Gujarat High Court
Dr. (Mrs.) Nitaben Abhaybhai Mehta vs State Of Gujarat on 10 July, 1992
Equivalent citations: (1992)2GLR1607
JUDGMENT S.D. Dave, J.
1. Rule. Mr. Deepak Trivedi, learned P.P. waives service of rule. Affidavits of the petitioners dispensed with.
2. This common Judgment shall govern the disposal of these two Misc. Criminal Applications, filed on behalf of the petitioners Dr. (Mrs.) Nita A. Mehta and Mahendra V. Vora, under Section 438 of the Code of Criminal Procedure, 1973, for obtaining the orders in nature of Anticipatory Bail as they apprehend their arrest in connection with C.R. No. 290 of 1992 registered at 'C' Division Police Station, Rajkot, for the alleged offence of murder.
3. The Misc. Cri. Application No. 2311 of 1992 has been filed by Dr. (Mrs.) Nita Mehta, who happens to be the younger sister of the deceased Dr. Madhuben Shah. The other petition has been filed by the applicant Mahendra Vora, who happens to be the husband of yet another sister of the deceased. The much debated question, arising under the special facts and circumstances of the case is-whether, when the material collected by the Investigating Agency, thus far, is clearly divisible in two distinctly separate compartments, the earlier one clearly ruling out any possibility of the involvement of the petitioners in the offence, while the latter one, of course flowing from the very same complainant and witnesses but at a much belated stage, amidst a variety of allegations of police duress and coersion, tending to indicate their involvement, the petitioners are entitled to the orders in nature of Anticipatory Bail under Section 438 of the Code?
Now some facts:
4. Dr. K.T. Shah a Medical Practitioner of Rajkot had died on/or about 1st February, 1992 after a rather prolonged illness, leaving behind; his widow Smt. Sarlaben Shah and five daughters, the eldest being Dr. (Mrs.) Saroj Damani a Surgeon working at Bombay. The deceased Dr. Madhuben Shah was a known Gyanaecologist, having her nursing home within the City. Dr. (Mrs.) Nita Mehta who figures as the petitioner in Misc. Cri. Application No. 2311 of 1992 happens to be a Neurophysician working at Bombay, attached with some known hospitals and having her consulting rooms at two places at Bombay. It appears that in connection with certain religious ceremony, to be performed at Dwarka, members of the family had gathered at Rajkot, and some of them had latter on left. It appears that the deceased Dr. Madhuben Shah was at Rajkot and admitedly the petitioner Dr. (Mrs.) Nita Mehta was also in the City.
5. Santaben Koli who was working as one of the Ayas at the relevant time at the Nursing Home of Dr. Madhuben Shah has filed the FIR on 23-5-1992, a detailed reference to the same can conveniently be made at a later juncture, but it appears that Santaben and other Aya Hiraben had come to the nursing home on 22-5-1992 at about 8-00 p.m. to join their duty. At that time, deceased Dr. Madhuben Shah had left the nursing home and was on the first floor of the same building, i.e., her residential quarter. The Ayas had closed the main entrance of the nursing home from inside, but at about 12-30 after midnight, a female patient, in company of her relations had came there and later on the deceased Dr. Madhuben Shah being informed, had come downstairs and after the examination operation was advised. Any how it was noticed by the deceased, that the patient had taken evening meals and therefore the operation was postponed to early morning hours on the next day and thereafter, the deceased had gone upstairs. Once again the main entrance of the nursing home was closed by the Ayas and the male relations of the patient were sitting outside. The Ayas were busy with the usual activities, preparatory to the surgical operation, which was to be performed during the morning hours, but, at that time a neighbour, namely, Dilip Patel, who used to reside just in the next bunglow had rushed to the nursing home of the deceased and informed the Ayas that he had heard the 'shouts' of the deceased and that he apprehends that there is 'some scuffle' in the residential quarters. Therefore both the Ayas in the company of neighbour Dilip Patel and his father Jayantibhai Patel had gone upstairs and they had rang the call bell for some time. It appears that in response to the bell call Dr. Nita Mehta had opened the first floor entrance within a period of 4 to 5 minutes and later on she had informed the Ayas, the neighbour Dilipbhai and his father, that she could not notice anything and that possibly the deceased was asleep in her bed-room. Any how Dr. Nita Mehta had gone back in the nearby room where the deceased had her bed and later on she had come out saying that there is 'something wrong in the house'. The Ayas, neighbour Dilipbhai and his father Jayantibhai and male relations of the patient had gone inside and had seen petitioner Dr. Nita Mehta giving artificial respiration and trying to resusciate the deceased. The intravenous transfusion was thought to be advisable by Dr. Nita Mehta and, therefore, Hiraben and the complainant had gone downstairs for removing a bottle and a stand for the transfusion. Later on according to the FIR a telephonic message was given to Mahendra Vora who had rushed to the spot of occurrence in company of his wife.
