Gujarat High Court
Nitinkumar Mohanlal Kothari vs State Of Gujarat & on 2 December, 2016
Author: A.J.Desai
Bench: A.J.Desai
R/CR.MA/26588/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 26588 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J.DESAI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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NITINKUMAR MOHANLAL KOTHARI....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR VIRAT G POPAT, ADVOCATE for the Applicant(s) No. 1
MS RATNA VORA, ADVOCATE for the Respondent(s) No. 2
MR MITESH AMIN, LD.PUBLIC PROSECUTOR WITH MR HK PATEL,
LD.APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 02/12/2016
CAV JUDGMENT
1. By way of the present application u/s.439 of the Code of Criminal Procedure, 1973, the applicant has prayed to Page 1 of 14 HC-NIC Page 1 of 14 Created On Sat Dec 03 00:34:41 IST 2016 R/CR.MA/26588/2016 CAV JUDGMENT release him on regular bail in connection with an FIR being C.R.No.I-127 of 2016 registered with Una Police Station, Una for the offences punishable under sections 307, 397, 395, 365, 355, 354, 342, 147, 148, 149, 324, 323, 504, 506(2), 120(B), 201, 166A, 167, 466, 177, 204, 294(b), 505(1)(b), 509, etc. of the Indian Penal Code; Section 135 of the Gujarat Police Act; Sections 3(1)(e),(r),(s),(u), 3(2)(5a), 3(1)(d), 3(1)(za)(E), 3(1) (w)(i),(ii), 3(2)(vi), 3(2)(vii), 4 of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989; Section 66A & 66B of The Information Technology Act.
2. Pursuant to the Notice issued by this Court, Mr.Mitesh Amin, learned Public Prosecutor has appeared on behalf of the respondent- State of Gujarat and Ms.Ratna Vora, learned advocate has appeared on behalf of the original complainant and have opposed this application.
3. The present application is being heard subsequent to completion of investigation and submitting charge sheet before competent court below.
4. Facts emerge from the record as well as statements of the witnesses, are as under :
That on 11/07/2016, one Nitinkumar Mohanlal Kothari (present applicant- accused) along with two other persons, who are residents of Una and surrounding area, visited a school at Village: Mota Samadhiyala in connection with a project. After discussion with the Principal of the School of the said village, he inquired for another school. Having existence of another school at nearby village: Bediya, they left the said village and reached at Village Bediya. They Page 2 of 14 HC-NIC Page 2 of 14 Created On Sat Dec 03 00:34:41 IST 2016 R/CR.MA/26588/2016 CAV JUDGMENT did not find any school there and, therefore, after inquiry they returned and started travelling on Kachha road. At that time they saw two persons skinning some dead animals. The applicant immediately returned on main road and called somebody and informed that certain persons were slaughtering the cows. Pursuant to which, four persons came on two bikes and started inquiry with those persons, who were present at the place. Those persons pretended them as cow vigilantes (Gaurakshaks) and within no time, number of persons gathered at the place and one white colour four wheeler also reached at the said place. Those persons, who had come on the bikes as well as in the car, started beating up those persons and also attacked two aged persons and a lady. Those persons were taken by those cow vigilantes (Gaurakshaks) in the four wheeler. Subsequently the applicant along with those two persons left the place.
5. Since one person named Sarvaiya, informed the police control about some mischief being committed at the place of incident (at village: Mota Samadhiyala), and accordingly informed to the control room, which is situated at a place of Ahmedabad. The Control Room informed Una Police Station PSO namely Kanjibhai about the same at around 13:30 hours on the same day. The PSO made an entry in the Register and informed one ASI Kanchanben to visit the place. She along with her writer namely Kasnabhai proceeded to visit the place, where number of persons were gathered. Police Inspector of Una Police Station Mr.Zala informed one of the armed Police Constable, at about 14:15 hours to reach the said village Mota Samadhiyala along with Police Sub- Inspector Mr.Pandey, since he was informed that some more police force is required. Accordingly Police Sub-Inspector Page 3 of 14 HC-NIC Page 3 of 14 Created On Sat Dec 03 00:34:41 IST 2016 R/CR.MA/26588/2016 CAV JUDGMENT Mr.Pandey along with other police personnels visited the village: Mota Samadhiyala, where ASI Kanchanben with her writer was present. He found cow mutton in the rickshaw. Around 25 to 30 persons, who were gathered at the place were dispersed from the place of incident. It also appears from the record that two old aged persons and a lady, who had sustained injuries were already transferred to Una hospital by an ambulance popularly known as "108 Ambulance". Those four persons, who alleged to have been skinning and/or cutting the cows, were taken in a car to Una town, which is around 25 kms. from the said village Mota Samadhiyala. Those persons were taken at bus-stand of Una and their shirts were removed and were tied with rope with the car and were beaten by number of persons. They were towed towards Una Police Station. When they reached at the police station, a police personnel removed the ropes and kept those injured in the Police Station.
