Gujarat High Court
State Of Gujarat vs Valibhai Jamalbhai Halari on 5 September, 2018
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.MA/35178/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 35178 of 2016
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STATE OF GUJARAT
Versus
VALIBHAI JAMALBHAI HALARI
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Appearance:
MS CHETNABEN SHAH, ADDL. PUBLIC PROSECUTOR(2) for the
PETITIONER(s) No. 1
MR ASHISH M DAGLI(2203) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 05/09/2018
ORAL ORDER
1. By way of filing this application under Section 439 (2) of the Code of Criminal Procedure, 1973 the applicant seeks to challenge the order dated 25.11.2016 passed in Criminal Misc. Application No.871 of 2016 by the learned 4th Additional Sessions Judge, Bhavnagar, whereby the Sessions Court had granted regular bail in connection with I C.R.No.47 of 2016 registered with Gangajaliya Police Station, Bhavnagar for the offences punishable under Sections 302, 143, 147, 148, Page 1 of 27 R/CR.MA/35178/2016 ORDER 149, 201, 384, 120 B and 34 of the Indian Penal Code and Section 135 of the Gujarat Police Act.
2. According to the State, the respondent is one of the key accused. He has been involved in a similar offence being IC.R.No.113 of 2014 registered with Nilambaag Police Station for the very offences being Sections 302, 120 B, 201 and 34 of the Indian Penal Code and Sections 25(1) and 27(3) of the Arms Act. As the respondentaccused had been enlarged on regular bail by the Sessions Court, the State has challenged the same by way of present application under Section 439 (2) of the Code of Criminal Procedure, 1973.
3. The case of the prosecution in a capsulized form is that on 08.09.2016 at 11:30 p.m., the first informant and his brother Rafiqkbhai when were working with their labour Jahid @ Tayo near Sindhi DharmaShala at Vegetable Market, one Sohel @ Bhopo Yusufbhai Sidi had Page 2 of 27 R/CR.MA/35178/2016 ORDER intimated them that Pradip @ Lalo Bharwad, Hardik Kalubhai Ulva and Sajid @ Bawlo and others who were waiting for them with the weapons and therefore, they should not go home. Very soon Pradip @ Lalo came with baseball bat, Hardik Kalubhai Ulva and Sajid @ Bawlo had sword in their hands and Jitubhai Rabari had wooden bat, Raja Magic also had sword and one boy named Tau was having knife. Pradip @ Lalo asking first informant as to why were they not vacating the shop and started beating the first informant and his brother. The complainant and Sohel both ran away from the shop and his elder brother Rafikbhai and Jahid @ Tayo they both were indiscriminately beaten. Thereafter, the complainant and Sohel @ Bhopo went to find them, they found at near Aamba Chowk Bapu Mehta's Street a man was lying in a pool of blood. It was the elder brother of the complainant Rafikbhai who had sustained severe injuries on all parts of body Page 3 of 27 R/CR.MA/35178/2016 ORDER essentially on head. The motive behind this crime was that the deceased Rafikbhai Makwana had purchased a property in Vadvanera area and had constructed some shops and residences thereon. For one of the shops, the present respondent Valibhai Halari and his friend Ubed were threatening him to either carry out a document of transfer of one of the shops in their names or to give them Rs.10 Lakh by way of extortion. When he did not pay any heed to the threats of theirs, he had been done away to death.
4. This Valibhai Haladithe respondentaccused when moved an application for regular bail under Section 439 of the Code of Criminal Procedure, he has been granted regular bail by the learned 4th Additional Sessions Judge, Bhavnagar. The Investigating Officer had made his affidavit, the statement of one Husainbhai Mohmmadbhai Makwana was also shown to the Court who had stated that three to Page 4 of 27 R/CR.MA/35178/2016 ORDER four days before this respondent and one Raju Painter had called the deceased and his wife and his father to his office and had demanded extortion of Rs.10 Lakh or to vacate the shop and also had threatened if he did not listen to them, it would be difficult for him to live, they did not file any complaint. The Court was also actuated by the Voice Spectrography Test and the sample of present respondent had not been taken. Considering the fact that for actual incident the present respondent was not present. Moreover, one of the accused Sajid @ Bawlo had already died and yet his name had been given. Actual name of the coaccused was Shahnawaz @ Shanu and another coaccused was not Jitubhai Gawabhai Rabari but Jitubhai Rameshbhai Rabari. Since there were two names where some change was made later on. The Court was not convinced of his role and therefore on the ground that he has right to personal liberty, granted regular bail.
