Gujarat High Court
Samirbhai Madhukantbhai Shah vs State Of Gujarat on 4 May, 2016
Author: R.M.Chhaya
Bench: R.M.Chhaya
R/CR.MA/9784/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 9784
of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.M.CHHAYA
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1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the NO
fair copy of the judgment ?
4 Whether this case involves a substantial NO
question of law as to the interpretation
of the Constitution of India or any order
made thereunder ?
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SAMIRBHAI MADHUKANTBHAI SHAH....Petitioner
Versus
STATE OF GUJARAT....Respondent
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Appearance:
MR J M PANCHAL, ADVOCATE for the Petitioner
MR K J PANCHAL, ADVOCATE for the Petitioner
MR MITESH AMIN, PUBLIC PROSECUTOR for the Respondent
MR YOGESH S LAKHANI, SENIOR ADVOCATE with MR JAY M
THAKKAR, ADVOCATE for the original complainant
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 04/05/2016
ORAL JUDGMENT
1. Heard Mr. J.M. Panchal, learned advocate with Mr. K.J. Panchal, learned advocate for the petitioner, Mr. Mitesh Amin, learned Public Page 1 of 30 HC-NIC Page 1 of 30 Created On Sat May 07 04:10:28 IST 2016 R/CR.MA/9784/2016 JUDGMENT Prosecutor for the respondent State, Mr. Yogesh S. Lakhani, learned Senior Advocate with Mr. Jay M. Thakkar, learned advocate for the original complainant. Registry shall accept Vakalatnama of learned advocate Mr. Jay M. Thakkar for the original complainant.
2. By this application under Section 438 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code" for the sake of brevity), the petitioner has prayed for anticipatory bail in connection with offence registered as CR no. I66 of 2016 with "B" Division Police Station, Rajkot City for the offence punishable under Sections 302, 365, 342, 120B of the Indian Penal Code, 1860.
3. Record indicates that the FIR was registered on 2.3.2016 and the sequence of events which are reflected from the FIR in question have occurred between 28.2.2016 till 1.3.2016. It deserves to be noted that the FIR is lodged by one Ashokkumar Kevalram Thakkar who happens to Page 2 of 30 HC-NIC Page 2 of 30 Created On Sat May 07 04:10:28 IST 2016 R/CR.MA/9784/2016 JUDGMENT be brotherinlaw of the deceased - Shri Dineshbhai Maganbhai Dakshini (hereinafter referred to as "the deceased") and the present petitioner is arraigned as accused no.1. As stated in the FIR, the petitioner is the partner of an Oil Mill known as Rajmoti Mill situated within the city limits of Rajkot. It is an admitted position that the deceased was working as an employee i.e. Manager with Rajmoti Oil Mill owned by the present petitioner at Ahmedabad depot. The record also indicates that the deceased was managing the affairs of Rajmoti Oil Mill owned by the petitioner at Ahmedabad. As narrated in the FIR, on 28.2.2016, accused no.2 - Samirbhai Gandhi who is also working with the present petitioner approached the deceased at his house situated in Ahmedabad at about 09:00 p.m. with other persons and with a preplanned conspiracy, the brotherinlaw of the complainant i.e. the deceased was forcefully, after informing the wife of the deceased i.e. sister of the Page 3 of 30 HC-NIC Page 3 of 30 Created On Sat May 07 04:10:28 IST 2016 R/CR.MA/9784/2016 JUDGMENT complainant, was taken in a Scorpio Car to Rajkot during night hours. It is alleged that accused no.2 gave a call to the complainant at about 11:30 p.m. on the said day and informed the complainant that as per the instructions of his owner i.e. the present petitioner, accused no.2 is taking his brotherinlaw - deceased to Rajkot. The complainant was informed that after the accounts are settled, he would bring back the deceased within a period of two days. It is further the case of the prosecution that the deceased was illegally confined by the present petitioner and accused no.2 at Rajkot. It is alleged by the complainant on 1.3.2016 at about 07:35 p.m., the sister of the complainant i.e. the wife of the deceased received a phone call from her husband that he is in Police Station and the petitioner and the police are forcefully trying to recover money from the deceased. It is the case of the petitioner that even deceased informed his wife i.e. the sister of the complainant over phone that he is Page 4 of 30 HC-NIC Page 4 of 30 Created On Sat May 07 04:10:28 IST 2016 R/CR.MA/9784/2016 JUDGMENT severally beaten by the present petitioner, accused no.2 - Samir Gandhi and policemen. The complaint also reveals that the complainant has recorded the talks in a Compact Disc (CD). It is further alleged that the deceased was also severally beaten in order to forcefully confess and to forcefully give money at Bedipara Police chowky, because of which, he received injuries and ultimately, he succumbed. It is alleged that the police did not inform the higher officers