Gujarat High Court
Tarun Amrutlal Barot vs Central Bureau Of on 21 March, 2013
Author: S. Dave
Bench: Anant S. Dave, S. Dave
TARUN AMRUTLAL BAROT....Applicant(s)V/SCENTRAL BUREAU OF INVESTIGATION (CBI) MUMBAI THRO DY.S.P. R/CR.MA/2287/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 2287 of 2013 ================================================================ TARUN AMRUTLAL BAROT Versus CENTRAL BUREAU OF INVESTIGATION (CBI) MUMBAI and another ================================================================ Appearance: Mr. N.D. Nanavaty, Senior Advocate MR YASH N NANAVATY, ADVOCATE for the Applicant MR IH SYED, Special Counsel for the CBI Mr. L.R. Pujari, APP, for respondent-State ================================================================ CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 21/03/2013 ORAL ORDER
1 This application is filed under Section 439 of the Code of Criminal Procedure in connection with first information report registered on 11.7.2011 at C.R.No.RC-3(S)/2011/CBI/SC-III/New Delhi with New Delhi CBI/SC-III police station for the offences punishable under Sections 120B, 341, 342, 364, 365, 302 and 114 of the Indian Penal Code in the wake of order dated 16.6.2011 passed by this Court [Coram: M.R. Shah, J.] in Special Criminal Application No.963 of 2007.
2 Initially, on 13.1.2003, DCB 1st C.R. No.3/03 came to be registered at DCB Police Station against one Shri Sadik Jamal Mehta (since deceased) and other accused persons for the offences punishable under Sections 120B, 121-A, 122, 123, 307, 353, 186 and 224 of the Indian Penal Code and also under Sections 25(1)(b) and 27 of the Arms Act and Section 135(1) of the Bombay Police Act. The said complaint was given by one Shri JG Parmar, the then Police Inspector, Crime Branch, which was, inter-alia, to the effect that the complainant had been communicated with certain central intelligence inputs to the effect that certain persons including deceased Sadik Jamal were intending to kill some political leaders. It was further averred in the complaint by the complainant that pursuant to his having received such inputs, whilst he was discreetly inquiring into the movements of Sadik Jamal, on 12.1.2003 the complainant received secret information that Sadik Jamal was to come near Jai Ambe Traders, Naroda, to meet his associate. Based on such information which the complainant received, the complainant formed/set up a team of officers to apprehend the said Sadik Jamal and accordingly a team comprising of police officers reached Naroda area. It was further averred in the said complaint that while the said team was keeping a watch at the Naroda area, deceased Sadik Jamal was found to be coming there and when attempts were being made to apprehend, the said Sadik Jamal opened fire on the police party. It is further averred in the complaint that in response to the firing opened by Sadik Jamal on the police party, the police officers opened fire in self-defence, as a result of which, Sadik Jamal got injured and was subsequently shifted to Civil Hospital where he was declared dead by the doctor.
3 As a prelude to the order dated 16.6.2011 passed by this Court [Coram:
M.R. Shah, J.] in Special Criminal Application No.963 of 2007 filed by the brother of Sadik to investigate fake encounter, investigation came to be transferred to the CBI and charge-sheet was filed on 21.12.2012 by the Deputy Superintendent of Police, CBI, SC-II, New Delhi. The applicant was arrested on 25.9.2012.
4 Basically, as per the charge-sheet, role of the applicant surfaces on record from paragraph 7 onwards, whereby, in the official vehicle bearing registration No. GJ-1-G-3343 (Armada Jeep) driven by Driver Jiluji Arjunji Chavda, the applicant along with other staff reached Mumbai on 3.1.2003 and took Sadik Jamal from the custody of CIU, Andheri, Mumbai on 3.1.2003 and returned to Ahmedabad in the early hours of 4.1.2003. Sadik Jamal was illegally confined by DCB officials, Ahmedabad, at Crime Branch office, Bunglow no.15, Dafnala, Shahibaug, Ahmedabad, till his killing in the intervening night of 12/13.1.2003. Extracts of log-book produced at Annexure H collectively mention about the vehicle travelling from Ahmedabad to Mumbai via Vadodara and Valsad on 3.1.2003 and returned on 4.1.2003 accompanied by the driver and five persons. Charge-sheet further mentions about the event which has taken place on 12/13.1.2003, the manner in which killing had taken place, nature of bullets fired, opinion of FSL experts along with cartridges of 32 bore of live ammunition and, later on, presence of applicant-accused at the Civil Hospital, Ahmedabad, in the early morning of 13.1.2003. Charge-sheet also refers that further report under Section 178(8) of the Code of Criminal Procedure, if necessary, be filed in case if detailed investigation is undertaken and completed.
