Shelarbhai vs State on 18 February, 2011

[Cites 19, Cited by 0]

Gujarat High Court

Shelarbhai vs State on 18 February, 2011

2. This application under Section 439 of the Code of Criminal Procedure, 1973 is filed by the applicant - original accused No.9 to release the applicant on regular bail in connection with CR No. I-60 of 2007 registered with Umargaon Police Station on 17.07.2007 and inter alia the applicant has prayed to quash and set aside the order dated 15.12.2010 passed by the learned Sessions Judge, Valsad in Criminal Misc. Application No.504 of 2010 by which his application for enlarging him on bail came to be rejected. The above FIR is registered for the offences punishable under Sections 302, 201, 120(B), 217, 218, 192, 193, 196, 197, 198, 34, 364, 465, 471 of IPC and under Section 135 of the Bombay Police Act. That perusal of the FIR reveal that it was registered around 15.30 hrs. on 17.07.2007 for the crime alleged to have taken place around 3.30 hrs. on 16.07.2007.

3. It is the case of the prosecution that at 3.30 hrs the accused Nos.1 to 7 had committed murder of one Rahul @Samirbhai Babubhai Patni and disposed of the body near strait in Varoli in Umargaon and destroyed the evidence. It is further a case of the prosecution that the applicant, who was at the relevant point of time posted as Police Sub-Inspector at Umargaon Police Station failed to discharge his duties in carrying out fair investigation in accordance with law.

3.1 However, the complainant had strong belief that Rahul, who was murdered for oblique motive with regard to dispute of the property situated at Umargaon where he was serving as a caretaker and anti-social elements of the area had an eye over the property and in the past had threatened the owner and Rahul to handover and vacate the premise, thus strong suspicion arose in the mind of the complainant and relatives and therefore they made an unsuccessful attempt before this Court to seek a direction for investigation into the 0ffences registered as above, by independent investigating agency, which was negatived and therefore Special Leave to Appeal (Criminal) No.5906-5907 of 2008 was filed. The Apex Court by an order dated 30.07.2009 directed that further investigation should be carried out by the Crime Branch under the supervision of senior rank officer especially nominated by the Director General of Police and the investigating officer nominated by the Director General of Police to record the statements of the petitioner and give an opportunity to him to point out the discrepancies and to file a status report before the Apex Court. Accordingly various status reports have been filed before the Apex Court by the Crime Branch and finally Supplementary Charge Sheet No.80 of 2010 dated 01.11.2010 is filed.

3.2 According to the complainant, a complaint about missing of Rahul @Samir was made by accused No.1 at Umargaon Police Station on 16.07.2007 to mislead the police authorities. When the information about missing of Rahul was conveyed to the complainant by Bhartiben on 16.07.2007, the complainant and his relatives reached Umargaon by train by night on 16.07.2007 and they were present at the police station. It is stated by the complainant that accused Vijay Radheshyam Agraval told before the PSI - Shelarbhai Najbhai Basia, the applicant that seven people came on bikes and scooter caused injury on head of Rahul with weapon and took him away. But, the accused Vijay Agraval did not disclose everything as he was threatened by the applicant and other police personnel. That the dead body of Rahul was found on 17.07.2007 in the after-noon and when the complainant and his brother reached at the strait, the dead body of Rahul was tied and brought on the shore, his head was cut from the neck and was hanging in the front with the skin of throat and there were number of injuries on the body. It is further a case of complainant that the accused being influential persons and supported by political leaders of the area caused disturbance with the help of mob and police instead of taking action against the accused threatened the complainant and his relatives. However, the police advised the complainant to leave Umargaon Police Station and took signature of the complainant on a blank paper saying that the deaf body was handed over to them. The complainant strongly suspected the postmortem carried out by Dr. Roy and authenticity of the postmortem report and cause of death shown in the certificate of death of Rahul and timings mentioned therein.

