Gujarat High Court
Jaysinh Gulabsinh Parmar vs State Of Gujarat & on 12 June, 2015
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.MA/10080/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 10080 of 2015
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JAYSINH GULABSINH PARMAR....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR UMESH A TRIVEDI, ADVOCATE for the Applicant(s) No. 1
MR RC KODEKAR, SPECIAL ADVOCATE for the Respondent(s) No. 2
MR NJ SHAH, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 12-15/06/2015
ORAL ORDER
1. This application has been preferred under Section 439 of the Code of Criminal Procedure 1973 in connection with the offence being RC-3(S)/2011- CBI/SC- III/New Delhi for the offence punishable under Sections 120-B, 341, 342, 364, 365, 302, 203 and 114 of the Indian Penal Code.
2. The brief facts of the present applicant are that during the service in Crime Page 1 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM R/CR.MA/10080/2015 ORDER Branch, Ahmedabad City, he was public servant and under the colour of official duty when he tried to find out information which was received by his authority from the intelligence sources, at that time so called incident took place and in result of that later on the incident was investigated by CBI and in result of that the applicant was arrested and send to judicial custody on 21.12.2012 alongwith charge-sheet. The present applicant was produced before the trial Court alongwith the charge-sheet and from that date present applicant is in Sabarmati Central Jail, Ahmedabad,
3. The case of the prosecution is that on the complaint of Jaysinh Gulabsinh Parmar, the then PI, DCB, Ahmedabad, CR No.I-03 of 2003 dated 13.1.2003 for the offences punishable under Sections 120- B, 121- A, 122, 123, 307, 353, 186 & 224 of Page 2 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM R/CR.MA/10080/2015 ORDER Indian Penal Code and under Section 25(1)
(b) and 27 of Arms Act and under Section 135(1) of Bombay Police Act had been registered at DCB, Ahmedabad, wherein it had been alleged that accused persons, namely, Sadik Jamal Mahetar - resident of Bhavnagar, Tariq Parveen - resident of Dubai, Salim Chiplun - resident of Karachi, Pakistan, Anis Ibrahim - resident of Karachi, Pakistan Chhota Shakeel - resident of Karachi, Pakistan, Dawood Ibrahim - resident of Karachi, Pakistan, one local Maulana - resident of Dubai and others in conspiracy with each other and ISI of Pakistan with ulterior motive of disrupting India and to achieve their ulterior goal, made attempts of waging war against Government of India by collecting arms and ammunition, committed offence against the State with intention to kill Shri Narendrabhai Modi, Page 3 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM R/CR.MA/10080/2015 ORDER Chief Minister, Gujarat and Dr. Praveenbhai Togadia, sent LeT Terrorist Sadik Jamal Mahetar with imported illegal weapon.
4. It was also alleged therein that on 12.1.2003 an information was received by Crime Branch, Ahmedabad that Sadik Jamal was to come near Jai Ambe Traders, Saibaba Complex, Galaxy Cinema, Naroda, Ahmedabad to meet his associate at about 23:30 hours that day, hence Crime Branch officers/officials kept a watch near the said place and at about 01:15 hours on 13.1.203, when efforts were made to apprehend Sadik Jamal, he opened fire on the police party. The police officers, namely, PI - J.G.Parmar and PI - I.A.Saiyed then fired five and six rounds from their respective service revolvers in self defence and as a result of their firing.
Sadik Jamal got injured and shifted to
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Civil Hospital, Ahmedabad, where he was declared dead by the doctor.
5. The investigation of aforesaid case CR No.I-03 of 2003 dated 13.1.2003 of DCB, Ahmedabad was initially conducted by H.P.Agravat, the then PI/In- Charge, ACP, DCB, Ahmedabad till 6.4.2003 followed by G.L.Singhal, the then ACP, DCB, Ahmedabad. The investigation of the case was supervised by D.G.Vanjara, the then DCP (Crime), Ahmedabad and P.P.Pandey, the then Joint CP (Crime), Ahmedabad. Following investigation, "A" Summary Report dated 17.12.2004 was submitted by DCB, Ahmedabad, in the Court of Metropolitan Magistrate, Court No.11, Ahmedabad, on 28.12.2004 and the same was accepted by the Court on 12.1.2005.