5 In the above back-drop of charges against the applicant, Mr. N.D. Nanavaty, learned Senior Counsel appearing with learned advocate Mr. Yash N. Nanavaty, would contend that the case of prosecution is based on no evidence in as much as no material connecting the applicant with the crime surfaces on record even at the end of filing of charge-sheet. That, so far as entries in the log-book of the official car are concerned, it refers to the journey from Ahmedabad to Mumbai to and fro commencing from 3.1.2003 to 4.1.2003 and the number of persons traveling in the car were driver plus five persons while leaving from Ahmedabad for Mumbai, and on return also. The statement of driver recorded by the Investigating Agency makes no whisper that Sadik Jamal or any other person was brought from Mumbai. No question in this regard was asked by the CBI. According to the learned Senior Advocate, it is surprising that no statement of any personnel of CIU, Mumbai police, is recorded about handing over custody of Sadik Jamal to the applicant-accused and allegations levelled against the applicant are based on statement of the driver of the official vehicle, statement of retired personnel of intelligence bureau, and statement of a Doctor of the Civil Hospital based on description of a person like the applicant and addition of Vadodara and Valsad in the log-book by another constable Chhaganbhai Barot. Barring the above, no material surfaces on record. Besides, reference is made to the affidavit filed by one Ketan Tirokar in the proceedings undertaken by this Court and also MCOC Court at Mumbai mentioning the date 11.1.2003 on which Sadik Jamal was handed over to the Crime Branch of Gujarat State. Even, on the alleged date of incident, namely, killing of Sadik Jamal in the late night of 12/13.1.2003, presence of the applicant-accused is not even prima-facie established and there is no material on record either in the form of documentary evidence or oral evidence to connect the applicant with the charges alleged against him. Filing of charge-sheet rules out any kind of tampering of documentary evidence and the applicant can be kept away so that even possibility of influencing witnesses is also ruled out.
5.1 Shri N.D. Nanavaty, learned Senior Counsel, would further contend that efforts are made by the Investigating Agency to see that the applicant is some-how continued to remain in jail and, when no procedure known to law is followed for handing over custody of Sadik Jamal by CIU, Mumbai Police, the very basis of charge-sheet and accusation alleged against the applicant has no substance. Without any formalities, live human body is handed over in an illegal manner. The personnel of CIU, Mumbai police, are not only witnesses but accomplice and their statements were not recorded. It is further submitted that no credence can be given to the statement of retired Intelligence Officer recorded after about 9 to 10 years and in paragraph 9 of the charge-sheet about alleged pre-planned conspiracy, the applicant-accused is not named therein.
5.2 Learned Senior Counsel appearing for the applicant further submits that the allegation that the applicant allegedly conspired with other co-accused is highly unbelievable for the very reason that there is nothing in the entire charge-sheet which could remotely suggest that the applicant had anything to do in the present case. In fact, assuming the statements of the witnesses at their face value, without admitting the same, there is nothing on record to suggest that it was applicant and none else who had allegedly taken the custody of Sadik all by himself from Mumbai. In view of this, the allegation made against the applicant in terms of entering into a criminal conspiracy has no legs to stand. Mere presence of Section 120B will not confirm the conspiracy as alleged.
5.3 The applicant has meritorious service record, discharged his duties for years together and received commendation from various authorities. If a police officer performing duties in accordance with the procedure and law and as per the direction and guidance of superior officers has taken an action in the larger public interest as part of his duty and, in a case like this, based on surmises and conjectures, he cannot be demoralized and prosecuted without any evidence on record. The trial is likely to take time and even if it commences, it would not end in the near future. The applicant is a public servant and has roots in the society. There is no possibility of tampering with evidence or influencing witnesses. Under the circumstances, to incarcerate the applicant for a long period would amount of pre-trial punishment. When the presence of the applicant can be secured at the stage of trial by imposing suitable conditions, the applicant may be enlarged on bail by this Court. Learned Senior Counsel has highlighted the factors and parameters for consideration of regular bail, based on decisions of the Apex Court.