6. On the basis of the FIR which came to be lodged by Shantaben the Aya, the investigation had started. The Police had rushed to the seen of occurrence and under the panchnama of the scene of offence the muddamal weapon was recovered. The sheath of the dagger or knife was also recovered from one another room. It is in connection with the registration of the offence of murder registered vide C.R. No. 290 of 1992 of Rajkot City 'C' Division Police Station for the offence punishable under Section 302 of Indian Penal Code that the present petitioners apprehend their arrest. They had approached the Sessions Court at Rajkot for obtaining orders in nature of anticipatory bail but having failed there, they have approached this Court for the similar orders.
7. The learned Advocates Mr. Daftari and Mr. Chitnis who appear on behalf of the petitioners have urged that looking to the facts and circumstances of the case, the present two petitions require to be allowed and the orders in nature of anticipatory bail require to be issued in their favour. Their main contention is that the material collected by the investigation agency so far, can be undoubtedly divided in two broad compartments and that the material collected by the investigating agency in the first phase of investigation, goes to rule out the participation or involvement of the present petitioners in the alleged offence. It is On the basis of this pivotal contention that learned Advocates Mr. Daftari & Mr. Chitnis for the petitioners have urged that there cannot be a better case for granting orders in nature of anticipatory bail. Their contention, further, is that the second compartment of the investigational material, collected by the Police during a second and much belated stage cannot be relied upon to come to a conclusion that there exists a prima facie case against the petitioners, because, in the submissions of the learned Advocates, all this material came to be collected by the Police only after the lapse of the first week of the month of June, 1992, and that even after the collection of the same, the first part of the material remains on the file of the Police investigation and that part can never be discarded or can be taken out of the notice of a judicial mind. It is also a grievance made by learned Advocates, for the petitioners, that, when the second round of investigation had started and when the further statements of the very same witnesses came to be recorded, the Police had indulged in those activities which are popularly known as 'third degree methods' and that various proceedings were required to be filed before the Court at Rajkot and before this Court also, praying for orders for the issuance of search warrant or the Habeas Corpus writs. They have further contended that, if once this position is accepted the material collected by the investigating agency during the second phase of the investigating cannot be taken into consideration, for coming to the conclusion that the petitioners would be disentitled for obtaining the orders in nature of anticipatory bail. Going a step further, the learned Advocate Mr. Chitnis has urged that the second phase of the investigation has been and is being carried out with a view to injure and harm the petitioners and therefore also the petitioners deserve to be enlarged on anticipatory bail These are in nut-shell the contentions raised, by the learned Advocates for the petitioners. Any how, the contention of Mr. Deepak Trivedi the learned P.P. who appears for the respondent-State is, that the investigation is in progress and though the first phase of the investigation, may not be pointing towards the guilt of the petitioners berore this 'Court, the second phase of the investigation would definitely show that there is enough material which would constitute a prima facie case against the petitioners, disentitling them to the orders in nature of anticipatory bail. It is also a further contention raised by Mr. Trivedi, learned P.P., that the petitioners have tried to hamper the course of investigation by resorting to various proceedings, both before the Courts at Rajkot and before this Court also and that, their clear-cut design was to see that the investigation which was poised against them should not proceed further. It is also the contention raised by the learned P.P. Mr. Trivedi, that ordinarily this Court would be slow in the exercise of the discretionary powers in favour of the petitioners, who are concerned with the commission, of a grave offence like murder. It is on this basis that Mr. Trivedi has urged that both these petitions require to be dismissed.
