Gujarat High Court
Nazimuddin Fakruddin Kazi vs State Of Gujarat on 16 December, 2015
Author: S.G.Shah
Bench: S.G.Shah
R/CR.MA/23042/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 23042 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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NAZIMUDDIN FAKRUDDIN KAZI....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR AD SHAH, ADVOCATE for the Applicant(s) No. 1
MS MOXA THAKKAR, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 16/12/2015
CAV JUDGMENT
RULE. Ms. Moxa Thakkar, Ld.APP waives service of rule for the respondent - State.
2 The petitioner has surrendered before Page 1 of 56 HC-NIC Page 1 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT the Court of Addl. Chief Judicial Magistrate with reference to Sessions Case No.83 of 2015 registered for the offences under sections 302, 307, 341, 201, 465, 468, 471, 485, 34 and 120-B of the Indian Penal Code [IPC] with sections 25[1][a], 27[1] and 27[3] of the Arms Act, so also under section 135 of the Gujarat Police Act, which was registered with Dungari Police Station as C.R. No. I-12/2009 on 31/3/2009, pursuant to withdrawal of Criminal Misc. Application [For Anticipatory Bail] No. 13801/2015 on 30/10/2015. The Addl. Chief Judicial Magistrate took the petitioner in judicial custody on 2/11/2015 and upon submission of remand application by the Investigating Officer, remand of the petitioner was granted upto 7/11/2015, which was extended upto 9/11/2015. Thereafter, the petitioner moved Misc. Criminal Application No. 912/2015 before the Sessions Court at Valsad, for regular bail, which was rejected by the Ad-hoc Addl. Sessions Judge, Valsad, vide order dated 30/11/2015. Hence the present application is filed before this Court.
3 Though the incident and FIR is dated 31/3/2009, the first arrest of one Nasar Ahmed Bahmusa - petitioner in Criminal Misc. Application No. 15010/2015 is only on 8/4/2015 i.e. after six years. So also the arrest of Page 2 of 56 HC-NIC Page 2 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT remaining accused being petitioners in Criminal Misc. Application No. 14123/2015, namely Ahteshamudin alias Bhurio Nazimudin Kazi, Wasimudin Nazimudin Kazi and Ijharudin Nazimudin Kazi, is only on 28/4/2015 and thereby it is also after six years of the incident. However, such delay is not attributed to the accused themselves and, therefore, any attempt at any stage to say that the accused is head strong person and could not be arrested for six years, is not the correct situation, which is to be kept in mind while deciding such applications. Before discussing the rival submissions and deciding the applications, it would be appropriate to scrutinize that what happened on 31/3/2009 and thereafter, till the arrest of the present petitioner.
4 Before referring any pleading or document, it is to be noted that Criminal Misc. Application No.13801/2015 was preferred by the present petitioner, who is father of the Kazi brothers referred herein above for anticipatory bail, but such anticipatory bail application was subsequently withdrawn.
5 The chronology of events are as under:
5.1 31/3/2009 - One Manojbhai Ghisabhai Sharma lodged complaint before Dungari Police Station of Valsad that on the date of the Page 3 of 56 HC-NIC Page 3 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT incident i.e. 31/3/2009 at about 5.30 pm when he was driving Maruti Van bearing No. GJ-15-DD-5915 of his employer Ashokbhai Chunilal Shah, editor and publisher of Dakshin Gujarat Vartaman weekly newspaper of Valsad, as his driver, and on instruction of said Ashokbhai, the victim, they started in such Maruti Van from their office at Valsad towards Bilimora. During such journey, the complainant was driving the vehicle and victim Ashokbhai was sitting in front seat adjoining to the driver in the said Maruti Van. It is further stated by the complainant in his complaint that when they were proceeding towards Chikhali from Valsad, he found railway crossing of Kanpri closed and therefore, they waited there for 10 to 12 minutes and after railway crossing was opened, they started towards Bilimora by passing through Kudi Fatak and then to National Highway and when they reached to Dungari fly over, one golden colour Innova car had overtaken their car and intercepted them and one Alto car had also come behind their car, the complainant has to stop his car all of a sudden to avoid collision with the Innova car, which had intercepted them. It is categorically stated in the complaint by the complainant that the golden colour Innova car was having black glasses and, therefore, he could not notice that who was sitting in that car, but it is further stated that when he tried to take his Page 4 of 56 HC-NIC Page 4 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT car in reverse, he noticed Alto car on backside and that a person has come down from Alto car which was on his backside who was having whitish colour and who was aged about 30 to 32 years and such person has fired and first bullet hit on his left side of chest and thereafter, that man has continued the firing wherein another bullet has hit the left eye and head portion of the victim Ashokbhai and it was about 5.30 pm and that he could not notice the number of the Innova car, except its series being MH. It is further stated by him that thereafter, he took his vehicle down to the over-bridge and at that time one Jagdishbhai Khara of Dungari had met him, who had taken the vehicle from him and then said Jagdishbhai had driven the car first to Dungari Police Station, where they intimated the incident and then they went to the dispensary at Dungari and thereafter, they went to Kasturba Hospital at Valsad at about 6.00 pm, where it was disclosed that said Ashokbhai Chunilal Shah has died during the treatment and treatment of the complainant was started. While summing up the complaint, the complainant has stated that the victim Ashokbhai Chunilal has received two injuries by bullets, one near the eye and another on the head and that thereafter, those people had run away with car and that they do not know why they have fired upon them, but while narrating the story of the Page 5 of 56 HC-NIC Page 5 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT incident, he has stated that he would be able to identify the person if he was brought before him and reconfirmed the age of the culprit between 30 to 32 years.
5.2 1/4/2009 to 8/4/2009 - Further statement of the complainant, panchnama of the place of incident, panchnama of Maturi Van, panchnama of clothes of the complainant and victim and as many as three panchnamas of the office of the victim on different dates i.e. 1/4/2009, 3/4/2009 and 8/4/2009 were recorded by the Investigating Officer [IO] of Dungari Police Station. Statement of witness Jagdish Manilal Khara was recorded.
Some samples were also forwarded to Forensic Science Laboratory [FSL], Gandhinagar and post mortem notes of the victim were received by the IO. However, record shows that thereafter there is no investigation or at least there is no development in the investigation to confirm any conclusive evidence against any one.
5.3 24/3/2013 - One Punyapal Shah being son of the victim Ashokbhai Chunilal has preferred Special Criminal Application No. 645/2014 seeking indulgence of this High Court because of non- action on the part of the investigating agency and prayed to arrest the culprit involved in the conspiracy in killing the victim, with a prayer Page 6 of 56 HC-NIC Page 6 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT to hand over the investigation to CBI or State Crime Branch or to constitute Special Investigation Team consisting of impartial officers to carry out investigation, with a direction to the respondents - State and its Officers being prosecution agency to produce report of inquiry, if any initiated, so as to disclose the status of the investigation. It is to be recollected that such prayer is after gap of four years from the date of the incident. Thereby, it becomes clear that there was no evidence for four years to confirm that who committed crime and why.
5.4 23/4/2014 - This High Court has directed to carry further investigation by CID [Crime and Railways], Gandhinagar.
