Gujarat High Court
Sanjiv @ Sanjay Punjabi @ Sanju ... vs State Of Gujarat on 22 March, 2024
NEUTRAL CITATION
R/CR.MA/13280/2022 CAV ORDER DATED: 22/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 13280 of 2022
(FOR REGULAR BAIL - AFTER CHARGESHEET)
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SANJIV @ SANJAY PUNJABI @ SANJU KISHANKISHOR VAIDH Versus STATE OF GUJARAT ======================================================= Appearance:
MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1 MS KRINA CALLA APP for the Respondent(s) No. 1 ======================================================= CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Date : 22/03/2024 CAV ORDER
1. Rule. Learned APP waives service of notice of Rule for respondent - State of Gujarat.
2. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with the FIR being C.R. No.I-133/2014 registered with the Rajkot City 'B' Division Police Station, Rajkot for the offence punishable under Sections 302, 120(B), 34, 201 and 212 of the Indian Penal Code, under Sections 25(1-
b)A and 27 of the Arms Act and under Section 135(1) of the Gujarat Police Act.
3. Learned advocate, Mr. Dagli submitted that the so-
called incident occurred on 23.05.2014 and FIR has been registered on the very same day i.e. on 23.05.2014 and in connection with the same, the applicant has been arrested on 22.09.2021 and since then, he is in judicial custody i.e. since Page 1 of 18 Downloaded on : Fri Mar 22 21:41:22 IST 2024 NEUTRAL CITATION R/CR.MA/13280/2022 CAV ORDER DATED: 22/03/2024 undefined last more than two and half years. Learned advocate submitted that the investigation is completed and after submission of the chargesheet, the present application is preferred. Learned advocate submitted that FIR was registered against the unknown persons and the applicant is not named in the FIR. Learned advocate submitted that initially FIR has been lodged under Section 307 of the IPC, however subsequently during the course of treatment, the victim expired, therefore, Section 302 of the IPC came to be added. Learned advocate submitted that on the strength of the registration of FIR, the investigation commenced and on conclusion of investigation, chargesheet was filed against the accused persons, wherein also the name of the applicant was not there, however after a lapse of certain period of time, supplementary chargesheet was filed against the co-accused, wherein the name of the applicant is not stated, thereafter the involvement of the applicant is found out, on the strength of the statement made by the co-accused before the IO, the present applicant has been arraigned as accused and, hence, he was arrested and chargesheeted. Learned advocate submitted that it is the case of the prosecution that the deceased was a Ayurvedic Doctor and was closely associated with Asharam Bapu and he used to regularly attending sermon (religious lectures) and ardent follower of Asharam Bapu but thereafter subsequently, due to Page 2 of 18 Downloaded on : Fri Mar 22 21:41:22 IST 2024 NEUTRAL CITATION R/CR.MA/13280/2022 CAV ORDER DATED: 22/03/2024 undefined some reasons, disputes have been cropped up and he had disassociated himself with all the activities of Ashram Bapu by cutting all the ties with Asharam Bapu and his related activities and also stopped to attend the programmes organized by Asharam Bapu and not only that the deceased had started to make statements against the Asharam Bapu in the press, in interviews as also in electronic media and he used to raise his voice against the activities of the Ashram of Asharam Bapu carried out by the followers of the Asharam Bapu, therefore as per the case of the prosecution, one of the followers of Asharam Bapu made attack upon the deceased by firing upon him with an intent to eliminate him, as a result of which, the deceased sustained serious injury on his neck, due to which, he could not be able to speak but he was conscious when he was taken to hospital and at that point of time, he had seen some followers of Asharam Bapu within the premises/precinct of the hospital and on the very next day, he had given his dying declaration before the concerned Executive Magistrate, wherein he has disclosed the name of those persons in a categorical terms, however, those accused persons have been enlarged on bail considering the role attributed to them at the time of commission of crime. Learned advocate submitted that it is an admitted position of fact that the present applicant was at all not available at the place of Page 3 of 18 Downloaded on : Fri Mar 22 21:41:22 IST 2024 NEUTRAL CITATION R/CR.MA/13280/2022 CAV ORDER DATED: 22/03/2024 undefined occurrence at the time of commission of crime and the present applicant has not made any attack upon the deceased and nobody has identified the present applicant at the place of occurrence. Learned advocate submitted that the persons, whose names have been mentioned in the dying declaration by the deceased before the concerned Executive Magistrate, have already been considered by the Coordinate Bench of this Court as well as the concerned trial court.
