Gujarat High Court
Siddharth Chhabilbhai Patel vs State Of Gujarat on 2 September, 2020
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
R/CR.MA/220/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 220 of 2020
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SIDDHARTH CHHABILBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR YS LAKHANI, Sr. Adv. with MR SK PATEL(654) for the
Applicant(s) No. 1
MR MITESH AMIN PP with MR RB RAVAL APP (2) for the
Respondent(s) No. 1
MR ND NANAVATY, Sr. Adv. with MR KS CHANDRANI(6674) for
the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 02/09/2020
ORAL ORDER
1. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with FIR being C.R. No.I-03/2019 registered with Gandhidham Railway Police Station for offence under Sections 302, 120(B) and 34 of the Indian Penal Code and Sections 25(1)(1-b)A and 27 of the Arms Act.
2. Heard learned Senior Advocate, Mr. Y.S. Lakhani assisted by learned advocate, Mr. S.K. Patel for the applicant, learned Public Prosecutor, Mr. Mitesh Amin appearing for the respondent - State of Gujarat and learned Senior Advocate, Mr. N.D. Nanavaty assisted by learned advocate, Mr. K.S. Chandrani appearing for the original first informant.
3. The gist of the FIR is as under, Page 1 of 22 Downloaded on : Fri Sep 04 01:12:43 IST 2020 R/CR.MA/220/2020 ORDER It is alleged in the FIR that after joining of the original accused no.1, Chhabildas Patel with the BJP, the accused no.1 was considered the deceased as his competitor and there were political rivalry between them and, hence, keeping grudge about the said political rivalry, the original accused no.1 had hatched conspiracy and called the sharp-shooters to kill the deceased and, thereafter, in connivance with other accused, the deceased was killed by firing upon him. Thereby the accused have committed alleged offences.
4. Learned Senior Advocate, Mr. Y.S. Lakhani appearing for the applicant referred to the allegations leveled against the applicant in the FIR as well as referred to the counter of the chargesheet, which is placed on record at Page No.65 of the compilation. Learned Senior Advocate has more particularly referred to Page Nos.85-88 of the compilation, wherein the role attributed to the applicant herein is stated. It is contended that mainly there are two allegations leveled against the applicant; firstly that the present applicant, on the instruction given by his father
- co-accused, procured the motorcycle from the witness and, thereafter, the said motorcycle was handed over to the co-accused, Rahulkumar Jayanti Patel, who in turn handed over the same to other co-accused, who stayed at the farmhouse for the purpose of agriculture survey.
5. It is pointed out by learned Senior Advocate that second allegation against the applicant is that the applicant had booked the air-tickets from his Page 2 of 22 Downloaded on : Fri Sep 04 01:12:43 IST 2020 R/CR.MA/220/2020 ORDER bank accounts by using his mail ID for his father on certain occasions and he had also booked air- tickets for the co-accused, Surjitbhau along with his father i.e. Chhabildas Patel.
6. With regard to first allegation, it is submitted that in fact, the applicant was not aware about the fact that the said motorcycle is to be used for commission of the crime by the concerned co- accused. It is submitted that the applicant had never met the concerned sharp-shooter - co-accused nor he was in contact with the said co-accused. At this stage, learned Senior Advocate has referred to the statement of the witness, Nareshbhai Veljibhai Maheshwari, copy of which is placed on record at Page Nos.63 and 64 of the compilation. After referring to the said statement, it is contended that in fact, the co-accused - father of the present applicant viz., Chhabildas Patel called the said witness, Nareshbhai Maheshwari, who was his Personal Assistance from 2006 to 2017 and the said witness was asked to arrange for the motorcycle. Thereafter, learned Senior Advocate has referred to the statement and further statement of another witness, Jayantibhai Maheshwari, copies of statement and further statement of said witness are placed on record at Page Nos.53, 55 and 58 of the compilation respectively. After referring to the said statements, it is contended that the applicant was asked to procure the motorcycle from the concerned witness for the purpose of agriculture survey and, therefore, the applicant had gone to meet the witness, Jayantibhai Maheshwari, at that time, the Page 3 of 22 Downloaded on : Fri Sep 04 01:12:43 IST 2020 R/CR.MA/220/2020 ORDER co-accused, Rahulkumar Patel, who is partner of Chhabildas Patel was with the applicant and, therefore after procuring the motorcycle from the said witness, Jayantibhai Maheshwari, the said motorcycle was handed over to Rahulkumar Patel. It is, therefore, contended that from the papers of the chargesheet, it cannot be said that the applicant was part of conspiracy.
