Gujarat High Court
Rana vs State on 16 July, 2012
Author: J.C.Upadhyaya
Bench: J.C.Upadhyaya
Gujarat High Court Case Information System
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CR.MA/12978/2011 17/ 17 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 12978 of 2011
With
CRIMINAL
MISC.APPLICATION No. 1280 of 2012
For
Approval and Signature:
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
=========================================================
RANA SUKA KHUNTI MER - Applicant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance in Cr.M.A.No.12978 of 2011 MR SV RAJU, SR.ADVOCATE WITH MR PM LAKHANI for Applicant(s) : 1, MR MG NANAVATI, ADDL.PUBLIC PROSECUTOR for Respondent(s) : 1, MR ND NANAVATI, SR.ADVOCATE WITH MR VH KANARA for Respondent(s) : 1, Appearance in Cr.M.A.No.1280 of 2012 MR VG POPAT for Applicant(s) : 1, MR RC KODEKAR, ADDL.PUBLIC PROSECUTOR for Respondent(s) : 1, MR ND NANAVATI, SR.ADVOCATE WITH MR VH KANARA for Respondent(s) :
1, ========================================================= CORAM :
HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 16/07/2012 COMMON CAV ORDER Both these applications are filed seeking regular bail under Section 439 of the Code of Criminal Procedure ('Cr.P.C.', for short) by the applicants, who are original accused Nos.1 and 7 in Kamlabaug police station, Porbandar C.R.No.I-170 of 2005 pertaining to the offences punishable u/ss.302, 465, 468, 471, 201, 120B of the Indian Penal Code and Section 25(1)(BA) of the Arms Act and Section 135 of the Bombay Police Act.
Criminal Misc.Application No.12978 of 2011 is filed by original accused No.1
- Rana Suka Khunti Mer and Criminal Misc.Application No.1280 of 2012 is filed by original accused No.7 - Jetha Veja Keshwala. In the aforementioned criminal case, the entire investigation, pursuant to the FIR lodged by one Kishorbhai Bhimabhai Bhutiya, was already over, and in the year 2006, chargesheet came to be filed against 10 accused persons. It is admitted fact that the Sessions Court, Porbandar recorded full-fledged evidence adduced by the prosecution and when the said case was almost posted for judgment, on behalf of the complainant, an application was filed u/s.319 of the Cr.P.C. for implicating one more accused in the matter. The said application came to be allowed by the concerned Sessions Court vide order dated 29.3.2008. Said order was challenged by the proposed accused Babubhai Bhimabhai Bokhiria before this Court by way of filing Special Criminal Appln.No.638 of 2008 and this Court vide order dated 11.12.2008, confirmed the order passed by the Sessions Court. Both the orders were challenged by said Babubhai Bhimabhai before Hon'ble the Apex Court by way of filing SLP (Cri.) No.9184 of 2008 and the matter was referred to larger Bench of Hon'ble Apex Court. While admitting said SLP, vide order dated 5.1.2009, stay qua the further proceedings of the sessions case was granted. However, it was observed by Hon'ble Apex Court that it will be open for the original accused to apply for bail before the concerned Court and if such prayer is made, the concerned Court was directed to dispose of said prayer in accordance with law.
Mr.S.V.Raju, learned senior advocate with Mr.P.M.Lakhani, learned advocate for the applicant - Rana Suka Khunti Mer in Cr.M.A.No.12978 of 2011 is heard as well as Mr.V.G.Popat, learned advocate for the applicant - Jetha Veja Keshwala in Cr.M.A.No.1280 of 2012 is heard. Mr.M.G.Nanavati, learned APP and Mr.R.C.Kodekar, learned APP for the respondent - State are heard. Mr.N.D.Nanavati, learned senior advocate with Mr.V.H.Kanara, learned advocate for the original complainant is heard.