6. The family members of the deceased Sadik Jamal suspected foul play in the Page 5 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM R/CR.MA/10080/2015 ORDER alleged encounter killing of Sadik Jamal, but could not dare to approach any authority to complain there against due to threat caused by D.G.Vanjara, DCP (Crime), Ahmedabad, to the father of deceased Sadik Jamal. However, the family members got a ray of hope of justice when alleged encounter killing of Shaikh Shohrabuddin was ordered by the Hon'ble Supreme Court to be investigated by CBI. Following this, Sabbir Jamalbhai Mahetar, brother of deceased Sadik Jamal filed a Special Criminal Application No.963 of 2007 dated 10.5.2007 before the High Court of Gujarat at Ahmedabad praying for appropriate writ, direction or order to the State for registration of a case against P.P.Pandey, D.G.Vanjara and other police officers involved in the conspiracy of killing of Sadik Jamal on 13.1.2003 and hand over investigation to CBI or any Page 6 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM R/CR.MA/10080/2015 ORDER other agency as deemed fit by High Court.
7. During the pendency of the hearing of the aforesaid application before the High Court, Sabbir Jamal Mahetar could get a copy of application being MCOC Special Case No.4 of 2003 filed by Ketan Tirodkar in the MCOC Court, Mumbai, and filed an amendment petition before the High Court in the matter.
8. During the pendency of hearing of the aforesaid application, Ketan Kamlakar Tirodkar, while in judicial custody in Arthur Road Jail, Mumbai, as an under trial prisoner in MCOC Special Case No.4 of 2003 also filed an affidavit dated 28.4.2008 in the Special Criminal Application No.963 of 2007 before the High Court of Gujarat claiming profiling of Sadik Jamal as a member of D-gang and contract of killer of LeT and his handing Page 7 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM R/CR.MA/10080/2015 ORDER over to Gujarat police for killing him in a stage managed encounter.
9. The High Court of Gujarat after hearing the concerned parties, finally vide order dated 16.6.2011 disposed of the aforesaid Special Criminal Application No.963 of 2007 with the direction to DCB, Ahmedabad to register the case relating to killing of Sadik Jamal and transfer the case to CBI for investigation.
10. Following the order of High Court, Sabbir Jamalbhai Mahetar submitted a written complaint dated 18.6.2011 to the Police Inspector, Crime Branch, Ahmedabad for registration of a criminal case relating to alleged fake encounter killing of Sadik Jamalbhai Mahetar.
However, DCB, Ahmedabad in pursuance
to High Court order dated 16.6.2011
registered CR No.I-24 of 2011 dated
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20.6.2011 under Sections 341, 342, 364, 365, 302 and 114 of Indian Penal Code against the then police officials of Gujarat and Maharashtra States and others and transferred the case to CBI for investigation. The CBI re-registered the instant case i.e. RC-03(S)/2011- CBI/SC- III/New Delhi on 15.7.2011 and took up the investigation.
11. The investigation conducted by CBI has revealed as under :-
12. Sadik Jamalbhai Mahetar, date of birth 19.10.1975, son of Jamalbhai Mohd.bhai Mahetar - resident of Uparkot, Kalanala, Bhavnagar, Gujarat had left Bhavnagar, Gujarat in 1996 after an altercation with his father following registration of a criminal case against him - Sadik, vide FIR CR No.II-691 of 1996 under Sections 323, 504 and 506(2) of Indian Penal Code on Page 9 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM R/CR.MA/10080/2015 ORDER 28.11.1996 at "A" Division Police Station, Bhavnagar, Gujarat on the complaint of Rajesh B. Dani, Rajesh Medical Store, Bhavnagar, and came to Mumbai through one Aziz Chaipav (since expired), a friend of Tariq Parveen - resident of Mumbai. In Mumbai, Sadik started working as house help for Tariq Parveen, an associate of Dawood Ibrahim.
13. During 2000, Tariq Parveen shifted to Dubai and started living there. In early 2002, he also called Sadik Jamal to Dubai. Before leaving for Dubai, Sadik Jamal had got issued an Indian Passport No.E- 0249155 dated 7.12.2001 from Regional Passport Office, Ahmedabad. In Dubai also, Sadik Jamal used to work as a house help at the residence/office of Tariq Parveen. During October 2002, due to altercation with associates of Tariq Parveen, Sadik Jamal was sent back to Page 10 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM R/CR.MA/10080/2015 ORDER India by Tariq Parveen. On return to India, Sadik Jamal had visited Bhavnagar and Mumbai.
14. After return of Sadik to India, an input was generated by Subsidiary Intelligence Bureau (SIB), Mumbai that Sadik Jamal was a D-gang member and arrived from Dubai with an intention to kill certain Right Wing Hindu Leaders.
15. During the month of Ramzan, Sadik Jamal was arrested on 9.11.2002 alongwith five others while gambling and a case vide FIR CR No.II-536 of 2002 was registered at "A" Division Police Station, Bhavnagar, under Section 12 of Gambling Act and they were released on bail on the same day.
