioner.
In view of the submission, the petitioner shall remain protected from arrest for a period of six weeks.
In the meanwhile, the petitioner is at liberty to work out his remedy in accordance with law.
Pending application(s), if any, shall also
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R/CR.MA/4458/2020 ORDER
stand disposed of."
6. At this stage, it is pertinent to note that when inquired, learned advocate, Mr.Ambrish Jani, appearing for the applicant has fairly conceded that in the Special Leave Petition filed before the Honourable Supreme Court, the applicant had not disclosed the fact that the applicant had twice filed applications under Section 438 of the Code before the High Court and both the applications were withdrawn by him. Thus, it is clear from the submission of the learned advocate for the applicant that the applicant had not pointed out the fact of withdrawal of the anticipatory bail application before the Honourable Supreme Court and, therefore, from the record, it transpires that the applicant had suppressed withdrawal of anticipatory bail applications filed before this Court as well as before the Sessions Court and, hence, liberty was reserved to the applicant to work out the remedy in accordance with law. In fact, the applicant had already availed the said remedy twice by filing applications under Section 438 of the Code before this Court, which were withdrawn.
7. Even the Honourable Supreme Court has observed in the order dated 24.01.2020 that liberty is reserved to the applicant to raise all the contentions in the trial at the appropriate stage.
8. Thus, in the aforesaid facts of the present case, it can be said that there is no change of circumstance Page 7 of 11 Downloaded on : Sun Feb 21 19:16:57 IST 2021 R/CR.MA/4458/2020 ORDER as contended by the learned advocate for the applicant.
Even otherwise, now the applicant wants reasoned order on merits, therefore, this Court has also examined the merits of the case. From the material gathered by the Investigating Agency, it is clear that in the FIR, the applicant has been shown as suspect. It is revealed that there exists property dispute between the applicant, complainant and the accused Nazir @ Guddu Firing. It was revealed during the investigation that the applicant gave contract killing (supari) to kill the complainant. The applicant was in constant touch with the said co-accused as well as other wanted co-accused and CDRs are collected by the Investigating Agency. However, the applicant is shown as an absconding accused in column No.2 of the charge-sheet, which his filed against the co-accused.
9. At this stage, a decision rendered by the Honourable Supreme Court in the case of Siddhram Satlingappa Mhetre Vs. State of Maharashtra reported in 2011(1) SCC 694 is required to be kept in view. Paragraph-122 of the said decision reads as under:
"122.The following factors and parameters can be taken into consideration while dealing with the anticipatory bail :-
[i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;] [ii. The antecedents of the applicant including the fact as to whether the accused has Page 8 of 11 Downloaded on : Sun Feb 21 19:16:57 IST 2021 R/CR.MA/4458/2020 ORDER previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;] [iii. The possibility of the applicant to flee from justice;] [iv. The possibility of the accused's likelihood to repeat similar or the other offences.] [v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.] [vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.] [vii. The Courts must evaluate the entire available material against the accused very carefully. The Court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of Sections 34 and 149 of the Indian Penal Code, the Court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;] [viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;] [ix. The Court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;] Page 9 of 11 Downloaded on : Sun Feb 21 19:16:57 IST 2021 R/CR.MA/4458/2020 ORDER [x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.]"
10. Thus, from the aforesaid decision, it is clear that while exercising powers under Section 438 of the Code, seriousness of the offence and conduct of the applicant and the antecedents are required to be kept in mind. In the present case, as observed hereinabove, though the first anticipatory bail application filed by the applicant was withdrawn in January, 2019, he was not available. Thereafter, the applicant had withdrawn another anticipatory bail application filed before this Court on 22.07.2019. In spite of that, the applicant was not available for interrogation before the Investigating Agency. Thus, looking to the conduct of the applicant, this Court is not inclined to exercise discretion in his favour coupled with the fact that the applicant has previous history of criminal antecedents, to be precise, four antecedents as contended by the learned Additional Public Prosecutor. Further, on merits also, there is sufficient material collected against the applicant during the investigation, from which, prima facie case is made out against him. In the facts and circumstances of the present case, custodial interrogation of the applicant is required.
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11. In view of the aforesaid discussion, this Court is not inclined to exercise the discretion in favour of the applicant. Accordingly, the present application stands dismissed. Rule is discharged.
(VIPUL M. PANCHOLI, J) SRILATHA Page 11 of 11 Downloaded on : Sun Feb 21 19:16:57 IST 2021