5.5 27/5/2014 - S.P. [Admn.], CID [Crime & Railways], Gujarat State, Gandhinagar, took over investigation.
5.6 3/7/2014 to 21/1/2015 - Statements of several persons were recorded and interim reports were submitted before the High Court.
5.7 31/8/2014 - Reconstruction of the incident was carried out and detailed panchnama of scene of offence was drawn with further Page 7 of 56 HC-NIC Page 7 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT statement of the complainant Manoj Sharma.
5.8 5/1/2015 - Report is submitted to Chief Judicial Magistrate, Gandhinagar for recording statement under sec. 164 of the Code of Criminal Procedure [Cr. P.C.] though offence is of Valsad.
5.9 22/1/2015 - Application is submitted to the Court of Chief Judicial Magistrate, Valsad for polygraph brain mapping narco analysis test of the complainant Manoj Ghisalal Sharma. There are several inconsistency and contradiction so far as identification of accused is concerned.
5.10 18/2/2015 to 11/3/2015 -Different reports of FSL were received.
5.11 8/4/2015 - First arrest of Nasar Ahmed Bahmusa had taken place and he was taken on remand.
5.12 10/4/2015 - Panchnama in respect of pointing out place of offence by accused Nasar was drawn when he was in police custody during remand.
5.13 28/4/2015 - Four more persons were arrested including the petitioners - Kazi brothers and one Abdul Kadar Khan.
Page 8 of 56HC-NIC Page 8 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT 5.14 29/4/2015 - Premises of Kazi brothers were searched.
5.15 1/5/2015 - Panchnama in respect of pointing out place of offence by accused Izhar was drawn when he was in police custody during remand.
5.16 1/5/2015 - Further statement of the complainant Manoj Sharma was recorded. However, IO has not inquired about the other details disclosed by the complainant and which is reflected in the FSL report received by the IO on 25/2/2015 i.e. well in advance before recording such further statement.
5.17 1/5/2015 to 27/6/2015 - Statements of several witnesses were recorded. Thereby, it is clear on record that all such statements are only after arrest and remand of all four accused. Thereby, IO has first arrested the accused and then recorded the statements of several witnesses that they have seen accused or that accused is also involved in the crime.
5.18 4/7/2015 - Charge-sheet is filed.
5.19 August 2015 - The petitioner filed an Page 9 of 56 HC-NIC Page 9 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT application being Criminal Misc. Application [For Anticipatory Bail] No. 13801/2015 before this Court.
5.20 30/10/2015 - Such application was permitted to be withdrawn and stood disposed of accordingly.
5.21 2/11/2015 The petitioner surrendered before the Court of Addl. Chief Judicial Magistrate and on submission of remand application by the IO, remand upto 9/11/2015 was granted.
5.22 9/11/2015 The petitioner moved Misc. Criminal Application No. 912/2015 for regular bail before the Sessions Court.
5.23 30/11/2015 The Addl. Sessions Judge, Valsad rejected the aforesaid regular bail application of the petitioner.
6 With this background of history of crime and investigation till date, learned advocate Mr. AD Shah for the petitioner has argued in detail to show how investigation is not only improper, against the settled principle of criminal jurisprudence, but against the settled position of law relating to such investigation, so also Page 10 of 56 HC-NIC Page 10 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT bias and only with a view to save the skin of the investigating agency and to book some one for the offences which they could not trace for more than six years and while doing so, how they booked the present as accused only because of the rivalry between the petitioner and the department and only because of few cases registered against the petitioner in past, though in all such cases the petitioner was acquitted.
7 It is submitted that to realize the issue on hand, though this is a bail application, the Court is requested to read charge-sheet papers minutely to realize that what could be the cause for the incident and who could be the suspect and for what intention and with which motive such crime was committed, both for identification of real culprits and the conspirators behind such crime. It is submitted that it is undisputed fact which emerges from the record that victim Ashokbhai Chunilal was editor and publisher of a weekly newspaper, namely Dakshin Gujarat Vartaman being published from Valsad. It is also undisputed fact that both, the son of the victim and the complainant have categorically disclosed, both before the IO and before this High Court in his petition that the murder of the victim is mainly because of his courageous reporting against anti-social elements Page 11 of 56 HC-NIC Page 11 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT including police, politicians and builder lobby of the area and, therefore, when victim had not surrendered to the demand of any such person against whom he was publishing, to stop such publication in his newspaper, he was killed. It has also come on record that in the issue of 26/3/2009 of such weekly newspaper Dakshin Gujarat Vartaman, the victim has published a news item regarding scam of Rs.1,000 crores by grabbing Government land admeasuring 5,000 acres by the land grabbers, which include builders and it was disclosed by him that he will publish some more news in next issue of his weekly. Similar news in the same issue of 26/3/2009 was about business of liquor, stating that only from Daman, there is a business of Rs.700 crores of liquor, out of which Khakhi and Khadi are earning Rs.100 crores. In such news, even names of some people like Ramesh Micle, Sukho and Kanu are disclosed with a statement that other 20 carriers are involved in such business. So far as news regarding land grabbing is concerned, there is a reference of several industrialists including name of one Gafurbhai Bilkhiya of Bilkhiya group and one Mr. Saiyed seems to be a Government Officer. However, it seems that there is no investigation on such aspect of the subject by the IO and it goes to the root of the issue that when it is disclosed by the complainant and Page 12 of 56 HC-NIC Page 12 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT petitioner that killing of the victim is mainly because of his reporting such news in his newspaper.
8 One more similar but more serious issue is regarding the fact which is emerging from the record that immediately after the incident on 31/3/2009 the local police has, in absence of the family members of the victim, asked the attendant of the office of the victim to open the office immediately and then they searched the office of the victim during night hours and took away several material including hard disc of the computer and it is also undisputed fact on record that after sometime, they handed-over some such material to the family of the victim through the Court's order so as to make a show that they have done nothing wrong. Though relevant facts would be disclosed with reference to relevant documents hereinafter, a reference to one panchnama dated 3/4/2009 of the office of the victim is quite important and material, wherein on 3rd and 4th pages i.e. last portion of the panchnama, it is stated, after recording so many details, that when they continued further proceedings of panchnama, one Anilbhai, seems to be brother of the victim, and one Vallabhbhai, conveyed them that they have to attend guest at home and, therefore, they would not be able to remain Page 13 of 56 HC-NIC Page 13 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT present at the place of panchnama and thereby the investigating agency has stopped the activity of panchnama without any reason and it seems that at that time, keys of the office was handed over to those persons and thereafter no further investigation was carried out in such office. Though there is a basic question that why as many as three different panchnamas of the office of the victim were needed to be drawn, the above facts confirmed that the investigating agency at the relevant time has not acted properly and, therefore, it leads to presumption that when police has not investigated the offence properly at relevant time and when this High Court has asked to speed up the investigation, the investigating agency has no option but to book some-one to show that investigation is done and culprits are booked. However, for confirming a charge and thereby to refuse the bail, what is required is at-least prima-facie, cogent, reliable and legal evidence against the accused so as to deprive his freedom by refusing the bail and to keep him in custody pending trial, more particularly when record shows that there is no such evidence against present accused and that trial has yet not started, as submitted by the Ld. APP and since they have yet to find out the real conspirators. To that extent, it seems that to avoid the situation of default bail in absence Page 14 of 56 HC-NIC Page 14 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT of filing of charge-sheet before 90 days, even charge-sheet is filed without realizing the lacuna, shortcoming and absence of proper investigation.