16. Based on the inputs received from Intelligence Bureau, the local police of Bhavnagar started searching for Sadik Jamal. During the house search also, no Page 11 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM R/CR.MA/10080/2015 ORDER incriminating documents/articles were recovered by Bhavnagar police. However, one old family photograph taken during the childhood of Sadik Jamal was taken by Bhavnagar police for further enquiries.
17. Sadik Jamal suspecting his apprehension by Bhavnagar police, Gujarat went to Mumbai and stayed with Ahmad Abdul Karim @ Zahid, brother of Tariq Parveen in order to seek his help in the cases pending against him at Bhavnagar, Zahid in turn took Sadik Jamal t one of his very well known officers of Mumbai SIB for help. As per advice of said SIB Officer, Zahid further took Sadik Jamal to Andheri (East), Mumbai near the office of Crime Branch, CIU, Andheri where in a stage managed joint operation of SIB, Mumbai and CIU, Andheri, Crime Branch, Mumbai was undertaken and at the instance of SIB, Mumbai, Sadik Jamal was Page 12 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM R/CR.MA/10080/2015 ORDER apprehended on 19.12.2002 from a place near Arsa Hotel, Andheri (East), Mumbai, at CIU, Andheri, Sadik Jamal was subjected to interrogation by the officers of SIB, Mumbai. One of days during which Sadik Jamal was kept there, Zamir Kazi who used to visit the said office for marking his attendance in pursuance of bail conditions also saw him.
18. Tarun A. Barot, the then PI, DCB, Ahmedabad, alongwith other staff left Ahmedabad for Mumbai on 2.1.2003 in an official vehicle bearing registration No.GJ- 1-G-3343 (P-194 Armada Jeep), driven by driver - Jiluji Arjunji Chavda and reached and reached Mumbai on 3.1.2003. He 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 Page 13 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM R/CR.MA/10080/2015 ORDER Crime Branch Office, Bungalow No.15, Dafnala, Shahibaug, Ahmedabad, till his killing in the intervening night of 12/13.1.2003. During the period of said confinement, the Police Vehicle P-170 ) Regn. No.GJ 1G 3081 Tempo Traveler) remained deployed at said premises for movement of the DCB officials for security/watch duty of detainee Sadik Jamal.
19. During 2002- 03, accused persons, namely, J.G.Parmar, Tarun A. Barot, I.A. Saiyed and K.M.Vaghela were posted / functioning as Inspectors , R.L.Mavani and G.H.Gohil as Sub Inspectors and Ajaypalsingh Siyaram Yadav and Chhatrasinh Manubha Chudasama as Police Constables at Crime Branch, Ahmedabad.
20. As a part of pre- planned conspiracy, on Page 14 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM R/CR.MA/10080/2015 ORDER 12.1.2003 evening, PI J.G.Parmar alongwith his other colleagues, namely, PI
- I.A.Saiyed, PI - K.M.Vaghela, PSI - R.L.Mavani, PSI - G.H.Gohil, PC Ajaypalsingh Siyaram Yadav and PC Chhatrasinh Manubha Chudasama discussed the modalities of elimination of Sadik Jamal in a stage managed encounter at Sai Baba Complex area, Galaxy Cinema, Naroda, Ahmedabad. Accordingly, PSI - G.H.Gohil visited Bungalow No.15, Dafnala, Shahibaug, Ahmedabad, at about 20:00 hours and then at about 22:00 hours he accompanied by other team members took Sadik Jamal from Bungalow No.15 to Sai Baba Complex area, Galaxy Cinema, Naroda, Ahmedabad in a Tempo- Traveler Police Vehicle No. P-170. At about 22:00 hours. PI - I.A. Saiyed accompanied by other team members left Crime Branch Office, Gaikwad Haveli, Page 15 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM R/CR.MA/10080/2015 ORDER Ahmedabad, in official vehicle P-137 (Regn. No. GJ 1G 2725 Ambassador Car) whereas PI - J.G.Parmar accompanied by other team members left the office in a private Tata Sumo vehicle (Regn. No.GJ 10F 3855). At about 22:30 hours they all reached near Sai Baba Complex, Galaxy Cinema, Naroda, Ahmedabad.