8. Before proceeding further to examine the above said rival contentions, the requisite legal position being obtainable from certain case law shall have to be referred to first. Mr. Trivedi the learned P.P. has firstly placed reliance upon the Supreme Court decision in Pokar Ram v. State of Rajasthan and Ors. , in which the Supreme Court has emphasised that "some very compelling circumstances must be made out for granting bail to a person accused of committing murder and that too when the investigation is in progress." Looking to the facts and circumstances of the said case, the Supreme Court was of the view that the Court had no option but to cancel the orders granting anticipatory bail. Indeed, the Supreme Court has, in this decision, laid down a broad legal principle as indicated above, but the facts in the background should not go unnoticed. One Bhanwaria had received fatal injuries during the incident which had occurred on August 28, 1983, resulting into his death. The Sessions Judge had granted anticipatory bail orders to the petitioner, observing that, the dispute was with regard to the right to cultivate a certain field, from which, when the deceased was coming out the respondent had opened fire at him and had caused the injuries, which ultimately had proved to be fatal. The Supreme Court had felt that because of the above said observations and reasoning adopted by the learned Sessions Judge the extraordinary powers under Section 438 of the Code of Cri. Procedure, 1973, were exercised sub-silentio as to the reasons or the considerations which would form the basis of the orders. It is also pointed out that when those powers are exercised sub-silentio as to the reasons or on irrelevant considerations the Supreme Court shall have to intervene and interfere, with a view to avoid miscarriage of justice. The second decision on which Mr. Trivedi has placed reliance, is the Bombay High Court decision in Narendra Narottamdas Kapadia v. Central Bureau of Investigation and Anr. 1981 Cr.LR 372 (Mah.).
In this decision a learned single Judge of the Bombay High Court has said that, what is required to be seen at the stage of deciding the anticipatory bail application is-whether there are any grounds for accusation and that even if the grounds are insufficient for basing the conviction, the prosecution will be justified in levelling the accusation?
9. The learned Advocates appearing on behalf of the petitioners on the other hand have placed reliance upon the Supreme Court decision in Gurubaksh Singh Sibbia v. State of Punjab . In this decision, while examining the question in respect of the powers of the Courts, while granting bail under Section 438 of the Code of Cri. Procedure by the High Court and by the Sessions Courts, it has been laid down as a rule of law that the High Courts and Courts of Sessions, to whom the application for anticipatory bail is made, should be left free in the exercise of their judicial discretion to grant bail if they consider it fit to do so on the particular facts and circumstances of the case. It is also pointed out that the judicial discretion invested with the High Court and the Courts of Sessions has to be free enough to be able to take certain possibilities in consideration and to meet with the challenge and risk involved in entrusting a wide discretion to the Courts. It is also said that, if the proposed accusation appears to stem not from motives of furthering the ends of justice, but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, the direction for the release of the petitioner by way of anticipatory bail generally be ordered. But the position has been made clearer in the same paragraph by saying that it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides. This pronouncement made by the Supreme Court way back in 1980 therefore, would go to show that the Supreme Court has preferred not to impose any fetters on the High Court and the Court of Sessions while, deciding the application praying for anticipatory bail under Section 438 of the Code of 1973.
10. One more decision on which heavy reliance has been placed by the learned Advocate of the petitioners is a decision rendered by the learned single Judge of this Court in Solanki Ravibhal Dipubhai and Ors. v. State of Gujarat and Anr. 1992 (1) GLR 631. In this decision after considering the decision of the Supreme Court in Gurubaksh Singh (supra) and hi case of Kiren Devi, the learned single Judge has said that in that particular case the petitioner was entitled to the orders in nature of anticipatory bail. In that case when the deceased was going on a scooter in company of his neighbour by the late hours of night, some unknown persons for unknown reasons had assaulted upon him, with sticks near a temple situated at a town in Saurashtra region of the State. It appears to be a case with three versions. The first version before the Doctor, while giving the case history was of accident and not of an assault. The second version was in respect of the cause of the injury and at that time the history of assault was given but the culprit or assailant was not named. Lastly, during the third statement the witness bad came out with the names of the assailants. Taking into consideration these three versions, given by the star prosecution witness during investigation the learned single Judge of this Court had come to the conclusion that it was a fit case for granting orders in nature of anticipatory bail. In the instant case also as it would become clear, without any manner of doubt, the investigation can be compartmentalised in two phases-the first phase, not only, does not show anything against the present petitioners but on the contrary rules out the possibility of the presence of the petitioner Mahendra Vora at the time of the incident. The second compartment or the part of the investigation implicates Mahendra Vora and the other petitioner Dr. Nita Mehta in rather uncertain terms. During the course of the protracted hearing of these petitions this Court wanted to ascertain from learned P.P. Mr. Trivedi as to whether the case of the prosecution, at this stage, is crystallised and whether it has obtained a clear-cut shape. Mr. Trivedi has made it clear that the investigation was in progress and that a crysrallised case has yet not emerged.
