Rajasthan High Court - Jaipur
Ashwani Kumar Bhardwaj vs State Of Rajasthan on 29 May, 1997
Equivalent citations: 1998CRILJ252
ORDER A.S. Godara, J.
1. This is second bail application moved under Section 439, Cr.P.C. on behalf of the accused-petitioner in FIR No. 123/93 registered at the Police Station of Nimbahera and, after investigation of the same, finally, so far as the present petitioner is concerned, a charge sheet under Section 173(2), Cr.P.C. having been filed in the court of Addl. Chief Judicial Magistrate, Nimbahera under Sections 120B read with Sections 302 and 201, I.P.C. after similar application was, lastly, rejected by the learned Addl. Sessions Judge, Nimbahera vide its order dated 21-4-1997, after the previous similar application was disposed of by this Court on 6-2-1997 (S.B. Cr. Misc. Bail Petition No. 165/97).
2. Briefly stated, the relevant facts for the disposal of the present petition, since detailed facts are already borne out of the order dated 6- 2-1997, are that the said FIR was initially registered on the report of Bhan Singh, A.S.I, of Police Station, Nimbahera under Sections 279 and 338, I.P.C. and, subsequent thereto, on the death of Harish Agarwal, under Section 304A, resulting in, after full investigation, submission of charge sheet under Section 279, 337, 338 and 304A, I.P.C. in the court of Addl. Chief Judicial Magistrate against Inderjeet Singh and Daljeet Singh who was driving the jeep No. MP14A- 7413 on the night intervening 2nd and 3rd March, 1993 resulting in a road accident with a stationary truck No. MPO-2842 as a result of rash and negligent driving by the driver.
3. The case so taken cognizance of and registered against Inderjeet Singh, lastly, stood closed on 2-12-1996 thereby acquitting Inderjeet Singh of the aforesaid offences.
4. However, it was on 4-9-1996 that Smt. Chandra Karrta, who is wife of Harish Agarwal, lodged a complaint before the S.P. Chittorgarh alleging that her husband (deceased) Harish Agarwal was having a business partnership with the accused-petitioner and they were running a joint venture titled as "Prateek Marbles" at Neemuch and, at the relevant time, they had also taken "Theka" of Narcotics and intoxicants excisable articles and an approximate sum of Rs. 21,00,000/- (Rs. twenty one lacs) was owed by the accused petitioner to the deceased and, with an ulterior motive to grab the amount so payable to the deceased and others and to maintain secrets of the business being transacted and carried on by the accused-petitioner along with his associates including the deceased, a criminal conspiracy was hatched up and, consequently, Inderjeet Singh, pursuant to the conspiracy so entered into, drove his vehicle on the fateful day in which the deceased was sitting in the front side of the vehicle of the driver and he intentionally dashed the vehicle against a stationary 'truck which resulted in simple and grievous injuries to the deceased who was, firstly, treated at Govt. Hospital, Nimbahera and without complete investigation and treatment at Nimbahera, pursuant to the conspiracy, the deceased was got discharged from Nimbahera Hospital and was taken to Dr. Kamal Gotra's Nursing Home. Neemuch whereat it is alleged that Dr. Kamal Gotra with the aid of his associates, pursuant to the conspiracy initially hatched up by the accused-petitioner and his associates, killed Harish Agarwal to death.
5. As a result, the case was registered against Inderjeet Singh under the aforesaid sections and, lastly, challaned and the same having been disposed of finally by the competent Court, was given a different shape thereby converting it into a case of murder and consequential conspiracy entered into between the accused-petitioner and his associates including Dr. Gotra which, lastly, culminated into murder of Harish Agarwal.
6. Since investigation was pending and the prosecution sought fuller opportunities and enough time to vigorously complete the investigation taking the same into its logical conclusion against the accused-petitioner and, accordingly, the previous petition filed by the accused-petitioner stood dismissed vide this Court order dated 6-2-1997.
7. Subsequent to the said order, the police has completed the investigation after obtaining Police Custody Remand of the accused-petitioner, resulting in filing of acharge sheet under Sections 120B, 302 and 201, I.P.C. against the present petitioner and, at the same time, keeping the investigation pending against the co-accused persons of the present petitioner who are alleged to have been absconding. Besides, Dr. Kamal Gotra has been released on anticipatory bail under Section 438, Cr.P.C. by the learned Addl. Sessions Judge, Nimbahera.
8. I have heard the learned counsel for the petitioner as well as the learned P.P. for the State and have also gone through the investigation record besides previous order dated 6-2-1997 and have considered the same carefully.
