Gujarat High Court
Rajendra vs Central on 13 December, 2010
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
Gujarat High Court Case Information System
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CR.MA/14395/2010 10/ 10 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 14395 of 2010
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RAJENDRA
JAIN ALIAS JIRAWALA S/O LAKSHMANDAS - Applicant(s)
Versus
CENTRAL
BUREAU OF INVESTIGATION & 1 - Respondent(s)
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Appearance :
MR
JM PANCHAL WITH MR SUDHIR M MEHTA, MS SHAILEE MEHTA AND
MR
KJ PANCHAL for Applicant(s): 1,
MR YN RAVANI for Respondent(s) :
1,
MR HL JANI, LD. ADDL. PUBLIC PROSECUTOR for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 13/12/2010
ORAL
ORDER
Present application is filed by the applicant under Section 439 of the Criminal Procedure Code, 1973 for releasing him on regular bail in connection with offence registered by Central Bureau of Investigation (CBI) at RC 4(S)/2010-MUM for the offences punishable under Section 120(B) read with Sections 341, 342, 343, 365, 368, 302 and 201 of the Indian Penal Code. Present application is moved by the applicant after filing supplementary charge-sheet by CBI on 22nd October 2010.
CBI has registered the present case pursuant to the order passed by the Hon'ble Supreme Court of India dated 12th January 2010 in Criminal Writ Petition No.06 of 2007 directing CBI to investigate into the matter of fake encounter of Sohrabuddin and missing of his wife, Smt. Kausarbi as well as to investigate further with regard to larger conspiracy, if any. Therefore, CBI has initiated investigation pursuant to the direction of the Hon'ble Supreme Court of India and registered the case against the present applicant on 01st February 2010. Thereafter CBI filed initial charge-sheet on 23rd July 2010 and the present applicant-accused was arrested on 26th July 2010. Present applicant was produced before the Court on 27th July 2010.
Thereafter, the present applicant-accused had moved an application for regular bail before the learned In-charge Additional Chief Judicial Magistrate, Special CBI Court No.2, Ahmedabad (Rural) on the same day; however, the same was rejected by the learned Judge. Therefore, the applicant has filed regular bail application before this Court. However, since the applicant has not approached the Special Court and since investigation is in progress, application is not entertained by this Court.
Thereafter, the applicant-accused moved before the learned Special Judge (CBI), Court No.4 at Ahmedabad, but the same is rejected on 03rd November 2010. Therefore, present application has been filed by the applicant-accused under Section 439 of the Code of Criminal Procedure, 1973 before this Court.
Heard Mr.J.M. Panchal, learned senior counsel with Mr.Sudhir Mehta, Ms. Shailee Mehta and Mr.K.J. Panchal, learned counsel for the applicant, Mr.Y.N. Ravani, learned counsel for respondent No.1 and Mr.H.L. Jani, learned Additional Public Prosecutor for the respondent No.2-State.
Mr.Panchal has contended that the present applicant is totally innocent and he is wrongly booked by CBI. He has contended that main ingredient of criminal conspiracy can be considered from the provision of Section 120(A) of the Indian Penal Code. He has also contended that main ingredient of criminal conspiracy is based on agreement and meeting of mind. He has also contended that from the provision of Section 10 of the Evidence Act, it is the law that anything said, written or done by any person, who is a conspirator, then statement of the co-conspirator can be considered against other co-conspirator. He has vehemently argued that as per the allegation made by CBI, between the period shown in charge-sheet, i.e. 23rd November 2005 and 27th November 2005, the applicant was busy in marriage of his own daughter. Thus, when the applicant was busy in marriage of his daughter, it cannot be believed that the applicant was present at the same time with other co-conspirators at the place of offence. Mr.Panchal has also contended that though the applicant has nothing to do with the alleged offence, on 28th May 2007 hi statement was recorded in connection with Shorabudding encounter, wherein CID Crime, Gujarat State has submitted charge-sheet against 13 accused persons and the applicant was shown as Witness No.90 in the charge-sheet. It is also submitted by Mr.Panchal that the present applicant was served with witness summons under Section 160 of the Code of Criminal Procedure, 1973 on 02nd March 2010 by CBI requiring him to appear before the CBI on 03rd March 2010. Mr.Panchal has further contended that not only the applicant appeared before CBI, but also fully co-operated with the Investigating Agency and extended fullest co-operation. Mr.Panchal has also contended that the applicant has visited even Chennai and Banbasa Border Tanakpur of Uttarakhand in search of a witness named by CBI. Even applicant has shown his readiness to visit Nepal in search of witness, but since there was some agitation by Maoist in Nepal, he could not visit Nepal. Thus, there was full co-operation extended by the applicant. He has also contended that CBI has filed first charge-sheet on 23rd July 2010. In the said charge-sheet, the applicant was not shown as accused or witness. He has also contended that from the charge-sheet papers also there is nothing to say that the applicant was in knowledge of the alleged incident. It is also argued by Mr.Panchal that the applicant was never in knowledge that abducted persons would be either wrongly restrained or wrongly confined in his premises. He has also contended that as per the case of CBI, at an earlier point of time, abducted persons were kept in another premises and the Owner, Manager, Watchman, etc. of that premises are shown as witnesses in the present case whereas the present applicant stands on different footing than the owner of the earlier premises where the abducted persons were kept at an earlier point of time. Mr.Panchal has further contended that Watchman of the premises, viz. Tej Bahadur, is a Nepali. His non-availability should not be attributed to the applicant. Mr.Panchal has contended that the present applicant is a builder having no criminal antecedents. Even there is no chance that applicant will tamper with the evidence. He has further contended that charge-sheet is already filed by CBI and investigation qua the present applicant is over. He, therefore, contended that this is a fit case to allow the application.