9 There is a reason to say so, as recorded in above para, because though the incident has taken place at more than 10 Kms from the office of the victim, within a period of first week of the incident, as many as on three different dates i.e. 1/4/2009, 3/4/2009 and 8/4/2009 four panchnamas of the office of the victim were drawn repeatedly. Thereby, it can be said that police was searching for cause of death of the victim to gather some such evidence from his office and to find out the real conspirator. But if it is so, then it is surprising to note that at least on one occasion, instead of continuing panchanma, it was abruptly stopped and thereafter further panchnama was drawn after gap of five days. Though perusal of such documents and discussion of any internal details would prejudice the trial, it needs to be avoided while deciding the bail application and at least it is to be recollected and noticed that though some material was examined during such panchnama for a week, nothing sort of further information has been revealed from such panchnama or material to connect the present accused with the commission Page 15 of 56 HC-NIC Page 15 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT of crime and thereby what is submitted by the petitioner, has some substance that he is wrongly implicated though there is no basic material against him during the immediate investigation or otherwise. The learned advocate has demonstrated during his arguments that how the petitioner has been falsely implicated. Therefore, though we have to avoid the discussion of material on record except to see that what material is available, so as to avoid prejudice upon the trial, the submissions of the learned advocates need to be recorded and appreciated for judicious decision of such bail application.
10 In light of what is discussed with reference to panchnama in above paras, now if we peruse the copy of the petition being Special Criminal Application No. 645/2013, certified copy of which is produced on record. The averments made in such petition certainly make it clear that these facts are required to be taken into consideration at all stages in the present case. From bare reading of the petition, so also the papers of investigation till April 2015, it transpires that practically there is no whisper on record about the involvement of the present petitioner in the crime under consideration. To appreciate the version of son of the victim, few lines of the said Special Criminal Application Page 16 of 56 HC-NIC Page 16 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT No. 645/2015 need to be recollected here, which are reproduced randomly herein.
"1 The news paper usually publishes all types of news including every types of corruption cases. In fact the deceased was very bold journalist and had started his publication work from the year 2000......
But due to non-cooperation of the concerned police officer, the petitioner could not bring the culprit to justice. Though the petitioner has been constantly writing to the authorities for carrying out an enquiry in respect of death of his father but all his plea fell in the deaf ear of the concerned authorities and therefore, he has approached this Hon'ble Court under Article 226 of the Constitution of India for appropriate relief....."
"The petitioner respectfully submits that on the day of killing of his father, there was police checking for vehicles was on operation at about 500 meter away from the spot of the incident. The petitioner has serious doubt that police people were helping the murderers to reach his father. This fact was published by the popular news paper Divya Bhaskar, in the news edition of 19/4/2009....
The petitioner submits that his father was a very bold journalist. He published many corruption cases in his news paper. On 26/3/2009, two important news of corruption cases came to be published in his news paper (Dakshin Gujarat Vartaman). One is related to land grabbing and another is regarding liquor business where high profile businessman and also police persons were involved. It was also expressed on that day on next time as Page 17 of 56 HC-NIC Page 17 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT soon as he avails other materials, the two cases will be disclosed in details to the public by him. The xerox copies of the two news items dated 26/3/2009 have been annexed herewith and marked as ANNEXURE -E Collectively.
The above two xerox are part of the
charge-sheet.
The petitioner submits that on 31/3/2009 i.e. on the day of murder of his father at 2.00 a.m. night the then Police Inspector, Valsad City Police Mr. K.N. Patel called the peon Mr. Jaind Pawar of the deceased and forcefully made him to open the office of the deceased. The police took away the documents that the deceased was supposed to publish in his next week's edition. The petitioner submits that on the next day at 2 p.m. the Range I.G. has come to the office of the deceased and sealed the office. At that point of time the petitioner along with family members were in the crematorium ground and the near by public of the deceased office informed the petitioner about this fact. The petitioner further submits that on 03-04-2009 the petitioner got a telephonic message from the police office that petitioner should come to the office and when the petitioner arrived office then the Dy.S.P. Mr.Rajpara opened the seal of the office and the Hard Disc and Fax Machine was taken away by them from the office.
The petitioner submits that petitioner's uncle (deceased's brother) preferred an application on 1/4/2009 to the Collector, to the Hon'ble Chief Minister, and also to National Human Rights Commission seeking some enquiry regarding the loot by the policemen at night in absence of the owner of the office.Page 18 of 56
HC-NIC Page 18 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT It is further submitted that in response to his letter dated 1/4/2009, he received a communication from the National Human Rights Commission on 16/5/2009. Through the letter NHRC had directed the Superintendent of Police of Valsad to take immediate action for the same.
The petitioner submits that instead of giving back the hard disc and other items of the petitioner, the police authorities asked the petitioner to make an application before the Judicial Magistrate, First Class, Valsad. The Police Superintendent Shri B.M.Rajpara filed a reply dated 16/12/2009 before the Judicial Magistrate, First Class saying that they have no objection to return the muddamal that come to be seized from the office of the petitioner. The petitioner respectfully submits that, the police authorities just reversed the matter and made the petitioner to make an application for recovery of the muddamal that came to be stolen by the police themselves.
The petitioner humbly submits that the concerned authority had not carried out any kind of investigation in respect of murder of his father through there is a complaint. No arrest has been made till today. In between it came to the knowledge of the petitioner and to other family members and relatives that investigation charge was given to Dy. S.P. Mr.Rajpara. As per the knowledge of the petitioner, investigation was carried out by the S.O.G. (Special Operation Group) Police Inspector Dharmendra C.Chauhan and it was told to them that one builder Shri Bharat Malde along with other 8 persons were taken to Gandhinagar F.S.L. For lie detection test. Many news papers also published this fact in different editions.Page 19 of 56
HC-NIC Page 19 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT The petitioner humbly submits that from the reliable sources it came to their knowledge that during the investigation of Shohrabuddin encounter case, the C.B.I. has found some material and it is suspected that there may be some nexus of the murder of his father Late Ashok Chunilal Shah with the encounter case of Shohrabhuddin where high profile police officers are involved. The Divya Bhaskar news paper also published this fact in its 24th August 2010 edition.
The petitioner and the other family members are under suspicion that, may be because of the involvement of high profile police officers and businessman, the investigation of the murder of his father is not carried out...."
"... The petitioner submits that it is now very clear that because of involvement of some high profile police personnel and also due to involvement of some high profile businessman the concerned police authority has not carried out any investigation in respect of the murder of his father or if it had been done, due to some influence that came to be closed down. However, no summary is filed by the investigating officer till date. The petitioner along with other family members are kept in dark....