21. The intervening night of 12/13.1.2003 was a cold and dark night. There were no street lights near Sai Baba Complex area. The chosen place of encounter was situated on the outskirts of Ahmedabad city and was a secluded area particularly during the night. In order to further avoid any eye witness/presence of any passersby near the said place, the above said police personnel waited for setting in the dead of night to start the encounter process. Finally at about 1:15 hours on 13.1.2003, Sadik Jamal was shot dead in a Page 16 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM R/CR.MA/10080/2015 ORDER stage managed encounter near Jai Ambe Traders, Saibaba Complex, Galaxy Cinema, Naroda, Ahmedabad by the encounter team members. Out of total 11 rounds / bullets fired by the encounter party, five and six rounds respectively were fired from their .38" service revolvers by PI - J.G.Parmar and PI - I.A.Saiyed. Further to give the said stage managed encounter a colour of genuine encounter, the encounter party members planted a country made revolver of .32" bore and ammunition on deceased Sadik Jamal and shown their recovery from the place of encounter.
22. After the stage managed encounter, the body of Sadik Jamal was taken to Civil Hospital, Ahmedabad by the police party members, where the attending doctor declared him dead. When Sadik Jamal had been brought and admitted in the Page 17 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM R/CR.MA/10080/2015 ORDER hospital, PI - Tarun A. Barot had been also accompanying the encounter party members.
23. Thereafter at about 4:00 hours on the written complaint of PI - J.G.Parmar, PSO, DCB, Ahmedabad registered a case vide FIR CR No.I-3 of 2003 under Sections 121A, 122, 123, 307, 353, 186 and 224 of Indian Penal Code, 25(1)(b) and 27 of Arms Act and 135(1) of Bombay Police Act against Sadik Jamal Mahetar and six others and as per direction of D.G.Vanjara, the then DCP, Crime Branch, Ahmedabad, H.P.Agravat, the then PI/Incharge ACP took up the investigation.
24. On 13.1.2003, on I.O.'s request, Shri Gaurav, J. Prajapati, the then SDM, Ahmedabad conducted the inquest proceedings on the dead body of deceased Sadik Jamal Mahetar at Postmortem Room Page 18 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM R/CR.MA/10080/2015 ORDER of Civil Hospital, Ahmedabad. During inquest, he observed bullet injuries at various parts of the body of the deceased and advised to get its postmortem conducted to ascertain the exact cause of death.
25. Thereafter postmortem of the dead body of deceased Sadik Jamal Mahetar was conducted by a panel of five doctors of Department of Forensic Medicine, B.J.Medical College, Ahmedabad on 13.1.2003. As per postmortem report, 14 injuries were found on the body of deceased, out of which 7 were entry wounds, 5 exit wounds, 1 irregular lacerated wound and 1 contusion on the back of right thigh. During postmortem, two fired bullet lead were recovered from inside the body of the deceased. The cause of death was opined to be due to shock and hemorrhage following injuries Page 19 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM R/CR.MA/10080/2015 ORDER sustained to body by bullets of fire arm. All the injuries were anti-mortem in nature.
26. Out of the two fired bullet lead recovered from the body of the deceased during postmortem, one each had been fired from .38" Service Revolvers of PI - I.A. Saiyed and PI - J.G.Parmar as opined by the Ballistic experts. The five cartridge cases handed over by PI - J.G.Parmar and six cartridge cases handed over by PI - I.A.Saiyed to I.O. H.P.Agravat were opined to have been fired from their respective . 38" service revolvers.
27. PI - H.P.Agravat had seized one revolver, one misfired cartridge one cartridge case, blood soaked soil and Control Soil from the place of encounter on 13.1.2003. The said exhibits were forwarded by him to FSL, Ahmedabad for Page 20 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM R/CR.MA/10080/2015 ORDER opinion. The FSL, Ahmedabad opined that it was a country made revolver capable of chambering and firing .32" revolver cartridge and was in working condition. An indentation mark could be seen on the percussion cap of the misfired cartridge and it was opined that the said cartridge was attempted for firing from the said revolver. The misfired cartridge was test fired from the said revolver by the FSL expert and opined to be a live cartridge. As regard to cartridge case, it was opined that it was fired cartridge as nitrate and lead could be detected during chemical examination, however, it could not be compared with the said revolver due to missing of percussion cap thereon. Further with respect to the six cartridges recovered during inquest proceeding on 13.1.2003 and forwarded to FSL, Ahmedabad by PI - H.P. Agravat, the Page 21 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM R/CR.MA/10080/2015 ORDER expert had opined that the said cartridges were of .32" bore and were live ammunitions.