and even though the deceased succumbed to the injuries and even though they were aware about the contact numbers, the family members of the deceased were not informed about the death. It is also alleged that no entry about any offence against the deceased is registered in the Police chowky and in order to hide the true facts including the fact as to who took the deceased to Civil Hospital, Rajkot, attempts are being made. FIR also indicates that photographs of the injuries received by the deceased as well as the P.M. note support Page 5 of 30 HC-NIC Page 5 of 30 Created On Sat May 07 04:10:28 IST 2016 R/CR.MA/9784/2016 JUDGMENT the contention of the complainant. The complainant has also apprehended that proper investigation may not be conducted as there is likelihood of tampering with the evidence on strength of money power. It is also further alleged that the owners of Rajmoti Oil Mill have a political power, because of which, there is likelihood of tampering with the evidence and therefore, scientific investigation by way of narco test, lie detector test, brain mapping test and polygraph test, etc. should be carried out to unearth the criminal misdeeds and to immediately arrest the culprits. It is also alleged in the FIR that the investigation should be carried out under the supervision of the Police Commissioner. It appears that the FIR is lodged on basis of a written complaint given by the complainant.
4. It deserves to be noted and as pointed out by the learned advocates appearing for the respective parties, accused no.2 is already Page 6 of 30 HC-NIC Page 6 of 30 Created On Sat May 07 04:10:28 IST 2016 R/CR.MA/9784/2016 JUDGMENT arrested and even the regular bail of accused no.2 is rejected very recently by the learned Sessions Court, Rajkot.
5. It further deserves to be noted that the petitioner herein preferred an application for anticipatory bail under Section 438 of the Code before the learned Sessions Court, Rajkot being Criminal Misc. Application no. 390 of 2016, which came to be rejected by a reasoned order by the learned 5th Additional Sessions Judge, Rajkot vide order dated 22.4.2016 and thereafter, the present application is filed by the petitioner before this Court.
6. Mr. J.M. Panchal, learned advocate appearing for the petitioner has taken this Court through the FIR in detail and has raised the following contentions: [a] It was contended that FIR is registered on the basis of a written complaint given by the complainant who happens to be brotherinlaw of Page 7 of 30 HC-NIC Page 7 of 30 Created On Sat May 07 04:10:28 IST 2016 R/CR.MA/9784/2016 JUDGMENT the deceased.
[b] It was contended that the intention and/or motive was to recover money and was not to kill the deceased.
[c] It was contended that majority of the case against the petitioner is based on the confessional statement of accused no.2, which is not admissible in evidence and therefore, the same cannot be looked into by this Court even while considering the application for anticipatory bail.
[d] It was contended that looking to the allegations leveled against the petitioner, prima facie, he is not connected with the offence of murder.
[e] It was pointed out that the deceased has misappropriated an amount of Rs.15 lacs out of the sales of oil tins at Ahmedabad branch. However, on humanitarian ground, he was taken back in service and even after doing so, he Page 8 of 30 HC-NIC Page 8 of 30 Created On Sat May 07 04:10:28 IST 2016 R/CR.MA/9784/2016 JUDGMENT misappropriated an amount of Rs.3034 lacs. Mr. Panchal relying upon the chit which is recovered by the prosecution submitted that according to the case of the prosecution, chit was obtained from the deceased. However, it was contended that it is important to note that such a chit relating to the amount due was signed by deceased as well as his wife which relates to misappropriation by the deceased. It was contended that it is not the case of the wife that the signature was taken by force. [f] It was further contended that the deceased was taken to Rajkot for recovery of amount and was detained at Giriraj Building and beaten with baseball stick. However, the motive and intention was to recover the amount and not to kill him.
[g] It was contended that the deceased was taken to Bedipara police chowky in fact for lodging the complaint against him for misappropriation and not for beating.
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[h] It was contended that though the complaint is filed against two police officers, none of the police officers have been arrested and no actions are being taken by the investigating agency. It was further contended that the role attributed is only to bring the deceased to Rajkot and recover the amount and nothing further. Mr. Panchal reiterated that the prime intention or the motive was to recover the amount and not to kill the deceased as by killing the deceased, no amount could have been recovered.