7. With regard to second allegation, it is submitted that merely because the applicant had booked the air-tickets on the instruction given by his father, it cannot be inferred that the applicant was aware about the purpose of such travel. It is submitted that the applicant has booked air- tickets in the routine course for his father, as his father being former MLA and active in politics, he used to travel frequently with many persons. It is contended that the father of the applicant travels outside country for the business purpose routinely and, therefore, there is no question of any excitement or eagerness on the part of the applicant to know with whom his father is travelling. It is submitted that the father of the applicant also as a farmer with modern technology brought a tissue of dates (kharek) from Israel, and, therefore, he visited Israel and even the father of the applicant also visited Thailand for bringing new variety of Gauva (fruit crop) and the father and his friends also visited Muscat for marketing of dates and other purpose and, therefore, travelling by his father is not a matter of excitement and eagerness for the applicant. It is, therefore, urged that merely Page 4 of 22 Downloaded on : Fri Sep 04 01:12:43 IST 2020 R/CR.MA/220/2020 ORDER because the applicant has booked air-tickets on certain occasions, it cannot be inferred that the applicant was part of conspiracy.
8. Learned Senior Advocate, thereafter, contended that it is alleged that after the incident had occurred, the applicant was not available for certain period and he stayed at Goa. However with regard to the said allegation, it is submitted that the applicant is aged about 26 years and because of the news received by him about the incident in question, due to fear, he left Gujarat and stayed at Goa for some period, however thereafter, now the applicant is in jail since 10.03.2019 i.e. since last approximately 18 months and when the applicant is having movable and immovable property situated in the State of Gujarat, the applicant will be available at the time of trial. He further submitted that now the chargesheet is filed, therefore, there is no apprehension that the applicant will tamper with the evidence.
9. Learned Senior Advocate, thereafter, contended that two other co-accused viz., Rahulkumar Jayanti Patel by an order dated 27.11.2019 passed in Criminal Misc. Application No.11040/2019 and Nitinbhai Vasantbhai Patel by an order dated 27.11.2019 passed in Criminal Misc. Application No.16359/2019 have been enlarged on bail by the Coordinate Bench of this Court. Learned Senior Advocate has referred to the said orders, which are produced on record at Page Nos.27 and 34 respectively. It is submitted that so far as the co-accused, Rahulkumar Jayanti Patel is concerned, Page 5 of 22 Downloaded on : Fri Sep 04 01:12:43 IST 2020 R/CR.MA/220/2020 ORDER he is the partner of the co-accused, Chhabildas Patel and as per the allegations leveled against him in the papers of the chargesheet, he accompanied the present applicant when the motorcycle was procured from the witness, Jayantibhai Maheshwari and, thereafter, the said motorcycle was actually handed over by the said accused to other co-accused, who stayed at the farmhouse. He, therefore, submitted that when the co-accused, who has actually handed over the motorcycle to other co-accused at farmhouse, is enlarged on bail, the case of the applicant be considered on the ground of parity.