9. The learned counsel for the petitioner have contended that (i) initially, it was on 3-3-93 that a case under Sections 279, 337 and 338, I.P.C. alone was registered and subsequent thereto, consequent upon death of Harish Agarwal an offence under Section 304A, I.P.C. was also added, resulting in filing of acharge-sheet against the driver of the vehicle in which the deceased was travelling at the time of the accident and the same has resulted in termination of the proceedings, as above: (ii) on presentation of a belated complaint as late as on 4-9-96, though there is no justification, for the same, a case of murder was registered and investigation has been completed resulting in filing of a charge-sheet against the accused-petitioner: (iii) no cause of death has been ascertained and established as a result of either autopsy conducted on the dead body of the deceased or, from the chemical examination of the viscera of the deceased having been finally chemically analyzed and examined at the level of Laboratory: (iv) Dr. Kamal Gotra, who is alleged to have actually, at the last phase of the conspiracy, committed murder, has been granted anticipatory bail by the trial Court; (v) no charge-sheet has been filed against the co-accused persons including Dr. Gotra and the case has been kept pending under Sub-section (8) of Section 173, Cr. P.C. and (vi) as a result of conclusion of the investigation, there is no prima facie case of commission of murder of the deceased besides there being a criminal conspiracy to commit his murder prior to his death and, as a result, this being a simpliciter case of accident, of late motivated by some ulterior considerations, the police having falsely given a colour of murder and, therefore, inabsence of prima facie of murder, in the aforesaid circumstances, since this Court was disposed to grant maximum latitude and opportunity to the police to thoroughly investigage the case to take the same to its logical conclusion, while rejecting the previous bail petition, afforded fullest possible opportunity to the Investigating Agency and the Same has not as yet been able to find out the cause of death of the deceased and, therefore, it has been submitted that, in the aforesaid circumstances, since the investigation stands completed resulting in so called charge-sheet -as above and, therefore, the accused-petitioner be granted bail.
10. The learned Public Prosecutor, while reiterating the previous contentions raised at the time of hearing of previous Bail Petition No. 165/ 97, submitted that there was a prima facie case of criminal conspiracy resulting in causing death of Harish Agarwal and, as a result, the accused petitioner who is involved in as many as 22 cases including those of murder, under the Arms Act. N.D.P.S. Act etc. and, therefore, looking to the nature of the offences, besides there being a strong motive to grab an amount of Rs. 21,00,000/- to which the deceased was antitled and which could be claimed at any time and, therefore, in view of the previous order dated 6- 2-97, the petitioner is not entitled to bail.
11. There is no denial of the fact that, initially, this case was registered under Sections 279, 338 and 304A, I.P.C. only, Harish Agarwal was taken to the Govt. Hospital. Nimbahera whereat he was given first aid by Dr. Lahoti and there were no serious injuries which could be proved fatal to his life. He was discharged and, being taken to the Nursing Home of Dr. Gotra at Neemuch, was also interrogated by the police and he did not give any version about existence of any conspiracy and any alleged offence of attempted murder on his life at the hands of either accused-petitioner or his so called accomplices. It was as late as on 4-9-96 that Smt. Chandra Kanta, for the first time, came forward with a different version. However, admittedly, Smt. Chandra Kanta and her father-in-law were present at the Nursing Home, Neemuch before Harish Agarwal died. Harish Agarwal had talked to them before he was slipped into the operation theatre of the Nursing Home, Though it is alleged that the deceased met his end at the hands of Dr. Kamal Gotra but, even after autopsy was conducted at the Govt. Civil Hospital, Neemuch by a Govt. Medical Jurist, no cause of death could be ascertained, Besides. Dr. L. B. Singh, Dr. Choradia, Dr. Ghoudhary and Dr. Ashok Jain also happened to visit the deceased and, none of them could support the factum of killing, if any, other deceased. Beside*s, viscera of the deceased was taken and was got chemically examined from the laboratory and, as a result, the possibility of presence of any poisonous element has been totally excluded and, therefore, as is contended by the learned counsel for the petitioner, apprehending his arrest. Dr. Kama Gotra moved a petition for anticipatory bail before the trial Court and the same was accepted on 26-2-97 and the learned trial Judge, while examining and discussing the circumstances, lastly, resulting in death of the deceased, concluded that it was not a deliberate and intentional act on the part of Dr. Kamal Gotra or any other Medical Officer and, as a result, finding no prima facie case of his involvement, either in the alleged conspiracy or causing death of Harish Agarwal, he was allowed to be released on anticipatory bail and, therefore, it is further contended that the alleged end of Harish Agarwal could have come only at the hands of Dr. Kamal Gotra and not before and, as a result, in the aforesaid circumstances, when Dr. Kamal Gotra stands absolved of his liability, as above, the case of the prosecution in regard to existence of any prior criminal ..conspiracy to commit murder of Harish Agarwal on the operation table and, consequently, having been killed by Dr. Kamal Gotra, has been negatived as a result of investigation so far carried out and any conclusion as opposed to this finding of the trial Court, there is no evidence to conclude that Harish Agarwal, in fact was murdered pursuant to any criminal conspiracy of which the present petitioner is alleged to be an author.
