Gujarat High Court
Mohammed Shahid @ Abdul Shahid @ Usman ... vs State Of Gujarat on 17 March, 2017
Author: A.J.Desai
Bench: A.J.Desai
R/CR.MA/4827/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION NO. 4827 of 2017
(FOR REGULAR BAIL)
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MOHAMMED SHAHID @ ABDUL SHAHID @ USMAN S/O ABDUL HAMID
NAGORI....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR KHALID G SHAIKH, ADVOCATE for the Applicant(s) No. 1
MR MHM SHAIKH, ADVOCATE for the Applicant(s) No. 1
MR J.M.PANCHAL, SPECIAL PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 17/03/2017
ORAL ORDER
1. By way of the present application filed under Section 439 of the Code of the Criminal Procedure, 1973, the applicant has prayed to release him on regular bail during pendecy of the trial in connection with the serial bomb blast case, which had taken place in the City of Ahmedabad on 26.07.2008 and also in the case of Bomb plantation in various areas of Surat before 28.07.2008 for the the offences punishable under Section 120(B), 121(A), 124(A), 153(A)(1)(b), 302, 307, 326, 435, 427, 465, 468 and 471 IPC and under Sections 3, 5, 6 and 7 of the Explosive Substance Act, 1908 and under Sections 10, 13, 16, 18, 19, 20, 38, 39 and 40 of the Unlawful Activities (Prevention) Act, 1967 and under Sections 25(1)(B)(A) and 27 of the Arms Act, 1959 and under Sections 65 and 66 of the Information Technology Act, 2000 and under Section 3 and 4 of the Damage to the Public Property Act, 1984.
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R/CR.MA/4827/2017 ORDER
2. The brief facts arise from the record are as under:
2.1. That a Police Inspector, Shahibaug Police Station lodged an FIR with Shahibaug Police Station on 26.07.2008 around 11.30 hours against the unknown persons, who had conspired to commit the aforesaid offence and implanted petrol bomb near Civil Hospital, Ahmedabad, which blasted between 8.15 to 19.45 hours and in the said incident, about 57 persons lost their lives and number of persons sustained injuries. Some of the persons came to be arrested and their statements were recorded and it was found that number of persons are involved in the incident of bomb blast in the City of Ahmedabad and as per the statements of those accused persons, who were initially arrested, other accused persons were arrested.
2.2. The applicant came to be arrested on 03.05.2013 i.e. after a period of around five years from the date of incident.
2.3. The applicant filed an application being Criminal Application No.2815 of 2016 under Section 439 of the Code of the Criminal Procedure, 1973 for releasing him on regular bail, which was dismissed by the trial Court by an order dated 21.07.2016.
2.4. Hence, this application.
3. Pursuant to notice issued by this Court, Mr.J.M.Panchal, learned Special Public Prosecutor appeared and resisted this application.
4. Mr. Khalid Shaikh, learned advocate appearing for the applicant, would submit that the applicant has been wrongly Page 2 of 7 HC-NIC Page 2 of 7 Created On Sun Aug 13 23:27:48 IST 2017 R/CR.MA/4827/2017 ORDER arraigned in the present offence under mistaken identity. He would submit that having similar name of the accused, the present accused has been arrested by the Investigating Agency and therefore, he is required to be released on regular bail. He would further that there is no evidence collected by the Investigating Agency before his arrest and only on two statements recorded by the Investigating Agency i.e. statements of his father and fatherinlaw, the Investigating Agency has tried to establish that the present applicant has hatched conspiracy with the other accused persons by undertaking a training of terrorist at Waghmon, State of Kerala. He would further submit that those two persons have filed affidavit that they have never given such statements as recorded by the Investigating Agency.
5. Mr. Khalid Shaikh, learned advocate appearing for the applicant, would further submit there are 2600 witnesses and trial is likely to take long time, therefore also, the applicant may be released on regular bail.
6. By relying upon the decisions [i] in case of Dharmendra Chandulal Patel V. State of Gujarat reported in AIR 2002 SC 395, [ii] decision in case of Dinesh Kumar Bhatti V. State of N.C.T. ofDelhi reported in AIR 2000 SC 340401, [iii] in case of State of Kerala V. Raneef reported in 2011(0) GLHELSC 49260 [iv] in case of Dipak Shubhashchandra Mehta V. Central Bureau of Investigation and Anr. reported in (2012) 4 SCC 134 [v] in case of Mr.Javed Ahmed Abdul Majeed Ansari V. State of Maharashtra, order dated 21.10.2013 Page 3 of 7 HC-NIC Page 3 of 7 Created On Sun Aug 13 23:27:48 IST 2017 R/CR.MA/4827/2017 ORDER passed in Criminal Bail Application No. 1147 of 2013 [vi] in case of Mohd. Atik Mohd. Iqbal V. The State of Maharashtra, order dated 24.09.2012 passed in Criminal Bail Application No. 1047 of 2011, he would submit that even in such serious cases, the Hon'ble Apex Court as well as Hon'ble High Court has released the accused persons. He would further submit that there is no possibility of completion of the trial in near future, therefore also, the applicant may be released on regular bail by imposing certain stringent conditions.