11. Nonetheless, it is sought to be pointed out that the case is "almost detected" and that the needle of suspecion is, more or less, pointing towards the present petitioners. Looking to certain statements of witnesses, collected during the second phase of the investigation, it appears to be the case of the prosecution that possibly the petitioners were in some indecent involvement with each other, which probably might not have been approved by the deceased and hence a plan thought out intelligently and translated in action ruthlessly.
12. Reverting back to the F.I.R lodged by Shantaben Koli dated 2nd May, 1992, it becomes clear that, according to her she and other Aya Hiraben Doshi had reached the nursing home during evening hours but by that time the deceased had left the nursing home and she was on the upper-storey portion in the residential quarter in the same building. Moreover, both these Ayabais had closed the main entrance of the nursing home from inside, but later on they were required to open the same because of the arrival of a patient. The deceased was given a call and she had examined the patient and ultimately it was decided to have the operation during the early morning hours. This F.I.R further shows that deceased Madhuben had gone upstairs but within some minutes neighbour Dilipbhai and his father Jayantibhai had rushed there and the complainant and the other Aya were informed that somebody is shouting in the room of the deceased and there is a scuffle and therefore, later on they had given a persistent call bell as a result of which Dr. (Mrs.) Nita Mehta had appeared and had tried to assure these people that there was nothing untoward and that the deceased was asleep. This F.I.R. further says that later on the complainant and other persons had entered the room where the deceased was lying, in the injured condition and at that time Dr. (Mrs.) Nita Mehta had tried to resuscitate the deceased. It is also further stated that the two Ayas were directed by her to go downstairs and bring a bottle for intravenous transfusion. Lastly in this F.I.R itself, it has been stated that later on Dr. (Mrs.) Nita Mehta had given a telephonic message to Mahendra Vora who used to reside at Jayraj Plot and within a short time Mahendra Vora and his wife had reached the residence of the deceased. This F.I.R. therefore would go to highlight two important aspects predominantly. The first aspect so emerging is that Dr. (Mrs.) Nita Mehta had tried to resuscitate the deceased immediately and had also asked for the intravenous transfusion bottle. The second glaring aspect is that the petitioner-Mahendra Vora was not present in the house but he had reached there, immediately in company of his wife in response to a telephonic message given by Dr. (Mrs.) Nita Mehta. Dilip Patel has stated in his statement dated 23rd May, 1992, that he had returned to his house after attending some social occasion and that he and his wife Niruben had heard the "shouts" from the bedroom of the deceased and therefore he had rushed towards the nursing home without even caring fora shirt and had jumped over the compound wall and ultimately had gone upstairs and Dr. (Mrs.) Nita Mehta opened the upper entrance. Dilip Patel further says in this statement that, when he was going downstairs with a view to contact certain Doctors on telephone Dr. (Mrs.) Nita Mehta had given a telephonic message to her brother-in-law, namely, Mahendra Vora, who was staying at Jayraj Plot. This statement of Dilip Patel therefore recorded by the investigating agency on 23rd May, 1992, clearly rules out the presence of Mahendra Vora on the scene of occurrence. On the contrary it would go to show that Mahendra Vora had rushed to the residence of the deceased, alongwith is wife in response to a telephone message by Dr. (Mrs.) Nita Mehta. This part of the say of Dilip Patel is in ccnfirmity with the say of complainant Shantaben in her F.I.R. Hirabhai Doshi, the other Ayabai has stated in her statement of 23rd May, 1992 that on that day she and the complainant had come to the nursing home on duty as usual and that when she had reached the nursing home at about 8 p.m. deceased Dr. Madhuben Shah had gone upstairs and she was present in the house in company of her mother and younger sister Dr. (Mrs.) Nita Mehta. According to this witness, after a female patient was admitted in the nursing home and after a decision was taken that the operation shall be carried out in the morning, the main door was closed from inside and the deceased had gone upstairs. Her say further is that within a short time, Dilip Patel in company of his father had informed them, regarding something untoward in the bed-room of the deceased and they had gone upstairs and had seen Dr. (Mrs.) Nita Mehta giving a "massage" to the deceased and later on a telephonic message was given to the petitioner Mahendra Vora, as a result of which, he in company of his wife had rushed to the spot of occurrence. Jayantilal Patel the father of the aforesaid witness Dilip Patel has a similar version to give, because according to him, when he had rushed to the house of the deceased he had seen the deceased lying in the injured condition and Dr. (Mrs.) Nita Mehta was giving "massage or artificial respiration" This witness also says that Dr. Nita Mehta had given a telephonic messsge to other petitioner-Mahendra Vora and later on he had rushed there in company of his wife. It is also the say of this witness that later on a near-by medical expert Dr. Hemani was called, who had pronounced the deceased to be dead,