4. Learned advocate submitted that so far as the allegations leveled against the present applicant is concerned, it is alleged that he is die-hard fan and ardent follower of Asharam Bapu and as soon as he came to know about the fact that certain offences have been registered against Asharam Bapu and his son, Narayan Sai at different parts of the country and certain persons had started to abuse them on print and electronic media by raising grievances against the activities of Asharam Bapu and Narayan Sai and on the strength of the said activities carried out by those persons, number of persons have started registering complaint and/or recording their statements against Asharam Bapu, therefore, to stop them to continue with the said activity, the present applicant and other followers have hatched a criminal conspiracy to eliminate those persons and as a part of said conspiracy, the present applicant has acted in a particular manner. It is Page 4 of 18 Downloaded on : Fri Mar 22 21:41:22 IST 2024 NEUTRAL CITATION R/CR.MA/13280/2022 CAV ORDER DATED: 22/03/2024 undefined alleged that the present applicant has organized meeting at Delhi and the applicant has procured certain amount and gave it to other persons and thus, the said incriminating fact of involvement of the present applicant in the commission of crime is the sole base of the prosecution against the present applicant and to substantiate the said charge leveled against the present applicant, the prosecuting agency has put reliance upon the statement of the co-accused, except that, no any other incriminating material has been produced by the prosecution against the present applicant. Learned advocate submitted that it is settled proposition of law that the statement of the co- accused cannot be taken into consideration against the applicant after the submission of the chargesheet and admittedly except the statement of co-accused, no other independent evidence is found available on record, which connect the applicant with the commission of crime. Learned advocate further submitted that there is no recovery or discovery made at the instance of the present applicant - accused, the applicant was not found available at the place of occurrence and entire case of the prosecution hinges upon circumstantial evidence and prosecuting agency has failed to bring any incriminating material on record to connect the applicant with the commission of crime.
5. Learned advocate, at this stage, submitted that by Page 5 of 18 Downloaded on : Fri Mar 22 21:41:22 IST 2024 NEUTRAL CITATION R/CR.MA/13280/2022 CAV ORDER DATED: 22/03/2024 undefined an order dated 20.02.2024, this Hon'ble Court has called for the report of status of trial and in pursuance thereto, the concerned Court has submitted its report, which clearly goes on to show that three different chargesheet were filed and because of which, three different sessions cases are registered and are pending before the concerned court for adjudication, however as on date, the case is pending at the stage of production of muddamal and production of documentary evidence thus, the trial has not commenced, hence, single witness has not been examined by the concerned court. Learned advocate, therefore, urged that the record if bulky/voluminous and there are as many as 84 witnesses cited in the chargesheet and, hence, trial will take considerable long period of time to conclude and yet the trial has not commenced and as stated above, the applicant is in jail since last more than two and half years and for no fault on his part, he may not be put behind the bar for indefinite period, which would affect the rights of the applicant guaranteed under Article 21 of the Constitution of India. It is, therefore, urged that considering the nature of the offence and the role attributed to the applicant, the applicant may be enlarged on regular bail by imposing suitable conditions.