3.3 The complainant also asserted before the investigating officer about the order passed by the Apex Court that the applicant herein is also a conspirator in commission of crime. The investigating officer has also recorded statements of complainant and his relatives and five other witnesses on various dates. Opinion of expert in the field of medicine including of Dr. G.R.Patel, MS, Professor and Head, Department of Surgeon (GMC) at Surat about nature of injuries and possibility of type of usage of weapon etc. Even some of the accused had undergone lie detection test / narco analysis test and accused persons (1) Vijay Radheshyam Agraval; (2) Jak @Jagdish; (3) Jigesh Tanna; (4) Vinod Vaghela; and (5) Sureshbhai Muljibhai underwent lie detection test and finally no involvement of the said accused was also found.

4. Mr. Jayant Panchal, learned counsel for the applicant, submitted that the applicant is falsely implicated in the crime and in spite of taking all actions for fair investigation initially in accordance with law is in jail since his arrest on 12.08.2010. It is submitted that the applicant was in-charge of the investigation for about 8 hours and the investigation was also under direct supervision of Deputy Superintendent of Police and even after thorough investigation, pursuant to the direction issued by the Apex Court and filing of supplementary charge sheet on 01.11.2010, no offence is made out except, at the most under Section 201 of the IPC. The above offences are bailable and the applicant may be enlarged on bail by imposing any condition that may be deemed fit by this Court. It is further submitted that other co-accused who are facing similar charges and attributed role for attracting offences under section 201 are already enlarged on bail by the trial Court, while in the case of the applicant though it is in no uncertain terms, the trial Court concluded that the applicant is not a co-conspirator vis-a-vis offences of murder of Rahul @Samir under section 302, but had failed to carry out proper and fair investigation and on that ground only the applicant is denied bail. Thus, prima facie, at this stage, according to learned counsel for the applicant when in a departmental inquiry, the application is suspended and his headquarter is fixed at Vadodara and he being native of Samkhiyala, district Rajkot, far away from Umargaon, District Valsad, which is the place of alleged offences, even remote possibility of influencing witnesses or tampering with the evidence is ruled out. It is further submitted that around 5 accused have undergone narco analysis test / brain mapping / lie detection test and reports of such tests do not reveal any involvement of the applicant - accused in the alleged crime. It is further submitted that the applicant be enlarged on bail by imposing any suitable conditions in accordance with law. With regard to allegations about not providing police protection against the threats, it appears from the record that the applicant had forwarded such application to the DSP for providing protection and objections raised against the reports filed before the Apex Court are to the extent that the applicant is involved in conspiracy of destroying evidence and not beyond that.

5. Mr. B.G.Patni, learned advocate for the complainant could not represent his case in proper perspective due to his relationship with the deceased-Rahul and continued to interrupt arguments of learned counsel appearing for the applicant - accused and became over sentimental. Therefore, this court thought it fit to provide assistance of any senior counsel of his choice. Accordingly, Mr. KJ Shethna, learned senior counsel with the consent of Mr. B.G.Patni, learned counsel for the complainant, rendered valuable assistance. However, after effective hearing of both the sides at length, the matter was fixed for order on 15.02.2011. Once again, Mr. B.G. Patni, learned advocate made an attempt to make submissions by tendering an additional affidavit dated 14.02.2011 and thereafter also the case was heard again with able assistance of Mr KJ Shethna, learned counsel for the complainant. It is necessary to produce order dated 15.02.2011 passed by this Court, which reads as under:

"By an order dated 28.1.2011, learned advocate appearing for the complainant requested that he would like to seek assistance of Mr. K.J. Shethna, learned senior counsel on his behalf and the matter was adjourned.

Later on, due to inconvenience on the part of the Mr. K.J. Shethna, learned senior counsel the matter was adjourned on 10th February, 2011 and thereafter the matter was extensively heard on the above date. The matter was again adjourned to 11th February, 2011.

That learned APP at the end of the submissions of counsels for the parties, learned APP submitted that certain reports of investigation which was placed before the Apex court needs to be perused by this Court and the matter was adjourned to 14th February due to paucity of time the, matter could not be taken up and it is adjourned today.

Mr. K.J.Shethna, learned senior counsel is not available for any further submissions today and particularly when the matter was kept for orders, an additional affidavit is filed by the original complainant and Mr. Patni, learned advocate for the complainant would like to argue again. The copy of the additional affidavit dated 14.2.2011 is not served upon learned counsel for the accused seeking bail before this Court.