The mob of people, who brought the injured, left the place immediately. The injured were thereafter got admitted in the Government Hospital.
6. When Police Inspector Mr.Zala, visited the Una Police Station, he came to know that some persons have been attacked and have sustained several injuries and have been admitted in the Una Hospital, he went to the Hospital and recorded an FIR at around 19:30 hours on 11/07/2016. The said FIR was lodged by one of the injured namely Vashrambhai Balubhai Sarvaiya. It was stated by the said Vashrambhai that he belongs to the scheduled caste and is doing work of skinning animals along with his father, cousins and other relatives. He further disclosed that when his father Page 4 of 14 HC-NIC Page 4 of 14 Created On Sat Dec 03 00:34:41 IST 2016 R/CR.MA/26588/2016 CAV JUDGMENT Balubhai Sarvaiya received a phone call of one Najabhai Danabhai that his cow was found dead at Village: Bediya and requested to remove the same. He along with his cousins went to Bediya Village and brought the cow in a rickshaw in their village namely Mota Samadhiyala and started skinning the cow. At that time, five persons came in four wheeler white car and told that they were cow vigilantes (Gaurakshaks) and started abusing and questioned why they were cutting the cow. By naming some of the accused, he has further stated that they had started beating with some Babule sticks as well as iron patti (iron pipe). When his father intervened, one of the accused named in the FIR, gave a blow on the head of his father Balubhai Sarvaiya. Thereafter the mobile of his father was looted and complainant and all his cousins were compelled to sit in four wheelers car and gave stick and pipe blow near Rameshwar Patiya and again went to Una Bus stand and they tied with ropes and thereafter they again tied with the car and beaten in public and taken towards Una Police Station and handed over them to the Police. The mob of the people left the place and subsequently the injured were admitted in the Government Hospital. An FIR was lodged for the offence punishable under sections 307, 395, 324, 323, 504 of the Indian Penal Code; section 135 of the Gujarat Police Act and section 3(2)(5) of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act,1989 [hereinafter referred to as "Prevention of Atrocities Act"].
7. The said FIR was recorded by the Mr.N.U.Zala, Police Inspector, Una Police Station. Since charges were levelled against the accused for the offence punishable under the provisions of the Prevention of Atrocities Act, Mr.Zala Page 5 of 14 HC-NIC Page 5 of 14 Created On Sat Dec 03 00:34:41 IST 2016 R/CR.MA/26588/2016 CAV JUDGMENT requested the PSO to hand over the investigation to Deputy Superintendent of Police, as per the provisions of the Prevention of Atrocities Act.
Deputy Superintendent of Police, Veraval was handed over the charge of investigating officer and accordingly he started collecting evidence in the matter. Subsequently investigation was handed over to Deputy Superintendent of Police, (Fraud Cell, CID Crime, State of Gujarat) and after completion of investigation, arraigned in all 32 accused for the offence referred in the first para of this judgement and charge-sheet came to be filed by him before the Competent Court.
8. The present applicant - is one of the accused, who is charged with the aforesaid offence and against whom, charge-sheet has already been filed before the competent court.
9. Mr.Virat Popat, learned advocate for the applicant (Nitinkumar Kothari) has vehemently submitted that the applicant has been wrongly arraigned as an accused in the offence though Investigating Agency has miserably failed in collecting any evidence, which would even prima facie established that the applicant was part of conspiracy alleged to have been hatched by all the accused persons. He would further submit that only allegation levelled against the applicant is that when the applicant shown some persons skinning the cow at village Mota Samadhiyala, he informed other persons to look into the matter since such illegal activities are carried out on large scam.
It is not the case of the injured or any of the Page 6 of 14 HC-NIC Page 6 of 14 Created On Sat Dec 03 00:34:41 IST 2016 R/CR.MA/26588/2016 CAV JUDGMENT witnesses that the applicant has actively participated in any of the places, where the incident has taken place. Only at village Mota Samadhiyala, his presence is found. It is not the case of the prosecution that the applicant has beaten any of the injured.
10. He would submit that some of the cow vigilantes (Gaurakshaks) may be attached with the applicant, but that itself did not establish that the applicant was aware and had instigated other accused to assault the persons, who were skinning the cow. It is not the case of the prosecution that the applicant was in contact with any of the police officer on the date of incident or in contact with other accused, who have assaulted the injured.