[i] It was contended that the deceased was not taken to Bedipara police chowky in a dead condition and if there was any guilt, the deceased could have been taken to any secluded place or a lonely place.
[j] It was also contended that if the deceased is beaten severally because of police excess, the present petitioner cannot be held liable for conspiracy. Mr. Panchal also candidly submitted Page 10 of 30 HC-NIC Page 10 of 30 Created On Sat May 07 04:10:28 IST 2016 R/CR.MA/9784/2016 JUDGMENT that though morally the deceased could not have been kept at Rajkot and could not have been kept in Giriraj Building, for doing so, the petitioner cannot be tried for offence of murder. Mr. Panchal further submitted that many a times, subordinate staffs overreact in order to please the superiors, but that is a separate event, for which, the petitioner cannot be held liable.
[k] Mr. Panchal further submitted that when the deceased was taken to Bedipara police chowky, the petitioner was at the Chamber of Commerce Office for which CCTV footage is also available. It was alleged by Mr. Panchal that in order to protect the police officers, the petitioner is being targeted. Mr. Panchal again reiterated that to say that the intention or motive to kill is too much whereas the real motive was to recover money only. It was submitted that the petitioner has no criminal antecedents and has a social status and in fact he is President of the Chamber of Commerce. It Page 11 of 30 HC-NIC Page 11 of 30 Created On Sat May 07 04:10:28 IST 2016 R/CR.MA/9784/2016 JUDGMENT was also contended that mainly the evidence is of coaccused and there is no evidence to suggest that the petitioner was present in Bedipara police chowky and looking to the role attributed to the present petitioner, it cannot be said that his intention was to commit murder. It was therefore contended that this Court may exercise discretion in favour of the petitioner and may enlarge the petitioner on anticipatory bail on any conditions. It was also contended that the petitioner is ready and willing to cooperate with the investigation. It was also contended that nothing is to be recovered or discovered and hence, custodial interrogation of the petitioner is not necessary. It was lastly contended that considering the broad parameters of grant of anticipatory bail, this is not a case to reject the bail and the same may be granted as prayed for, even subject to remand.
[l] Mr. Panchal has relied upon the following judgments: Page 12 of 30 HC-NIC Page 12 of 30 Created On Sat May 07 04:10:28 IST 2016 R/CR.MA/9784/2016 JUDGMENT (I) State (Government of NCT of Delhi) Vs. Nitin Gunwant Shah, (2016) 1 SCC 472. (II) Bhadresh Bipinbhai Sheth Vs. State of Gujarat & Anr., (2016) 1 SCC 152 (III) S.N. Thapa, Addl. Collector of Customs, (Marine & Preventive), Bombay Vs. State of Maharashtra, (1994) 4 SCC 38.
(IV) State of Gujarat Vs. Mohammed Atik & Ors., (1998) 4 SCC 351.
(V) Jayendra Saraswathi Swamigal Vs. State of T.N., (2005) 2 SCC 13.
(VI) State of Gujarat Vs. Dipak Jaswantlal Sheth, 1998 (2) GLH 1044.
7. Per contra, Mr. Mitesh Amin, learned Public Prosecutor has contended that while considering bail, the position, role played, seriousness of offence along with circumstances connecting the accused with the crime is to be examined. Mr. Page 13 of 30 HC-NIC Page 13 of 30 Created On Sat May 07 04:10:28 IST 2016 R/CR.MA/9784/2016 JUDGMENT Amin contended as under: [a] That, the petitioner is owner of Rajmoti Oil Mill and the deceased was his employee. It was pointed out that it is the case of the petitioner that the deceased has committed misappropriation with the petitioner to the tune of Rs.6070 lacs. It was contended that a man of prudence and law abiding citizen would initiate civil and criminal proceedings against the deceased. It was contended that instead of resorting to legal remedies, the petitioner, being an influential and headstrong person, directed his immediate employee - accused no.2
- Samir Gandhi to bring the deceased to Rajkot. It was contended that as alleged in the FIR and as it has come out from the investigation papers, on direction of the petitioner, the deceased was kidnapped from his house and was confined at the place belonging to the petitioner from 28.2.2016 to 1.3.2016. [b] It was contended that there is material to show Page 14 of 30 HC-NIC Page 14 of 30 Created On Sat May 07 04:10:28 IST 2016 R/CR.MA/9784/2016 JUDGMENT that on direction of the petitioner, he was beaten not only by accused no.2 - Samir Gandhi, but by others as well and the purpose was recovery of Rs.6070 lacs. It was contended on knowledge that the beating is frustrated and as they came to know that the deceased had lost money in gambling, the petitioner, being a headstrong and influential person, sought help of ASP Bhatt and the deceased was taken to Bedipara Police chowky and there also, he was severally beaten. Mr. Amin further contended that the deceased was not officially brought to the police chowky by the police officer concerned and the record reveals that as many as 48 injuries have been received by the deceased and was thereafter taken to Civil Hospital at 11:30 p.m., wherein the deceased was declared dead.