... It is further submitted that out of the two cases one was about the infamous land grabber Mr.Saiyed, who tried to grab land worth about 1000 crore rupees of the government under the grab of social work. In another story the case of supplying liquor illegally with the help of police people from Daman to Gujarat was exposed and he had alleged that the then I.G. Of Surat Range was involved in all these illegal liquor Page 20 of 56 HC-NIC Page 20 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT business. It was also alleged that because of involvement of the Surat Range Officers with the bootleggers and suppliers the district level officers could not take any steps. The story had alleged that the I.G. was earning almost 3 crores rupees by allowing this illegal liquor business. Prior to this story, the father of petitioner had written about one builder Mr. Bharat Malde who illegally constructed buildings and Late Shri Ashok Shah brought these facts to the notice of the government and afterwards government directed
- Mr.Bharat Malde to vacate the buildings....
The petitioner respectfully submits that from the police control room of Valsad it was informed to the petitioner's father that the then I.G. (Inspector General) of Surat Range had directed the other cops of the office that they should somehow file a case against Late Shri Ashok Chunilal Shah. It is therefore submitted that the police people seized the hard disc and the fax machine along with all the other documents which the father of the petitioner gathered to publish in the next edition indicates direct involvement of police people in the murder of his father...."
That the police authorities have not proceeded the investigation further leads to the fact that either they are involved directly to the murder of the deceased or the police authorities came under the influence of the murderer..."
11 Bare reading of above reproduction of submissions by the victim's son before this High Court certainly make it clear that there is a reference of several police officers, so also one Page 21 of 56 HC-NIC Page 21 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT builder, namely Bharat Malde in killing of the victim, but it seems that neither officer of the first investigating agency nor present investigating agency has ever bothered to consider the agony of the victim's son and to find out the real culprit.
12 As against that, Ld. APP is relying upon some observations made by the concerned Court in the same petition and submitted that in fact this High Court has endorsed that investigation is proper and, therefore, bail should be refused. Some such orders passed in Special Criminal Application No. 645/2013 are between 17/12/2014 and 17/4/2015, wherein the coordinate bench of this High Court has observed that if the investigating agency is proceeding in the right direction, then there is no problem in granting some more time to continue with the investigation and to submit report and that prayer for transfer of the investigation shall be considered after going through the further report. Thereafter, on next date, it was observed that investigation is going on in correct direction and, therefore, further time is required to be granted and ultimately when Nasar Ahmed Bahmusa was arrested, on 17/4/2015 it is observed that investigating agency has been able to make some head-way and that one person has been arrested and he is in police custody. However, none of such Page 22 of 56 HC-NIC Page 22 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT observations certifies or confirms that what is done by the investigating agency is conclusive evidence and proof against the accused who are arrested. If we read all the orders in detail, practically it is in the form of observations to extend time to the investigating agency to file their final report. At least on 17/4/2015 while recording arrest of one person, even coordinate bench has categorically stated that the Court expect that investigation to proceed further in accordance with law. Therefore, only because some such orders in this petition would not render the accused as real culprits so as to refuse their bail, more particularly because of the specific disclosure by the son of the victim, which is reproduced hereinabove, wherein he has categorically and repeatedly vouched against the police officers, also disclosing names and designations of some of them and, therefore, there is reason to believe that there is some substance in the submissions by the petitioner that in fact the investigating agency is trying to hide real culprit by showing innocent persons as culprit only because that present petitioner was involved in other cases in past. It is contended that in addition to the fact that there is no material evidence to prove that present petitioner is guilty, in fact in most of the previous cases, the petitioner was never Page 23 of 56 HC-NIC Page 23 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT convicted and he has to repeatedly approach this High Court to safeguard his life from police officers wherein it is repeatedly alleged that the police is trying to kill him because of his nature to lodge complaint against erring police officers. The record shows the petitioner has to apply for protection against the police and this High Court has at-least on two occasions safeguarded his concern by passing appropriate order even to the extent that the police shall record his statement in presence of the Executive Magistrate only and shall not approach him directly since he is having threat of killing by the police.
13 In this background, it is submitted that when police could not find out real culprit or that when some other builders and may be police is involved in the crime, to save their skin from the direction that may be issued by this Court in the petition filed by the son of the victim, police has decided to wrongly implicate the petitioner in the crime. To avoid bulkiness of this order, though it becomes bulky, since it is necessary to consider and appreciate the arguments by both the sides, so far as above position regarding petitioner is concerned, instead of reproducing or explaining in detail of all such orders, its reference are made herein.
Page 24 of 56HC-NIC Page 24 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT All such orders are public record in the form of previous decision by this High Court in the relevant matter.
[I] Special Criminal Application No. 1373/1996, wherein by order dated 6/8/1997 this High Court has granted the request regarding protection of the petitioner directing the IO that if they have to visit the place of the accused, they should visit it but not without taking with them an Executive Magistrate.
[II] Criminal Misc. Application No. 4682/1999 in Special Criminal Application No. 293/1999, wherein by an order dated 4/8/1999 this Court has to direct the concerned IO to follow certain specific directions and instructions while dealing with the petitioner since there is allegation against the police that the police is repeatedly filing false complaints one after another in sequence against the petitioner and arresting him in different cases one after another and trying to kill him. The affidavit of Saiyed Salludin Nazimuddin Kazi at Annexure-B in Criminal Misc. Application No. 332/2015 of the trial Court, specifically discloses the highhandedness and harassment by the police to his family, wherein above orders are reproduced. If such fact is not controverted or rebutted by Page 25 of 56 HC-NIC Page 25 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT the IO, then there is reason to believe that there is substance in such affidavit that for one or other reason, police is certainly harassing the family of the petitioner.
[III] One order dated 27/1/2006 passed by the Division Bench of this High Court is worth referring, which is in Civil Application No. 277/2006 in Special Civil Application No. 460/2004 when again Division Bench of this High Court has to pass necessary orders for the protection of life of the petitioner.
14 If we peruse the papers of the charge- sheet referred by the learned advocate for the petitioner, it transpires that though there is allegation against the different class of people viz. Police, builder, bootlegger, etc., by the son of the victim in his petition being Special Criminal Application No. 645/2013, relevant portion of such petition is already referred hereinabove, it transpires that the investigating agency has not considered the averments made in this petition or its investigation and relied solely upon some clue alleged to have been gathered from the narco analysis test as well as brain mapping analysis of the complainant and failed to appreciate the description of the accused as disclosed by the complainant in his Page 26 of 56 HC-NIC Page 26 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT complaint as well as statement before the investigating agency. It is also clear and obvious from the record that though there is no matching description of the person in the statement of the complainant and eye witness and though there is clear contradiction in the description of the person in the statement of two witnesses, and though the complainant has also referred to some other persons than the present accused in his narco analysis and brain mapping test, the investigating agency has included such persons as accused and arrested them and surprisingly in contravention of the provisions of the Cr. P.C. and Evidence Act, recorded statements of certain witnesses regarding crucial issue of identification of the accused so as to confirm on record that those witnesses have seen the accused not only at the place of the incident, but committing offence as alleged and also conspirating the same as per the story developed by the investigating agency.
14.1 So far as identification of one of the accused is concerned, there is clear contradiction in the statements of the complainant and witness, namely Jayanti Narsibhai, who is alleged to be an eye witness. If we peruse the statement of the complainant Manoj Sharma, it is his categorical statement Page 27 of 56 HC-NIC Page 27 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT that the person who has come out from the Alto car has tied white handkerchief on his mouth as Bukani and he was having black goggles and having black hairs and style of his hairs was just like Bharat Malde and he has put on blue colour shirt. Whereas the witness Jayanti in his statement recorded on 5/6/2015 has categorically stated that a person came out from Alto car was having black colour T-shirt. Thereby not a blue colour shirt as stated by the complainant and black colour jeans and having cap of black & white strips on his head, as against statement of the complainant that he was having handkerchief on his face.
