Madhya Pradesh High Court
Sheikh Raseed @ Bablu Kamani vs The State Of Madhya Pradesh on 29 August, 2022
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 29th OF AUGUST, 2022
MISC. CRIMINAL CASE No. 37258 of 2022
Between:-
SHEIKH RASEED @ BABLU KAMANI S/O LATE
SHEIKH RAHMAN, AGED ABOUT 45 YEARS,
OCCUPATION: AGRICULTURIST, R/O
SHUKRAWARI WARD, TEHSIL AND DISTRICT
SAGAR (MADHYA PRADESH)
.....APPLICANT
(BY SHRI ANIL KHARE, SENIOR ADVOCATE ASSISTED BY SHRI
PRIYANK AGRAWAL, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
POLICE STATION GOPALGANJ, DISTRICT
SAGAR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ADITYA NARAYA GUPTA, GOVT. ADVOCATE FOR
RESPONDENT/STATE)
(BY SHRI RAJENDRA KUMAR MISHRA, ADVOCATE FOR THE
OBJECTOR)
This application coming on for hearing on this day, the court passed
the following:
ORDER (ORAL)
Dictated in open Court :
This is first bail application filed under Section 439 of the Code of Criminal Procedure, 1973 on behalf of applicant Sheikh Raseed alias Bablu Kamani, S/o late Sheikh Rahman who is in custody since 12/07/2022 in Signature Not Verified SAN connection with Crime No.237/2021 registered at Police Station Gopalganj, Digitally signed by TULSA SINGH Date: 2022.08.30 18:27:23 IST Sagar, District Sagar (M.P.) for the offences punishable under Sections 302, 2 341, 294, 109, 114/34 of the Indian Penal Code as well as under Section 30 of the Arms Act, 1959.
Shri Anil Khare, learned senior counsel submits that earlier anticipatory bail was filed on behalf of present applicant and it was dismissed vide order dated 9th May, 2022 passed in M.Cr.C. No.19214/2022, an order on which reliance is also placed by Shri Rajendra Kumar Mishra, learned counsel for the objector.
Learned senior counsel has made 3-4 submissions while arguing this bail application. First is that complainant who is father of the deceased namely Abdul Naeem Khan has lodged Dehati Nalsi on 29/07/2021 at 10.30 a.m. which culminated into Marg intimation at 11.00 a.m. and on the basis of which, FIR was registered at 15.24 hours. Incident took place on 29/07/2021 between 9.20 to 9.30 a.m. At the relevant point of time, complainant-Abdul Naeem Khan was travelling in his Bolero Jeep towards Bhopal and had crossed toll barrier near Sagar and his return is shown at about 10.41 a.m. at the said barrier, therefore, presence of the complainant is doubtful. It is secondly submitted that when altercation was taking place between the deceased-Imran alias Badshah and Israr, then the main opponent was Israr. Later on it is alleged that Nagma w/o Israr and Mahak daughter of Israr so also present applicant-Sheikh Raseed alias Bablu Kamani had reached the spot. It is submitted that allegation on present applicant is exhortation asking Israr to shoot deceased-Imran alias Badshah. It is submitted that this is not made out from the facts of the case inasmuch as Israr was not carrying a gun in his hand and there was no sudden provocation triggered by Sheikh Raseed alias Bablu Kamani to provoke Israr to have fired a Signature Not Verified SAN gun shot. It is submitted that in fact, it has come on record that Israr had gone Digitally signed by TULSA SINGH Date: 2022.08.30 18:27:23 IST running to his house and had got his gun and then had fired a gun shot on Imran 3 alias Badshah.
It is submitted that there is no intention and he has been falsely implicated on account of old political rivalry which is almost admitted inasmuch as Abdul Naeem Khan is a former counselor and Sheikh Raseed alias Bablu Kamani was also a political aspirant belonging to politically rival group of the same party.
It is further submitted that a letter was given by wife of the present applicant to the Director General of Police seeking fair investigation. CD was handed over by the wife of the accused to the CID for which a seizure Panchnama was made and that CD was verified by the CID during investigation. It is submitted that applicant is innocent, therefore, he be extended benefit of bail.
Shri Aditya Narayan Gupta, learned Govt. Advocate, in his turn, submits that in the pen drive picture of Abdul Naeem is not clear. There is previous criminal past of five cases. Applicant was arrested recently on 12/07/2022 and investigation is complete, charge sheet is filed, but looking to his criminal history, no indulgence may be shown in the matter.
