Gujarat High Court
Akshitbhai Kadamkhatn Chhaya vs State Of Gujarat on 17 August, 2020
Author: Ashokkumar C. Joshi
Bench: Ashokkumar C. Joshi
R/CR.MA/9253/2020 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 9253 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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AKSHITBHAI KADAMKHATN CHHAYA
Versus
STATE OF GUJARAT
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Appearance:
LEARNED SENIOR ADVOCATE SHREE N. D. NANAVATY with MR PRATIK
Y JASANI(5325) for the Applicant(s) No. 1
LEARNED ADVOCATE MR. D. N. RAY with MR VICKY B MEHTA(5422) for
the Respondent(s) No. 1
MR. H.K. PATEL APP for the Respondent(s) No. 1
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CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 17/08/2020
ORAL JUDGMENT
1. This is an Application filed by the Applicant (Original Accused No.21) under Section 439 of the Criminal Procedure Code for enlarging him on Regular Bail in connection with the FIR No. 11208002200050 of 2020 registered with Aaji Dam Police Station, Rajkot for the offences punishable under Sections 302, 324, 143, Page 1 of 16 Downloaded on : Mon Aug 17 20:24:42 IST 2020 R/CR.MA/9253/2020 JUDGMENT 147, 148, 149, 120B of the Indian Penal Code and Section 135(1) of the Gujarat Police Act.
2. Heard learned Senior advocate Shree N. D. Nanavaty for learned Advocate Mr. Pratik Jasani for the applicant and with prosecution learned Advocate Mr. Vicky Mehta with learned advocate Shree D. N. Ray learned advocate for the complainant and learned APP Mr. H. K. Patel on behalf of the Respondent State of Gujarat through video conference.
3. Learned Senior Advocate Shree N. D. Nanavaty on behalf of learned Advocate Mr. Pratik Jasani vehemently argued that in the present case pursuant to the FIR there are in all 21 accused shown for the commission of offence under Section 302 of Indian Penal Code read with Section 120(b) of the Indian Penal Code (hereinafter referred to as "IPC"). But pursuant to the contents of the FIR there is not a single evidence, wherein the present accused No. 21 (Akshitbhai K. Chhaya) is shown, therefore, the present applicant neither present at the scene of offence nor even near the scene of offence. There is nothing incriminating material against the present accused in the charge-sheet. Merely, the present applicant ie. Akshitbhai K. Chhaya was only helping hand in the case of civil litigation, which was long drawn pending. Once upon a time, as per the allegations in the FIR, Mr. Akshitbhai K. Chhaya, the present applicant is to meet all such people and as per the allegations Mr. Akshitbhai K. Chhaya uttered words that "let it be killed one of the Darbar since Darbar is not empowered to crush the land through JCB, if the Darbar started JCB then one should be minus' therefore, learned Senior advocate Shree Nanavaty has Page 2 of 16 Downloaded on : Mon Aug 17 20:24:42 IST 2020 R/CR.MA/9253/2020 JUDGMENT argued that merely on the basis of such words one cannot be impleaded in the serious offence under Sections 302 read with Section 120(B) of the Indian Penal Code, since there is no actual conspiracy on record.
3. In the second limb of argument learned Senior Advocate Shree Nanavaty heavily placed reliance upon the judgment passed by the Co-ordinate Bench (Coram: G. R. Udhwani, J) dated 30.04.2020 wherein, Co-ordinate Bench enlarged Mr. Nathabhai, who seems to be the prime accused on regular bail. Therefore, learned Senior Advocate Mr. Nanavaty prayed for parity for the present applicant. Learned Senior Advocate Shree Nanavaty has drawn attention to the pages 34 and 35 to the effect that the prosecution is required to prove the prima-facie case upon the present applicant. Learned senior advocate Shree Nanavaty vehemently submitted that except two witnesses on record there is nothing on record which invite the offence under Sections 302 read with Section 120(B) of Indian Penal Code and both the statements are similar and stereo type.
