Gujarat High Court
Salimbhai @ Kalabhai Khajubhai Sheikh vs State Of Gujarat on 23 May, 2022
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
R/CR.MA/9767/2021 ORDER DATED: 23/05/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 9767 of 2021
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SALIMBHAI @ KALABHAI KHAJUBHAI SHEIKH
Versus
STATE OF GUJARAT
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Appearance:
MR AA ZABUAWALA & MS. NAYNAVATI S JETHVA(10030) for the
Applicant(s) No. 1
MR MITESH AMIN, PP WITH MR MANAN MEHTA, APP for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 23/05/2022
ORAL ORDER
1. This regular bail application is filed by the applicant under Section 439 of Cr.P.C, seeking his release on regular bail in connection with FIR being C.R. No.11821030200568 of 2020 registered with Jhalod Police Station, District: Dahod for the offences punishable under Sections 302, 303 read with Section 120-B of IPC.
2. The case of the prosecution is that, criminal conspiracy alleged to have been formed to commit the murder of Hiren Patel, resident of City: Jhalod, District: Dahod. Accused numbering 1 to 9, including the present applicant have hatched a criminal conspiracy to kill deceased and in furtherance of said conspiracy, the work was entrusted to accused no.3 Irfan Pada, through accused no.4 Ajay Kalal and accused no.7 Imran Gudala, by accused no.8 Amit Katara, who had a political animosity with the deceased.
3. The alleged incident took place in early morning of 27.09.2020 between 5:30 a.m. to 6:30 a.m. when deceased Hiren Patel was on his regular morning walk and when he was on Jhalod to Dahod Road, he was hit by speeding pick up loading vehicle from behind Page 1 of 10 Downloaded on : Sat Dec 24 17:24:51 IST 2022 R/CR.MA/9767/2021 ORDER DATED: 23/05/2022 and after that, the driver with the vehicle fled away. During the course of investigation and considering the statement of witnesses and after making analysis of call details, C.C.T.V footage, it was revealed that due to political differences, the criminal conspiracy as referred above in para-1 had been hatched to kill the deceased by using vehicle so that the whole incident seen as an accident.
4. The outcome of the investigation revealed that, deceased Hirenbhai was elected Councilor of Jhalod Municipality, whereas, wife of accused no.8 Amit Katara, namely Kinjalben was being a Councilor, elected as President of Municipality, for a period of two and half years. In August-2020, the election was due for President and Vice President of Municipality. Deceased was in opposition party, representing BJP. The municipality body was ruled by Congress party and both President and Vice President were elected from the party, on account of majority of ruling body. Next election of President and Vice President was scheduled to be held on 26.08.2020. The deceased being an active member of rival group, managed to win over the councilors of ruling body and before election could held, deceased along with ruling party councilors, went to different places on tour and on the day of election, i.e. on 26.08.2020, they came back at Jhalod. Despite the whip issued by the Congress party, the councilors from the ruling party made cross- voting, as a result of which, as per the understanding made amongst the members, the Vice President Sonalben, though represented to the Congress party, was elected as President of Municipality with the support of opposition councilors and one Nandaben Vaghela, elected as Vice President who had fought election as independent candidate.
5. It is further case of the prosecution that, due to unexpected result of election, the accused no.8 Amit Katara being an active politician, having political grudge, accused no.4 Ajay Kalal supporter Page 2 of 10 Downloaded on : Sat Dec 24 17:24:51 IST 2022 R/CR.MA/9767/2021 ORDER DATED: 23/05/2022 of ruling party, decided to eliminate the deceased as they do not like the domination on the deceased on the municipal body, they formed criminal conspiracy to kill deceased Hirenbhai. The accused no.4 Ajay Kalal was given green signal from Amit Katara to execute the object of criminal conspiracy. Accused Ajay Kalal in consultation with accused no.7 Imran Gudala, contacted accused no.3 Irfan Pada, resident of Godhra, who has been convicted in connection with Godhra carnage and is sentenced to undergo life imprisonment. At the time of meeting, the accused no.3 Irfan Pada after release from jail on parole leave, he did not reported to the Jail Authority and was absconding.