Shri Rajendra Kumar Mishra, learned counsel for the objector, submits that admissibility of CCTV footage cannot be decided at this moment. He submits that there is suppression of a material fact which is mentioned in the impugned order of the trial Court that apart from five criminal cases registered at Police Station, Gopalganj, there are two more criminal cases registered at Police Station Cantt. namely Crime No.534/2016 under Sections 294, 452, 336, 147, 148, 506, 153A, 323, IPC and another case at Police Station Kotwali Signature Not Verified SAN bearing Crime Case No.290/2008 under Section 353, 186, 225 of IPC.Digitally signed by TULSA SINGH
It is also submitted that as per the law laid down by Hon'ble Supreme Date: 2022.08.30 18:27:23 IST 4 Court in the case of Anil Kumar Yadav Vs. State (NCT) of Delhi & another decided on 14th November, 2017 in Criminal Appeal No.1938/2017 in which Hon'ble Supreme Court has referred to its earlier judgment in State of U.P. through CBI Vs. Amarmani Tripathi, (2005) 8 SCC 21 . Quoting para-18 of Amarmani Tripathi (supra), it is pointed out that Hon'ble Supreme Court has held that "while a vague allegation that the accuse may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused."
Similarly, reliance is placed on the judgment of Hon'ble Supreme Court in the case of Sunil Kumar Vs. The State of Bihar and another passed in Criminal Appeal No.95/2022 decided on January 25, 2022 wherein referring to earlier decision in Neeru Yadav Vs. State of U.P. & another, 2016 (15) SCC 422, it is held that "a history-sheeter involved in the nature of crime which we have reproduced hereinabove, are not minor offences so that he is not to be retained in custody, but the crimes are of heinous nature and such crimes, by no stretch of imagination, can be regarded as jejune. Such cases do create a thunder and lightening having the effect potentiality of torrential rain in an analytical mind". Reliance is also placed on the judgment of Hon'ble Supreme Court in the case of Guru Dutt Pathak Vs. State of Uttar Pradesh passed in Criminal Appeal No.502/2015 decided on 6th May, 2021 , wherein Hon'ble Supreme Court in para-9 has held as under :
"9. So far as the submission on behalf of the accused that Signature Not Verified SAN no motive has been established and proved is concerned, the High Digitally signed by TULSA SINGH Date: 2022.08.30 18:27:23 IST Court has elaborately dealt with the same. The High Court has 5 rightly observed that when there is a direct evidence in the form of eyewitnesses and the eyewitnesses are trustworthy and reliable, absence of motive is insignificant. In the present case, in the 313 statement itself, the appellant original accused No.4 has also stated that there was an enmity. Therefore, even according to the accused also, there was an enmity."
Shri Rajendra Kumar Mishra, learned counsel has also placed reliance on the earlier order of this Court passed in M.Cr.C. No.19214/2022 deciding anticipatory bail application under Section 438 of Cr.P.C. and submits that this Court has taken into consideration the judgment passed in the case of Pokar Ram Vs. State of Rajasthan and others, AIR 1985 SC 969, therefore, no indulgence is required.
Shri Mishra, learned counsel, further submits that out of earlier five cases, one resulted in acquittal, one was compromised and one was withdrawn. Two more cases as have been pointed out above, have been registered at Police Station, Cantt. bearing Crime No.532/2016 and at Police Station Kotwali registering case Crime No.290/2008, therefore, there is no ground for indulgence. Reading provisions contained in Section 114 of IPC, it is submitted that a case of abetment is made out and present applicant will also be liable to face the same consequences as may be faced by Israr who is the main accused under Section 302 of IPC, therefore, he prays for denial of bail.
Shri Anil Khare, learned senior counsel submits that as per Annexure-
Signature Not Verified SANP/15, five cases were registered at different point of time against the present Digitally signed by TULSA SINGH applicant. Case Crime No.161/1998 was registered under Sections 341, 294, Date: 2022.08.30 18:27:23 IST 6 323, 427, IPC. Thereafter case Crime No.554/2000 was registered under Sections 294, 323, 506, 353, IPC. Thereafter third case was registered at Gopalganj Police Station registering case Crime No.327/2001 under Sections 353, 294, 506B, IPC which resulted in acquittal. Another case Crime No.389/2001 was registered under Sections 147, 341, 294 of IPC which was withdrawn by the State. Case Crime No.143/2002 under Sections 323, 294, 506, 325 of IPC was filed which was compromised between the parties.