4. In the third limb of argument learned Senior advocate Shree Nanavaty submitted that the present case, this is not in form of successive bail application, on the contrary, this Court passed order that applicant can move to this Court after charge-sheet, that is to say, the applicant can move to the concerned Sessions Court after filing of the charge-sheet. The applicant has already moved before the learned Sessions Court and the learned Sessions Court disallowed the regular bail application of the applicant, as a result of which the present application is filed before this Court, therefore, this one is not a successive bail application.
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5. In the fourth limb of the argument learned Senior advocate Shree Nanavaty placed reliance upon the Page 54 of the Paper Book wherein, it is shown that the land dispute is pending since long and the same is observed at para 3.3 dated 22.11.2017.
6. In the fifth limb of the argument learned Senior advocate Shree Nanavaty submitted that the applicant was assisting as an advocate in civil litigation, further pursuant to the record Mr. Nathabhai was the main accused. It is further submitted that only on the basis of the statement of co- accused one cannot be arraigned in the serious offence. It is also submitted that it is neither on oath nor before the notary / in prima facie, credence should not be given to the same.
7. In the sixth limb of the argument learned Senior advocate Shree Nanavaty has submitted that there should be some material on record on which trial can process against the present accused. In the last limb of argument learned senior advocate Shree Nanavaty submitted that as per the Hon'ble Supreme Court at Page 69 the present applicant is not party, NBW was issued. There is no action against the present applicant and therefore, in such litigation wherein applicant is not party and same is reflected from the order of Hon'ble Apex Court, upon such premises there is no prima facie case of conspiracy for the alleged offence under Sections 302 read with Section 120(B) of the Indian Penal Code.
8. In the seventh limb of argument learned Senior advocate Mr. Nanavaty has also placed reliance upon the statement of Ranjitsinh Bachubhai Jadeja at Page Nos. 83 -84 ie. Dated 27.02.2020 and the same is after one month. It is also stated that witnesses had heard Page 4 of 16 Downloaded on : Mon Aug 17 20:24:42 IST 2020 R/CR.MA/9253/2020 JUDGMENT through their own ears for the accused No. 13 is enlarged on regular bail by Co-ordinate Bench of this Court, so how accused No. 21 is decided that is the prima-facie answer given by the prosecution. Out of 21 accused, 10 persons formed unlawful assembly that is the role only.
9. Learned Senior advocate Shree Nanavaty has also pointed out that at Page No. 84, wherein the statement of Devendrasinh Jadeja, both the statements are stereotype and also drawn attention to the order passed by Co-ordinate Bench (Coram: G. R. Udhwani, J) of this Court at Page No. 34 wherein Hon'ble Court has observed the dispute is dragged up to the Hon'ble Apex Court and therefore, the case of the present applicant have better more parity, further name of the present applicant is whispered in fact the present applicant was not present at the scene of offence and even not near to scene of offence and not involved in the conspiracy under Section 120(B) of the Indian Penal Code.
10.In the last limb of argument learned Senior advocate Shree Nanavaty also submitted that since February 2020 the present applicant is languishing in jail and in judicial custody. Chargesheet is filed. The presence of accused is not required in such contemporary situation. The process of trial will take a long time. Since the Court is unable to work physically. Naturally the trial would get delay, so the applicant may be enlarged on regular bail.
11.Per contra, learned advocate Shree D. N. Ray with learned advocate Mr. Vicky Mehta heavily opposed the bail application on behalf of the original complainant. In the first limb of argument Page 5 of 16 Downloaded on : Mon Aug 17 20:24:42 IST 2020 R/CR.MA/9253/2020 JUDGMENT learned advocate Shree Ray submitted that considering the role attributed to the accused is master mind. Since learned Senior advocate Shree Nanavaty placed reliance on order of the bail granted to co-accused but there is greater role attributed to the present accused. Therefore, bail cannot be granted.
