Gujarat High Court
Rafiuddin Sarfuddin Kapadiya vs State Of Gujarat on 21 July, 2017
Author: C.L.Soni
Bench: C.L. Soni
R/CR.MA/15205/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 15205 of 2017
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RAFIUDDIN SARFUDDIN KAPADIYA....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR KHALID G SHAIKH, ADVOCATE for the Applicant(s) No. 1
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 21/07/2017
ORAL ORDER
1. This is successive bail application under Section 439 of the Code of Criminal Procedure, 1973 ("the Code") in connection with the FIR at Annexure - 'A' for the offences under Sections 120(B), 121(A), 124(A), 153(A)(1)(b), 302, 307, 326, 435, 427, 465, 468, 471 of the Indian Penal Code, 1860 and under Sections 3, 5, 6 and 7 of the Explosive Substance Act, 1908 and under Sections 10, 13, 16, 18, 19, 20, 23, 38, 39, 40 of the Unlawful Activities (Prevention) Act, 1967 and under Sections 25(1)(B)(A) and 27 of the Arms Act, 1959 and under Sections 65 and 66 of the Information Technology Act, 2000 and under Sections 3 and 4 of the Damage to the Public Property Act, 1984, for which the Sessions Case No.38 of 2009 before the designated Judge (Special Court) is pending trial. This Court vide order dated 23.12.2013 passed in Criminal Misc. Application No.15982 of 2013 rejected the application of bail preferred by the applicant. The reasons provided by this Court in the said order in Paragraph Nos.4 to 8 are as under:
Page 1 of 6HC-NIC Page 1 of 6 Created On Sun Aug 20 14:24:40 IST 2017 R/CR.MA/15205/2017 ORDER "4. Having heard learned advocates for the parties and having considered that the applicant stands charged with serious offenses and since the trial is in progress, wherein, 265 witnesses have been examined as on today, the Court is of the view that the discretion is not required to be exercised under Section 439 of the Code in favour of the applicant.
5. Learned advocate for the applicant has placed on record certain statements of witnesses recorded by the police, as also the copies of Panchnamas to press his point that the applicant is nowhere involved in taking training in the camp organized by SIMI with its outfit and has not played any role in the matter of causing Bomb Blast in the City of Ahmedabad.
6. However, learned Special Public Prosecutor Mr.J.M.Panchal drew the attention of the Court to page No.47B and pointed out that the applicant had taken part in training camp at Halol, near Pavagadh, then to a statement of the witness at Annexure:B, page 48, wherein, reference about the talk between the applicant and his brother Kayamuddin is made and further to page No.66A, which is a Panchnama drawn on 17.11.2008, to point out that the applicant had shown the places near the Pavagadh, where, he with other accused had taken training in Jehadi Terrorist Camp.
7. Learned advocate Mr.Pathan, however, submitted that prior to this Panchnama, the police had already drawn one Panchnama dated 27.08.2008, and therefore, second Panchnama could not be relied, as at the time of first Panchnama, it was open to the police to take the accused to the places of Jehadi Terrorist Camp. Mr.Pathan submitted that the second Panchnama is drawn just to implicate the applicant in serious offenses. Such contention cannot be accepted at this stage as it is a matter of appreciation of evidence in the Trial.Page 2 of 6
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8. Presently, since, there is sufficient material to connect the applicant with the activities of SIMI and its terrorist outfit and when the offenses alleged in the FIR are serious in nature, this Court finds that this application is not required to be entertained, especially when the Trial is going on."
2. After the said application was rejected by this Court, the applicant approached Hon'ble Supreme Court for bail by filing Special Leave to Appeal (Crl.) No.9765 of 2014. Hon'ble Supreme Court dismissed the said application vide order dated 15.12.2014 which reads as under:
"Heard.
The special leave petition is dismissed. However, if the trial is not over within one year, it will be open to the petitioner to renew the prayer for grant of bail. It is expected that trial court the conclude the trial within a year."
3. The applicant has now come with the present application mainly on the ground that long delay has taken place in the trial and since many witnesses are still to be examined, the trial may take much longer time, and that there is no evidence brought to prove the guilt against the applicant and there is a clear case of acquittal of the applicant and if he is not released on bail, he might suffer a lot.