Shri Khare, learned senior counsel, submits that as far as case Crime Nos.161/1998 and 554/2000 are concerned, records are not available to him. However, it is submitted that all the five cases are of vintage of 1998 to 2002 and have no direct bearing on the present applicant. He further submits that he has no knowledge about one other case mentioned above, registered at Police Station, Cantt., in the year 2016. Shri Khare submits that as far as case Crime No.290/2008 is concerned, applicant was acquitted by learned Additional Chief Judicial Magistrate in Criminal Case No.4849/2008 which was instituted on 28/08/2008. Learned trial Court has held that whole prosecution story is doubtful and giving benefit of doubt, acquitted present applicant-Sheikh Raseed alias Bablu Kamani.
After hearing learned counsel for the parties and going through the record, at the cost of repetition, some chronology is required to be reproduced. Incident took place on 29/07/2021. At the time of altercation between accused-Israr and deceased-Imran alias Badshah, present applicant was not present. Dispute was in regard to removal of certain encroachment of Israr by the deceased as custodian of Wakf property. Admittedly, present Signature Not Verified SAN applicant reached when altercation was going on. Allegation is that present Digitally signed by TULSA SINGH Date: 2022.08.30 18:27:23 IST applicant had exhorted accused-Israr to kill deceased-Imran alias Badshah and 7 when he went running to his home, brought a gun and had shot decased-Imran alias Badshah. Thus, it is evident that at the time of alleged exhortation, Israr was not armed with a gun. There was no immediate provocation and there is lack of proximity between the gun firing and so-called exhortation. As per prosecution story, itself, Israr had gone to his home, brought gun and that in all probability, provided him sufficient time to think about the consequences.
As far as judgment referred to by Shri Rajendra Kumar Mishra, learned counsel for the objector, in case of Amarmani Tripathi (supra) is concerned, criminal history of the present applicant is different from that of Amarmani Tripathi. There is no material on record to show that merely his presence at large would intimidate the witnesses. In fact, it has come on record that complaint and the present applicant belong to two different camps of the same political party and there is no prima facie material to show that presence of the present applicant will intimidate the witnesses. In fact, eyewitnesses are mostly either the party post-bearers of the complainant or the family members of the complainant party. Therefore, the law laid down by Hon'ble Supreme Court in the case of Amarmani Tripathi (supra) which has been referred to in the case of Anil Kumar Yadav (supra) has limited application for the present.
Similarly, in the case of Neeru Yadav (supra) which has been quoted by Hon'ble Supreme Court in Sunil Kumar (supra), Hon'ble Supreme Court has held that "the nature of crimes which have been reproduced are not minor offences, but, crimes of heinous nature and such crimes, by no stretch of imagination, can be regarded as jejune (too simple or naive). But, from the Signature Not Verified SAN criminal history of the present applicant, it is not evident that he was ever Digitally signed by TULSA SINGH booked for any heinous crime in the past except for the present case.
Date: 2022.08.30 18:27:23 IST 8Similarly, reliance placed on the judgment of Hon'ble Supreme Court in the case of Guru Dutt Pathak (supra), is one where Hon'ble Supreme Court was dealing with the appeal of the accused and had benefit of complete evidence which was led before the trial Court, therefore, that judgment will have limited application when evidence is yet to be adduced.
In the opinion of this Court, earlier five cases, out of which three have ended in acquittal either on compromise or withdrawal were filed from the year 1998 to 2002 and none of them can be said to be of the heinous nature. Case Crime No.290/2008 has again resulted in acquittal. It was responsibility of the objector to have pointed out this fact when he was vehemently arguing about the said case.
Thus, only two cases of the year 1998 and 2000 and one of the year 2016 under Sections 294, 452, 336, 147, 148, 506, 153A, 323 of IPC are pending. Taking all these facts into consideration and prima facie there being no proximate cause between the said provocation and the actual incident of firing and taking into consideration that investigation is complete, trial is going to take time, there are good chances of success, for present, applicant is allowed to be released on bail.
Accordingly, this bail application is allowed.
It is directed that the applicant be released on bail on his furnishing a personal bond to the tune of Rs.2,00,000/- (Rupees Two Lakh only) with two solvent sureties in the like amount to the satisfaction of the learned Trial Court for his appearance before the said Court on the dates given by the Signature Not Verified SAN concerned Court during pendency of trial. It is further directed that the Digitally signed by TULSA SINGH applicant shall comply with the provisions of Section 437(3) of the Cr.P.C. It Date: 2022.08.30 18:27:23 IST is made clear that single absence of the applicant before the trial Court will 9 entitle the trial Court to cancel the bail.
This order shall be effective till the end of the trial, however, in case of bail jump and breach of any of the pre-condition of bail, it shall become ineffective.
Certified copy as per rules.
(VIVEK AGARWAL) JUDGE ts Signature Not Verified SAN Digitally signed by TULSA SINGH Date: 2022.08.30 18:27:23 IST