12.In the second limb of argument learned advocate Shree Ray submitted that the present applicant is the actual master mind. Pursuant to Page 63, Sale deed was carried out before the order of the Hon'ble Supreme Court, since Hon'ble Supreme Court has dismissed application by order dated 15.05.2020. Further, learned advocate Mr. Ray duly placed reliance on the complaint dated 01.06.2020 daughter-in-law of the applicant ie. Minalben Dhruvin Akshit Chhaya. On 10.05.2015 the said property was purchased by the applicant within five days prior to loosing the case at the Hon'ble Apex Court and sale deed was made and six months stay was prayed for protection of the standing crop but the same was not vacated. Further the interim relief was dismissed, contempt of Court was filed and filed review petition. In short, the sum and substance is that the present applicant was inclined to have the possession of the disputed land by hook and crook. Learned advocate Mr. Ray submitted that in sum and substance, the present applicant is the main conspirator and also placed reliance on the statement of Binalben at Page 85 dated 01.06.2016 and threat was given by the present applicant to the extent of killing somebody and the transaction and was of Rs. 2,07,70,000/-. It is stated that in the statement of Binalben, father-in-law of Akshitbhai Chhaya had given a complaint. Learned advocate Mr. Ray submitted that the present applicant is not an advocate but the applicant has presented Page 6 of 16 Downloaded on : Mon Aug 17 20:24:42 IST 2020 R/CR.MA/9253/2020 JUDGMENT himself as an advocate because of big money / amount is involved, therefore the applicant is master-mind and the co-accused Nathabhai was enlarged only on the ground of prolonging the trial and aged 65 years and little role. The learned trial Court has rightly observed that this is not the case to exercise the discretion in favour of the applicant. Learned advocate Shree Ray in sum and substance submitted that since the year 2015 the present applicant is centrally and mainly involved in the issue of disputed land and he was also party in the conspiracy and therefore, discretion may not be exercise by this Court in favour of the applicant for enlarging him on regular bail. Further, earlier two cases under Sections 467 of IPC is registered in the year 2001 and 2003 against present applicant, therefore, also learned advocate Shree Ray argued that the applicant is not deserving regular bail.
13.Learned APP Mr. H.K. Patel vehemently argued on behalf of the prosecution (State) and joined with argument of the learned advocate Shree Ray and pursuant to the FIR and case papers which transpires that there is an old enmity between the complainant and accused persons. Learned APP Mr. Patel has referred to three statements of Balubha, Narshi Balubha and Mahipatsinh Jadeja. It is also submitted that pursuant to papers, which transpire that the present applicant stated that if compromise is not made, the applicant would attend the Court as punishment and let it one be killed but the disputed land should not have any lost to the applicant.
14.Learned APP Mr. H. K. Patel has also placed reliance on the statement of Kumbhaji Ranjit Jadeja, wherein also stated that if the Page 7 of 16 Downloaded on : Mon Aug 17 20:24:42 IST 2020 R/CR.MA/9253/2020 JUDGMENT Darbar started JCB, in that case one would be minus (one would be lost by killing one person). Learned APP Mr. Patel further submitted that the applicant is not an advocate but presented himself as an advocate which shows the conspiracy by the present applicant. On the contrary he availed Rs. 60 lacs. There is also some agreement regarding the consideration and also incident is taken place in the year 2020.
15.Learned APP MR. H.K. Patel submitted that this is not a case of direct evidence but it is a case of indirect evidence, which squarely falls under Section 120(B) of IPC. Further it is a mistake that no material on record except two witnesses, on the contrary there is much evidence prima-facie upon the present applicant and therefore the present case should not be compared with case of co- accused Mr. Nathabhai, who was enlarged by Co-ordinate Bench.
16.In Re- learned advocate Shree Ray submitted that from the inception to till date the order of the Hon'ble Supreme Court the present applicant is involved in the dispute therefore the applicant is not deserving the discretion under Section 439 of the Code of Criminal Procedure.