4. Learned advocate Mr.Shaikh for the applicant submitted that the prosecution has cited as many as 2500 witnesses and after the Hon'ble Supreme Court disposed of the application for bail preferred by the applicant, the trial has not progressed fast except that some more witnesses are examined and no evidence has come on record to implicate the applicant in the offences alleged. Mr.Shaikh, therefore, submitted that delay in progress of the trial and there is no evidence to connect or implicate the applicant with the offences alleged are Page 3 of 6 HC-NIC Page 3 of 6 Created On Sun Aug 20 14:24:40 IST 2017 R/CR.MA/15205/2017 ORDER the grounds which could be considered for entertaining this successive bail to release the applicant on bail.
5. Learned Special Public Prosecutor J.M. Panchal with learned Additional Special Public Prosecutor K.J.Panchal has tendered affidavit of the Investigating Officer, which is taken on record, and submitted that though the prosecution as cited about 2500 witnesses in the chargesheet, however with a view to avoid repetition of witnesses, learned Additional Public Prosecutor appearing in the trial may in his discretion decide not to examine all the witnesses, but there is good progress in the trial as about 899 witnesses having been examined by the prosecution till today and such progress could be on account of the trial being conducted for four days in a week. Mr.Panchal submitted that only recently one of the accused involved in present sessions case had approached Hon'ble Supreme Court and Hon'ble Supreme Court has not released the said accused namely Mohammad Samee Raj Ahamed Bagewadi and directed the Special Court to expedite the trial and conclude the same as quickly as possible. Mr.Panchal submitted that not only there is good progress in the trial but there is also evidence collected against the applicant which was noticed by this Court while dealing with the first application moved by the applicant. Mr.Panchal therefore urged to reject the present successive bail application for bail.
6. The Court, having heard learned advocates for both the sides, finds that when first application was rejected by this Court about 265 witnesses were examined as recorded in the order dated 23.12.2013. Thereafter, the prosecution examined about 600 more witnesses and it is not disputed by learned advocate for the applicant that the trial is conducted for four days in a week though he stated that out of four days, in two days the trial is conducted for half day. But the fact remain that more 600 witnesses have come to be examined after this Court rejected first application of bail preferred by the applicant and Page 4 of 6 HC-NIC Page 4 of 6 Created On Sun Aug 20 14:24:40 IST 2017 R/CR.MA/15205/2017 ORDER after Hon'ble Supreme Court dismissed the bail application preferred by the applicant. Therefore, it cannot be accepted that the trial is being delayed. The applicant, therefore, cannot be made entitle to bail on the ground of delay in trial. The contention that there is no evidence to implicate or to connect the applicant with the offences alleged cannot be accepted at this stage as considering the seriousness of charges for which Special Court is conducting sessions trial when these many witnesses are examined and some more witnesses are still to be examined, it is not possible to say that there is no evidence against the applicant to implicate him in the offences alleged or that there is no likelihood of conviction of the applicant as submitted by learned advocate Mr.Shaikh. The Court is not to appreciate the evidence at this stage where many accused are involved in the alleged conspiracy for commission of the offences.
7. In the application preferred by co-accused - Mohammad Samee Raj Ahamed Bagewadi, registered as Special Leave to Appeal (CRL.) No.5425 of 2016, Hon'ble Supreme Court passed following order:
"We have heard the learned counsels for the parties.
We are not inclined to order for release of the accused petitioner on bail at this stage. However, we direct the learned Special Court to expedite the trial and conclude the same as quickly as possible. The learned trial Court will proceed in the matter without granting unnecessary adjournments or deferments and the prosecution and all concerned will cooperate in disposal of the case at the earliest. We make it clear that we have expressed no opinion on the merits of the case or the materials placed before us on behalf of the State.
With the aforesaid observations, the Special Leave Petition is disposed of."Page 5 of 6
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8. Thus, Hon'ble Supreme Court has not released the said accused and directed to expedite the trial and conclude the same as quickly as possible. The Court finds that no case is made out to exercise discretion under Section 439 of the Code to release the applicant on bail. The application is, therefore, rejected.
(C.L.SONI, J.) Gupta* Page 6 of 6 HC-NIC Page 6 of 6 Created On Sun Aug 20 14:24:40 IST 2017