6. Learned APP, Ms. Calla for the respondent-State has opposed grant of regular bail looking to the Page 6 of 18 Downloaded on : Fri Mar 22 21:41:22 IST 2024 NEUTRAL CITATION R/CR.MA/13280/2022 CAV ORDER DATED: 22/03/2024 undefined nature and gravity of the offence. Learned APP submitted that the applicant - accused is involved in a serious offence of murder and to execute the said crime, the applicant - accused has hatched a conspiracy in connivance with other persons and as per the conspiracy, a well designed plan has been prepared and executed, due to which, one innocent person has lost his valuable life without any fault on his part. Learned APP submitted that to execute the crime, the applicant harboured one of the co-accused, Kartik Bengali and for procuring the weapons and facilitating it, one of the co- accused, Dr. K.D. Patel provided certain amount. Learned APP submitted that so far as the role attributed to the present applicant, it is alleged that while staying at Delhi, he has hatched conspiracy to eliminate the deceased and to connect the applicant with the commission of crime, there are ample material and evidence available on record in the papers of chargesheet. Learned APP further submitted that the applicant is having criminal antecedents, which suggests his criminal mind. Learned APP further submitted that as stated above, the applicant is very headstrong person and highly influential person. Learned APP further submitted that now the trial has commenced and within short time, the witnesses are going to be examined by the prosecution and if he is granted bail then, there are all possibilities of tampering with the evidence and hampering with the Page 7 of 18 Downloaded on : Fri Mar 22 21:41:22 IST 2024 NEUTRAL CITATION R/CR.MA/13280/2022 CAV ORDER DATED: 22/03/2024 undefined witnesses, which would affect the trial. Learned APP further submitted that merely because the co- accused have been considered by the Coordinate Bench of this Court as well as the concerned Sessions Court, parity cannot be claimed because the role of the present applicant is on much higher pedestal than the co-accused, who had been considered. Learned APP submitted that the applicant is the mastermind of the crime and he is the person, who has hatched conspiracy to eliminate Raju Limbo and the said fact is established by the prosecution by collecting ample material and evidence. It is, therefore, urged that considering the above factual aspects as also considering the role attributed to the present applicant - accused at the time of commission of crime, the present application may not be entertained.
7. Learned advocates appearing on behalf of the respective parties do not press for further reasoned order.
8. I have heard the learned advocates appearing on behalf of the respective parties and perused the papers of the investigation and considered the allegations levelled against the applicant and the role played by the applicant. It is found out from the record that the present application is preferred after submission of the chargesheet and now the investigation is completed and the applicant is in jail since 22.09.2021. It is found Page 8 of 18 Downloaded on : Fri Mar 22 21:41:22 IST 2024 NEUTRAL CITATION R/CR.MA/13280/2022 CAV ORDER DATED: 22/03/2024 undefined out from the available record that so far as the role attributed to the present applicant is concerned, it is alleged that he has hatched conspiracy to eliminate the deceased and as a part of it, the applicant harboured the offenders, who had committed the alleged offence, however except the statement of co-accused recorded by the IO during the course of investigation, entire case of the prosecution hinges upon circumstantial evidence and prima facie on the basis of the material collected by the IO, the prosecution has failed to connect all the linkis of chain connecting the applicant with the commission of crime. Over and above that, the applicant was not found available at the place of offence, there is no recovery or discovery made at the instance of the present applicant - accused, the applicant is not named in the suicide note as also no TI Parade is held. I have considered the role attributed to the present applicant at the time of commission of crime and the role attributed to co-accused, who have been considered by the Coordinate Bench of this Court as well as by the concerned trial court. Over and above that, as stated above, report with regard to the status of trial was called for from the concerned trial court. It is found out that there are three sessions cases pending before the concerned trial court and the trial is at the stage of production of muddamal and there are 84 witnesses cited in the Page 9 of 18 Downloaded on : Fri Mar 22 21:41:22 IST 2024 NEUTRAL CITATION R/CR.MA/13280/2022 CAV ORDER DATED: 22/03/2024 undefined chargesheet, which are yet to be examined and thus, trial has not yet commenced and it will take considerable time to conclude. Therefore considering the facts of the case, the applicant deserves to be granted bail.