17.In Re- learned Senior advocate Mr. Nanavaty in brief rejoinder submitted that the statement of co-accused is not the part of the charge- sheet, therefore, it has no credibility prima-facie in the eyes of law. Further, the call records also are not the part of the charge- sheet. Therefore, argument is misconceived that the present applicant is the master mind, in all there is no sufficient material on record, Prima-facie to bring the present application under Sections Page 8 of 16 Downloaded on : Mon Aug 17 20:24:42 IST 2020 R/CR.MA/9253/2020 JUDGMENT 302 read with Section 120(B) of the IPC.
18.Having heard the arguments advanced by all the sides, it is Cardinal principle of law of regular bail, as per the catena of decisions of Hon'ble Supreme Court, there are three factors which are required to be considered by this Court 1. Prima -facie case 2. Availability of accused at the time of trial and 3. Hampering and tampering with the witnesses.
19.Before we switch over to the merits of the bail application, it is to be noted that on 11.06.2020 this Court has an occasion to deal with this matter, wherein learned advocate Mr. Pratik Jasani for the applicant has withdrawn the application that is to say regular bail application with a liberty to file afresh before the learned Sessions Court since the charge-sheet is filed. Further it is to be noted that the Court has not opined on merits of the case, thereafter, the present applicant moved to the concerned learned Sessions Court and the learned Sessions Court has rejected the bail application upon which the present successive bail application is filed before this Court. Therefore, it would be appropriate when the detailed argument advance by all the sides, this Court is required to decide the application on merits.
20.On 29.01.2020, one Mr. Harendrasinh Mahipatsinh Jadeja has registered the FIR against the 21 persons before the Aaji Dam Police Station, Rajkot City, wherein, it is stated in brief that they belong to agriculture land at Thebchada Village for which the Hon'ble Supreme Court has passed order in their favour and held that the possession and ownership be handed over to the Page 9 of 16 Downloaded on : Mon Aug 17 20:24:42 IST 2020 R/CR.MA/9253/2020 JUDGMENT complainant, therefore, Mamlatdar has carried out process and possession of the land was handed over in the year 2018. At that time the help of Police was required. They used to call police protection. Further he had named accused in F.I.R. namely Chhagan Bijal Rathod, Magan Bijal Rathod and other 20 persons including the present applicant No. 1 Akshitbhai Chhaya who is before this Court for enlargement on regular bail under Section 439 of the Code of Criminal Procedure.
21.It is stated in the FIR that on 29.01.2020, when he was at disputed land at that time, Chhagan Rathod, Magan Rathod and Mahesh Rathod and others in all 12 persons were present, therefore, he called Police by dialling 100. He has also called his family members and friends Lakhadhirsingh Jadeja, Nathubha Jadeja, Ganpant, Narayan, Mahendrasinh, Vanraj, Pratapsinh Jadeja and Police to cool down accused persons, since the accused persons were not allowing them in the disputed land meanwhile, Bijal, Magan, Mahesh, Khoda, Sanjay and Laxman, Daxaben and others came with sword, Dhariya, Kodadi and Axe and attacked at Lakhadhir Navubha Jadeja. Further Bijal was having sword Mahesh was having Axe, attacked on Lakhadhirsinh Jadeja. Sanjay caught Lakhadhirsinh and attacked on Lakhadhirsinh upon the head and other parts of the body. Lakhadhirsinh fell down with blood stained and accused were run away. Thereafter, Lakhadhirsinh was taken to Government Hospital and where he was declared succumbed to injuries.
22.It is further stated in the FIR that the reason of occurrence was that accused No. 1 to 20 and Akshitbhai Chhaya made a criminal Page 10 of 16 Downloaded on : Mon Aug 17 20:24:42 IST 2020 R/CR.MA/9253/2020 JUDGMENT conspiracy / pre-planned and also unlawful assembly thereby killed family brother Lakhadhirsinh Navubha Jadeja, and the complainant was injured to some extent on body in this incident.