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5.After this Court issued the notice to the respondents, he has filed his affidavitin reply denying all contentions and urged that he has been falsely implicated in the offence, he has not committed any breach after once he had been granted regular bail. Moreover, for seeking cancellation of bail there has to be certain settled criteria which are not existing. Again the respondent is not named in the FIR filed on 09.09.2016 against nine persons and two unknown persons. Moreover, the regular bail of those persons, who have been named in the FIR has also been considered by this Court for which at para 4, the details of Criminal Misc. Application No.8705 of 2017, Criminal Misc. Application No.14681 of 2017 and Criminal Misc. Application NO.3586 of 2017 respectively in case of Hardik Kalubhai, Raj @ Raja Ghanshyambhai Makwana and others had been highlighted. So far as the case of the Page 6 of 27 R/CR.MA/35178/2016 ORDER present respondent is concerned, in the previous case where he was already granted regular bail, he has been acquitted by the Competent Court. He has cooperated with the trial all throughout and therefore, at such a belated stage no discretion be exercised to cancel the bail.
6. This Court has heard the learned Additional Public Prosecutor, Ms.Chetna Shah appearing for applicantState, who has argued strenuously that the present applicant has got four other offences against him. He has also committed an offence after he was enlarged on bail in connection with IC.R.47 of 2016 on 29.12.2016 and misusing his liberty by committing the very offence under Section 302 of the Indian Penal Code in FIR lodged being IC.R.No.72 of 2016, registered with Gangajaliya Police Station and therefore, bail deserves to be cancelled. She has further argued that he was earlier in the Page 7 of 27 R/CR.MA/35178/2016 ORDER year 2014 in connection with IC.R.No.113 of 2014 registered with Nilambaag Police Station was enlarged on regular bail in a case under Section 302 of the Code of Criminal Procedure. IC.R.No.47 of 2016 is a second offence and the third offence of IC.R.No.72 of 2016 has already been committed by misusing his liberty. She has also apprehended that he will not allow the free and fair trial as his antecedents and his terror in the area will not allow the witnesses to depose freely before the Court of Law. She has, therefore, urged this Court that even though the State has filed the matter well within time, because of the delay tactic on the part of other side and also because of the very system where the application for cancellation of bail is not ordinarily proceeded on urgent basis, the respondent is enjoying unhesitantly liberty and this should be considered as a blot on the system itself. She, therefore, has urged Page 8 of 27 R/CR.MA/35178/2016 ORDER this Court to cancel his bail.
7.Learned advocate, Mr.Ashish Dagli has urged that in the Sessions Case numbered is 17 of 2017 (of IC.R.No.47 of 2016) and the matter is posted for framing of charge which has been scheduled on 07.09.2018. Moreover, he has been granted regular bail in the second matter of IC.R.No.72 of 2016 by this Court in Criminal Misc. Application No.24990 of 2017 by a speaking order since there was a case. He also urged that his acquittal in 2014 matter is also evident on record.
8. This Court thus has heard at length learned advocates on both the sides and has also closely examined the version of prosecution witness Shri Husainbhai Mohmmadbhai Makwana dated 09.09.2016, which is prior to the grant of regular bail in favour of the present respondent. He is the father of the deceased, who has specifically spoken about three shops were purchased by his son Irfan and Page 9 of 27 R/CR.MA/35178/2016 ORDER residential house was in the name of wife of the deceased, namely, Rubina. The present respondent had called Rafikbhai and threatened him to hand over one shop to him or to give Rs.10 Lakh. His son was not in a mood to either to lodge a complaint. The two days prior to the incident, he was once again conveyed that on 05.09.2016 through Raju Painter the very demand was made therefore, he with his son and daughterinlaw and others had gone with Raju Painter to the office of Valibhai and asked him why was he asked for any money to which he had answered that because he had got the shop vacated and had given the possession, to the erstwhile owner he was required to be given Rs.10 Lakh to which Jetunben had said that her brother had purchased the property from the earlier owner and has nothing to do with earlier transaction then why should he ask for any amount and if he was desirous of buying the shop, he should pay Rs.4.5 Lakh.