9. So far as the contention of learned APP with regard to the antecedent of the applicant, I would like to put reliance upon the decision of the Hon'ble Supreme Court in case of Prabhakar Tewari Vs. State of Uttar Pradesh, reported in (2020) 11 SCC 648, wherein the Hon'ble Supreme Court has observed in Paragraph No.7 as under, "7. On considering the submissions of the learned counsel for the parties. Having regard to the circumstances of this case, in our opinion, there has been no wrong or improper exercise of discretion on the part of the High Court in granting bail to the accused. The factors outlined in the case of Mahipal (supra) for testing the legality of an order granting bail are absent in the order impugned. The materials available do not justify arriving at the conclusion that the order impugned suffers from non- application of mind or the reason for granting bail is not borne out from a prima-facie view of the evidence on record. The offence alleged no doubt is grave and serious and there are several criminal cases pending against the accused. These factors by themselves cannot be the basis for refusal of prayer for bail. The High Court has exercised its discretion in granting bail to the accused Vikram Singh upon considering relevant materials. No ex- facie error in the order has been shown by the appellant which would establish exercise of such discretion to be improper. We accordingly sustain the order of the Page 10 of 18 Downloaded on : Fri Mar 22 21:41:22 IST 2024 NEUTRAL CITATION R/CR.MA/13280/2022 CAV ORDER DATED: 22/03/2024 undefined High Court granting bail. This appeal is dismissed."
10. At this stage, this Court would like to put reliance upon the decisions of the the Hon'ble Apex Court in the case of Sanjay Chandra Vs. Central Bureau of Investigation, reported in (2012) 1 SCC 40, wherein the Hon'ble Supreme Court has observed as under, "21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.
22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at Page 11 of 18 Downloaded on : Fri Mar 22 21:41:22 IST 2024 NEUTRAL CITATION R/CR.MA/13280/2022 CAV ORDER DATED: 22/03/2024 undefined liberty, save in the most extraordinary circumstances.
23. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson."
11. This Court would also like to put reliance upon the decisions of the Hon'ble Apex Court in the case of Satender Kumar Antil v. Central Bureau of Investigation & Anr. reported in (2022) 10 SCC 51, wherein the Supreme Court has made following observations,
11. The principle that bail is the rule and jail is the exception has been well recognised through the repetitive pronouncements of this Court. This again is on the touchstone of Article 21 of the Constitution of India. This court in Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1, held that:
"19. In Gurbaksh Singh Sibbia v. State of Punjab [Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 465], the purpose of granting bail is set out with great felicity as follows: (SCC pp. 586-88, paras 27-30) "27. It is not necessary to refer to decisions which deal with the right to ordinary bail because that right does not furnish an exact parallel to the right to anticipatory bail. It is, Page 12 of 18 Downloaded on : Fri Mar 22 21:41:22 IST 2024 NEUTRAL CITATION R/CR.MA/13280/2022 CAV ORDER DATED: 22/03/2024 undefined however, interesting that as long back as in 1924 it was held by the High Court of Calcutta in Nagendra Nath Chakravarti, In re [Nagendra Nath Chakravarti, In re, 1923 SCC OnLine Cal 318 : AIR 1924 Cal 476 : 1924 Cri LJ 732] , AIR pp. 479-80 that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment. In two other cases which, significantly, are the "Meerut Conspiracy cases" observations are to be found regarding the right to bail which deserve a special mention.
In K.N. Joglekar v. Emperor [K.N. Joglekar v. Emperor, 1931 SCC OnLine All 60 : AIR 1931 All 504 : 1932 Cri LJ 94] it was observed, while dealing with Section 498 which corresponds to the present Section 439 of the Code, that it conferred upon the Sessions Judge or the High Court wide powers to grant bail which were not handicapped by the restrictions in the preceding Section 497 which corresponds to the present Section 437. It was observed by the Court that there was no hard- and-fast rule and no inflexible principle governing the exercise of the discretion conferred by Section 498 and that the only principle which was established was that the discretion should be exercised judiciously. In Emperor v. H.L. Hutchinson [Emperor v. H.L. Hutchinson, 1931 SCC OnLine All 14 :
AIR 1931 All 356 : 1931 Cri LJ 1271] , AIR p. 358 it was said that it was Page 13 of 18 Downloaded on : Fri Mar 22 21:41:22 IST 2024 NEUTRAL CITATION R/CR.MA/13280/2022 CAV ORDER DATED: 22/03/2024 undefined very unwise to make an attempt to lay down any particular rules which will bind the High Court, having regard to the fact that the legislature itself left the discretion of the court unfettered. According to the High Court, the variety of cases that may arise from time to time cannot be safely classified and it is dangerous to make an attempt to classify the cases and to say that in particular classes a bail may be granted but not in other classes. It was observed that the principle to be deduced from the various sections in the Criminal Procedure Code was that grant of bail is the rule and refusal is the exception. An accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. As a presumably innocent person he is therefore entitled to freedom and every opportunity to look after his own case. A presumably innocent person must have his freedom to enable him to establish his innocence.
