Gujarat High Court
Dinesh vs Central on 3 May, 2010
Author: H.B.Antani
Bench: H.B.Antani
Gujarat High Court Case Information System
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CR.MA/3741/2010 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 3741 of 2010
=========================================================
DINESH
M N - Applicant(s)
Versus
CENTRAL
BUREAU OF INVESTIGATION & 1 - Respondent(s)
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Appearance
:
MR
MRUDUL M BAROT for
Applicant(s) : 1,
MR YN RAVANI for Respondent(s) : 1,
MR DEVANG
VYAS, APP for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 03/05/2010
ORAL
ORDER
1. This is an application preferred under Section 439 of the Code of Criminal Procedure by the applicant who came to be arrested in connection with FIR bearing CR No. I-5 of 2005 registered at ATS Police Station for the offence punishable under Sections 120(b), 121, 121-A, 122, 123, 307, 186, 224 of the IPC and Sections 25(1)(b) and 27A of the Arms Act as well as Section 135(1) of the Bombay Police Act.
2. Mr MM Barot, learned advocate for the applicant submitted that CID, Gujarat conducted the investigation in the case. The applicant was arrested on 24.4.2007 in connection with the FIR bearing CR No. I-5 of 2005 and remanded to the police custody and subsequently to the CID Crime Police Station by which the investigation was conducted and the charge-sheet was filed on 16.7.2007. The charge-sheet has divided the case into three parts (i) kidnapping, (ii)encounter of Sohrabuddin, and (iii) disappearance of Kauser Bibi. The applicant was charged with conspiracy in the encounter. The offences which are mentioned in the charge-sheet are triable by the Sessions Court and therefore, the case was committed to the Sessions Court and it is numbered as Sessions Case No.256 of 2007. It is submitted that the applicant had an occasion to prefer regular bail application bearing Criminal Misc. Application No.3459 of 2007 before the learned City Sessions Judge, Court No.6, Ahmedabad and the same was allowed on 5.10.2007. Aggrieved by the said order, the State preferred an application under Section 439(2) of the Code of Criminal Procedure before the High Court and the High Court was pleased to allow Misc. Criminal Application No.12644 of 2007 filed by the State on 25.1.2008. Thereafter, the applicant preferred Special Leave Petition (Criminal) No.867 of 2008 before the Apex Court against the judgment and order passed by the High Court. The Apex Court vide order dated 28.4.2008 dismissed the above-mentioned Special Leave Petition filed by the applicant and therefore, the applicant has surrendered on 22.2.2008. In the meanwhile, the trial of the case did not commence and the trial was stayed by the Apex Court on 30.9.2008 and the stay is in operation till today. The applicant in July 2009 filed Writ Petition (Criminal) No.68 of 2009 before the Apex Court which was withdrawn on 5.2.2010 with liberty to move appropriate application to ventilate the grievance. It is submitted that the trial has not commenced because the same was stayed by the Apex Court by virtue of the order passed by the Apex Court on 12.1.2010 in Writ Petition (Criminal) No.6 of 2007 which was preferred at the instance of Rubabuddin Shaikh, brother of Sohrabuddin. The investigation was transferred to CBI, Mumbai and fresh FIR bearing No. RC BS1/S/2010/4 came to be lodged on 1.2.2010. It is submitted that as per the direction given by the Apex Court, the applicant preferred an application for enlarging him on bail on 22.2.2010 before the learned Special Judge, CBI, Court No.4, Ahmedabad vide Criminal Misc. Application No.39 of 2010. However, the application was rejected on 7.4.2010. Being aggrieved by the aforesaid order, the present application is preferred by the applicant contending inter-alia that the applicant is an innocent person and he has not committed the offence as alleged in the FIR. The applicant is languishing in jail since 24.4.2007 excluding the period during which he was released by the learned Sessions Judge, Court No.6, Ahmedabad on regular bail till he re-surrendered. The trial has not commenced even though more than three years have been passed since arrest of the applicant. The investigation has been transferred to CBI in pursuance of the order passed by the Apex Court on 12.1.2010. It is submitted that pre-trial detention is going to be much longer and this itself can be termed as substantial change in the circumstance which requires to be taken into account while considering the bail application of the applicant. Thus, it is submitted by the learned advocate that the prayer as set out in the application be granted and the applicant be released on bail by imposing suitable terms and conditions.
The learned advocate for the applicant has placed reliance on the judgments rendered in Jaya Simha Vs. State of Karnataka, reported in (2007) 8 SCC 145 and in the case of Ashok Kumar Todi Vs. C.B.I. of the Apex Court in Criminal Appeal No.81 of 2009 in support of the submission that if the trial is likely to take long time for completion and considering the nature, involvement and the role attributed to the applicant, the applicant deserves to be enlarged on bail and the ratio laid down in the above-mentioned judgments deserve to be taken into consideration while deciding the prayer for bail made in the application.
3. Mr YN Ravani, learned advocate for Central Bureau of Investigation submitted that in pursuance of the order passed by the Apex Court dated 12.1.2010, the investigation has been transferred to Central Bureau of Investigation. The CBI is given six months' time to complete the investigation. The learned advocate for the CBI, on the basis of the instructions, submitted that the CBI has not completed the investigation as on today and even the period stipulated by the Apex Court to complete the investigation within six months is not over. Considering the aforesaid aspects, the application does not call for any interference and it deserves to be rejected.
4. I have heard Mr MM Barot, learned advocate for the applicant, Mr YN Ravani, learned advocate for CBI and Mr Devang Vyas, learned APP for the State at length and in great detail. The averments made in the application and the documents which are annexed along with the petition are also carefully taken into consideration by me. The order passed by the Apex Court dated 12.1.2010 by which the investigation has been transferred to the CBI and the CBI is directed to complete the investigation within six months is also perused by me. The investigation which was entrusted to the CBI in pursuance of the order passed by the Apex Court is not over as on today. It is true that incarceration of the applicant would be prolonged because of the non-completion of the investigation by the CBI. On perusal of record of the case, it is clear that the case is already committed to the Sessions Court and the trial has not commenced because of the stay granted by the Apex Court and recently, the investigation is entrusted to the CBI. The applicant has been charged with conspiracy in the encounter killing and he hatched conspiracy as per the prosecution case while acting in tandem with the other accused. I have also considered the gravity of the offence as well as the nature of offence in which the applicant is involved in the present case. However, the applicant is a high ranking IPS officer and wields considerable influence. If the bail as prayed for is granted during pendency of the investigation by the CBI, then, the same in my view is likely to hamper the investigation. The applicant is likely to tamper with witnesses which may thwart the investigation. However, considering the aforesaid aspects and the investigation which is entrusted to the CBI is not over and is at a crucial stage, the applicant in my considered view cannot be enlarged on bail as prayed for in the application.
5. I have considered the judgments cited by the learned advocate on behalf of the applicant reported in the case of Jaya Simha Vs. State of Karnataka, reported in (2007) 8 SCC 145 and in the case of Ashok Kumar Todi Vs. C.B.I. rendered by the Apex Court in Criminal Appeal No.81 of 2009. However, there is no dispute about the ratio and the proposition laid down in those judgments, but considering the peculiar facts and circumstances of the case and as the investigation which was recently handed over to the CBI in pursuance of the order passed by the Apex Court is in progress, the applicant in my view cannot be enlarged on bail while exercising the discretionary relief under Section 439 of the Code of Criminal Procedure.
6. For the foregoing reasons, there is no merit in the application and the same is hereby rejected. Rule is discharged.
[H.B.ANTANI, J.] mrpandya Top