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9. The next day through Rajubhai Painter one Ubedbhai who was also the coaccused in the IC.R.No.72 of 2016 had threatened him over the telephone and asked his son to vacate the premises or else he would not allow him to live. This is a prima facie involvement of the respondent.
There are other witnesses who have spoken of the involvement of the respondent. It is also quite clear that these statements were recorded on 09.09.2016 and the threat given by these persons and the demand made was the basis and the motive for the crime in question. And therefore, for the Court to say that the FIR did not contain his name nor was there anything on record to indicate his involvement is not only an erroneous finding but is complete misreading of material on record to grant the bail on irrelevant material and to say that because there was no complaint given of the threat on 05.09.2016 Page 11 of 27 R/CR.MA/35178/2016 ORDER and Voice Spectrography samples were not sent could not have been the reasons for the court to grant the regular bail.
10. The order of the learned 4th Additional Sessions Judge is dated 25.11.2016 whereas the statements of various witnesses which have come on the record are of 09.09.2016. The affidavit of the Investigating Officer also clearly referred to those witnesses and the Court also has made mention of one of the witnesses were not only the threats given over the telephone, but, they were called in person at the office of the respondent accused and the sister of the deceased also questioned him as to why would he be entitled to pay any amount. The statement of Jetunben also is of dated 23.09.2016 and she had also very clearly satisfied the role of the present applicant. The Court also ought to have regarded the fact that this man was involved in the offence of IC.R.No.113 of Page 12 of 27 R/CR.MA/35178/2016 ORDER 2014 registered with Nilambaag Police Station for the offences punishable under Sections 302, 120 B, 201 and 34 of the Indian Penal Code and Sections 25(1) and 25(7) of the Arms Act. When the second offence of Section 302 involving him as the kingpin of the crime had emerged this aspect of his earlier criminal antecedent ought not to have remained unnoticed.
11. This Court notices that even the second release has also not stopped this man and he has once again committed an offence being I C.R.No.72 of 2016 registered with Gangajaliya Police Station, Bhavnagar for the offences punishable under Sections 302, 143, 147, 148, 149, 120 B of the Indian Penal Code and Sections 25 (B)(1A) and 27 of the Arms Act. It is true that this Court in Criminal Misc. Application No.24990 of 2017 (Coram:S.H.Vora, J.) on 17.11.2017 granted him regular bail. However that per se is hardly the ground to Page 13 of 27 R/CR.MA/35178/2016 ORDER be considered. He has alleged to have fired the gunshot carrying pistol with him at the time of incident in question. In absence of any test identification parade, finding of revolver during investigation from the applicant was considered a weak piece of evidence by this Court while allowing him the regular bail. However, what is vital is that the chargesheet had already been laid against the accused in IC.R.No.72 of 2016 after investigation for having found sufficient prima facie evidence against him by the Investigating Officer. Although, the respondent has lodged Criminal Complaint through Ubed Karimbhai Shaikh, in IC.R.No.72 of 2016, murder has taken place pursuant to the criminal conspiracy.
12. Although his application for cancellation of bail has been moved by the State much earlier, it is unfortunate that the matter could be taken up after delay and Page 14 of 27 R/CR.MA/35178/2016 ORDER hence the period of two years has already been passed. Considering the wholly irrelevant considerations which have gone into passing of the order which is in complete disregard of the material which was existing on record at the time of passing of order and when the State has moved immediately after such grant also bearing in mind his subsequent conduct of having indulged into a very nature of crime under Section 302 of the Indian Penal Code in I C.R.No.72 of 2016.
13. Apt would be to refer to the law of cancellation of bail at this stage. The Apex Court in case of Pratapbhai Hamirbhai Solanki vs State of Gujarat, reported in (2013) 1 SCC 613 while considering this very issue has has held thus:
"18.Recently, in Ash Mohammad v.Shiv Raj Singh this Court while dealing with individual liberty and cry of the society for justice has opined as under:
"18. It is also to be kept in mind that Page 15 of 27 R/CR.MA/35178/2016 ORDER individual liberty cannot be accentuated to such an extent or elevated to such a high pedestal which would bring in anarchy or disorder in the society. The prospect of greater justice requires that law and order should prevail in a civilised milieu. True it is, there can be no arithmetical formula for fixing the parameters in precise exactitude but the adjudication should express not only application of mind but also exercise of jurisdiction on accepted and established norms. Law and order in a society protect the established precepts and see to it that contagious crimes do not become epidemic. In an organised society the concept of liberty basically requires citizens to be responsible and not to disturb the tranquility and safety which every wellmeaning person desires."