6. It is further case of the prosecution that, as a part of large conspiracy hatched by the accused no.8, 4 and 7, the accused no.3 Irfan Pada agreed to eliminate deceased Hirenbhai for a consideration of Rs.20 lakhs for which he received Rs. 2 lakhs in advance by accused no.4 Ajay Kalal.
7. It is further case of the prosecution that, accused no.3 Irfan Pada was given necessary inputs of daily routine of deceased Hirenbhai by accused no.4 and 7, as deceased used to go on morning walk between 5:30 a.m. to 6:30 a.m. on the road going from Jhalod to Dahod. Accused no.3, arranged the meeting with accused no.2, accused no.5 and accused no.6 at the Dhaba (Highway Eatery) and decided to eliminate the deceased by using pick up loading vehicle. The accused no.6, arranged for bolero car bearing registration No.MP-09-CK-4981. On 26.09.2020, the accused no.1, 2, 3 and Irfan Bhisti were proceeded from Mahidhpur, Madhya Pradesh at about 8:30 p.m. in two different vehicles i.e. Mahindra Bolero car and Ford Figo Car. The Ford Figo Car, was parked at Railway Station, Dahod by accused no.3 and thereafter, all the accused, proceeded towards the place of incident in a Bolero Car. It is further case of the prosecution that, they had cup of tea, at the Page 3 of 10 Downloaded on : Sat Dec 24 17:24:51 IST 2022 R/CR.MA/9767/2021 ORDER DATED: 23/05/2022 tea stall run by witness Chetan Machar near Muvada Crossroad, Jhalod a place proximate to the place of commission of offence. It is further case of the prosecution that, till end of incident, the accused were in contact with each other on their mobiles. It is further case of the prosecution that, before the incident took place, the accused no.3 and accused Imran Gudala, conducted reiki and thereafter, as per plan, when deceased was on his regular morning walk, was hit by speeding pick up loading vehicle, alleged to have been he was given a dash by pick up loading vehicle, alleged to have been arranged by the accused no.3. Thereafter, the incident, the driver fled away along with the vehicle. Deceased was brought dead to the hospital.
8. It is further case of the prosecution that, son of the deceased namely Panth disclosed before the police authority expressing his apprehension that due to political rivalry, someone caused fatal injuries to his father or he was intentionally hit by the vehicle. Initially, police has registered A.D. Case under Section 173 of Cr.P.C. During the course of investigation, statements of the son of deceased and his wife were recorded, wherein reference was made about election of President and Vice President of the Municipality. It was revealed during the investigation that the bolero car used by the accused and in furtherance of the conspiracy hatched by the accused, his father was killed by using vehicle for which contract killing was given to accused Irfan Pada. The Deputy Superintendent of Police, Dahod lodged an FIR on 13.10.2020 wherein name of the accused no.1 to 5 have been disclosed and there was also reference of the name of accused no.8 and driver of vehicle. The accused were arrested and they have been chargesheeted. Thereafter, name of Amit Katara - accused no.8 who is the main conspirator of the alleged incident emerged during the course of investigation and later on, he as well as his aid Imran Gudala - accused no.7 arrested on 31.12.2020 and also chargesheeted. Both the cases have been Page 4 of 10 Downloaded on : Sat Dec 24 17:24:51 IST 2022 R/CR.MA/9767/2021 ORDER DATED: 23/05/2022 committed to the Sessions Court, Dahod which came to be registered as Sessions Case No.10/2021 and 49/2021.
9. This Court has heard Mr.A.A. Zabuawala, learned Counsel for the applicant and Mr. Mitesh Amin, learned Public Prosecutor assisted by Mr. Manan Maheta, learned APP for the State.