11. He would further submit it is not the case of any of the witnesses including injured witnesses that they were beaten in presence of the applicant. It is not the case of the prosecution that when the injured were brought to the police station he was present. It is not the case of any of the witnesses including police witnesses that when those persons were being beaten up by number of persons including those referred in the FIR, the applicant was present. It is not the case of any of the witnesses that the applicant did remain in contact with another accused by telephone and, therefore, the case put forward by the prosecution that the applicant permitted and instigated the assailants to continue illegal activities, are baseless.
12. Mr.Popat, learned advocate would further submit that it is not the case of the prosecution that the applicant was Page 7 of 14 HC-NIC Page 7 of 14 Created On Sat Dec 03 00:34:41 IST 2016 R/CR.MA/26588/2016 CAV JUDGMENT in contact with the assailants, whose names have been stated in the FIR by the injured complainant or any other accused.
13. Mr.Popat, learned advocate for the applicant has vehemently submitted that the applicant has been wrongly roped in the offence with the reasons best known to the Investigating Agency since no material whatsoever has been collected by the Investigating Agency. He would submit that it is not the case of the prosecution that at any of the places, where the injured persons were beaten, the applicant was present.
He would further submit that it is alleged by the prosecution in the charge-sheet that a conspiracy was hatched by him along with those police personnels, who have been arraigned as accused in the present case, to commit such offence since the injured were involved in slaughtering the cows.
He would submit that investigation is over and charge-sheet is filed and therefore, there is no question of tampering with the evidence. There are more than 338 witnesses and, therefore, trial is likely to take some longer time and therefore, considering the principle laid down by the Hon'ble Apex Court in various decisions with regard to grant of bail of an accused, who has not been tried, the applicant may be released on bail.
14. Mr.Mitesh Amin, learned Public Prosecutor appearing on behalf of the respondent- State of Gujarat would vehemently submit that the applicant has deliberately wrong information was given by the applicant to cow vigilants (Gaurakshak). Pursuant to which, persons were beaten by Page 8 of 14 HC-NIC Page 8 of 14 Created On Sat Dec 03 00:34:41 IST 2016 R/CR.MA/26588/2016 CAV JUDGMENT other accused. He would submit that his presence is established from the photographs.
He would further submit that the accused is facing serious charges including offence of section 307 of the Indian Penal Code and Section 3(2)(v) of the Prevention of Atrocities Act which are punishable with imprisonment for life. He would submit that Special Courts are established for expedient completion of trial. Therefore, he submits that when the investigation is over, the trial shall be concluded within short time.
15. Mr.Mitesh Amin, learned Public Prosecutor would further submit that though the investigation is over by Deputy Superintendent of Police, Fraud cell, CID Crime, Gandhinagar, the complainant has requested for further investigation and has filed Public Interest Litigation, which is pending before this Court. He, therefore would submit that the application may not be entertained at this stage.
16. Ms.Ratna Vora, learned advocate for the original complainant would submit that the applicant, who had informed the assailants were connected with each other and, therefore, the applicant is a responsible person for entire incident. She would further submit that in connivance with Police Inspector Mr.Zala, he has tried to convert the real incident into the offence as if the same had been committed by the injured by slaughtering the cows. She would submit that though the incident continued for four to five hours, procession was allowed to continue and the innocent persons were beaten in public. The applicant has not taken any action for the reasons best known to him and, therefore, he would Page 9 of 14 HC-NIC Page 9 of 14 Created On Sat Dec 03 00:34:41 IST 2016 R/CR.MA/26588/2016 CAV JUDGMENT submit that the application may be rejected.
17. I have heard learned advocates appearing on behalf of the respective parties and perused the papers of investigation. It is true that the applicant had informed the other persons, who had assaulted the injured persons. Prima facie, it appears that there is no direct or indirect role of the applicant, which would establish that he has instigated the assaulter and was in contact with him. It appears that he was present at any of the places, where the incident has taken place.
18. I have heard learned advocates appearing on behalf of the respective parties and perused the papers of investigation, particularly statements of witnesses including police personnels; Medical Certificates issued with regard to injuries sustained by those persons; the photographs, which are part of charge-sheet produced by learned Public Prosecutor; report received from Forensic Science Laboratory; etc.
19. Prima facie, it appears that the injured, who are from scheduled castes, are earning their livelihood by carrying out activities like skinning the dead animals., etc., particularly in the present district, which is known for lions and other wild animals habitats. In certain incidents, the animals are hunted by wide animals and their dead bodies are found lying in the Farms. Those persons, who are aware that certain persons are expert in skinning the animals, are informed to do needful and accordingly they carry out the work.