The Apex Court while considering this recent decision of Virupakshappa Gouda and another v. State of Karnataka and another, reported in (2017) 5 SCC 406 has laid down the parameters for granting of bail. Paras14 to 19 of the said judgment reads as under:
"14.Be it noted, though the aforesaid passages have their relevance but the same cannot be made applicable in each and every Page 16 of 27 R/CR.MA/35178/2016 ORDER case for grant of bail. In the said case, the accusedappellant was facing trial for the offences under Sections 420B, 468, 471 and 109 of the IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. Thus, the factual matrix was quite different. That apart, it depends upon the nature of the crime and the manner in which it is committed. A bail application is not to be entertained on the basis of certain observations made in a different context. There has to be application of mind and appreciation of the factual score and understanding of the pronouncements in the field.
15. The court has to keep in mind what has been stated in Chaman Lal vs. State of U.P. and another. The requisite factors are: (i) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; (ii) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant; and (iii) prima facie satisfaction of the court in support of the charge. In Prasanta Kumar Sarkar vs. Ashis Chatterjee and another, it has been opined that while exercising the power for grant of bail, the court has to keep in mind certain circumstances and factors. We may usefully Page 17 of 27 R/CR.MA/35178/2016 ORDER reproduce the said passage: "9....among other circumstances, the factors which are to be borne in mind while considering an application for bail are:
(i) whether there is any prima facie or reasonable ground to be believed 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;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail."
16.In Central Bureau of Investigation vs. V. Vijay Sai Reddy, the Court had reiterated the principle by observing thus: Page 18 of 27 R/CR.MA/35178/2016 ORDER "34.While granting bail, the court has to keep in mind the nature of accusation, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the legislature has used the words reasonable grounds for believing instead of the evidence which means the court dealing with the grant of bail can only satisfy itself as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt."
17.From the aforesaid principles, it is quite clear that an order of bail cannot be granted in an arbitrary or fanciful manner. In this context, we may, with profit, reproduce a passage from Neeru Yadav vs. State of Uttar Pradesh and another[6], Page 19 of 27 R/CR.MA/35178/2016 ORDER wherein the Court setting aside an order granting bail observed:
"16.The issue that is presented before us is whether this Court can annul the order passed by the High Court and curtail the liberty of the 2nd respondent. We are not oblivious of the fact that the liberty is a priceless treasure for a human being. It is founded on the bed rock of constitutional right and accentuated further on human rights principle. It is basically a natural right. In fact, some regard it as the grammar of life. No one would like to lose his liberty or barter it for all the wealth of the world. People from centuries have fought for liberty, for absence of liberty causes sense of emptiness. The sanctity of liberty is the fulcrum of any civilized society. It is a cardinal value on which the civilisation rests. It cannot be allowed to be paralysed and immobilized. Deprivation of liberty of a person has enormous impact on his mind as well as body. A democratic body polity which is wedded to rule of law, anxiously guards liberty. But, a pregnant and significant one, the liberty of an individual is not absolute. The society by its collective wisdom through process of law can withdraw the liberty that it has sanctioned to an individual when an Page 20 of 27 R/CR.MA/35178/2016 ORDER individual becomes a danger to the collective and to the societal order. Accent on individual liberty cannot be pyramided to that extent which would bring chaos and anarchy to a society. A society expects responsibility and accountability from the member, and it desires that the citizens should obey the law, respecting it as a cherished social norm. No individual can make an attempt to create a concavity in the stem of social stream. It is impermissible. Therefore, when an individual behaves in a disharmonious manner ushering in disorderly things which the society disapproves, the legal consequences are bound to follow. At that stage, the Court has a duty. It cannot abandon its sacrosanct obligation and pass an order at its own whim or caprice. It has to be guided by the established parameters of law."
18. In this context what has been stated by a threeJudge bench in Dinesh M.N. (S.P.) v. State of Gujarat is quite instructive. In the said case, the Court has held that where the Court admits the accused to bail by taking into consideration irrelevant materials and keeping out of consideration the relevant materials the order becomes vulnerable and such vulnerability warrants annulment of the order.