5.4 Thus, in short, it is submitted by the learned Senior Counsel appearing for the applicant that, when no role is played by the applicant in the alleged encounter and killing of Sadik Jamal and no such material implicating the applicant surfaces on record, this is a fit case to exercise discretionary jurisdiction of this Court under Section 439 of the Code.
6 Mr. I.H. Syed, learned counsel for the CBI, Investigating Agency, has opposed to grant of bail to the applicant. It is submitted that on the basis of prima-facie suspicion about killing of Sadik Jamal in a fake encounter and in pursuance of the order dated 16.2.2011 passed by this Court [Coram: M.R. Shah, J.] in Special Criminal Application No.963 of 2007, first information report is lodged by the CBI and a detailed investigation was undertaken. While complying with the directions issued by this Court in the above order, no doubt, when the CBI has taken over the investigation for the alleged incidence of January 2003, substantial time had lapsed. However, while probing the details about the applicant, the Investigating Agency has collected material which formed part of the charge-sheet and, as part of pre-planned conspiracy when the applicant was a police officer in the crime branch along with his colleagues, as mentioned in paragraphs 7, 8 and 9 of the charge-sheet the role of the applicant surfaces on record. It is further submitted that the manner in which initial FIR was filed in connection with killing of Sadik Jamal and the FSL report, planting of revolver of 32 bore cartridges and live ammunition, now stands supported by traveling of the applicant with number of police personnel from Ahmedabad to Mumbai and so reflected in the log-book, again supported by the statement of the driver of the official vehicle and fellow constable and the manner in which addition of names of cities Vadodara and Valsad in the log-book so as to bring it in conformity with the police diary maintained by the applicant-accused, in which, it was mentioned that, for secret official duty, he had to travel from Ahmedabad to Valsad and was out of the head-quarter, Ahmedabad, from 3.1.2003 to 4.1.2003. It is empathetically submitted that the official record does exist about handing over custody of Sadik Jamal to the Crime Branch, Gujarat State, on 3.1.2003 and relevant communication is shown to this Court.
6.1 In continuation of the above submission as above, the learned counsel for the CBI would submit that a case like this, when the police officer is involved in killing of a person by taking over custody on the ground of interrogation in the State of Gujarat and illegally detained for about 9 days, and fake encounter has taken place, is to be treated differently while exercising power under Section 439 of the Code and when the police official becomes a perpetrator of the crime, likelihood of influencing witnesses and tampering of evidence even after charge-sheet is filed cannot be ruled out.
6.2 A reference is made about statement of Mr. Ketan Tirodkar who had made a flip-flop from time to time and the affidavit made by him on the basis of memory about handing over custody of Sadik Jamal to the Crime Branch, Gujarat Police, but, as against that, documentary evidence is available to show that the custody of Sadik Jamal was handed over to Gujarat Police on 3rd/4th of January 2003.
6.3 Though reliance on a number of decisions on the subject laying down various parameters for grant or otherwise of bail is placed by the learned counsel appearing for the CBI, but, looking to the material available on record at this stage, I do not wish to refer those decisions.
7 On perusal of the record, prima-facie, following aspects would emerge:
[a] The applicant was working as Police Inspector, Detective Crime Branch, Ahmedabad City. On 2.1.2003, he along with other co-accused, who were Police Inspectors, Sub-Inspectors and Constables, in the official vehicle bearing registration No. GJ-1-G-3343, left for Mumbai and took the custody of Sadik Jamal from the Crime Investigation Unit, Mumbai Crime Branch, Mumbai City. Thereafter, the applicant brought Sadik Jamal to Ahmedabad on 4.1.2003 and detained Sadik Jamal in bungalow No.15, Dufnala, Shahibaug, till 12/13.1.2003 i.e. the date of fake encounter. As per the charge-sheet, the applicant was a conspirator right from taking custody of Sadik Jamal till the fake encounter.
[b] The applicant was present at the Civil Hospital, Ahmedabad, at 1.40 a.m. on 13.1.2003 immediately after the incident at 1.15 a.m. and the applicant was identified by the Doctor of the Civil Hospital.
[c] The applicant tampered with log-book of the official vehicle bearing registration No. GJ-1-G-3343 to dispute his presence at Mumbai and to corroborate with his weekly diary showing his presence at Valsad.
[d] The applicant is having criminal antecedents and he was recently arrested by the CBI in a similar case in connection with FIR registered as RC 5(S)/2011/CBI/SCB/Mumbai where four persons were killed in a fake encounter in 2004.