10. Mr. Zabuawala, learned counsel for the applicant submitted that, the applicant herein has been falsely implicated in the alleged offence with ulterior motive, as prima-facie, there is no material against him so as to implicate him in the alleged offence. It was submitted that, the applicant herein has been arraigned as an accused on the ground that he played a role to engage a bolero vehicle for execution of the alleged conspiracy hatched by the co- accused. In this context, Mr. Zabuawala, learned counsel drew the attention of this Court towards statement of SahejadKhan Pathan dated 13.10.2020, to submit that, the owner of the vehicle Sahejadkhan, was contacted by one Balubhai Dhabawala saying that for medical emergency of one lady, the vehicle bolero is required to send at Gujarat and accordingly, at the instance of owner of the vehicle namely Sahejaddkhan, accused no.1 deputed for the trip and after completion of it, driver had also reported the owner. In these circumstances, it was submitted that there was no role of the applicant in engaging the bolero vehicle and was never a part of alleged conspiracy. It was further submitted that accused no.4 Balaram Bhuvanji has been considered by this Court and his bail application is allowed. Thus, therefore, claiming the principle of parity, it was submitted that role of the accused no.4 and the present applicant Salim Khajubhai, are similar in nature. Lastly, it was submitted that since 22.10.2020, the applicant is in judicial custody. Chargesheet has already been filed. There is no apprehension of witnesses being tempered with. The applicant having no any criminal records of similar nature and he does not Page 5 of 10 Downloaded on : Sat Dec 24 17:24:51 IST 2022 R/CR.MA/9767/2021 ORDER DATED: 23/05/2022 flee away from justice.
11. In support of the aforesaid submissions, Mr. Zabuawala, learned counsel for the applicant has placed reliance on the decision of the Apex Court rendered in case of Gudikanti Narasimhulu And Ors. Vs. Public Prosecutor, High Court of Andhra Pradesh reported in 1978 AIR (SC)429 as well as decision rendered in case of Sanjay Chandra Vs. CBI reported in 2012 (1) SCC 28, to submit that merely the involvement of the applicant in a serious offence would not be a ground to refuse him to release on bail, more particularly, when there is no prima-facie material found, involving the applicant herein, his further detention is nothing but a pre-trial punishment.
12. On the other hand, Mr. Mitesh Amin, learned Public Prosecutor vehemently opposed the bail application. Learned Public Prosecutor submitted that the applicant herein being a part of criminal conspiracy, was present at the Dhaba (Highway Eatery), with the accused no.1, 2 and 3 so as to execute the plot to kill deceased Hiren Patel and had played an active role in engaging the bolero vehicle for reki purpose which belongs to his brother.
13. In view of the aforesaid submission, learned Public Prosecutor submitted that the criminal conspiracy need not necessarily be proved by direct evidence as it is always capable of being proved by circumstances pointing out the existence of conspiracy to commit an unlawful act and therefore, considering the statements of witnesses, call details, which are sufficient to connect the applicant herein with the alleged act of conspiracy. Reference was made on the judgment of Supreme Court rendered in case of Harjit Singh V/ s. Inderpreet Singh alias Inder and Another reported in 2021 SCC OnLine SC 633, contending that at this stage, it is not expected to have the entire evidence establishing guilt of the Page 6 of 10 Downloaded on : Sat Dec 24 17:24:51 IST 2022 R/CR.MA/9767/2021 ORDER DATED: 23/05/2022 accused beyond reasonable doubt, but, a prima-facie satisfaction of the Court in support of the charge. Thus, therefore, there is a prima- facie ground to believe that the accused was part of the alleged criminal conspiracy and considering the nature of accusations, severity of the punishment and the nature of evidence in support of the charge, no case is made out for exercising discretion by this Court for releasing the applicant on bail. Lastly, it was submitted that, role of the applicant and the accused no.5 Balaram are totally distinct and different and therefore, question does not arise to given the benefit of principle of parity.