It is also contended that so far as the co- accused, Nitin Patel is concerned, it is alleged against him that he had made an arrangement of contract killers to stay at agriculture field. Learned Senior Advocate has referred to the statement of the witness, Suresh Nayka, who was caretaker of the agriculture field and according to his statement, the said witness was informed by the co-accused, Nitin Patel that one person will come to reside at the agriculture field and, therefore, he should make arrangement for his stay. It is submitted by learned Senior Advocate referring to the orders passed by the Coordinate Bench of this Court that as per the submissions canvassed by learned APP, the offence is very serious one with deep rooted conspiracy to hire contract-killers to settle political rivalry, however inspite of such submission, the Coordinate Bench of this Court has considered the case of those two co-accused. Learned Senior Advocate once Page 6 of 22 Downloaded on : Fri Sep 04 01:12:43 IST 2020 R/CR.MA/220/2020 ORDER again referred to the statement of the witness, Suresh Nayka and, thereafter, contended that as per the version of the said witness, after the incident in question had taken place, the said co- accused, Nitin Patel went to the farmhouse and informed the said witness, Suresh Nayka and other servants residing in the farmhouse that if the Police comes for inquiry, they should not disclose the fact that three unknown persons have stayed at the farmhouse. Even from the further statement of the said witness, it is revealed that on 08.01.2019, after the incident had taken place, both the co-accused, Nitin Patel and Rahulkumar Patel went to the farm and told the labourers that they should not disclose about the fact that the aforesaid three persons stayed at the farmhouse. From the aforesaid statements of the witness, it is contended that when aforesaid two co-accused, who have tried to misguide the investigating agency by pressurizing the concerned witness and the labourers, are enlarged on bail by the Coordinate Bench of this Court, the case of the applicant may also be considered on the ground of parity.
10. Learned Senior Advocate further submitted that the applicant is in jail since his arrest i.e. since 10.03.2019 and now the investigation is over and the chargesheet is filed. He further submitted that the applicant is aged about 26 years and there is no allegation that the applicant is having any political rivalry with the deceased, however merely because the father of the applicant was having political rivalry with the deceased, it Page 7 of 22 Downloaded on : Fri Sep 04 01:12:43 IST 2020 R/CR.MA/220/2020 ORDER cannot be said that the applicant was part of conspiracy and, therefore, his case be considered for grant of bail. It is also submitted that the applicant was released on temporary bail, however, it is also not alleged that during that period, the applicant has tampered with the evidence and there is no history of criminal antecedent against the applicant. It is, therefore, urged that this application may be allowed and the applicant may be granted regular bail.
11. On the other hand, learned Public Prosecutor, Mr. Mitesh Amin appearing on behalf of the respondent- State has opposed this application and mainly contended that the present case is based on conspiracy and the applicant is one of the conspirators. It is submitted that this Court has to examine as to whether prima facie case is made out against the applicant or not and in case of conspiracy, direct evidence may not be available. He submitted that in fact, four persons including the applicant herein are named in the FIR. It is submitted that there is enmity and political rivalry between the father of the applicant and the deceased and the present case is a case of pre-planned murder of the deceased. Learned Public Prosecutor has also referred to the statements of the concerned witnesses including Jayanti Maheshwari and Naresh Maheshwari and, thereafter, submitted that though the father of the applicant is having large chunk of property, he asked his son i.e. the applicant to procure motorcycle from third party and, hence, the applicant along with co-accused, Rahulkumar Patel procured unnumbered Page 8 of 22 Downloaded on : Fri Sep 04 01:12:43 IST 2020 R/CR.MA/220/2020 ORDER motorcycle from the witness, Jayanti Maheshwari and, thereafter, the said motorcycle was handed over to the co-accused, Rahulkumar Patel, who in turn handed over the said motorcycle to the persons, who stayed at the farmhouse. It is also contended that the applicant has booked the air- tickets for his father and another co-accused, Surjitbhau on different occasions and, therefore from the aforesaid conduct of the applicant, it can be said that the applicant was part of the conspiracy along with his father, Chhabildas Patel.