On behalf of the applicants, it is submitted that so far as the applicants, who are original accused Nos.1 and 7 are concerned, no major role is attributed by the prosecution to them. It is submitted that broadly speaking, the incident is divided in three parts, namely, certain events took place prior to the main incident, main incident and certain events took place subsequent to the incident. It is submitted that so far as applicant - accused No.1 - Rana Suka is concerned, the role attributed to him is that, prior to the main incident, he along with original accused No.5 - Raju Karsan and original accused No.10 - Samat Gogan, purchased a second-hand Maruti Van bearing RTO registration No.GJ-3E-1346, which was required to be used while killing the deceased. It is submitted that so far as the main incident is concerned, as per the prosecution case, original accused No.4 - Meraman Malde, original accused No.6 - Veja Parbat and original accused No.8
- Bhima Dula went near the house of the deceased in the aforesaid Maruti Van bearing No.GJ-3E-1346. When the deceased was about to go inside his house, it is alleged that original accused No.8 - Bhima Dula opened fire from his double bore gun, aiming at the deceased, and the deceased succumbed to the injuries and died. It is submitted that as per the prosecution case, thereafter, those original accused Nos.4,6 and 8 immediately left the place of incident in the aforementioned Maruti Van and came near the place called Dharampur Patiya and went to the farm of original accused No.7 - applicant Jetha Veja in the aforementioned Maruti Van. As per the prosecution case, the accused had decided to set the said Maruti Van to fire, with a view to destroy the evidence, and it is alleged that the accused No.7 - applicant Jetha Veja had made arrangements for kerosene and petrol and the Maruti Van was burnt, and in said incident, original accused No.1 - applicant Rana Suka, original accused No.7 - applicant Jetha Veja, original accused No.9 - Deva Bhuva were involved to set the said vehicle to fire. Thus, on behalf of the applicants, it is submitted that so far as the killing part of the deceased is concerned, no role is attributed to the applicants and in the main incident, the role allegedly attributed by the prosecution is to the original accused Nos.4, 6 and 8.
4.1 On behalf of the applicants, it is submitted that so far as procuring and purchasing the said Maruti Van is concerned, the role is attributed to original accused No.1 - applicant Rana Suka as well as original accused Nos.5 and 10, namely, Raju Karsan and Samat Gogan, and the original accused No.5 - Raju Karsan as well as original accused No.10 - Samat Gogan were already released on bail. It is further submitted that as per the prosecution case, both the applicants, namely accused Nos.1 and 7 as well as accused No.9 -
Deva Bhuva are involved in destroying the evidence, namely, to set the Maruti Van to fire, and the original accused No.9 - Deva Bhuva has been recently released on bail by this Court on 18.1.2012 in Cr.M.A.No.17607 of 2011, after the stay order was issued by Hon'ble the Apex Court, but, since Hon'ble the Apex Court had permitted the accused persons to apply for bail, said bail application was filed by accused No.9 and he was released on bail.
4.2 In above view of the matter, on behalf of the applicants - original accused Nos.1 and 7, it has been submitted that they are thus entitled to claim parity with original accused Nos.5, 9 and 10, who are already released on bail, as the role attributed by the prosecution to the applicants is almost identical to the role attributed to original accused Nos.5, 9 and 10.
4.3 However, on behalf of the applicant - original accused No.1 Rana Suka, it has been submitted that in the year 2008, he had filed regular bail application being Cr.M.A.No.465 of 2008 in this Court, which was withdrawn unconditionally on 16.1.2008. However, it is submitted that, thereafter, at the time of issuing stay order qua further proceeding of sessions case by Hon'ble the Apex Court, reserved the liberty of the accused persons to apply for bail and this amounts to change of circumstance and, therefore, the earlier withdrawal order of regular bail application may not come in way of the applicant - original accused No.1 Rana Suka. It is submitted that so far as the applicant - original accused No.7 - Jetha Veja is concerned, this is his first bail application filed in this Court.
4.4 Resultantly, on behalf of the applicants, it is submitted that they may be released on regular bail since they are in custody in connection with this matter almost since the year 2005.
Per contra, Mr.M.G.Nanavati, learned APP and Mr.R.C.Kodekar, learned APP for the respondent - State, so also Mr.N.D.Nanavati, learned sr.advocate for the original complainant vehemently opposed these bail applications. It is submitted that both the applicants and the prime accused persons, hatched conspiracy to kill the deceased as there was some business rivalry with the deceased. As part of conspiracy and for killing the deceased, the accused required such vehicle, which could not be identified at the time of killing, and after killing, it can be easily destroyed and in that connection, original accused No.2 - Lakhman Bhima, who happens to be son of prime accused No.8 - Bhima Dula paid Rs.1 Lac to the applicant
- original accused No.1 as well as accused Nos.5 and 10 for purchasing a second-hand vehicle. The applicant - accused No.1 along with accused Nos.5 and 10, went to Rajkot and on the basis of fake and concocted documents, the Maruti Van GJ-3E-1346 was purchased and was handed-over to original accused Nos.4,6 and 8 and the accused Nos.4,6 and 8 used said Maruti Van while murdering the deceased and, subsequently, in the field of applicant - original accused No.7 - Jetha Veja, the said Maruti Van was set to fire and the evidence was attempted to be destroyed. It is, therefore, submitted that both the applicants played vital role in the incident and without their help, the accused Nos.4, 6 and 8 could not have committed the offence of murder.