At this juncture, Mr. Patni, learned advocate for the complainant submits that he would like to serve the copy of the additional affidavit to the learned counsels for the applicants respectively in both the above cases.

However, at 14.30 hrs. Mr. K.J.Shethna, learned Senior Counsel appeared and regretted tendering of additional affidavit after arguments were over but learned senior counsel was permitted to address the Court and, thereafter learned counsel again submitted extensively on the additional affidavit filed by the complainant and after hearing the parties, the matter is kept for orders on 17.02.2011."

6 Mr. K.J.Shethna, learned Senior Counsel, upon request made by this Court and with consent of learned advocate for the complainant Shri B.G.Patni submitted that at this stage, though supplementary charge sheet is filed but it cannot be said that the investigation is complete and considering chain of events leading to registration of the FIR and unfair and bias investigation carried out by the applicant, this Court will not be justified in releasing the accused on bail. It is submitted that the accused has entered into conspiracy with other co-accused and circumstances reveal that involvement of the accused in commission of crime other than section 201 viz. 302 of the IPC, cannot be ruled out and a young boy aged about 18 years was killed in a gruesome manner and failure on the part of the applicant to take correct and proper action in accordance with law would dis-entitle him of getting any relief in discretionary jurisdiction under Section 439 of the Code of Criminal Procedure, 1973. Mr.K.J.Shethna, learned senior counsel vehemently opposed grant of bail on the ground that the applicant accused is arrested only after directions were issued by the Apex Court to carry out further investigation by CID (Crime) and when other police personnel of higher rank are not traceable and the subject matter is pending before the Apex Court, the applicant, if released on bail, is likely to influence witnesses and may also tamper with evidence and, therefore by even imposing conditions also the applicant cannot be released on bail. Mr. Shethna, learned Senior Advocate has referred to the order dated 30.07.2009 passed by the Apex Court in SLP (Crime) No. 5906-5907 of 2008 and submitted that now the next date of hearing is on 04.04.2011. It is next contended by the learned senior counsel extensively referred to affidavits filed by the complainant and various statements of Hasumitiben, a constable and other relatives of the deceased and submitted that prima facie involvement of the applicant in the crime is not ruled out and, therefore, no interference is called for with the order passed by the trial Court in refusing bail.

7. Shri Kartik Pandya, learned APP for the respondent -State is unable to bring any material to reveal that the applicant accused is involved for the offence other than Section 201 of IPC. However, learned APP has fairly submitted relevant papers for perusal of this Court.

8. Having heard learned counsel for the parties and considering the facts and circumstances of the case, prima facie, after filing of supplementary charge sheet and thorough investigation carried by Deputy Superintendent of Police offences punishable under Section 201 read with Sections 465 and 471 of IPC surfaced on the record. So far as Section 201 of the IPC is concerned, the same is bailable and the applicant of Criminal Misc. Application No.16081 of 2010 is already placed under suspension and his headquarters is fixed at Vadodara and he is native of Rajkot District and therefore there is no possibility of tampering with any record, which is already in the custody of the authority and by imposing suitable conditions, he can be kept away so that he may not influence the witnesses.

9. It may not be necessary to discuss the evidence in detail, at this stage, considering the overall facts and circumstances of the case and when the investigating officer has already submitted various reports before the Apex Court and the matter is now adjourned to 04.04.2011, I am of the view that the role attributed to the applicant in the supplementary charge sheet read with section 120B of the IPC, prima facie, no material surfaces on record, at this stage, even after accused have undergone various lie detecting test, including narco analysis, I am inclined to enlarge the accused on bail by imposing suitable conditions including that the applicant shall not enter into Valsad, Surat, Navsari, Tapi, Dang and Bharuch districts of state of Gujarat except for attending trial and marking presence in the police station and breach of any of the conditions shall result into the cancellation of bail granted to the applicant, if such application is preferred before the concerned court, after considering the merit of such application in accordance with law.