12. Learned Public Prosecutor has also referred to the statement of Nitin Bhanushali recorded under Section 164 of the Criminal Procedure Code, 1973, wherein he has narrated about the travel of the said witness to Ranchi to meet the co-accused, Manisha Goswami. Learned Public Prosecutor, thereafter, referred to the statement of witness, Ajay Thakkar and after referring to relevant material, it is contended that it is a case of thick conspiracy and contract killing and after the incident in question, the applicant left the State and started residing in hotel and, therefore, his case may not be considered for the grant of bail. It is also submitted that though two other co-accused have been enlarged on bail by the Coordinate Bench of this Court, the case of the applicant cannot be compared with the said co- accused. It is, therefore, urged that this application may be rejected.
13. Learned Senior Advocate, Mr. N.D. Nanavaty appearing for the original first informant has Page 9 of 22 Downloaded on : Fri Sep 04 01:12:43 IST 2020 R/CR.MA/220/2020 ORDER also opposed this application. It is submitted that the father of the applicant is the main accused and is also having criminal antecedents and in the present case also, there was motive for the father of the applicant to kill the deceased, Jayanti Bhanushali because of political rivalry and, hence, contract killers were called by the father of the applicant and in furtherance of the said motive, the applicant was asked to procure the motorcycle from the witness and in pursuance thereto, unnumbered motorcycle was procured from the witness, which was in turn handed over to the co-accused, who stayed at the farmhouse through another co-accused, Rahulkumar Patel. It is further submitted that the applicant has not denied that he has not booked air-tickets for his father and the co-accused. It is thus submitted that when the applicant has booked the air-tickets for his father and other co-accused on certain occasions, it can be said that he was part of conspiracy.
14. Learned Senior Advocate, thereafter, contended that this is a case of pre-planned murder. Learned Senior Advocate has pointed out the manner in which the incident had taken place in the running train. Thereafter, learned Senior Advocate has referred to the provision contained in Sections 120A & B of the Indian Penal Code and, thereafter, submitted that from the allegations leveled against the applicant, prima facie case is made out under Section 120A & B of the Indian Penal Code against the applicant herein. He submitted that in fact, actual presence or over tact is not Page 10 of 22 Downloaded on : Fri Sep 04 01:12:43 IST 2020 R/CR.MA/220/2020 ORDER necessary and aid and assistance to the main accused can also be considered as a over tact and, hence, no separate role is required to be assigned to the present applicant.
15. Learned Senior Advocate would further submit that looking to the properties of the father of the applicant as well as the applicant and the political connection of the father of the applicant, there are all chances of tampering with the evidence. It is also contended that when the father of the applicant asked him to procure the motorcycle from the witness and also asked him to book air-tickets, why the applicant has not questioned to his father and even after the incident had taken place, the applicant left Bhuj immediately and, thereafter, stayed at Goa for approximately three months and, therefore, it can be inferred that the applicant was having knowledge about the crime.
16. Learned Senior Advocate, thereafter, contended that the orders passed by the Coordinate Bench of this Court in case of co-accused while enlarging them on regular bail would not render any assistance to the applicant and the case of the said co-accused is on different footing and, therefore, parity would not be applicable.
17. Learned Senior Advocate has placed reliance upon following decisions, (1) the judgment in case of Ram Govind Upadhyay Vs. Sudarshan Singh, reported in (2002) 3 SCC 598;
(2) the judgment in case of State Through CBI Vs. Amarmani Tripathi, reported in (2005) 8 SCC Page 11 of 22 Downloaded on : Fri Sep 04 01:12:43 IST 2020 R/CR.MA/220/2020 ORDER 21;
(3) the judgment in case of Neeru Yadav Vs. State of UP & Anr., reported in (2014) 16 SCC 422; (4) the judgment in case of Anil Kumar Yadav, Vikas Balguer; Ashish Balguer & Anr. Vs. State of (NCT) Delhi & Anr., reported in (2018) 12 SCC 129;
18. It is, therefore, urged that this application may not be entertained and it may be rejected.
19. Having heard the learned advocates for the parties and having gone through the material placed on record, it is revealed that as per the case of the prosecution, mainly two allegations are leveled against the applicant i.e. firstly, the applicant has procured motorcycle from the witness, Jayanti Maheshwari and the said motorcycle was handed over to the co-accused, Rahulkumar Patel and in turn, the said Rahulkumar Patel handed over the said motorcycle to the concerned co-accused, who stayed at the farmhouse; and secondly, the applicant has booked the air-tickets of his father - the co- accused, Chhabildas Patel and another co-accused, Surjitbhau.