5.1 It is submitted that there is no dispute that original accused Nos.5, 9 and 10 have been released on bail and out of them, original accused No.9 came to be released on bail by this Court on 18.1.2012 after the Hon'ble Apex Court granted stay order qua further proceeding of the said sessions case. It is submitted that while granting stay, Hon'ble the Apex Court reserved the liberty of the accused persons to apply for bail. However, it is submitted that in the instant matter, now, the perusal of the police papers for the purpose of deciding these bail applications shall pale into insignificance. The concerned Sessions Court has recorded the entire evidence adduced by the prosecution. It is, therefore, submitted that after the entire oral and documentary evidence recorded by the Sessions Court is to be examined by this Court while deciding these two bail applications, indirectly, it would amount to appreciating and evaluating the evidence adduced by the prosecution, at this stage, and virtually it would amount to recording acquittal of the applicants, if at all their bail applications would be allowed.
5.2 It is further submitted that the applicants - original accused Nos.1 and 7, claim parity with original accused Nos.5,9 and 10, who were already released on bail. It is vehemently submitted that, as a matter of fact, not only on factual aspect, the case of the applicants - accused Nos.1 and 7 is completely on different footing than the case of those three accused persons, who have been released on bail, but even the glaring fact is that in the year 2009, when the applicants along with other accused persons were in judicial custody and when they were taken from jail to the Sessions Court, at that time, the applicants fled from the police Japta (escort) and ran away. It is submitted that the applicant - original accused No.1 could be traced out and arrested only in the year 2011 and the applicant - original accused No.7 could be traced out and arrested after few months. It is submitted that, thereafter, none of the applicants were either released on temporary bail or on parole and considering such antecedent of fleeing from the police custody, if the applicants would be released on bail, they shall again jump the bail and shall escape. It is submitted that along with other factors, the availability of the accused before the trial Court is one of the important factors, while deciding his bail application and in the instant matter, prima-facie, it is established that the applicants shall repeat the previous history of fleeing. It is submitted that those co-accused persons, namely, accused Nos.5, 9 and 10 had no such adverse antecedent and neither they fled from the police custody nor they jumped any temporary bail or parole. It is further submitted that so far as the applicant - original accused No.1 - Rana Suka is concerned, this is his successive bail application before this Court since the earlier bail application being Cr.M.A.No.465 of 2008 was unconditionally withdrawn on 16.1.2008, and practically, there are no change of circumstances to allow his successive bail application. It is submitted that so far as the applicant - original accused No.7 - Jetha Veja is concerned, no doubt, this is his first application in this Court, but the vehicle used in the offence was set to fire near his farm and it was he who procured firing material like kerosene and petrol as well as at the relevant time, he was armed with Tamancha. It is, therefore, submitted that in above view of the matter, the case of the applicants, cannot be said to be at par with the case of the accused Nos.5,9 and 10, who have been released on bail.
5.3 Ultimately, it is submitted that both the applications may be dismissed.
In reply, Mr.Raju, learned sr.advocate and Mr.Popat, learned advocate for the applicants submitted that it is true that in the year 2009 both the applicants fled away and escaped from the police custody, but it is submitted that when no major role is attributed to them by the prosecution and, thus, against them, there is no prima-facie case of any serious offence, their fleeing and escaping from the police custody shall not come in their way in getting the bail. It is submitted that they shall abide by all the conditions, which shall be laid down by this Court and even they may be subjected to any strict condition.
I have taken into consideration the submissions advanced on behalf of both the sides as well as I have taken into consideration the relevant papers annexed with these applications. About the sessions case pending with the concerned Sessions Court is concerned, it is admitted fact that before the Sessions Court, full-fledged evidence has been recorded, but at the fag end of the trial, when an application was filed by the complainant to arraign one Babubhai Bokhiria as a co-accused u/s.319 of the Cr.P.C., the Sessions Court allowed said application. Said Babubhai Bokhiria challenged said order before this Court, but he was unsuccessful and the order of the Sessions Court was confirmed and upheld. The said order came to be challenged before Hon'ble the Apex Court and as stated above, the Hon'ble Apex Court issued stay order qua further proceeding of said sessions case, but the liberty of the accused persons to apply for bail was expressly reserved. There is also no dispute that out of the 10 accused persons, almost 5 accused persons are on bail and out of them, so far as original accused No.9 - Deva Bhuva is concerned, he was recently released on bail by this Court on 18.1.2012 (Coram: M.D.Shah, J.) in Criminal Misc.Application No.17607 of 2011.