23.It is undisputed fact that as per the police papers and the statement of some of the witnesses including nut-shell of the FIR, the controversy centres around was an agricultural land valued crores of rupees, not only that but it is undisputed fact that the complainant has been ordered to avail ownership and possession of the land by Hon'ble Apex Court. Further defence of accused is that at prima facie level they belongs to possession since many years but ultimately prima facie it appears that the civil land dispute reached up to the Hon'ble Supreme Court. Further, as per the allegations, the present applicant was prime conspirator / master mind of all such incident.
24.Therefore, this Court has gone through the statement of different witnesses wherein, as per the statement dated 30.01.2020 of Mahendrasinh Temubha Jadeja, the present applicant was helping the accused persons to avail the possession of disputed land illegally.
25. As per the statement dated 02.02.2020 of the Mahendrasinh Temubha Jadeja, wherein, it is stated that present applicant (Mr. Akshitbhai Chhaya) used to inform that if the compromise is not arrived at, in that case, there is no objection, he would attend the Court time and again and the accused persons are required to invest money only. Further present applicant used to tell that even if the judgment does not come in their favour in that case, accused Page 11 of 16 Downloaded on : Mon Aug 17 20:24:42 IST 2020 R/CR.MA/9253/2020 JUDGMENT persons are not required to return the disputed land. Let one person be killed or one has to die on that basis present applicant was giving threat.
26.Further, as per the statement of Naransinh Ravubha Jadeja dated 10.02.2020, wherein it is stated that all such 20 accused as well as the present applicant (Akshitbhai Chhaya) made conspiracy / pre- planned and therefore, accused No. 1 to 12 made an unlawful assembly and attacked on Lakhdhirsinh Jadeja with deadly weapons and killed him and other persons were injured.
27. This Court has also gone through the statement of Naransinh Ravubha Jadeja dated 02.02.2020 wherein, it is also stated that all the accused have meeting with Akshitbhai Chhaya for three times prior to just three days of occurrence only. They talked about compromise at that time Akshitbhai Chhaya (present applicant) used to inform that if the compromise is not carried out then it is no objection he would reach to the Court time and again but accused are required to invest rupees only, whether Court made judgment in favour or not, they would not leave disputed land. Let one be killed or one would die.
28.This Court has also gone through the statement of Devendrasinh Govubha Jadeja dated 27.02.2020, wherein it is stated that all the 20 accused were talking with each other that if the Darbaro (caste- Darbar-Kshatriya) started JCB in that case, as per finalized with Mr. Akshitbhai Chhaya one would be minus / done away with one person. He has heard through his own ears. Both were alone left to the Thebchada Village before they informed to others such accused Page 12 of 16 Downloaded on : Mon Aug 17 20:24:42 IST 2020 R/CR.MA/9253/2020 JUDGMENT made the conspiracy and came to Khijalavali Vadi on 29.01.2020, in typed copy dated is 29.01.2020 whereas in Xerox Copy dated is 29.09.2020, which transpires the typographical mistake.
29. This Court has also gone through the statement of Ranjitsinh Bachubha Jadeja dated 27.02.2020, wherein, also it is stated that he has heard through his own ears that if the Darbaro started JCB in that case, as per finalized with Mr. Akshitbhai Chhaya one would be minus that is to say one would be killed.
30.Though learned Senior Advocate Shree Nanavaty has vehemently submitted that all the statements are stereotype but in humble view of this Court when there are five to six statements wherein, they have prima-facie and clearly support the case of complainant in that case prima facie, merely it cannot be said since it is stereotype therefore, it is far from prima facie case.
31.This Court has also referred to agreement (Samjuti Karar) between the Chhaya Legal Services Limited and accused persons Nathabhai Vadher, Popat Vadher, Bijal, Vallab wherein Rs. 1.50 Crores was decided for consultancy fees wherein Rs. 60 lacs was paid to applicant and Rs. 90 lacs was required to be paid to the applicant.