28. The CFSL expert after comparing aforesaid control soil, lifted from the place of encounter, with the soil particles extracted from the T-Shirt and Jeans pant of the deceased and aforesaid blood soaked soil, lifted from the place of encounter, opined that the general physical characteristics and density gradients and distribution of particles are similar to each other. It goes to suggest that the stage managed encounter had been place near Jai Ambey Traders, Sai Baba Complex, Naroda, Ahmedabad.
29. The CFSL expert further generated the DNA profile from the T-Shirt, Jeans pant and blood sample of the deceased and opined the blood to be of male origin and Page 22 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM R/CR.MA/10080/2015 ORDER consistent with each other. The DNA profile generated from the aforesaid exhibits was further compared by the experts with the DNA profile generate from the blood sample of Jamalbhai Mohd.bhai Mahetar - resident of Uparkot, Kalanala, Bhavnagar, and it was opined that deceased Sadik Jamalbhai Mahetar was the biological son of said Jamalbhai Mohd.bhai Mahetar.
30. During postmortem the panel of doctors had taken two skin pieces from the wounds of deceased and same had been forwarded by PI - H.P.Agravat to FSL, Ahmedabad FSL, Ahmedabad opined that residue of fired ammunition, nitrate and lead could be detected on the skin pieces, FSL, Ahmedabad, also opined presence of residue of fired ammunition, nitrate and lead around the holes of T-Shirt of deceased. These suggest that the firing Page 23 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM R/CR.MA/10080/2015 ORDER was done by the police party from a very close range.
31. The investigation established that Sadik Jamal was killed in a stage managed encounter while in illegal confinement of Crime Branch, Ahmedabad, Gujarat Police. Hence the question of firing by Sadik on the police party and recovery of revolver and ammunition from his possession does not arise at all. Accused police officials in order to give this incident a colour of genuine encounter planted and effected recovery of the revolver and ammunition from deceased.
32. In pursuance of criminal conspiracy PI -
J.G.Parmar filed a false information respecting encounter knowing fully well that it was an offence of murder.
33. That the evidences, documentary, oral and circumstantial available on record Page 24 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM R/CR.MA/10080/2015 ORDER establish that accused persons by entering into a criminal conspiracy, committed the offences punishable under Sections 120B read with Sections 341, 342, 343, 302 and 203 of the Indian Penal Code.
34. The investigation relating to the complicity / involvement of other persons in the commission of crime relating to profiling Sadik Jamal as a terrorist and his killing in a fake encounter has been kept open and a further report under Section 173(8) of Criminal Procedure Code will be filed after the detailed investigation is completed.
35. Heard Mr.U.A.Trivedi, learned counsel for the applicant. He has read papers of the charge- sheet and vehemently contended that in the present case CBI agency who is incharge of the Page 25 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM R/CR.MA/10080/2015 ORDER investigation prima facie could not establish real role, mens rea and illegal act committed by the present applicant. He has further contended that as per the contents of complaint and statement recorded by the agency it is prima facie not established that it was fake encounter disclosed by the Crime Branch, Ahmedabad City prior to investigation made by CBI. He has contended that after registration of the offence at Crime Branch the State police has properly investigated the case and filed report of "A" Summary before the learned Judge and it was accepted by the Court of Metropolitan Magistrate Court No.11. He has further drawn attention of the Court to the investigation of CBI and contended that agency has collected evidence from the witnesses and also obtained expert's opinion from FSL and contended that as Page 26 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM R/CR.MA/10080/2015 ORDER per injury shown in the postmortem note he has raised a question that how the injury of the scalp shown in the postmortem note is possible as per the entry wound and exit wound shown. He has contended that this injury of the deceased create sufficient doubt. He has submitted that as per evidence produced on record, CBI has tried to contend that present applicant has committed fake encounter with the help of co-conspirator. He has drawn attention to the provisions of law and contended that it is true that in the case of criminal conspiracy direct evidence may not be available. It is required to be considered that even from the circumstantial evidence actual role of the applicant can be considered as self- defence and under the colour of duty. He has made a request that he is not praying bail on merit. He has contended that Page 27 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM R/CR.MA/10080/2015 ORDER originally eight accused persons were arrested and five accused persons are released on bail by the trial Court viz. (1) Kishoresinh M. Vaghela - accused No.3 (2) Ramjibhai L. Mavani - accused No.4 (3) Ghanshyamsinh H. Gohil - accused No.5 (4) Ajaypalsingh S. Yadav - accused No.6 and (5) Chhatrasinh M. Chudasama - accused No.7. He has contended that age of the present applicant is 68 years. He retired in the year 2006 and he is in jail since long period. He has contended that it is not possible to proceed with the matter by the trial Court or learned Special Judge, CBI in near future because investigation under Section 173(8) of the Criminal Procedure Code is pending. In view of the above, he has prayed to release present applicant on medical ground. In support of his submission he has relied on the decision in the case of Page 28 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM R/CR.MA/10080/2015 ORDER Dipak Shubhashchandra Mehta vs. Central Bureau of Investigation and Anr., (2012) 4 SCC 134 and in the case of Sanghian Pandian Rajkumar vs. Central Bureau of Investigation and Anr., (2014) 12 SCC 23.