Page 10 of 14 HC-NIC Page 10 of 14 Created On Sat Dec 03 00:34:41 IST 2016 R/CR.MA/26588/2016 CAV JUDGMENT Some persons might be carrying out illegal
activities of slaughtering the cows and, therefore, local residents have created awareness amongst themselves to stop such illegal activities.
20. In the present case as stated hereinabove, the applicant, who had gone to a school for some project, found some persons with the dead bodies of cows and accordingly he informed those persons posed themselves as Cow Vigilantes (Gaurakshaks). Pursuant to his intimation, number of persons gathered at the place (village : Mota Samadhiyala), where the persons were found with the cow dead bodies. When they started abusing those persons and misbehaving them, one Sarvaiya informed Police Control Room at Ahmedabad. Control Room of Ahmedabad informed the PSO of Una Police Station, who recorded the entry in the Register and informed ASI Kanchanben and her team to visit the place (Kanchanben is one of the accused in the present case and has already been enlarged on bail).
When Kanchanben reached at the place, two aged persons and one aged lady (parents of one of the injured) were found having sustained some injuries and accordingly, they were sent to the Government Hospital.
Whether those injured along with other accused were present or not when ASI Kanchanben reached the place, would be decided at the end of the trial.
As far as statement of Najabhai Danabhai is concerned, it appears that he has refused that he has never been informed about cow slaughtering. I have gone through the further statement of the complainant, it appears that he has changed his version, instead of Najabhai Danbhai, he Page 11 of 14 HC-NIC Page 11 of 14 Created On Sat Dec 03 00:34:41 IST 2016 R/CR.MA/26588/2016 CAV JUDGMENT states that some other person has informed about the dead cow. It also appears that the Veterinary officer had visited the place and collected some samples of cow mutton and he has stated accordingly in the statement recorded by the Investigating Agency and, therefore, in my opinion, it is prematured to decide whether the Panchas and Najabhai are right or Government veterinary officer, who had collected the samples, is right.
It is not the case of any of the witnesses that any of the places including village: Mota Samadhiyala, Rameshwar Patia, Una Bus Stand, Una Police station, when the injured were beaten up, the applicant has actively participated and has instigaged the attackers.
21. It is true that a report has been received from the FSL that the PSO had added the words "cow mutton is found"
subsequent to making the entry by PSO himself. In my opinion, whether the applicant is part of conspiracy or not, is required to be established by the prosecution after leading evidence before the trial court. When none of the witnesses have stated that the applicant was present at any of the places including Una Bus stand or police station, in my opinion, the applicant is entitled for bail during the pendency of the trial since the investigation is almost over.
It is true that special provisions have been made for expediting the hearing of the cases of prevention of Atrocities Act, however, considering the voluminous record of charge-sheet and examination of 338 witnesses, completion of trial would take considerable long time and, therefore, considering the principle laid down by the Hon'ble Apex Court, applicant would be entitled for regular bail on appropriate terms and conditions.Page 12 of 14
HC-NIC Page 12 of 14 Created On Sat Dec 03 00:34:41 IST 2016 R/CR.MA/26588/2016 CAV JUDGMENT
22. In the facts and circumstances of the case and considering the nature of allegations made against the applicant in the FIR, without discussing the evidence in detail, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail. Hence, the present application is allowed and the applicant is ordered to be released on regular bail in connection with an offence being C.R.No.I-127 of 2016 registered with Una Police Station, Una, on executing a personal bond of Rs.25,000/- (Rupees Twenty Five thousands only) with one local surety of the like amount to the satisfaction of the learned Trial Court and subject to the conditions that he shall;
[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 the State of Gujarat without prior permission of the Sessions Judge concerned; [e] shall not enter in local limits of Taluka: Una, for a period of six months except for attending the court; [f] furnish latest address of his 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 this Court;
[g] shall mark his presence on every Monday for a Page 13 of 14 HC-NIC Page 13 of 14 Created On Sat Dec 03 00:34:41 IST 2016 R/CR.MA/26588/2016 CAV JUDGMENT period of six months to the nearest Police Station, where he is going to reside for six months;
[h] After entering into Taluka: Una, he shall mark his presence with the concerned Police Station on any day of first week of every English Calendar Month till trial is over, between 10:00 a.m. and 2:00 p.m.;
23. 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.
24. 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 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.
[A.J.DESAI,J.] *dipti Page 14 of 14 HC-NIC Page 14 of 14 Created On Sat Dec 03 00:34:41 IST 2016