From the aforesaid two allegations, the prosecution has inferred that the applicant was part of conspiracy. At this stage, this Court would like to refer to the statement of witness, Naresh Maheshwari, who was PA of Chhabildas Patel during the period between 2006 to 2017. From the statement of the said witness, it is revealed that Chhabildas Patel asked the said witness to arrange for the motorcycle for the agriculture survey purpose and, therefore, the said witness in turn Page 12 of 22 Downloaded on : Fri Sep 04 01:12:43 IST 2020 R/CR.MA/220/2020 ORDER requested his cousin, Jayanti Maheshwari to give his motorcycle to the son of Chhabildas Patel i.e. the present applicant. From the statement and further statement of the said witness, it is revealed that it is not the case of the prosecution that the said witness was asked to provide or to make arrangement for unnumbered motorcycle. It is further revealed from the statement and further statement of another witness, Jayanti Maheshwari that Naresh Maheshwari called him and requested to give his motorcycle for agriculture survey for seven days. It was also informed to the said witness that the present applicant i.e. the son of Chhabildas Patel would come to his place. It is further revealed that when the applicant reached at the place of said witness, the applicant had not requested to give unnumbered motorcycles lying in the police station and in fact, the said witness himself gave unnumbered motorcycle from unclaimed motorcycle, which was being used for the purpose of trap. Thus prima facie, it cannot be said that the present applicant asked the concerned person to provide unnumbered motorcycle.
It is further revealed from the papers of the chargesheet that the co-accused, Rahulkumar Patel accompanied the applicant and after procuring the motorcycle from the said witness, the present applicant had handed over the said motorcycle to the co-accused, Rahulkumar Patel and in turn, the said Rahulkumar Patel handed over the said motorcycle to the concerned co-accused, who stayed at farmhouse of Chhabildas Patel.
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20. It would further emerge from the papers of the chargesheet that the applicant has booked the air- tickets of his father on different occasions along with co-accused during the period between 23.11.2018 to 02.01.2019. It is the case of the applicant that the father of the applicant viz., Chhabildas Patel was MLA and is a businessman and he frequently travels in various parts of the country as well as abroad. In the rejoinder filed by the applicant, it is specifically stated that the applicant has booked the air-tickets in routine course for his father and his father being a former MLA and active in politics, he frequently travels with many persons. It is also stated in the rejoinder that his father as a farmer with modern technology brought a tissue of dates (kharek) from Israel and also visited Thailand for bringing new variety of Gauva (fruit crop) and the father and his friends also visited Muscat for marketing of dates and other purpose and, therefore, on various occasions, when the applicant has booked the air-tickets of his father, friend and relatives, there was no excitement and eagerness on the part of the applicant to inquire, who is travelling with his father. Thus from the aforesaid facts, according to this Court, prima facie it cannot be inferred that the applicant was part of conspiracy as contended by learned advocates appearing for the respondents.
21. It is also alleged about the conduct of the applicant as he left State after the incident had taken place and stayed at Goa. However for the Page 14 of 22 Downloaded on : Fri Sep 04 01:12:43 IST 2020 R/CR.MA/220/2020 ORDER said conduct, learned advocate appearing for the applicant has contended that as the applicant is aged about 26 years, due to fear, he left State. However, learned advocate has assured that if the applicant is enlarged on bail, he will cooperate with the investigation agency and he will be available at the time of trial.