36. Mr.R.C.Kodekar, learned Special Prosecutor has contended that so far as merit of the case is concerned there is ample evidence whereas conspiracy is proved against two accused persons. They are part in the stage managed encounter. They are party in the stage managed encounter accused. Investigation is pending with regard to role played by certain IB Officers. So far as role played by Ketan Tirodkar is concerned, it is the subject matter of investigation. During the course of hearing of the writ petition affidavit made by Ketan Tirodkar was mainly argued. He has stated before the Mumbai Court that as a matter of fact Page 29 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM R/CR.MA/10080/2015 ORDER introduction of deceased Sadik Jamal was made to Tariq Parveen who later on migrated to Dubai. As per affidavit of Ketan Tirodkar he also went to Dubai and he also found himself as a witness when Sadik Jamal was having some kind of altercation with Tariq's man and, therefore, from there he returned back and thereafter Ahmed Abdul Karim @ Jahid told him that Bhavnagar police is searching him and sought his help. Ketan Tirodkar being journalist was known to the officers of the Mumbai and most popular ATS officer Daya Nayak, encounter specialist. Thus, Sadik Jamal's introduction was made to Daya Nayak by Ketan and Sadik Jamal was taken into custody by CIO, Mumbai who was having possession and custody of Sadik Jamal.
However, investigation reveals that on
3.1.2003 he was taken to custody of
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Gujarat Police and he was kept at
Bungalow No.15. During the course of
investigation CBI did not rely upon the
affidavit of Ketan Tirodkar. According to the investigation, the Investigating Officer was having possession and custody of Sadik Jamal which is established by two independent witnesses. Custody was also established when it was taken in transit from CIU, Mumbai to Gujarat Police by two police constables of the Gujarat Police and he was kept in Bungalow No.15 which is also supported by two witnesses of the Gujarat Police. Of course their evidentiary value will be evaluated at the time of trial, but prima facie they were having custody of Sadik Jamal. So far as first part conspiracy is concerned, he has drawn attention of the Court from the charge- sheet papers and contended that conduct of the act of the DCB Crime Branch at the Page 31 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM R/CR.MA/10080/2015 ORDER time of registration of the first FIR which resulted into "A" Summary Report shows that upto that period there was a conspiracy of officers of the Crime Branch and it resulted fatal against the complainant. He has read original complaint of the complainant which is registered after direction given by this Court to the Crime Branch and contended that it is true that there was a delay in filing of the FIR but that cause is also disclosed. He has read further evidence and contentions of the case and contended that Apex Court has passed order in case of Sorahbuddin encounter case when brother of the deceased came before the Court then complaint was filed and investigation was carried out. He has read statement of the witnesses and contended that originally criminal conspiracy story starts from Mumbai with Page 32 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM R/CR.MA/10080/2015 ORDER the understanding of officers of Mumbai police as well as Gujarat police, the deceased was handed over to Gujarat police specially, officer whose daily diary was also recovered during the investigation, wherein visit to Mumbai was shown as secret visit with colleague police officer and from that date said conspiracy was in force and on the death of deceased Sadik Jamal it was over. Between that period the scenario which developed that issue was also investigated by CBI and in support of that sufficient evidence was collected in the form of statements, circumstantial evidence and expert's opinion of FSL and medical officer. He has contended that it is established law that in a case of criminal conspiracy there has not to be direct evidence to establish to connect one's conspiracy with co- conspirator in the criminal conspiracy. He Page 33 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM R/CR.MA/10080/2015 ORDER has contended that the said issue can be considered through evidence produced on record. He has repeated said story from the charge- sheet of CBI and contended that the chain of criminal conspiracy is prima facie proved and established through statement of witnesses and evidence collected by the agency. He has contended that it is a heinous offence in which innocent person is wrongly murdered by police officer of Crime Branch. He has contended that looking to the circumstances involved in this case, prima facie case is made out and this is not a case to entertain regular bail application. He has opposed submission of Mr.Trivedi made on medical ground. Lastly he has contended that till now further investigation under Section 173(8) of the Criminal Procedure Code is pending with CBI agency.