7. On the other hand, Mr. J.M.Panchal, learned Special Public Prosecutor appearing for the respondent State, has vehemently opposed this application. He would submit that the applicant has remained absconded for a period of five years and came to be arrested subsequent to issuance of warrant dated 14.11.2008 under Section 70 of the Code of the Criminal Procedure, 1973 by the learned Metropolitan Magistrate. He would further submit that the name of the applicant was immediately came to light when the investigation was going on and the statements of the coaccused were recorded. He would further submit that the Investigating Agency had collected residential details of the applicant. However, when the Investigating Agency visited the place of the applicant, he was not available. He would further submit that number of accused persons were absconding, however, charge sheet was filed against those persons, who were initially arrested within time.
In the said charge sheet, several accused persons, including the present applicant is shown absconding. He would further submit that an application was made before the learned Page 4 of 7 HC-NIC Page 4 of 7 Created On Sun Aug 13 23:27:48 IST 2017 R/CR.MA/4827/2017 ORDER Metropolitan Magistrate, Ahmedabad requesting to issue warrant under Section 70 of the Code of the Criminal Procedure, 1973 and accordingly, warrant came to be issued by the learned Metropolitan Magistrate, Ahmedabad on 14.11.2008. He would further submit a huge conspiracy had been hatched by the 77 accused persons, which have been arrested in the present case. He would further submit that none of the accused persons have been released on regular bail either by the Hon'ble Apex Court or by this Hon'ble Court during pendency of the trial. By taking me through the several orders passed by this Hon'ble High Court rejecting the application of the coaccused persons, he would submit that the trial is going on. When there are all possibility that the applicant may jump the bail, he may not be released on bail. He would further submit that the prosecution has already examined 872 witnesses. The prosecution may drop some of the witnesses, who are repetitive in nature. He would further submit that the as per the direction of the Hon'ble Apex Court, the trial is proceeding further on day to day basis. The Designated Special Judge is proceeding with the trial as per the direction of the Hon'ble Apex Court.
8. He would further submit that the statements of the father and fatherinlaw of the applicant clearly suggest that the applicant had attended the camp, which was meant for training of young generation for terrorist activities. He would further submit that the trial is going on and the applicant has been arrested after a period of five years i.e. after issuance of warrant under Section 70 of the Code of the Criminal Procedure, 1973 and if the Page 5 of 7 HC-NIC Page 5 of 7 Created On Sun Aug 13 23:27:48 IST 2017 R/CR.MA/4827/2017 ORDER applicant is released on bail at this stage, there are all possibilities that he may jump the bail and may not available at the trial. Therefore, the application may be dismissed.
9. I have heard learned advocates appearing for the respective parties.
10. In an unfortunate and gruesome incident, which took place at Ahmedabad on 26.07.2008 in a serial bomb blast, in which 57 persons have lost their lives and number of persons have sustained injuries. The applicant's name was disclosed immediately when one of the accused was arrested and his statement was recorded during the investigation i.e before submission of charge sheet. It also appears that having found the name of the applicant by the Investigating Agency and having nonavailability of the present applicant, application was submitted by the Investigating Agency to issue a warrant under Section 70 of the Code of the Criminal Procedure, 1973, which was granted by an order dated 14.11.2008. Though warrant was issued in the year 2008, the applicant could to be arrested only in the month of May, 2013 i.e after a period of five years. It is also pertinent to note that the trial is going on daytoday basis and prosecution has already examined 872 witnesses and when the trial is proceeded further on daytoday basis as per the direction of the Hon'ble Apex Court and considering the gravity of the offence and conduct of the applicant i.e. remaining absconding for a period of five years, I do not find any reason to entertain this bail application.
11. As far as the judgments relied upon by the learned advocate Page 6 of 7 HC-NIC Page 6 of 7 Created On Sun Aug 13 23:27:48 IST 2017 R/CR.MA/4827/2017 ORDER appearing for the applicant is concerned, I am not in agreement with the submissions made by the learned advocate appearing for the applicant so far as the judgments cited by him laying down any ratio for granting bail, since the facts of the present case is different from the facts of the decision cited by the learned advocate appearing for the applicant. Therefore, I am of the opinion that the present applicant is not entitled for the relief as prayed for. Hence, the present application is rejected. Rule is discharged.
(A.J.DESAI, J.) *Kazi...
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