22. At this stage, this Court would also like to refer to the orders passed by the Coordinate Bench of this Court in case of two other co-accused. The Coordinate Bench of this Court has enlarged the co-accused, Rahulkumar Patel on bail vide order dated 27.11.2019, copy of said order is placed on record at Page No.27 of the compilation. If the said order is carefully seen, it is revealed that the prosecution has contended before this Court that the offence is very serious one with deep rooted conspiracy and the role attributed to the said co-accused is that he has procured the bike along with the present applicant and, thereafter, the said bike was handed over by the said co- accused to other co-accused, who stayed at the farmhouse and the said motorcycle played an important role of helping the contract-killers in escaping and, therefore, the role of the said co- accused is relevant. Inspite of the aforesaid submissions, the Coordinate Bench has considered the case of the said co-accused and granted bail and the said order is till date not challenged either by the prosecution or by the original first informant before higher forum.
23. It further transpires from the record that another co-accused, Nitin Patel has been enlarged on bail Page 15 of 22 Downloaded on : Fri Sep 04 01:12:43 IST 2020 R/CR.MA/220/2020 ORDER by the Coordinate Bench of this Court vide order dated 27.11.2019, copy of said order is placed on record at Page No.34 of the compilation. If the role attributed to the said co-accused is carefully examined, it is the case of the prosecution that the said co-accused made an arrangement of the contract-killers to stay at the agriculture field. It is further revealed from the statement as well as further statement of the witness, Suresh Nayka that the said co-accused, Nitin Patel and Rahulkumar Patel came at the farmhouse after the incident had taken place and informed the said witness, caretaker, Suresh Nayka and other servants/ labourers that if the Police makes an inquiry then, they should not disclose the fact that three persons had stayed at the farmhouse for couple of days. Thus, these two co- accused, who actually met the sharp-shooter - co- accused at farmhouse, are enlarged on bail. It is not the case of the prosecution that the applicant at any point of time met contract killers or he was in contract with them even on telephone. Thus, when the aforesaid two co-accused have been enlarged on bail, this Court is of the view that the applicant, who is almost on the similar footing, can be considered for the grant of bail.
24. Apart from the above facts, the applicant is aged about 26 years and he is in jail since his arrest i.e. from 10.03.2019 i.e. since last approximately 18 months. Even the investigation is over and the chargesheet is filed, therefore, there is no apprehension that the applicant will tamper with the evidence. There is no history of criminal Page 16 of 22 Downloaded on : Fri Sep 04 01:12:43 IST 2020 R/CR.MA/220/2020 ORDER antecedent reported against the applicant.
25. At this stage, this Court would like to consider the decisions rendered by the Hon'ble Supreme Court, upon which reliance has been placed by learned Senior Advocate, Mr. N.D. Nanavaty appearing for the original complainant. The said decisions would not render any assistance to the complainant or the prosecution in the facts of the present case. In case of Ram Govind Upadhyay (supra), the concerned High Court initially rejected the application for bail of the concerned accused and, thereafter, when the bail application was filed by the said accused again, the concerned High Court, thought it fit not to record any reasons, far less any cogent reason and granted bail. Thus in the said case, the concerned High Court rejected the bail application and immediately thereafter once again bail application was filed by the concerned accused, which was entertained by the High Court without assigning any reason and, therefore, the Hon'ble Supreme Court has cancelled th ebail granted by the concerned High Court. It is also revealed from the facts of the said case that during the period when the accused persons were enlarged on bail, another FIR was recorded and the chargesheet was filed. Therefore, the Hon'ble Supreme Court has observed that tampering with the evidence and threatening of the witnesses are two basic grounds for cancellation of bail and, therefore, the bail granted to the concerned accused by the High Court was cancelled. However, the facts of the present case are different and, therefore, the aforesaid Page 17 of 22 Downloaded on : Fri Sep 04 01:12:43 IST 2020 R/CR.MA/220/2020 ORDER decision would not be applicable.