9.1 For arriving at the above conclusion, I have perused papers pertaining to charge sheet, supplementary charge sheet, other notings and reports submitted by the Investigating Officer and learned APP appearing on behalf of the State. The following other aspects weighed with this court in addition to what is recorded in paras 8 & 9 of this order, are that;

[i] Learned Sessions Judge in the order dated 15.12.2010, unequivocally came to the conclusion that no case of conspiracy surfaced on record vis-a-vis offence and punishment under section 302 read with Section 120B of the IPC and prima facie no involvement of the accused was found. However, the application for bail came to be rejected by learned Sessions Judge on the ground of subsequent allegations of tampering and/or destroying the evidence pertaining to the above crime by the applicant. However, the accused facing similar charges under section 201 of the IPC have been enlarged on bail.

[ii] Statements recorded by the I.O. of labourers and employees of Nagarpalika, Umargaom with regard to allegations of the complainant about harassment and even witness Ramchandra Bapat denied any share in the property to any family member of Dr. Bapat;

[iii] Even allegations of complainant party regarding threatening and harassing caused by accused or other persons are not well-founded. On earlier occasion, complainant asked for police protection against one Kailash Jhaveri of Umargaon and not against accused party of the present FIR. The said Kailash Jhaveri was charge sheeted after investigation and the case is pending.

[iv] The applicant herein had forwarded his recommendations to higher officers to provide police protection to the relatives of the complainant.

[v] That even presence of mob of 200 persons gathered near postmortem room to disrupt investigation and postmortem etc. is not supported by any material.

[vi] The team of experts and Dr. G.R.Patel, MS, Professor and Head, Department of Surgeon (GMC) at Surat about nature of injuries and usage of weapon, at this stage, prima facie, at the most indicate the manner in which the crime was committed. However, the same does not connect the applicant in any manner with the alleged crime under section 302 read with 120B of the IPC. However, this aspect is subject to detailed scrutiny by the trial court at the stage of evidence and further discussion is necessary.

[vii] Even objections submitted against the detailed reports of investigation carried out before the apex Court are about conspiracy for the offences under Section 201 of the IPC of destroying the evidence and not beyond that .

[viii] Allegations of connections of accused with political leaders, anti-social elements and mafia are not supported by any material worth noting.

[ix] That the application preferred by the complainant under section 439(2) of the Code for cancellation of order of bail enlarging some of the co-accused by learned Sessions Judge, Valsad vide order dated 08.10.2010, came to be disposed of by this Court (Coram : Hon'ble Mr. Justice Z.K.Saiyed), upon a request made by the learned counsel for the applicant that he would like to approach the Hon'ble Supreme Court.

9.2 Therefore, considering the law laid down by the Apex Court in the case of Jayendra Saraswati Swamigal v. State of Tamilnadu reported in (2005)2 SCC 13, that, the considerations which normally weigh with the court in granting bail in non-bailable offences basically;

[i] the nature and seriousness of the offence;

[ii] the character of the evidence;

[iii] circumstances, which are peculiar to the accused;

[iv] a reasonable possibility of the presence of the accused not being secured at the trial;

[v] reasonable apprehension of witnesses being tampered with; and [vi] the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case, in my view, prima facie, a strong case has been made out for grant of bail to the applicant in exercise of powers under Section 439 of the Code of Criminal Procedure.

10. In the facts and circumstances of the case, the application is allowed and the applicant is ordered to be released on bail in connection with first information report registered at C.R. No.I 60 of 2007 with Umargaon Police Station on executing a bond of Rs.5,000/- (Rupees Five thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall;

not take undue advantage of liberty or misuse liberty;

not act in a manner injurious to the interest of the prosecution;

surrender passport, if any, to the lower court within a week;

not leave the State of Gujarat without prior permission of the Sessions Judge concerned;

mark presence at the concerned police station on the first Sunday of every month between 10.00 a.m. and 3.00 p.m. for three months only;

furnish the present address of his residence to the I.O. and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;

shall not enter into districts of Valsad, Surat, Navsari Tapi, Dang & Bharuch except for attending trial and marking presence in the police station.

11. The Authorities will release the applicant only if 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.

12. 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. D.S. Permitted.

At this stage, learned advocate for the complainant requested the court to stay the operation of this order, which is vehemently opposed by the learned counsel for the accused on the ground that the applicant is behind the bars since long and therefore the said request may be rejected. However, considering the overall facts and circumstances of the case, request of the learned counsel for the complainant is rejected.

(ANANT S. DAVE, J.) *pvv Top

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