13. But the statement of Sarlaben Shah assumes great significance and importance because of the fact that, though at one hand she happens to be the mother of the petitioner, suspect Dr. (Mrs.) Nita Mehta and the mother-in-law of the other petitioner, suspect Mahendra Vora, she at the same time happens to be the mother of the deceased Dr. Madhuben Shah. A woman aged about 84 years, in the last phase of her life, even in such unfortunate circumstances, would try to be impartial and her feelings towards Dr. (Mrs.) Nita Mehta would not persuade her to save the killers of her another daughter in whose company she used to live since last more than thirty years. This statement of Sarlaben recorded by the investigating agency on 26th May, 1992, clearly rules out the possibility and the involvement of any or the petitioners in the commission of the crime. According to Sarlaben Shah, she was in the house in the company ot her daughter Dr. Nita Mehta and her baby daughter. According to this witness, she had seen both the sisters sitting on the swing and talking with each other in the usual normal condition till late, and that when she had retired to bed, there was nothing untoward. It is also her say that Dilipbhai and other people had come to the house and she was told that the deceased has been fatally injured. This statement of the mother of the deceased, nowhere states anything in respect of the presence of the petitioner-Mahendra Vora in the house. On the contrary this statement would clearly go to show that everything in the house was normal and that nothing untoward could be noticed when she had retired to bed. Moreover, it also comes out from this statement, that when at about 12-15 she had left her bed for going to bath room, petitioner Dr. (Mrs.) Nita Mehta was found to be sleeping on the other cot in company of her child in the same room. Gitaben who happens to be the wife of Mahendra Vora has stated in her statement dated 26-5-1992 that during the night her husband, namely petitioner-Mahendra Vora was in her house and they had gone to the residence of Dr. (Mrs.) Nita Mehta only after receiving the telephonic message. Tanvi who happens to be the daughter of petitioner-Mahendra Vora has stated in her statement that her father was in the house and her parents had gone to the place of occurrence only after receiving a telephonic message. Prashant Vora has stated in his statement of 26th May, 1992 that he was in company of Mahendra Vora till late night.
14. But, as rightly urged by the learned P.P. Mr. Trivedi, somewhere in the second week of June the investigation has taken a different turn, because of certain statements which came to be recorded by the Investigating Agency during the second phase. But before examining the material collected by the investigating agency during this phase, the second statement of Dilip Patel dated 30th May, 1992 shall have to be seen. In this statement Dilip Patel has stated that his wife had heard the hue and cry and thereafter, they had gone to the residential quarter of the deceased. But even in this second statement Dilip Patel does not say that he was able to see in the bedroom of the deceased through his bathroom window and that he was able to see the side face of Mahendra Vora in the bedroom of deceased Madhuben Shah. This say finds its place for the first time in the statement of Dilip Patel on 12th May, 1992. It requires to be appreciated that Dilip Patel does not say anything in respect of Mahendra Vora in his first statement of 23rd May, 1992 in the same way, and though his second statement came to be recorded as late as 30th May, 1992, he does not prefer to say anything in respect of the presence of the petitioner-Mahendra Vora in the residential quarter of the deceased. He comes out with the story of seeing the "side face" of petitioner-Mahendra Vora for the first time on 12th June, 1992 Prashant Vora has stated in his further statement dated 12th June, 1992, that as a matter of fact, Mahendra and Nita had left the place of the social function earlier. According to this witness both the petitioners must have left around 10-15 to 10-35 p.m. This witness further states that he was about to go to the bathroom, before retiring to the bedroom, but at that time at about 1.00 a.m. after mid night, his father had received a telephonic message requesting him to reach Madhuben's house. Farther statement of Hiraben Doshi dated 12th June, 1992 also speaks of a changed version. According to this statement Mahendra and Nitaben had come to the nursing home and thereafter had gone to the residential quarters and that, when this witness was going downstairs for collecting glucose and the stand, Mahendra was talking on telephone with somebody. It is the say of this witness that later on certain other people had come to the spot of the occurrence. Thus by this belated statement, Hiraben has changed her version by saying that both the petitioners were present in the house.