14.2 Whereas even the complainant himself has described the identification of one of the accused differently in his different statements and, therefore, when there is no consistency regarding identification of the accused in the version of the complainant being admitted eye witness, it becomes clear that both complainant and investigator are trying to save their skin since they are unable to find out the real culprit. The complainant in his complaint dated 31/3/2009 described the person seen by him at the time of firing, was having whitish skin; whereas in his statement dated 2/4/2009 now he has changed his version by stating that person he saw Page 28 of 56 HC-NIC Page 28 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT at the time of firing was having fair skin with golden Mahendi colour hair and in his statement dated 6/8/2014 now again he changed the version by stating that the person was having black hair and his hair style was like Bharat Malde.
14.3 With such contradictions, if we peruse the statement dated 12/6/2009 of Pallav Ashokbhai Shah, other son of the victim, he stated in so many words that in the year 2007 said Bharat Malde had been to their house and placed amount of Rs.15 lacs and key of flat in apartment behind Kasturba Hospital in Valsad before his father - victim, for not printing anything against him, which victim has refused to accept. Thereupon said Bharat Malde has left his house, but on next day victim has called Bharat Malde in his office and handed over key back to him. Thereupon Bharat Malde came with Atulbhai in his office and threatened to kill him by showing gun. Thereafter, he has narrated several other stories and also given another statement on 27/6/2015 wherein he admits about the story of Santoshi Desai, whose reference is there in the statement of the complainant and who is otherwise connected with Bharat Malde. All such evidence makes it clear that somebody is certainly trying to hide the real culprit and, therefore, there is substance in the submission by the petitioner Page 29 of 56 HC-NIC Page 29 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT that he is falsely implicated only because of their rivalry with the police department, which is in fact the reason for some cases registered against them in past.
14.4 Thereby there is no cogent, reliable and independent evidence even to prove prima-facie that there is clinching evidence against the accused so as to prosecute and convict him. I am aware that at this stage, there should not be decision or discussion of such evidence, but considering the nature of evidence produced with the charge-sheet, at least to realize that whether the investigation carried out and disclosed in the charge-sheet is sufficient to prosecute a person, the relevant evidence needs to be examined and it must be determined that whether such evidence is sufficient enough and more particularly whether it is in accordance with law to prosecute a person and if evidence is not self-sufficient and even lacks prima-facie evidentiary value, then refusing bail would not be appropriate.
15 Ld. Advocate Mr. AD Shah for the petitioner has pointed out the discrepancy and short-falling in the investigation by referring various pages from the papers of the charge- sheet.
Page 30 of 56HC-NIC Page 30 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT I] Brain Electrical Oscillation Signature Profiling [BEOSP] of the complainant Manoj Sharma conducted by the FSL Gandhinagar disclosing reference of one lady named Santoshi, who was having some relation with the land grabber Bharat Malde and there is categorical admission by the complainant that said Santoshi is regularly meeting to the victim Ashokbhai and seeking his help against Bharat Malde. It is also stated by him that land grabbers were giving threats to Ashokbhai and that they have contacted the complainant to get minute details about the activities of Ashokbhai, so also daily routine chore. It is also admitted by him that the land grabbers have given him lot of money to provide such information and also tempted him that if he helps them, then they will make him wealthy and, therefore, he has joined with the land grabbers and he has given all the information to such land grabbers and there is categorical statement by him that such land grabbers are the reason for the death of the victim. However, investigating agency has except calling said Bharat Malde for lie detection test, failed to take any further steps, both against land grabber, so also complainant, who has admitted that he has disclosed detailed activities of the victim to the land grabbers. It is also surprising to note Page 31 of 56 HC-NIC Page 31 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT that even the complainant is not shown as accused being abettor when he admits that he has disclosed the details of daily routine course of the victim to the land grabbers. There is reference of one Manoj in such report, but the investigating agency has not found out that who is said Manoj. Though just before such a statement, the complainant has stated that Santoshi and Bharat Malde have prepared a plan to kill the victim. Thereby there is a reason to believe that Manoj is connected with Bharat Malde and Santoshi. Such disclosure categorically reconfirms that the complainant has abetted the conspiracy by telling lie to the victim for going outside his office and thereafter, prepared a plan that how to call Ashokbhai out of his office and how to give signal to the contract killers. Thereafter, there is categorical admission by the complainant that to stop the victim from publishing anything against land grabber in edition of 2/4/2009 of his weekly paper, he was killed by the land grabbers and it was done by the help of the complainant himself. There are several such admissions by the complainant on page 16-17 of such report. Though it gives some clue against present petitioner, the fact remains that either such report is to be believed in toto or to be discarded in toto, but selecting few lines from such report is certainly not Page 32 of 56 HC-NIC Page 32 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT permissible. It is also clear and certain that brain mapping analysis is not proved to be authentic unless the person admits all such statements. Whereas even if such brain mapping test report is considered as a gospel truth, then even the complainant is to be arraigned as accused, so also Bharat Malde, Manoj and Santoshi. Thereby, if report is not acceded to in its totality and more particularly when such report has no evidentiary value, accusation, arrest and thereby continuing police custody of the petitioner is certainly unwarranted.
II] Whereas statement of so called eye witness regarding statements against accused is recorded after arrest of the accused and if we peruse such statement, it categorically confirms that no-body can believe such a statement when witness Biraju Vinu Mistry says in his statement dated 4/5/2015 i.e., after six years of the incident that he was present in a private car with three of the accused who were discussing about killing of the victim and their share to be received from their father for such killing and threatening him to remain quiet, else they will kill him also and thereafter, he was dropped at one place and then they had been to the place of the incident and they have committed murder of Ashokbhai. Such witness has also disclosed the Page 33 of 56 HC-NIC Page 33 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT exact number of the vehicle after six years though he was not concerned with such vehicle and though it is his own statement that he simply joined the accused on their say in the private vehicle without disclosing that how he was concerned with such trip. The bare reading of entire statement certainly gives an impression that it is nothing but concocted story, both by the investigating agency and the witness. It is also clear that this witness has practically not seen the incident and, therefore, he cannot be termed as an eye witness. Whereas so far as conspiracy is concerned, it is difficult to believe that conspirator would disclose their conspiracy in presence of third person and then drop him at some place and then commit offence.
III] Similarly, there is statement of one Saukat Abdullatif Shaikh, who seems to be owner of Alto car, which is alleged to be involved in the incident. It is his say that when he was sitting at the hotel of Abdulkadar Janmohmed Khan, near Sugar Factory at Atul, Valsad, where the accused have come there and asked for his vehicle and Khan requested him to give his vehicle and thereafter, accused have taken away car from him and after sometime, they returned and they uttered 'Ashok Shah Ka Kam Pata Diya' - work of Ashok Shah is done and, therefore, he is Page 34 of 56 HC-NIC Page 34 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT considered to be a witness to prove a case of conspiracy against accused. Whereas, Jagdish Manilal Khara, who was referred by the complainant to help him after the incident, has given three statements, first on 1/4/2009 wherein there is no disclosure about the accused, but what is conveyed to him by the complainant was narrated. Whereas in his second and third statements dated 4/7/2014 and 4/6/2015, which is after arrest of the accused, now he states that he has seen the incident, but could not disclose it because of fear. Therefore, based upon such witnesses, it cannot be said that there is prima-facie evidence against the petitioner- accused so as to keep him in custody till trial is over.