12. Presently, though any opinion about the nature of the offences alleged to have been committed is too premature which is likely to affect ultimate trial, if any, of the accused-petitioner by the trial Court but, there cannot be denial of the fact, as already concluded hereinbefore, that initially, a case of rash and negligent driving was registered and, after investigation by the M.P. Police, Inderjeet Singh, j driver of the jeep, was accordingly challaned by the police of Nimbaheda. The same has lastly, resulted in termination of the proceedings, resulting in acquittal of Inderjeet Singh. The same was not successfully challenged before any higher forum. There was inordinate delay in lodging of subsequent complaint on 4-9-96 by Smt. Chandra Kanta who was, along with her father-in-law(,present in the same clinic whereat Harish Agarwal breathed his last. About half a dozen of Medical Officers had attended the deceased either at, before or just after the time of his death. No cause of death could be ascertained medically as against the injuries received by the deceased in the road accident on the previous night.-The chemical examination of the viscera of the deceased has totally ruled out the possibility of administration of poison to the deceased. This has further emboldened the learned counsel for the petitioner to contend that since the police was groping in the dark to find out any probable cause of death of the deceased and, as a result, since the medical and chemical evidence did not support the prosecution story negativing the prosecution story of murder of the deceased and, as a result, subsequently, an unsuccessful attempt has been made thereby alleging that Smt. Chandra Kanta and her father-in-law heard cries of Harish Agarwal from the operation table while standing out-side, giving an impression that he was strangulated on the operation table itself. However, there is complete absence of medical evidence to support the theory of so-called killing by strangulation and, as a result, it is submitted that the police is outright bent upon falsely booking the accused-petitioner in a false murder case to wreak vengence and, therefore, presently, since there is absolutely no evidence about the commission of murder of Harish Agarwal and, as a result, the accused-petitioner cannot be prima facie held liable for commission of any offence of murder as well and, therefore, there is equally no justification for refusing bail.
13. On careful consideration of the aforesaid circumstances, suffice it to say, that the prosecution has utterly failed to establish the actual cause of death of Harish Agarwal. There was a lot of delay in lodging subsequent complaint by Smt. Chandra Kanta on 4-9-96 and Dr. Kamal Gotra has even been granted bail in the aforesaid circumstances and the police has been granted repeated opportunities and more than sufficient time to investigate the case before carrying it to a logical conclusion and, as a result, a subsequent charge-sheet as opposed to the previous one so filed in the Court of Addl. Chief Judicial Magistrate, Nimbahera, has been filed in the same Court for alleged commission of offences under Sections 120B, 302 and 201, I.P.C. against the accused-petitioner only, while the investigation has been kept pending against the other co-accused-persons. In the circumstances, while disposing of previous petition, the Court clearly observed that since there were strong circumstances pointing out towards the accused- petitioner and, therefore, with a view to clear the suspicion and to facilitate thorough and impartial and unbiased investigation, any opinion about commission of the offences and, consequently, granting of bail to the accused-petitioner was too premature, likely to prejudice the investigation and having an adverse bearing on the merit. However, this had enabled the Investigating Officer to complete the investigation resulting in filing of a charge-sheet, as above and, therefore, at preserit, there is no escape from the conclusion that the prosecution is required to prove that there was a strong prima facie case of murder and complicity of the present accused-petitioner thereby disabling this Court to grant bail to the accused-petitioner. However, in the aforesaid circumstances, without any further comments on the merits of the case, at present; there is more than enough justification for granting bail to the accused-petitioner.
14. As a result of above discussion, this bail petition is accepted and it is ordered that the accused-petitioner shall be released on bail in FIR No. 123/93 of Police Station, Nimbahera, by the Court, before which the proceedings pursuant to filing of charge-sheet, as abov6, are pending against the accused-petitioner on furnishing a personal bond in the sum of Rs. 10,00,000/- (Rs. Ten lacs) by the petitioner besides two sureties each in the sums of Rs. 5,00,000/- (Rs. Five lacs) duly supported by proof of solvency and title deeds, in case he is no longer required in any other case. Besides, the petitioner shall undertake not to tamper with the prosecution evidence while on bail. In case the petitioner either jumps bail bonds or causes any obstruction or hindrance in smooth running of the trial, the learned trial Judge shall be at liberty to cancel his bail and take him it Up custody without further reference to this Court.