15. Mr. Trivedi the learned P.P. who appears on behalf of the respondent-State has urged that the second phase of the investigation would go to clearly implicate both the petitioners. Once again it should be pointed out that, as urged by the learned P.P. the case of the prosecution has not yet been crystallised and a concrete shape has yet not emerged. But Mr. Trivedi has also pointed out certain statements of the witnesses who have stated in varying language that there was some indecent or illicit relationship between the petitioners. Despite the repeated queries from this Court it was not possible for the learned P.P. Mr. Trivedi to point out anything in this respect, excepting some say of some witnesses in their statements saying that some patients in the Nursing Home suspected something between them or that they had a relation of "Hasi Majak". But would this be a base of a prima facie case against the petitioners?
16. It has been the constant complaint of the petitioners, of certain witnesses and of Dr. (Mrs.) Saroj Damani who approached this Court by filing a petition, that during the second phase of the investigation, the Police had resorted to those practices which are popularly known as 'third degree methods'. this Court does not propose to inquire and investigate into the above said allegation being made by the petitioners and certain witnesses. The petition filed by Dr. (Mrs.) Saroj Damani for the transfer of investigation to the C.B.I, or any other such agency, also came to be withdrawn at a late juncture. Any how the fact remains that when the second phase of the investigation was going on the relations of the witnesses, whose statements were to be recorded during the second phase, were required to approach the Courts at Rajkot for obtaining the search warrants. The fact remains that a Habeas Corpus Petition also came to be filed before this Court. The further fact remains that, in certain proceedings though the Courts at Rajkot had ordered the production of the person concerned 'forthwith', in some cases the person could be produced by the Police after about 35 to 36 hours. Because of this position, though this Court at this juncture does not want to express any opinion in respect of the allegation of resorting to 'third degree methods', it cannot be overlooked that not only the petitioners but witnesses and their relations have felt that there was something in the nature of coersion or duress during the second phase of interrogation. This position has been eloquently brought out, by the production of copies of various applications and the orders pronounced by the Courts. It therefore appears that, there was something beyond the normal police investigation which had compelled certain people to come before the Courts and to pray for either search warrants or the Habeas Corpus writ. Thus, the fact remains that there are two different versions, one implicating the petitioners and the othes ruling out their complicity in the commission or crime. Dilip Patel on whose say the case of the prosecution appears to be resting has three different versions and being on the list of prime suspects he speaks of the presence of Mahendra Vora, in the house, as late, as 12th June, 1992. In view of this situation, it appears very clearly that the decision rendered by the learned single Judge of this Court in case of Solanki Ravibhai Dipubhai and Ors. v. State of Gujarat and Anr., (supra) would come into play.
17. It has been sought to be urged that the petitioners and their relatives, right from the beginning wanted to save the petitioners, and therefore, complainant Shantaben was made to lodge her F.I.R. in such a way that it would go to show that the petitioners were not involved in the crime. It is also urged that the F.I.R. was lodged by Shantaben at the behest of Mahendra Vora. But the say of the complainant regarding the conduct of Dr. Nita Mehta in giving 'artificial respiration' and in calling for the intravenous equipment is duly supported by the Panchnama of the Scene of Occurrence and the Inquest Panchnama. The complain and other witnesses have stated that Dr. Nita Mehta was seen giving 'artificial respiration to the deceased and it is also the say of both the Ayas that they were ordered to bring the bottle and the stand from downstairs, so that the intravenous transfusion can be started. Both the Panchnamas show the presence of bottle and other equipments, In view of this position, the contention, that possibly the complainant was acting under the instructions of the petitioners or other interested relations of the deceased cannot be accepted.