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37. Mr.N.J.Shah, learned APP appearing on behalf of the State has adopted arguments advanced by Mr.Kodekar.
38. I have heard the learned counsel for the respective parties. I have gone through charge- sheet papers as well as documentary evidence i.e. panchnama, case diary, statement of witnesses, contents of postmortem note and opinion of FSL. I have minutely perused first complaint of DCB Crime Branch and "A"
Summary Report submitted to Metropolitan Magistrate in connection with registration of offence and order for acceptance of Summary Report by learned Metropolitan Magistrate Court No.11. Thereafter present applicant prayed for bail before Special Judge, CBI Court, Ahmedabad and the said application for bail of the present applicant was Page 35 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM R/CR.MA/10080/2015 ORDER dismissed.
39. Mr.Kodekar, learned Special Prosecutor has fairly admitted that further investigation under Section 173(8) of the Criminal Procedure Code is pending and till now no progress report of further investigation is produced on record. Latest case diary is also not produced during the hearing of this application. It shows that in near future further investigation cannot be over within a short span.
40. In support of claim on medical ground Certificate issued by Dr.S.K.Vaghela, Nodal Officer, Ahmedabad Central Jail, Ahmedabad, is produced on record which reads as under :-
CERTIFICATE "This is to certify that Mr.Jaysinh Gulabsinh Parmar is an under trial Page 36 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM R/CR.MA/10080/2015 ORDER prisoner of Central Jail, Ahmedabad with prisoner No.1415/13.
After reviewing his treatment case papers which are suggested that the patient is a known case of hypertension, Parkinsonism with cervical spondylosis with radiculitis and constipation.
On dt.09/01/2013, the patient was referred to U.N.Mehta Institute of Cardiology and Research Centre for expert cardiac investigation and management where he was investigated and treated with antihypertensive drugs and advised regular BP checkup. He was regularly referred to U.N.Mehta Institute of Cardiology and Research Centre for follow up as and when advised by them.
He was also referred to orthopaedic, Neuromedicine and Neurosurgical dept. on dt.28/12/2012 and 18/01/13 for cervical spondylosis with radiculitis and Page 37 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM R/CR.MA/10080/2015 ORDER Parkinsonism where he was examined and treated accordingly by the concerned specialists at Civil Hospital Ahmedabad. He was regularly referred to orthopaedic, Neuromedicine and Neurosurgical department for follow up as and when advised by them, he had taken injection treatment and physiotherapy exercise for cervical spondylosis.
His latest MRI report done on 02/09/2014 suggests C4-5 block vertebra, disc osteophyte complex at C3-4, at C5-6 & at C-6-7 level, disc bulge at L4-5 and L5-S1 level with generative water loss.
He was also referred to ENT department on 03/05/2014 for complain of change in voice and medicine department on 03/05/2014, 21/05/2014 and 28/05/2014 for Hoarness of voice and constipation where he was examined and treated accordingly by the concerned Page 38 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM R/CR.MA/10080/2015 ORDER specialists at Civil Hospital Ahmedabad.
His USG KUB report suggests 4 mm calculus in lower calyx of left kidney.
He had taken treatment for cervical spondylosis, Parkinsonism and Gastritis from private hospital. At present his symptoms are there and he may take treatment from private hospital. This may be due to his old age (68 years).
He is regularly examined and treated by jail physician, jail surgeon and medical officers of jail dispensary as and when required and provided treatment as advised by concerned specialists at Civil Hospital Ahmedabad.
This certificate is issued on the basis of available case records at central jail dispensary.
Date : 27/02/2015 Place : Ahmedabad Central Jail.
Sd/-
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Dr.S.K.Vaghela
Medical
Officer
Central Jail Dispensary,
Ahmedabad. "
41. The Apex Court in the case of Dipak Shubhashchandra Mehta (Supra), held that though at the stage of granting bail, a detailed examination of evidence and elaborate documentation of merits of 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 accused is charged of having committed a serious offence - Penal Code, 1860, Ss.406, 420, 467, 468, 471 and 120B.
The Apex Court in paras 31, 33 and 34 held as under :-
"31. This Court has taken the view that when there is a delay in the trial, bail should be granted to the accused (Vide Babba v. State of Maharashtra and Vivek Page 40 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM R/CR.MA/10080/2015 ORDER Kumar v. State of U.P.) But the same should not be applied to all cases mechanically.
33. Considering the present scenario and that there is no possibility of commencement of trial in the near future and also of the fact that the appellant is in custody from 31.3.2010, except the period of interim bail i.e. from 15.9.2011 to 30.11.2011, we hold that it is not a fit case to fix any outer limit taking note of the materials collected by the prosecution. This Court has repeatedly held that when the undertrial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated.