28. Coming nearer home, it was observed by Krishna Iyer, J., in Gudikanti Narasimhulu v. State [Gudikanti Narasimhulu v. State, (1978) 1 SCC 240 : 1978 SCC (Cri) 115] that: (SCC p.
242, para 1) '1. ... the issue [of bail] is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process. ... After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of "procedure established by law". The Page 14 of 18 Downloaded on : Fri Mar 22 21:41:22 IST 2024 NEUTRAL CITATION R/CR.MA/13280/2022 CAV ORDER DATED: 22/03/2024 undefined last four words of Article 21 are the life of that human right.'
29. In Gurcharan Singh v. State (UT of Delhi) [Gurcharan Singh v. State (UT of Delhi), (1978) 1 SCC 118 : 1978 SCC (Cri) 41] it was observed by Goswami, J., who spoke for the Court, that:
(SCC p. 129, para 29) '29. ... There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail.'
30. In AMERICAN JURISPRUDENCE (2nd, Vol. 8, p. 806, para 39), it is stated:
'Where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case. Since the object of the detention or imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a recognizance or bond would effect that end.' It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail." xxx xxx xxx
24. Article 21 is the Ark of the Page 15 of 18 Downloaded on : Fri Mar 22 21:41:22 IST 2024 NEUTRAL CITATION R/CR.MA/13280/2022 CAV ORDER DATED: 22/03/2024 undefined Covenant so far as the Fundamental Rights Chapter of the Constitution is concerned. It deals with nothing less sacrosanct than the rights of life and personal liberty of the citizens of India and other persons. It is the only article in the Fundamental Rights Chapter (along with Article 20) that cannot be suspended even in an emergency [see Article 359(1) of the Constitution]. At present, Article 21 is the repository of a vast number of substantive and procedural rights post Maneka Gandhi v. Union of India [Maneka Gandhi v. Union of India, (1978) 1 SCC 248]."
12. In the facts and circumstances of the case and considering the nature of the allegations made against the applicant in the FIR, without discussing the evidence in detail as well as in view of the ratio enunciated by the Hon'ble Supreme Court in the aforesaid decisions, prima facie this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail. Therefore, the present application deserves to be allowed.
13. Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with the FIR being C.R. No.I-
133/2014 registered with the Rajkot City 'B' Division Police Station, Rajkot on executing a personal bond of Rs.15,000/- (Rupees Fifteen Thousand only) with one surety of the like amount Page 16 of 18 Downloaded on : Fri Mar 22 21:41:22 IST 2024 NEUTRAL CITATION R/CR.MA/13280/2022 CAV ORDER DATED: 22/03/2024 undefined to the satisfaction of the trial Court and subject to the conditions that he shall;
[a] not take undue advantage of liberty or misuse liberty;
[b] not act in a manner injuries to the interest
of the prosecution;
[c] surrender passport, if any, to the lower
court within a week;
[d] not leave the State of Gujarat without prior
permission of the Sessions Judge concerned; [e] mark presence before the concerned Police Station on alternate Monday of every English calendar month for a period of six months between 11:00 a.m. and 2:00 p.m.; [f] furnish the present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;
14. The authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the concerned Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law.
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15. At the trial, the trial Court shall not be influenced by the observations of preliminary nature qua the evidence at this stage made by this Court while enlarging the applicant on bail.
16. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
Sd/-
(DIVYESH A. JOSHI, J.) Gautam Page 18 of 18 Downloaded on : Fri Mar 22 21:41:22 IST 2024