[c] Mr. Amin relying upon the investigating papers contended that the statement given by the co accused is not the only evidence or material against the petitioner and there are other Page 15 of 30 HC-NIC Page 15 of 30 Created On Sat May 07 04:10:28 IST 2016 R/CR.MA/9784/2016 JUDGMENT statements and material on record to show and prima facie establish the charge of conspiracy against the petitioner. Mr. Amin further submitted that ASP Bhatt is also absconding and a warrant as contemplated under Section 70 of the Code of Criminal Procedure, 1973 is issued and process is issued to nab him. Similarly, the Police SubInspector who is accused no.3 is also absconding and efforts are being made to arrest him. It was contended that there is ample material to show the conspiracy hatched by the petitioner including a chit, wherein the wife of the deceased was also made to sign, which shows the highhandedness of the petitioner. Mr. Amin has also shown relevant statements to the Court and has contended that the conduct, behaviour and the involvement of the petitioner is such that in the present case, the discretion may not be exercised in favour of the petitioner. Mr. Amin also contended that the judgments relied upon by learned advocate for the petitioner are not Page 16 of 30 HC-NIC Page 16 of 30 Created On Sat May 07 04:10:28 IST 2016 R/CR.MA/9784/2016 JUDGMENT applicable to the present case. It was contended that having illegally kidnapped the deceased from his house, by instructing accused no.2 who is also working under the guidance and supervision of the petitioner and then confine him illegally in the premises of the petitioner for 2 days and by severally beating the petitioner and also seeking help of the police personnel shows the conduct and behavior of the petitioner. It was contended that the facts of the present case and the judgments relied upon by the learned advocate for the petitioner are different and are not applicable to the present case. It was submitted that in the instant case, the charge of conspiracy is very much there and therefore, the contention of alibi at the Bedipara police chowky is of no avail to the present petitioner. It was further contended that even the case of police atrocity has been recorded as the investigating papers reveal that the deceased was also beaten at the Police chowky. It was also contended that in Page 17 of 30 HC-NIC Page 17 of 30 Created On Sat May 07 04:10:28 IST 2016 R/CR.MA/9784/2016 JUDGMENT fact the police officers who are named in the FIR are to be arrested and the case of custodial death is also investigated and therefore, the officer of a level of Deputy Superintendent of Police is investigating the present offence. It was therefore contended that the application deserves to be dismissed.
8. Mr. Yogesh S. Lakhani, learned Senior Advocate assisted by Mr. Jay M. Thakkar for the original complainant reiterated the contentions raised by Mr. Mitesh Amin, learned Public Prosecutor and pointed out that the deceased was picked up and brought to Rajkot at the instance of the present petitioner. It was also pointed out that after bringing the deceased to Rajkot, he was confined at the premises of the present petitioner and was severally beaten, which ultimately resulted into death. It was contended that the instant FIR was registered on 2.3.2016 and since two months, the petitioner is not traceable and not found and therefore, this is not a fit case for exercise Page 18 of 30 HC-NIC Page 18 of 30 Created On Sat May 07 04:10:28 IST 2016 R/CR.MA/9784/2016 JUDGMENT of discretion in favour of the petitioner.
9. Mr. Panchal, learned advocate for the petitioner, in his rejoinder, as such reiterated the contentions raised by him at the first instance and contended that the deceased was brought to Rajkot after informing his family members. Replying to contentions raised by Mr. Amin, Mr. Panchal contended that the intention was not to kill the deceased. It was contended that there is nothing on record to show that as the purpose was not achieved at Rajmoti Oil Mill, the deceased was handed over to police. It was contended that overacting by someone would not make anybody liable for crime. It was also contended that if the intention was to kill the deceased and if the petitioner is a headstrong person, he could have also gone to police chowky. It was lastly contended that if the police officers were party to the conspiracy to commit the offence of murder, police would not have taken the deceased to Civil Hospital.