18. Certain photo pictures have been pressed in service by the learned P.P. Mr. Trivedi while supporting the contention that there is a strong prima facie case against the petitioners. One of the photo picture, would go to show that the dagger was concealed beneath the cushion of a sofa chair. The question raised is-If an intruder was the assailant would he care to conceal the weapon beneath the cushion of the sofa chair? The argument would naturally find Favour with any person concerned with the human conduct just after the commission of the crime. But the same photo pictures when looked closely, would go to show the much reliance upon the same cannot be placed. At this juncture while hearing this petitions, this Court would not like to express any opinion regarding the alleged 'creation of the evidence' as urged by the learned Advocates for the petitioners. But the position of the knife and the blood stain on the cushion would go to show that much reliance should not be placed upon this aspect. The petitioners have also produced certain photo pictures alongwith the list. The first photo picture would go to show that the sheath and the dagger both were lying somewhere on a table cloth. Mr. Trivedi has tried to urge that this is possible because of two reasons, firstly this might be the trick photography or secondly, the persons who are interested in the 'welfare' of the petitioners might have brought similar dagger and a scabbard and they might have put them at some place so that the photo picture be taken. But it would be unwise and unsafe to reach such a far fetched conclusion. It is true that it is not for the petitioners to indulge in any activity which would tantamount to a parellel investigation. But at the same time the fact remains that a photo picture has been produced before this Court which shows the scabbard and knife both on a table cloth. Because of this reason, the panchnama of the scene of occurrence which also speaks of the recovery of the knife and scabbard from different places cannot be much relied upon. Nothing should be said in respect of the recovery of the weapons under the Panchnama at this juncture, but if one is prepared to rely upon the photo picture produced by the petitioners it would go to show that at one time either before or after the panchnama, the weapon and the scabbard were lying together, which is never the case of the investigating agency. Because of this peculiar circumstances it cannot be urged that merely because the dagger was found lying beneath the cushion, the murder cannot be the handy work of an intruder and must be the work of an inmate of the house. This position requires to be studied together with another aspect of vital importance emerging from the Panchnama that a ladder which was placed by a glass filer, was very much there, put up to the gallery and the gallery door was open with a lock and key out side.
19. Under one another Panchnama, the garments, allegedly stained with human blood, have beep recovered from the house of Mahendra Vora. The Panchnama would go to show that three pants and a shirt came to be recovered and there were stains of human blood on these garments which were washed and pressed. The F.S.L. reports are still not received and therefore at this juncture it cannot be said that this is an aspect which would call for the rejection of the petitions for the orders in nature of anticipatory bail. One more aspect of the case is in respect of recovery of a napkin having a small dot of human blood of B-Group. By this time it is certain that both the petitioners belong to the above said blood group alongwith two other persons including Dilip Patel. The Panchnama would go to show that Dr. Nita Mehta had said that the above said napkin was in her purse during the previous day. Mr. Trivedi has tried to urge that this blood stained napkin would go to show that a person having a blood Group-B might be the assailant. It is true, as noticed above, that both the petitioners are having the same blood group. Mr. Daftari has tried to urge that in such a case one would expect some injury on the person of the petitioners, but this view expressed by Mr. Daftari came to be combated by learned P.P. Mr. Trivedi. Any how the fact remains that when Dr. Nita Mehta came to be examined by a lady P.S.I, on 23-5-1992 at about 6 p.m. no injuries could be found on her person. In the same way when the petitioner-Mahendra Vora came to be examined by the Medical Officer, Government Hospital, Rajkot, there was no evidence of any "fresh or recently healed injury". Because of these two documents, namely the report submitted by the lady P.S.I, and the certificate issued by the Medical Officer, Government Hospital, Rajkot, it is conclusively shown that none of the two suspects was having any injury which would be the result of a scuffle during which multiple stab injuries could have been caused to a healthy woman. Mr. Trivedi has tried to urge that the dot of blood on the napkin which admitedly belongs to Dr. Nita Mehta might not be the result of the scuffle but it is also possible due to various reasons, including a bleeding nose. But the recovery of napkin having a dot or blood cannot be said to be a material against the petitioners. The petitioners have not received any injury during the course of the occurrence. The blood stained napkin having a small dot cannot be accepted as a material or ground against the petitioners, on the basis of the similarity of Blood Group especially, when none of them was having any injury on their person.
Hence The Following Resume:
(1) The High Court to which the Application for Anticipatory Bail is made should be left free in the exercise of its judicial discretion to grant bail if it considers fit in the facts and circumstances of the case.
(2) It cannot be laid down as an inexorable rule that Anticipatory Bail cannot be granted unless the proposed accusation appears to be actuated by mala fides.
(3) But, nonetheless, some very compelling circumstances must be made out for granting bail to a person accused of offence of murder when the investigation is in progress.
(4) The F.I.R. and the Statements prior to 12th June, 1992 give a clean chit to both the petitioners.
(5) That witness Dilip Patel brings in the presence of Mahendra Vora in the bedroom of the deceased only on his third statement dated 12th June, 1992 making a vital departure from his earlier two statements dated 23rd and 30th May, 1992.
(6) That the statement of Sariaben Shah the mother of the deceased rules out any possibility of any involvement of any of the two petitioners.
(7) That no injuries, much less any bleeding injury was found on the person of any of the petitioners neutralising the recovery of a napkin having a dot of blood of B-Group.