32.Though this Court is in full agreement with the learned Senior Advocate Shree Nanavaty for the applicant that everybody has right to advise to anybody, even Bond Writer even the applicant can also give legal advise to anybody but, with profound respect one should not take part in the statements or in activities which may provoke or instigate any person to commit serious offence like Page 13 of 16 Downloaded on : Mon Aug 17 20:24:42 IST 2020 R/CR.MA/9253/2020 JUDGMENT the present one. In the present case, in forming criminal conspiracy under Section 120(b) of the I.P.C. as per the allegations levelled against the applicant is on the same line that from the initial civil litigation till the judgment of Hon'ble Supreme Court the present applicant has taken active role not only in legal consultancy but prima facie had taken active role wherein, one may have illegal encouragement which might result into the serious criminal offence. Therefore, pursuant to the Police Papers including the statement of different persons, Samjuti Karar and others , it transpires that the present applicant was prima facie prime conspirator / master mind, though he might not be a present at the place of occurrence but his role cannot be thrown out for not reaching at prima facie case. It is the trail Court can assess and evaluate evidence before it but State has made out prima facie case. Therefore, with respect this Court is of the opinion that prima facie this is not a fit case to exercise the discretion vested under Section 439 of the Code of Criminal Procedure for allowing successive bail application.
33. Learned Senior Advocate Shree Nanavaty has also placed reliance on order of Co-ordinate Bench wherein, Co-ordinate Bench (Coram: G.R. Udhwani, J) has allowed the bail application of co- accused Mr. Nathabhai Jerambhai Vadher on 30.04.2020. This Court is in full agreement with the same, but with respect, as per law of parity if the role attributed to the present accused is same and identical in that case only, the Court should apply law of doctrine of parity but here as discussed earlier the present applicant Akshitbhai Chhaya has greater role in compare to the co-accused Mr. Nathabhai Vadher in commission of offence under Section 302 Page 14 of 16 Downloaded on : Mon Aug 17 20:24:42 IST 2020 R/CR.MA/9253/2020 JUDGMENT read with Section 120B of the IPC, who was enlarged on regular bail by the Co-ordinate Bench and therefore, with respect, law of parity is not applicable to the present applicant.
34. Learned senior advocate shree Nanavaty has also placed reliance upon the objection to telephone calls and statements of daughter- in-law dated 01.06.2016. This Court is in full agreement with neither the statement of co-accused nor the statement of daughter- in-law and telephone calls same is not referred to at this juncture, further prima facie same is not in chargesheet but as discussed earlier (Supra), there is greater role of the present applicant in the allegations levelled against him under Section 302 read with Section 120B of the IPC and therefore, this Court is not inclined to exercise the discretion vested under the Court.
35. It is made clear that this Court is in full agreement with the argument advanced by learned advocate Mr. Ray for the complainant as well as argument of the learned APP Mr. H. K. Patel for the State that there is a strong prima facie case upon the present applicant who is not deserving enlargement on Regular Bail.
36. So far as the antecedent is concerned, there are two offences under Section 467 of the IPC in the year 2001 and 2003 is registered upon the applicant, therefore, there are all chances of hampering and tampering with the witnesses. Further there is also doubt about his presence at the time of trial if release on bail and therefore also this court is not inclined to exercise discretion vested under the Court. Upon such sets of discussion this application is devoid of Page 15 of 16 Downloaded on : Mon Aug 17 20:24:42 IST 2020 R/CR.MA/9253/2020 JUDGMENT merits, hence disallowed.
37. It is made clear that trial Court shall not be influenced by observations made in bail application which is just prima facie findings for bail purpose only.
Rule is discharged.
(DR. ASHOKKUMAR C. JOSHI,J) PRK / JNW Page 16 of 16 Downloaded on : Mon Aug 17 20:24:42 IST 2020