On behalf of the applicants, examining the case of the prosecution, it was submitted that no major role is attributed by the prosecution. The applicants are neither connected with the alleged motive behind killing of the deceased nor they played any role at the time when the main incident of killing took place. It is the prosecution case that the applicant - original accused No.1 - Rana Suka allegedly played role while procuring the Maruti Van, which was used while killing the deceased, along with original accused Nos.5 and 10 and as per the role attributed to him, he also took part in destroying the vehicle along with applicant - original accused No.7 and original accused No.9. So far as applicant - original accused No.7 Jetha Veja is concerned, he is attributed the role of procuring firing material like kerosene and petrol and when the original accused Nos.4, 6 and 8, after the incident, came near his farm at Dharampur Patiya, he along with applicant - original accused No.1 Rana Suka and original accused No.9 - Deva Bhuva was present and the vehicle was set to fire in attempting to destroy the evidence. It is further alleged that at that time he was armed with Tamancha, though said Tamancha is not the weapon of the main offence. It is, therefore, submitted that the role attributed to original accused Nos.5, 9 and 10 was almost identical and, therefore, the applicants are entitled to claim parity. In this respect, first of all, as submitted by both the sides, in the instant matter, now the entire evidence is recorded. Therefore, it would not be in the interest of justice to decide these bail applications on the basis of the oral and documentary evidence already adduced by the prosecution before the trial Court, since that would amount to appreciating and evaluating the evidence at this stage. It is true that the original accused No.9 - Deva Bhuva came to be recently released on bail. However, according to this Court, the applicants cannot claim parity with those accused persons, who have been released on bail for the simple reason that in the year 2009, while they were taken to concerned Sessions Court from jail, they ran away and escaped from the police custody. Despite intensive search and attempts made by the police personnel to trace out them, they could not be immediately traced out. The applicant - original accused No.7 was arrested after few months thereafter, but applicant - original accused No.1 could be arrested only in the year 2011. This is very serious thing. It is true that prior to said fleeing incident, which took place in 2009, the applicants were released on temporary bail or parole and it is true that on completion of their temporary bail period or parole, they reported to the jail, but that was prior to the year 2009. Admittedly, after both the applicants came to be re-arrested by police, they were not released either on temporary bail or parole etc. It is true that there are several factors, which the Court has to keep in mind at the time while exercising the powers vested u/s.439 of the Cr.P.C. The Court has to consider the prima-facie case as well as other factors and the equally important factor is chance of fleeing or jumping the bail and availability of the accused to answer the charge levelled against him. If the Court comes to the conclusion that the chances of availability of the accused are doubtful and there is likelihood of the accused jumping the bail, the Court shall be slow in exercising the powers vested in it under Section 439 of the Cr.P.C. According to this Court, the availability of the accused after the enlargement of bail is one of the important factors while deciding his bail application. In the instant matter, as stated above, it is admitted fact that in the year 2009, both the applicants escaped from the police custody. Even subsequent to their escape from the police custody, they did not voluntarily surrender to the police or to the concerned jail authority, but after few months, the applicant - original accused No.7 could be located by police and was arrested and applicant - accused No.1 could be arrested in the year 2011. According to this Court, thus, the case of the applicants seeking bail claiming parity with the accused Nos.5,9 and 10, who have been released on bail, if seen in above context, then so far as accused Nos.5, 9 and 10 are concerned, who have been released on bail, there is nothing that in past before they were released on bail, they had fled away from police custody. Even otherwise, their role cannot be said to be almost similar and identical in the sense that so far as the applicant - accused No.7 is concerned, the place selected for destroying the Maruti Van was near his field and it was he who made arrangements of kerosene and petrol for said purpose and he was armed with Tamancha. So far as applicant - original accused No.1 is concerned, this is his successive bail application, as the earlier bail application filed by him in this Court came to be withdrawn unconditionally. At the time of granting stay order, qua the further proceeding of the sessions case, Hon'ble the Apex Court reserved the liberty of the accused persons to apply for bail, but it can hardly be said to be a change of circumstance to allow the successive bail application of the applicant - accused No.1.
In above view of the matter, this Court is of the opinion that both the applications deserve to be dismissed and are hereby dismissed.
Rule is discharged.
(J.C.UPADHYAYA, J.) (binoy) Top