[e] It is recorded by the learned Special judge, CBI, Court No.1, Ahmedabad, in paragraph 13 of the order dated 29.1.2013 rejecting the bail application of the applicant, that Sadik Jamal was, in a joint-stage managed operation, apprehended by the personnel of Subsidiary Intelligence Bureau and CIO, Mumbai, on 19.12.2003. Thereafter, Sadik Jamal was kept in illegal custody in the office of CIO, Mumbai, where the officers of SIB used to visit and interrogate him. After the interrogation, the officers of SIB concluded that Sadik Jamal was an innocent person and the intelligence input generated against him by Intelligence Bureau that he is a LeT operative, is false. Therefore, the CBI Court, while rejecting bail application of the applicant, has recorded a finding that this is a case of murder of an innocent person.
[f] Now, the applicant is a Deputy Superintendent of Police, a high ranking police officer. In view of evidence of tampering with log-book as per the charge-sheet, the apprehension of the CBI that he will tamper with witnesses and documents is well-founded.
8 Overall consideration of the materials on record would, prima-facie, establish chain of circumstances implicating the applicant in the crime and, of course, no evidence can be gathered or collected for the alleged conspiracy, which is the subject matter of trial to be appreciated by the trial court.
9 In State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21, the Apex Court held in paragraph 18 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 the accused absconding or fleeing, if released on bail; (v) character, behaviour, 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 vs. NCT, Delhi and Gurcharan Singh v. State (Delhi Admn)]. While a vague allegation that the 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 the following principles relating to grant or refusal of bail stated in Kalyan Chandra Sarkar vs. Rajesh Ranjan, (2004) 7 SCC 528.
11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the state of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
[c] Prima facie satisfaction of the court in support of the charge.
10 In Prakash Kadam and others vs. Ramprasad Vishwanath Gupta and another, reported in (2011) 6 SCC 189, the Apex Court held as under:
25. In our opinion this is a very serious case wherein prima facie some police officers and staff were engaged by some private persons to kill their opponent i.e. Ramnarayan Gupta and the police officers and the staff acted as contract killers for them. If such police officers and staff can be engaged as contract killers to finish some person, there may be very strong apprehension in the mind of the witnesses about their own safety. If the police officers and staff could kill a person at the behest of a third person, it cannot be ruled out that they may kill the important witnesses or their relatives or give threats to them at the time of trial of the case to save themselves.
This aspect has been completely ignored by the learned Sessions Judge while granting bail to the accused persons.
26. In our opinion, the High Court was perfectly justified in canceling the bail granted to the accused-appellants. The accused/appellants are police personnel and it was their duty to uphold the law, but far from performing their duty, they appear to have operated as criminals. Thus, the protectors have become the predators. As the Bible says If the salt has lost its flavour, wherewith shall it be salted? , or as the ancient Romans used to say, Who will guard the Praetorian guards? [see in this connection the judgment of this Court in CBI vs. Kishore Singh, Criminal Appeal Nos.2047-2049 decided on 25.10.2010].
27. We are of the view that in cases where a fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest of rare cases. Fake `encounters' are nothing but cold blooded, brutal murder by persons who are supposed to uphold the law. In our opinion if crimes are committed by ordinary people, ordinary punishment should be given, but if the offence is committed by policemen much harsher punishment should be given to them because they do an act totally contrary to their duties.
28. We warn policemen that they will not be excused for committing murder in the name of `encounter' on the pretext that they were carrying out the orders of their superior officers or politicians, however high. In the Nuremburg trials the Nazi war criminals took the plea that `orders are orders', nevertheless they were hanged. If a policeman is given an illegal order by any superior to do a fake `encounter', it is his duty to refuse to carry out such illegal order, otherwise he will be charged for murder, and if found guilty sentenced to death. The `encounter' philosophy is a criminal philosophy, and all policemen must know this. Trigger happy policemen who think they can kill people in the name of `encounter' and get away with it should know that the gallows await them.
11 Keeping in mind the principles laid down by the Apex Court in the case of State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21, and considering the gravity, seriousness and involvement of applicant in commission of crime, more particularly the charges made in paragraphs 7, 8 and 9 of the charge-sheet, it is not just and proper to exercise power under Section 439 of the Code of Criminal Procedure in favour of the applicant.
This application is rejected. Rule is discharged.
(ANANT S. DAVE, J.) (swamy) Page 12 of 12