14. This Court has considered the facts and circumstances of the present case as well as submissions made by learned counsel appearing for the respective parties and carefully perused the chargesheet case papers.
15. Before proceeding further, it is beneficial to refer to and rely on the settled principle of law and parameters to be followed and considered by the Court while rejecting or allowing bail application.
16. In case of State of U.P. v. Amarmani Tripathi reported in 2005 8 SCC 21, the Apex Court in para-18 held as under:
"It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tempered with; and (viii) danger, of course, of justice being thwarted by grant of bail"
17. In the case of Ram Govind Upadhyay v. Sudarshan Singh and Puran v. Rambilas reported in (2002) 3 SCC 598, the Apex Court laid down the factors, for exercising the power to decide the Page 7 of 10 Downloaded on : Sat Dec 24 17:24:51 IST 2022 R/CR.MA/9767/2021 ORDER DATED: 23/05/2022 bail application, observed that, it is not expected by the Court to have the entire evidence establishing the guilt of the accused beyond reasonable doubt, but there ought to be a prima-facie satisfaction of the Court in support of the charge. It is further observed by the Apex Court that, whether case is fit for grant of bail involves the balancing of numerous factors, amongst which nature of offence, severity of punishment and prima-facie view of the involvement of the accused are important. No straight jacket formula exists for Courts to assess an application for grant or rejection of bail as it all depends on the peculiar facts of the case.
18. In light of the settled principles and parameters as referred above and considering the facts and circumstances of the present case, the applicant-accused Salim Khajubhai Shaikh is the brother of Sahejadkhan Shaikh, who owned the bolero vehicle, used in the offence. So far role of the applicant is concerned, he was present at the eatery dhaba owned by accused no.5 Balaram Bhuvanji. It is not the case of prosecution that, he accompanied to the principal accused Irfan Pada in a bolero car and was present at the place of incident. The owner of the bolero car being a driver was on trip with another vehicle. The prosecution has mainly relied on the analysis of C.D.R. and his presence at Dhaba. If we closely look at the C.D.R. analysis chart submitted by learned Public Prosecutor, it appears that, prior to the incident, he had talked with accused no.1 Samir, driver of bolero car, accused no.2 Sajjansingh and accused no.5 Balaram. He never made a conversation with the accused Irfan Pada, Ajay Kalal, Imran Gudala and Amit Katara.
19. In the aforesaid facts, considering the role of the applicant herein and material collected against him by the investigating agency, without further detailed analysis of the prosecution case, this Court is of view that case is made out for releasing the applicant on bail. Since his arrest i.e. 22.10.2020, the applicant is in Page 8 of 10 Downloaded on : Sat Dec 24 17:24:51 IST 2022 R/CR.MA/9767/2021 ORDER DATED: 23/05/2022 jail. The applicant having no any past antecedents of like nature or no other cases are pending against him. He is permanent resident of the village as mentioned in the cause title of the application.
20. Hence, present application is allowed. The applicant is ordered to be released on regular bail in connection with the FIR being C.R. No.11821030200568 of 2020 registered with Jhalod Police Station, District: Dahod, on executing a personal bond of Rs.25,000/- (Rupees Twenty five thousand only), with one surety of the like amount to the satisfaction of the learned Trial Court and subject to the conditions that he shall;
No. Conditions
(a) not take undue advantage of liberty or misuse
liberty;
(b) not act in a manner injuries to the interest of the
prosecution;
(c) surrender passport, if any, to the lower court within a
week;
(d) not leave India without prior permission of the
Sessions Judge concerned;
(e) furnish latest address of residence to the
Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of the trial Court;
21. The Authorities 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 Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the learned Lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law. At the trial, learned Trial Court Page 9 of 10 Downloaded on : Sat Dec 24 17:24:51 IST 2022 R/CR.MA/9767/2021 ORDER DATED: 23/05/2022 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.
(ILESH J. VORA,J) TAUSIF SAIYED Page 10 of 10 Downloaded on : Sat Dec 24 17:24:51 IST 2022