16 There are various other such issues. However, describing all such factual details, as argued by the learned counsel for the petitioner, would unnecessarily prejudice the trial and, therefore, only material evidence which is necessary to appreciated at this stage, is discussed herein above. But reading of entire set of charge-sheet certainly gives an impression that even if the petitioner is involved in any crime as alleged either as conspirators or as real culprit, there is no sufficient or even prima-facie evidence in the charge-sheet to prove Page 35 of 56 HC-NIC Page 35 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT such charges. Though it is well settled position that at the time of deciding bail application or application for discharge, the Court has not to scrutinize the evidence or to see the probable outcome of the charge-sheet, but the only point that needs to be examined is whether there is any prima-facie evidence or not. Even for such limited determination, scrutiny of evidence is necessary, more particularly to verify whether evidence is properly collected, whether evidence is in accordance with law and whether such evidence, either in the form of statement or documentary evidence, really have any evidentiary value to prove commission of particular offence by particular person. Because, in absence of scrutiny only based on bunch of papers of charge- sheet with names of the accused, no accused may be entitled to bail irrespective of contents of the charge-sheet and statement as well as documentary evidence included in the charge- sheet.
17 With due respect to the investigation, it seems that though it is submitted that coordinate bench has endorsed the investigation that it is going on in right direction, if we peruse the charge-sheet i.e., a statutory report to be submitted before the Court as a charge- sheet, in column no. 16 regarding brief facts of the case, the IO has practically narrated the Page 36 of 56 HC-NIC Page 36 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT entire history of the investigation and it is in the form of submissions against the accused to consider him as convict and thereby charge-sheet is filed.
18 Ld. Counsel Mr. Shah for the petitioner has pointed out one glaring style of the investigation, whereby investigating agency has recorded statement in the form of panchnama in presence of other witnesses that accused have admitted certain things in presence of Panch witnesses, though law stipulates that for any such admission, accused or witness is to be taken to the Magistrate and such statement is to be recorded in presence of Judicial Magistrate only. In addition to recording such admission improperly where investigating agency has reconstructed scene of incident and prepared panchnama of such reconstruction activity; now surprisingly it has come on record of investigation that in fact at the place of incident, there is no possibility of overtaking a vehicle and that too from the left side of the ongoing vehicle and again that too by a huge and long vehicle like Innova car and then to stop it as suggested and narrated in the charge-sheet so as to obstruct the path of any such vehicle. If it is so, then even the story of the complainant regarding incident is not believable at all. But Page 37 of 56 HC-NIC Page 37 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT when it is realized by the IO that reconstruction panchnama seems to be improper, it seems that investigation has gone to the extent of recording further statement of the complainant on 31/8/2014, that place of incident is different than the place of incident shown by him. Different statements of the complainant are on record, which categorically confirm that he is changing his version repeatedly and when other evidence is neither trustworthy nor in accordance with the provisions of the Indian Evidence Act and whereby when such statements and evidence cannot be considered as a prima-facie evidence itself, it seems that continuing custody of the accused on such evidence would not be proper. As already said, even at the cost repetition, it is to be noted that though I have explained so many things and discussed several oral as well as documentary evidence, I am restraining myself from discussing all statements as well as documentary evidence which are forming part of the charge-sheet so as to avoid prejudice either to the investigation or to the trial, since according to the Ld. APP, investigation is still going on, and is at a crucial stage, which is also surprising because when the charge-sheet is filed, further investigation is to be carried out only with the permission of the Court.
Page 38 of 56HC-NIC Page 38 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT 18.1 It is also submitted that confessional statement of the accused cannot be treated as a evidence against him, so also panchnama about seizure of the vehicle as well as panchnama of reconstruction of scene of offence, which includes confessional statement by the accused and, therefore, such panchnama is not drawn in accordance with law. Since they are against the provisions of sections 25 and 27 of the Evidence Act, so also section 162 of the Cr. P.C. 18.2 The complainant has also admitted in his statement dated 21/8/2014 that at the place of incident which is shown during reconstruction of scene of offence, it becomes evident when he himself has arranged dummy Maruti car and allowed another driver Jayesh Nanubhai Patel to drive dummy Innova car. It is evident that Innova car cannot overtake his car because of the railing of bridge on one side and, therefore, dummy Innova car was managed to take in front of his dummy Maruti car for completing panchnama.
19 As against all above information, I have also heard at length Ms.Moxa Thakkar, Ld. APP. She has supported the investigation submitting that this is an organized crime by the contract killers and they have yet to investigate that at which place weapon of murder is kept. If we Page 39 of 56 HC-NIC Page 39 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT consider the allegations against accused, Ld. APP has now relied upon some other evidence in the form of call record submitting that at the time of the incident, all such accused were within the periphery of the place of incident and, therefore, there is a reason to believe that what is investigated is on correct line and which is already endorsed, approved and appreciated by this High Court. It is sufficient to say that endorsement or appreciation by the High Court is not regarding the nature of investigation, so also the involvement of particular person as an accused, but it seems that, it is only for extending the time to investigator to produce the report. On the contrary, it seems that when police could not find out clue for more than five years and when Court has given limited time of three months, the investigator has to seek for extension of time and for every extension of time, they have to show some development in the investigation and, therefore, this High Court has considered some development as a sufficient reason for extending period of investigation. Such orders and observations are, therefore, practically only with a view to extend the time for investigation, but not for endorsing that either evidence is prima-facie proper or in accordance with law and that only accused is real culprit, for the simple reason that all such Page 40 of 56 HC-NIC Page 40 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT evidence, based upon which, charge-sheet is filed, was never placed before that Court which had extended the time for investigation. More so, because practically investigator has first arrested the accused, disclosed before the Court that they have arrested the accused and then recorded several statements and reconstructed place of incident and prepared a panchnama stating that the accused has admitted before the Panchas that he has committed the crime, and then filed a charge-sheet.
20 The respondent has resisted this bail application by filing affidavit of I.O., dated 9/12/2015. With such affidavit, IO has annexed two documents. At Annexure-R1, there is an order of this Court in Criminal Misc. Application [For Anticipatory Bail] No. 13801/2015, whereby present petitioner has withdrawn such petition and at Annexure-R2, there is a list of offences registered against the present petitioner, which fact is already available on record in the previous applications being Criminal Misc. Application Nos. 14123/2015 and 15010/2015 along with Criminal Misc. Application [For Anticipatory Bail] No. 13801/2015. The effect of such antecedents is already taken care of in foregoing paragraphs and, therefore, they do not require any further comment or consideration.