Heard Mr.Yogesh Ravani, learned counsel for the respondent No.1-CBI. He has read the provision of Section 120-B of the Indian Penal Code and argued that the partner of present applicant-accused has admitted in his statement that key of the farm house was handed over by the present applicant to the co-conspirator i.e. Police Officer. He has also read the provision of Section 10 of the Evidence Act and argued that conduct of the present applicant must be considered. The applicant was in knowledge of the incident. He has further argued that conduct of the present applicant-accused can be covered within the meaning of Section 10 of the Evidence Act. He has also contended that main ingredient of Section 10 of the Evidence Act, i.e. written, said and done, is proved from the statement of partner of the present applicant. He has also contended that from the whole evidence produced on record it is very clear that the present applicant-accused is one of the co-conspirators with others. He has also contended that from the disclosure panchnama, it is very clear that present applicant is the owner of the place of offence, key of which was handed over by the present applicant to co-conspirator. Mr.Ravani has also contended that the present applicant is in full knowledge that for which purpose key was asked for and the conduct of the present applicant suggests that he is one of the co-conspirators with others. He has also contended that statement of Bhikhalal is required to be considered against the present applicant-accused. He has further contended that from the evidence produced on record, case against the applicant is proved beyond reasonable doubt. He has also read the order passed in other co-accused's matter and argued that co-accused are behind the bars. Hence, the present application is required to be rejected.
Heard Mr.H.L. Jani, learned Additional Public Prosecutor for respondent No.2-State. He has contended that the charge framed against the applicant-accused is required to be considered. This is a serious offence in nature.
I have perused the papers produced before me as also submission advanced by the learned counsel for the parties. I have also gone through the statements of witness as well as contents of the disclosure panchnama. I am of the opinion that for the purpose of bail, criminal law is required to be considered. No doubt, it is argued by learned counsel Mr.Ravani that the present applicant is booked for the offences punishable under Section 120-B of the Indian Penal Code, but without entering into the merits of the case, it is the view of this Court that against a person, who is cited as a conspirator in any offence, even if there is not an iota of evidence to say that he has committed offence punishable under Section 120-B, yet Sections 34 and 114 of the Indian Penal Code can be considered.
It is true that conspiracy to commit an offence itself is an offence and a person can be separately charged with respect to such conspiracy. There may be an element of abetment in conspiracy, but conspiracy is something more than abetment.
From the perusal of the alleged offence, which is cited by the complainant in the complaint itself, I am of the opinion that no doubt offences are serious in nature, but it is also true that nature of the charge is vital factor and the nature of the evidence is also pertinent legal principle and practice valid at the Court considering the likelihood of the applicant-accused, interfering with the witnesses of the prosecution or otherwise, polluting the process of justice. It is not only traditional but rational, in this context, to inquire for bail to find whether he is having bad record? I have perused this issue also and from the perusal of the above observation, I am of the opinion that if some stringent conditions are imposed upon the applicant, then no legal question can arise for allowing present application.
From the perusal of the papers and submissions advanced by the learned counsel for the parties, it is established that role of the present applicant, which is prescribed in the charge-sheet, is that of a co-conspirator. It is true that detailed examination of the evidence and elaborate documentation of the merit should be avoided while passing the order on bail application. Yet I have perused all the papers and involvement of the present applicant is concerned, at the first stage, just to facilitate Police Officers, who are now accused in this case, and as per the case of the prosecution, he was instrument in the hands and in the domination of his fellow accused.
As per above observations and considering the issue of criminal conspiracy, I am of the opinion that role of the present applicant is very limited in the said offence and to protect the evidence of the prosecution, if certain conditions are imposed, then that question can be avoided.
In view of above observation, this is a fit case to grant bail but this Court has not observed that no case is made out against the present applicant.
Hence, in view of above observations, present application is allowed and applicant is ordered to be released on bail in connection with offence registered by Central Bureau of Investigation at RC 4(S)/2010-MUM for the offences alleged against him in this application, on his executing a bond of Rs.01,00,000/- (Rupees One Lakh Only) with one solvent surety of the like amount to the satisfaction of the lower Court and subject to the conditions that he shall,
(i) not take undue advantage of his liberty or abuse his liberty;
(ii) not act in a manner injurious to the prosecution;
(iii) shall not enter into the area of Ahmedabad City, Ahmedabad Rural and Gandhinagar upto the disposal of the case, except during the hearing of the trial and for marking his presence before the Investigating Agency;
(iv) mark his presence before at SIT (CBI) Office, Block No.11, Dr. Jivraj Mehta Bhavan, Old Sachivalaya, Gandhinagar on every first day of calender month between 11.00 hours and 12:00 hours;
(v) furnish the present address of residence to the Investigating Officer as well as to the Court at the time of furnishing bond and shall not change his residence till further orders;
(vi) not leave the local limits of State of Gujarat without the prior permission of the concerned Judge;
(vii) Surrender his passport, if any, to the concerned Court within a week;
(viii) maintain law and order;
The Authority 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 concerned Sessions Judge will be free to issue warrant or take appropriate action in the matter.
Bail bond to be executed before the concerned Court having jurisdiction to try the case.
At the trial, the trial Court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicant on bail. Rule is made absolute to the aforesaid extent.
Direct Service is permitted.
(Z. K. Saiyed, J) Anup Top