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19.In the instant case, as is demonstrable, the learned trial Judge has not been guided by the established parameters for grant of bail. He has not kept himself alive to the fact that twice the bail applications had been rejected and the matter had travelled to this Court. Once this Court has declined to enlarge the appellants on bail, endevours to project same factual score should not have been allowed. It is absolute impropriety and that impropriety call for axing of the order."
Apt would be to refer to the decision of the Apex Court in case of 'ANIL KUMAR YADAV VS STATE (NCT) OF DELHI & ANR.', reported in (2018) 2 SCC 129. The relevant observations, read thus:
"32. It was repeatedly urged that the High Court misdirected itself in interfering with the discretionary order of the Sessions Court granting bail to the accused and there was absolutely nothing to show that the appellants are likely to abuse the bail or tamper with evidence. The Court while granting bail should exercise its discretion in a judicious manner. Of course, once Page 22 of 27 R/CR.MA/35178/2016 ORDER discretion is exercised by the Sessions Court to grant bail on consideration of relevant materials, the High Court would not normally interfere with such discretion, unless the same suffers from serious infirmities or perversity.While considering the correctness of the order granting bail, the approach should be whether the order granting bail to the accused is vitiated by any serious infirmity, in which case, the High Court can certainly interfere with the exercise of discretion. The material available on record prima facie indicating the involvement of the accused, possibility of accused tampering with witnesses and the gravity of the crime were not kept in view by the Sessions Court. Since the Sessions Court granted bail to the appellants on irrelevant considerations and the same suffered from serious infirmity, the High Court rightly set aside the order of grant of bail to the accused. The impugned orders do not suffer from any infirmity warranting interference."
14. This Court is of the opinion in wake of the discussion above that the request for cancellation of bail deserves to be considered. Respondent is a habitual offender who has with impunity exercised his muscle power Page 23 of 27 R/CR.MA/35178/2016 ORDER and has succeeded in overreaching the process of law. His act of emboldenment also is likely to thwart the course of justice. When sessions trial is to proceed his conduct would have a far greater possibility of polluting the stream of justice.
15. This Court notices from the website of National Judicial Date Grid (N.J.D.G.) that the Trial Court had posted the matter on number of occasions for framing of charges and eventually on 04.07.2018 the matter had come up for recordance of evidence on 18.07.2018 and 27.08.2018 and it is kept for framing of charge now 07.09.2018. Any leniency, at this stage, on the part of this Court will take a toll of the justice considering his network, his antecedents and his conduct as is emerging on the record. It will not allow the witnesses to fearlessly depose before the Court of Law. While upholding the plea of the State of cancelling Page 24 of 27 R/CR.MA/35178/2016 ORDER his bail and directing him to immediately surrender in the judicial custody, the Investigating Officer is also directed to provide witness protection to all the vital witnesses and particularly to the family members of the deceased and his close friends who according to the prosecution papers are the eye witnesses to the incident and also have witnessed earlier meetings with this respondent as also the giving of the threats on a consistent basis.
16. For the foregoing reasons, present application is allowed. The regular bail granted by the learned 4th Additional Sessions Judge, Bhavnagar vide order dated 25.11.2016 in Criminal Misc. Application No.871 of 2016 to the respondentaccused is hereby cancelled. The respondent shall surrender before the concerned Court within a period of seven days from the date of this order, without fail. If he does not abide by Page 25 of 27 R/CR.MA/35178/2016 ORDER this order, nonbailable warrant shall be issued by the Trial Court and it shall also thereafter initiate steps of proclamation of confiscation of his property.
17. Let the copy of this order be sent to the Court concerned and the same also shall be furnished to the learned advocates on both the sides sooner as possible and, in case later than 6th September, 2018.
18. Let the report of the Investigating Officer also be placed on the record of this Court after once the order of witness protection is implemented by as administrative order. The learned Presiding Officer also shall ensure that during the course of proceeding of trial, no untoward incident is noticed and if any such attempt is made to thwart the course of justice, the appropriate action for upkeeping and safeguarding the interest of justice shall be Page 26 of 27 R/CR.MA/35178/2016 ORDER necessary on the part of the Trial Court concerned.
19. With the above, present application stands disposed of accordingly. Rule is made absolute accordingly. Direct Service is permitted.
(MS SONIA GOKANI, J) M.M.MIRZA Page 27 of 27