Page 41 of 56HC-NIC Page 41 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT 21 Whereas so far as order dated 30/10/2015 in Criminal Misc. Application [For Anticipatory Bail] No. 13801/2015 is concerned, the submission by the IO and thereby Ld. APP is misconceived inasmuch as the withdrawal of an application for anticipatory bail could never be considered as a ground to dismiss the regular bail application for the simple reason that both the applications stand on altogether different aspects. The withdrawal order specifically confirms that the petitioner withdraws such anticipatory bail because of dismissal of his Special Criminal Application No. 4065/2015, whereby order of warrant against him was confirmed by the coordinate Bench of this High Court, disclosing that once order of warrant has been confirmed by the High Court considering legal technicality, the petitioner has to first surrender before the concerned authority and only thereafter he can apply for bail, since there is already a warrant issued against him by the trial Court and, therefore, when such warrant is declared to be proper and legal, there is no question of applying for, or granting anticipatory bail. Even if there may be different opinion on such issue, the fact remains that when the petitioner has agreed to surrender by withdrawing anticipatory bail application and thereafter when he surrenders before the concerned authority, his Page 42 of 56 HC-NIC Page 42 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT regular bail application cannot be rejected on sole ground of withdrawal of an application for anticipatory bail. It is also clear and obvious that while permitting the withdrawal of an application for anticipatory bail, this Court has specifically clarified that Court has not opined anything on the merits of the matter and that the Sessions Judge has to decide the regular bail application in accordance with law without being influenced by such order of withdrawal, since this Court has not entered into the merits of such application. Therefore, there is no substance in such submission by the Ld. APP that pursuant to withdrawal of Criminal Misc. Application [For Anticipatory Bail] No. 13801/2015, now the petitioner is not entitled to regular bail.
22 One more surprising contention is taken in the affidavit insofar as it is submitted that the investigation is still going on and same is at crucial stage and still charge-sheet is not filed. Whereas in fact charge-sheet for C.R. No. I-12/2009 dated 31/3/2009 of Dungari Police Station has already been filed before the concerned Court at Valsad on 4/7/2015. If we peruse the copy of such charge-sheet in prescribed format, it transpires that in the column regarding particulars of accused persons charge-sheeted, there are names of in-all five Page 43 of 56 HC-NIC Page 43 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT persons and though the name of present petitioner is not included in such column, his name is already disclosed in the next column regarding wanted accused and in the last column where brief facts of the case is to be summarized as per proposed charges against the accused, the IO has in categorical term disclosed the name of present petitioner as an accused with a statement that all six accused have committed the offences as alleged and, therefore, charge-sheet under sections 120-B, 34, 302, 307, etc. of the IPC was submitted. While disclosing the name of the present petitioner as one of the accused in the charge-sheet, the role of the present petitioner is also disclosed in the text of the charge- sheet. Therefore, it cannot be said that the charge-sheet is yet not filed and to that extent the defense has no substance.
23 It is contended that while considering the bail application, no question can be raised regarding credibility and reliability of the evidence collected during investigation. Suffice it to say that this Court has in categorical terms confirmed in the judgment and order dated 28/10/2015 in Criminal Misc. Application No. 14123/2015 that this Court has scrutinized relevant evidence only to ascertain that whether there is prima-facie evidence sufficient to Page 44 of 56 HC-NIC Page 44 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT connect the petitioner with the crime and that whether there is prima facie evidence showing that the petitioners have committed such crime as alleged in the charge-sheet. As already observed in such judgment, when evidence collected by the investigating agency is not in accordance with law itself and when it is not evidence in the eye of law, there is no question of scrutinizing its credibility or reliability and, therefore, there is no substance in such submission also.
24 So far as antecedents as referred in such affidavit are concerned, the same aspect has already been taken care of in the foregoing paragraphs and hence not repeated.
25 The Ld. APP has also placed before this Court certain confidential record containing with several confidential reports by different police officers against the petitioner. Some statements under section 164 of the Cr. P.C., are kept in sealed cover with the charge-sheet before the trial Court. So far as statements under section 164 of the Cr. P.C are concerned, if those statements are placed before the trial Court in a sealed cover and thereby if those statements are not disclosed to this Court, though this Court can call for requisite information, at this stage such exercise has been avoided since this Court has not to decide the entire case regarding Page 45 of 56 HC-NIC Page 45 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT culpability of the accused, but the only issue before this Court at present is limited to the extent that on available evidence on record, whether the petitioner is entitled to bail or not. Even before this Court, Ld. APP has placed bunch of papers in the sealed cover describing it as a criminal history of the petitioner. I have gone through such bunch of papers. Though it can be said that there are several cases registered against the petitioner, the fact remains that all such cases are before more than a decade and as already discussed herein above, during investigation and pendency of all such cases, practically, as many as on three occasions, this High Court has to protect the petitioner against his apprehension of being harassed by the police and with a specific direction to the police to avoid to visit the place of the petitioner or to call upon him at the police station and if at all police has to investigate anything against the petitioner, then, the High Court has directed them to go with the Executive Magistrate and to record the statement of the petitioner only in the presence of Executive Magistrate, because the petitioner was apprehending that police will record anything in his name and may initiate proceeding against him.
26 As already discussed herein above, when it is clear that present petitioner is not Page 46 of 56 HC-NIC Page 46 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT involved in the case of firing in the Court campus at Valsad, now, the I.O. has changed her version by stating that present petitioner is accomplice of accused in that case, namely, Nisar Faizmohammad Sheikh and Dilip Bhagwan Rai. Therefore, basic fact remains that during consideration of application for anticipatory bail by the present petitioner, the I.O. Has probably misconveyed such fact to the P.P., but when petitioner has brought a certified copy of such previous case confirming that he was not accused in that case, now, the I.O. has stated that petitioner is accomplice of such accused and therefore, it is to be considered as evidence against the accused in the present case, so as to deny his bail. I have no words to comment upon such submission except to confirm that this would not dis-entitle the petitioner to be released on bail. Again, with due respect to the investigating agency and I.O, it is necessary to observe that few paragraphs in such confidential information are unwarranted, since so far as comments against witnesses are concerned, they are baseless in absence of any evidence to that effect and so far as possibility of destruction of evidence by accused is concerned, with reference to the entire system, it cannot be ignored that there would hardly be any evidence available after the gap of six years and Page 47 of 56 HC-NIC Page 47 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT unfortunately, the I.O. has never bothered to ascertain that how and why local police could not investigate the offence for more than five years.
27 So far as the circumstantial evidence in form of call record is concerned, suffice to note that at one point of time and even in chargesheet papers by producing the call record of the accused, it has been contended that all the accused were present near the place of incident at the relevant time, whereas, while filing the chargesheet, now, it is endorsed by the I.O. in column of charges that to avoid to disclose their presence near the place of incident, the accused have sent their mobile at distant place of incident and kept it switched off during the commission of offence. This is totally contradictory statement, which results into benefit in favour of the accused to be released on bail.
28 So far as statements referred by the Ld.APP is concerned, all such statements are already considered in former paragraphs and therefore, I do not wish to re-discuss the same.
29 So far as further contention in affidavit-in-reply is concerned, it is also nothing, but information, which is already taken care of in previous paragraphs except allegation Page 48 of 56 HC-NIC Page 48 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT regarding attitude of the petitioner during remand. However, that could not be considered as a ground to reject the bail.