26. In case of Amarmani Tripathi (supra), the Hon'ble Supreme Court has laid down certain guidelines, which are required to be considered at the time of considering the bail application. In Paragraph No.18, the Hon'ble Supreme Court has observed as under, "18. it is well settled that the matters to be considered in an application for bail are
(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of accused absconding or fleeing if released on bail; (v) character, behavior, means, position and standing of the accused;
(vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail (see Prahlad Singh Bhati V/s. NCT, Delhi, 2001 4 SCC 280 and Gurcharan Singh V/s. State (Delhi Administration), AIR 1978 SC 179. While a vague allegation that accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to Page 18 of 22 Downloaded on : Fri Sep 04 01:12:43 IST 2020 R/CR.MA/220/2020 ORDER the following principles relating to grant of refusal of bail stated in Kalyan Chandra Sarkar V/s. Rajesh Ranjan, 2004 7 SCC 528."
27. Thereafter in the said case, the Hon'ble Supreme Court has observed in Paragraph No.25 that the High Court has failed to deal with the material placed before the CBI which clearly indicated that the accused has, at all material times, tried to interfere with the course of investigation, tamper with witnesses, fabricate evidence, intimidate or create obstacles in the path of investigation officers and derail the case.
However in the present case, it is not alleged by the prosecution that the present applicant has tried to interfere with the course of investigation, tamper with the witnesses or fabricate any evidence.
28. Similarly in the decision of the Hon'ble Supreme Court in case of Neeru Yadav (supra), the Hon'ble Supreme Court has also laid down following principles while considering bail application, "(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behavior, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
Page 19 of 22 Downloaded on : Fri Sep 04 01:12:43 IST 2020 R/CR.MA/220/2020 ORDER
(vii) reasonable apprehension of the witnesses
being influenced; and
(viii) danger, of course, of justice being
thwarted by grant of bail."
29. Therefore considering the submissions canvassed by learned advocates appearing for the parties and keeping in view of the aforesaid decisions and other decisions upon which reliance is placed, if the facts of the present case, as discussed hereinabove, are examined, this Court is of the view that the prosecution has failed to point out prima facie case against the applicant. On the basis of the inference, it is alleged that the applicant was part of conspiracy. Further, the applicant is aged about 26 years and he is in jail since last 18 months; investigation is over since long and there is no apprehension that the applicant will tamper with the evidence. Further, it is contended by learned advocate for the applicant that the applicant will mark his presence before the investigating agency and remain present before the concerned Court during the course of trial. It is also not in dispute that there is no history of criminal antecedent against the applicant. This Court has also considered the order passed by the Coordinate Bench in the matter of two other co-accused, against whom also, almost similar type of allegations are leveled. The said orders are not challenged before the higher forum. Thus looking to overall facts of the present case, this Court is of the view that the discretion is required to Page 20 of 22 Downloaded on : Fri Sep 04 01:12:43 IST 2020 R/CR.MA/220/2020 ORDER be exercised in favour of the applicant and the applicant can be enlarged on bail on certain terms and conditions.
30. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra Vs. Central Bureau of Investigation, reported in [2012] 1 SCC 40.
31. Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with FIR being C.R. No.I- 03/2019 registered with Gandhidham Railway Police Station on executing a personal bond of Rs.50,000/- (Rupees Fifty Ten Thousand only) with one surety of the like amount 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 injurious 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 concerned trial court;
[e] mark presence before the concerned Police Station between 1st to 10th day of every English calendar month for a period of twelve 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 Page 21 of 22 Downloaded on : Fri Sep 04 01:12:43 IST 2020 R/CR.MA/220/2020 ORDER bond and shall not change the residence without prior permission of the concerned trial court;
32. The authorities shall adhere to its own Circular relating to COVID-19 and, thereafter, 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 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.
33. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order.
34. Rule is made absolute to the aforesaid extent.
Direct service is permitted. Registry to communicate this order to the concerned Court/authority by Fax or Email forthwith.
(VIPUL M. PANCHOLI, J.) SRILATHA Page 22 of 22 Downloaded on : Fri Sep 04 01:12:43 IST 2020