(8) The find of the weapon from beneath the Sofa Cushion cannot be taken as a decisive factor to come to the conclusion that not an intruder but an inmate of the house must be the murderer. This is especially so because of the anomalous situation created by the photo pictures produced both by the Investigating Agency and the petitioners. The ladder, the open door of the gallery and an open lock with key therein on the outerside of the door should not be over looked.
(9) That the second phase of the investigation from 12th June, 1992 is surrounded by the allegation of duress and coersion and the institution of various proceedings for Search Warrants and Habeas Corpus writ coupled with the fact that though the concerned persons were ordered to be produced before the Courts forthwith, they could be produced quite late and in one case only after a lapse of thirty-five hours.
(10) The peculiar facts and circumstances of the case, as compelling circumstances call for the exercise of the jurisdiction of this Court under Section 438 of the Code of 1973, but the Orders of Anticipatory Bail shall have to be limited to a stipulated period, and usually the petitioners shall have to move the competent Court for regular bail after their arrest and the Police can always ask for a remand.
20. The petitions therefore succeed and they require to be allowed. Hence the following Orders.
:ORDERS:
1. The petitions succeed and they are hereby allowed.
2. It is hereby ordered and directed that, in case of the arrest of the petitioners in connection with C.R. No. 290 of 1992 of Rajkot City 'C' Division Police Station, for the alleged commission of the offence punishable under Section 302 of Indian Penal Code, each of the petitioners-accused shall be released on bail in sum of Rs. 10,000/- (Rs. Ten thousand each only) and the P.B. of like amount.
3. The petitioners shall report to Rajkot City 'C' Division Police Station on 11-7-1992 at about 5-00 p.m. for the purpose of interrogation by the Investigating Officer, and thereafter, shall continue to make themselves available to the Investigating Officer for further interrogation as required, and shall co-operate with the Investigation Officer in the investigation.
4. It would be open to the Investigation Officer to file the application for remand if he considers it proper, and if the same is so filed, the concerned learned Magistrate shall decide the application for remand on merits and according to law.
5. The petitioners shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any Police Officer.
6. The petitioners shall not leave India without (he prior permission of the Sessions Court at Rajkot.
7. The petitioners shall surrender their passports if any forthwith to the Investigating Officer and shall not apply for duplicate or fresh passport till the trial against them is over.
8. After the interrogation is over, Dr. (Mrs.) Nita Mehta shall normally stay at her residence at Bombay, while petitioner-Mahendra Vora after the interrogation is over shall not enter within the City limits of Rajkot without having obtained the prior permission of the Sessions Court, Rajkot. He shall supply his new residential address forthwith to the Investigating Officer and shall report to the Nearest Police Station on every Monday during morning hours between 10-00 a.m. to 12-00 noon till the investigation is over.
9. All of the above said conditions shall be treated as conditions on which bail is granted. These orders will hold good if the petitioners are arrested at any time within 90 days from today. The order for release on bail will remain operative only for a period of ten days from the date of their arrest. Thereafter, it will be open to petitioners to make a fresh application for being enlarged on bail which when it comes before the competent Court will be disposed of in accordance with law, having regard to all the attendant circumstances and the material available at the relevant time uninfluenced by the fact that anticipatory bail was granted.
10. A copy of the operative portion of these orders be transmitted to the Commissioner of Police, Greater Bombay. Rule made absolute. D.S. permitted.
21. After the above said orders have been dictated the learned P.P. Mr. Trivedi has urged that during the course of the abovesaid orders, two canvassed contentions have not been dealt with. The first contention is that the Court below has rejected the orders of anticipatory bail on the ground that there is a prima facie case against them and that, in light of the above said clear findings there is no reason for this Court to come to a different conclusion. But as noticed above the entire material has been examined by this Court and no other view is possible. The second contention raised by Mr. Trivedi is that the petitioners are absconding and that, affidavits in support of the petition have not been filed. The filing of the affidavits has been dispensed with. It is a fact that the petitioners have not been arrested so far. It was, time and again urged on behalf of the petitioners that they be allowed to appear before this Court or at the Police Station, provided the State agrees not to arrest them till the hearing of these petitions is concluded. They have also prayed for interim protection. Both these prayers came to be combated by the learned P.P. Now therefore, the State cannot urge that the present petitions be rejected on the ground that the petitioners are absconding. At any rate, non-filing of the affidavit and being not available to the Police uptill now do not constitute an unsurmountable obstacle in the way of the petitioners.
Lastly it may be noticed that either in case of dismissal or allowing of these two petitions the learned Advocates for the petitioners and the learned P.P. have asked for reasoned orders.