30 In view of above, I do not find any substance in the submission ofLd.APP so as to reject this application.
31 As against that, Ld. Advocate Mr. AD Shah for the petitioner has demonstrated that when the petitioner is resident of that area and when incident has taken place at nearby place, then his cell phones may be traced in that area at the relevant time, but only because tracing of cell phones in the nearby area would not prove the commission of offence by such persons, at the most it may be supporting evidence, but cannot be clinching evidence.
32 Similarly, it was argued by Ld. APP Ms. Thakkar that the petitioner are connected with the accused in the case of firing in the Court compound also. Ld. Advocate Mr. Shah for the petitioner has rightly pointed out that though Sessions Case No.79/1984 is against one Mr. N.F. Kazi, it is not against present petitioner - Nazimuddin Fakruddin Kazi, but it is against Nishar Faijmohmed Kazi and only because of similar name, prosecuting agency is trying to Page 49 of 56 HC-NIC Page 49 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT prejudice the Court. In fact now the I.O. has admitted such fact in one of her report, but tried to plead that they are related to each other.
32.1 So far as antecedents are concerned, it is submitted by the Ld. Counsel for the petitioner that all such cases, barring one, are false and fabricated with an ulterior motive. In any case, when there are several cases registered against the petitioner, at the most, while allowing bail, we may impose strict conditions upon the petitioner so that he may be kept away from the place, but that may not be the sole ground to refuse the bail. Ld. APP has also submitted that the weapon used in the crime is yet to be recovered, so also to identify the real culprit. However, when charge-sheet is already filed without recovery of weapon and when search of places of the petitioner is already completed, this may also not be a ground to refuse bail.
33 Considering the incident, nature of evidence and passage of time being more than six years, the statements and documentary evidence of all the witnesses, it would be improper to discuss and disclose all the evidence and issues at the stage of bail application, so as to avoid prejudice to the trial. Therefore, the material which is necessary at present to dispose of this Page 50 of 56 HC-NIC Page 50 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT bail application, is only recorded herein. Thereby rest of the information is not much relevant at this stage of bail applications, but in any case, most of them are not in the form of legal evidence and, therefore, cannot be relied upon at all and hence it is avoided to discuss it here.
34 It is settled legal position that bail is rule and not jail, more particularly when evidence collected by the investigating agency is not in accordance with the Evidence Act and thereby probably it may not be admissible at all during the trial and, therefore, instead of discussing all those citations in detail, to avoid further bulkiness of this order, list of citations of all the sides is recorded as under. Therefore, the overall discussion makes it clear that though nature of accusation and severity of punishment in case of conviction is severe, the nature of supporting evidence is in favour of the petitioners. Similarly, now, there is no apprehension of tampering with witnesses or apprehension of threat to the complainant. However, that part has been taken care of by a direction to the petitioners to remain out of the entire district.
35 There is substance in the submissions by the petitioner that :-
Page 51 of 56HC-NIC Page 51 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT 35.1 In Vijender v.State [NCT of Delhi] reported in 1997 [6] SCC 171, the Hon'ble Supreme Court has held that the prosecution cannot be permitted to record statement of the accused in violation of provisions of Cr. P.C, which lays down an elementary but fundamental principle to be followed in criminal trial that a statement made before police officer during investigation cannot be used for any purpose whatsoever, except when it attracts the provisions of section 27 or 32[1] of the Evidence Act. It is further stated that under section 27 of the Evidence Act if an information given by the accused leads to the discovery of a fact which is the direct outcome of such information, then only it would be evidence, but when the fact has already been discovered, evidence could not be led in respect thereof. Thereby, once the petitioner is arraigned as accused, his statement of confession cannot be termed as legal confession. What is necessary to incident is how the material is collected during investigation, is to be translated into legal evidence.
35.2 It cannot be ignored that in the case of Adambhai Yusufbhai Mandali v. State of Gujarat rendered in SLP [Cri] No. 3671/1996, the Hon'ble Supreme Court has categorically held that when the material relied upon by the prosecution is Page 52 of 56 HC-NIC Page 52 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT merely subsequent statement recorded after he was arrested, then such material cannot be considered as a sufficient material on record even for arresting person.
35.3 In Kishore Chand v. State of H.P reported in AIR 1990 SC 2140, it is held that burden of proof in a case of murder is strict when it rests upon circumstantial evidence and all circumstances from which conclusion of guilt is to be drawn, must be fully established and any circumstance consistent with innocence of accused, will entitle him benefit of doubt and that confession made in violation of sections 25 to 27 of the Evidence Act cannot be relied upon.
35.4 In Suresh Budharmal Kalani alias Pappu Kalani v. State of Maharashtra reported in AIR 1998 SC 3258 the Hon'ble Supreme Court has held that confession by accused is inadmissible in evidence and that presumption can be drawn only from the facts and not from other presumptions -
by a process of probable and logical reasoning.
35.5 In Ram Govind Upadhyay v. Sudarshan Singh reported in JT 2002 [3] SC 185, it was held that frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of Page 53 of 56 HC-NIC Page 53 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT there being some doubt in the matter of genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
36 In view of the above facts and circumstances of the case, it is appropriate to release the petitioner on bail rather than to refuse bail.
37 All aforesaid facts make it clear that when main accused are already released on bail, in absence of even prima-facie evidence regarding conspiracy and involvement of the petitioner, there is no reason to refuse bail to this petitioner also.
38 Considering the submissions made on behalf of the parties and having regard to the facts and circumstances of the case, the application is allowed and the petitioner is ordered to be released on bail in connection with Sessions Case No. 83/2015 pending before the Sessions Court at Valsad [arising out of C.R. No.I-12/2009 registered with Dungari Police Station] for the offences alleged against him, on his executing personal bond of Rs.1,00,000/- (Rupees One Lac only) with one solvent surety of the like amount to the satisfaction of the lower Court and subject to the conditions that he Page 54 of 56 HC-NIC Page 54 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT shall,
a) not take undue advantage of his liberty or abuse his liberty;
b) not to try to tamper or pressurize the prosecution witnesses or complainant in any manner;
c) maintain law and order and should co-operate with the investigating officers;
d) not act in a manner injurious to the interest of the prosecution;
e) not leave the local limits of State of Gujarat without the prior permission of the concerned Sessions Judge till trial is over;
f) furnish the address of his residence with contact numbers during pendency of the trial, to the I.O 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;
g) surrender his Passport, if any, to the lower court within a week;
h) not to enter into the local/revenue limits of Valsad District, without prior permission of this court, but for attending the Court in connection with this case or other cases, he will be free to enter the limits for a period to the extent necessary and will leave the limits immediately after the case is adjourned or heard.
39 If breach of any of the above conditions is committed, the concerned Sessions Judge will be free to issue warrant or take appropriate action in the matter.
Page 55 of 56HC-NIC Page 55 of 56 Created On Thu Dec 17 00:33:17 IST 2015 R/CR.MA/23042/2015 CAV JUDGMENT 40 Bail before the lower Court having jurisdiction to try the case. It would be open to the trial court concerned to give time to furnish the solvency certificate, if prayed for.
Rule is made absolute. Direct service
today is permitted.
(S.G.SHAH, J.)
* Pansala
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