34. As posed in Sanjay Chandra case we are also asking the same question i.e. whether the speedy trial is possible in the present case for the reasons mentioned Page 41 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM R/CR.MA/10080/2015 ORDER above.
The Apex Court in the case of Sanghian Pandian Rajkumar (Supra), held that court granting bail in non-bailable offences should exercise its discretion in a judicious manner and not as a matter of course. For grant of bail in such offences, though detailed examination of evidence and elaborate discussion on merits of the case need not be undertaken, reasons for prima facie conclusion why bail is being granted must be indicated in such order, particularly when the accused is charged with having committed a serious offence.
In the said case, three murders were allegedly committed by senior police officers, who were appellants in that case. They were in judicial custody pending trial for last 7 years. There was no possibility of conclusion of trial within reasonable Page 42 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM R/CR.MA/10080/2015 ORDER period. Many of the co-accused were already granted bail by trial Court / High Court and Supreme Court in that case. In view of such facts, appellants in that case ordered to be released on bail subject to conditions imposed therein.
The Apex Court in paras 10 and 23 held as under :-
"10. Before considering the claim of the parties and materials relied upon for and against the grant of bail, it is necessary to highlight the law relating to grant of bail in non- bailable offences. At the foremost, the court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though, for grant of bail, detailed examination of evidence and elaborate discussion on merits of the case need not be undertaken, there is a need to indicate Page 43 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM R/CR.MA/10080/2015 ORDER in such orders reasons for prima facie conclusion why bail was being granted, particularly, when the accused is charged of having committed a serious offence. In Kalyan Chandra Sarkar v. Rajesh Ranjan this Court, while considering Sections 437 and 439 of the Code of Criminal Procedure, 1973 ( in short "the Code") held that, amongst other circumstances of the case, the following factors are required to be considered by the court before granting bail : (SCC p.536, para
11).
"(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.
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(c) Prima facie satisfaction of the
Court in support of the charge."
23. In the light of the details allegations in the charge- sheet filed before the Court, many of the co-accused were granted bail by the trial Court / High Court and this Court and of the fact that both the appellants are in custody for nearly 7 years pending trial and also in view of the fact that it would not be possible for the Special Court to conclude the trial within a reasonable period as claimed by the learned ASG, we are inclined to consider their claim for bail."
42. On perusal of the papers it prima facie establishes that in the present case charge has not been framed and in view of observations of Apex Court and looking to the health condition of the applicant supported by the documents including the Page 45 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM R/CR.MA/10080/2015 ORDER certificate of Medical Officer, Central Jail, when Apex Court has laid down in both the above decisions that, on health ground and when there is no possibility of commencement of trial in the near future I am of the opinion that in such type of case the applicant is entitled to be released on bail on stringent conditions in order to safeguard interest of the CBI.
43. As per above observations, present applicant is ordered to be released on bail on executing a bond of Rs.1 lakh with two solvent sureties, each in a sum of Rs.5 lakhs to the satisfaction of the Special Judge, CBI, Ahmedabad on the following conditions;
(i) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him to Page 46 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM R/CR.MA/10080/2015 ORDER disclose such facts to the court or to any other authority.
(ii) The applicant shall remain present before the Court on the dates fixed for hearing of the case. For any reason due to unavoidable circumstances for remaining absent he shall give intimation to the Court and also to the Officer concerned of CBI and make a proper application that he may be permitted to be present through counsel.
(iii) The applicant shall surrender his passport, if any, if not already surrendered and in case if he is not a holder of the same, he shall file an affidavit.
(iv) In case he has already surrendered the passport before the Special Judge, CBI, that fact should be supported by an affidavit.
(v) Liberty is given to CBI to make an
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appropriate application for
modification/recalling the present order
passed by this Court, if the applicant
violates any of the conditions imposed by this Court.
(vi) maintain law and order and should cooperate the Investigating Officer;
(vii) not leave country or State of Gujarat without the prior permission of the concerned Special Judge, CBI, Ahmedabad;
44. If the breach of any of the above conditions is committed, the concerned Court will be free to issue warrant or take appropriate action in the matter.
45. Bail before the lower Court having jurisdiction to try the case. It would be open to the trial Court concerned to give time to furnish the solvency certificate if prayed for.
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46. Rule is made absolute. Direct service is permitted.
(Z.K.SAIYED, J.) KKS Page 49 of 49 CRIMINAL MISC.APPLICATION/10080/2015 16/06/2015 02:26:10 AM