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10. No other or further contentions and/or submissions are made by the learned advocates appearing for the respective parties.
11. Considering the FIR, submissions made by the learned advocates appearing for the respective parties as well as upon perusal of the investigating papers which were made available to the Court by the learned Public Prosecutor, discloses an admitted fact that the deceased was serving with Rajmoti Oil Mill owned by the present petitioner in its depot/branch at Ahmedabad. The petitioner has also admitted the fact that the deceased was brought by accused no.2 to Rajkot with a motive to recover money. The record of this application as well as the investigating papers clearly indicate that for alleged recovery of money, the deceased was forcefully kidnapped at night hours i.e. at 09:00 p.m. from the house of the deceased in presence of his wife by accused no.2 in a Scorpio Car and was brought to Rajkot in the Page 20 of 30 HC-NIC Page 20 of 30 Created On Sat May 07 04:10:28 IST 2016 R/CR.MA/9784/2016 JUDGMENT night itself of 28.2.2016. The investigating papers clearly reveal that the deceased was thereafter detained in one room of Giriraj Building which is situated in Rajmoti Oil Mill premises belonging to the petitioner and was confined illegally and severally beaten. These facts clearly establish the guilt of kidnapping and wrongful confinement as well as beating the deceased. It was contended by the learned advocate for the petitioner that the motive was not to kill the deceased but was to recover the money, however, the manner in which such so called motive is attempted to be achieved by the petitioner at his instance through accused no.2 as well as the police officers - ASI Bhatt and accused no.3 - Police SubInspector- Maru and similarly the manner and method in which the said socalled recovery of money is sought to be achieved by the petitioner is nothing but illegal. Even if any amount is to be recovered from any person that too, an employee, the master is not free to get him kidnapped by Page 21 of 30 HC-NIC Page 21 of 30 Created On Sat May 07 04:10:28 IST 2016 R/CR.MA/9784/2016 JUDGMENT another employee from his house, confined in the premises of the petitioner, beaten in the manner in which the case papers revealed. The behaviour and the conduct of the petitioner strengthen the contentions raised by the learned Public Prosecutor that the petitioner is a headstrong and influential person. It is not the case of the petitioner that as a master, to recover any amount from an employee, the petitioner has any power to kidnap, confine illegally and to beat an employee to either confess the guilt of alleged misappropriation or to agree to make the payment. Furthermore, there is nothing on record to show that any complaint was lodged either by the petitioner, accused no.2 or anybody for and on behalf of Rajmoti Oil Mill against the deceased and therefore, the very presence and involvement of the police officers speaks of itself. The record shows that baseball stick has been recovered from the premises of Rajmoti Oil Mill belonging to the petitioner, where the deceased Page 22 of 30 HC-NIC Page 22 of 30 Created On Sat May 07 04:10:28 IST 2016 R/CR.MA/9784/2016 JUDGMENT was confined. Even the P.M. note indicates that as many as 48 injuries were found on the body of the deceased. The contentions raised by the learned advocate for the petitioner that except the statement of accused no.2, there is no evidence to even prima facie prove the guilt of the petitioner is incorrect. There are statements of other witnesses which have been shown to the Court who are not the accused, who have independently supported the case of the prosecution. As the present application is preferred by the accused no.1, it would not be proper to discuss the role attributed to even other coaccused, but the fact remains that the deceased was severally beaten in the premises belonging to the petitioner and the record reveals that the deceased was confined in such a manner that he was locked in the room and was brought out only for answering the natural calls and there is material to show that the petitioner is directly involved even in beating the deceased.
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12. Mr. Panchal has relied upon Paragraph 17 of the judgment of State (Government of NCT of Delhi) (supra) and has contended that mere knowledge or discussion about conspiracy is not sufficient. With respect, the facts of this case and the investigating papers clearly reveal that the petitioner is involved in the present offences. In facts of this case therefore, this judgment is not applicable. Similarly, the another judgment being State of Gujarat Vs. Mohammed Atik & Ors. (supra) relied upon by the learned advocate for the petitioner that confessional statement post arrest of a coaccused cannot fall within the ambit of Section 10 of the Evidence Act, would not be applicable in the instant case as it is not the case of the prosecution that the statement of the coaccused is the only evidence. Similarly, on the same ground, the judgment of the Apex Court in the case of Jayendra Saraswathi Swamigal (supra) as well as S.N. Thapa, Addl. Collector of Customs, (Marine & Preventive), Page 24 of 30 HC-NIC Page 24 of 30 Created On Sat May 07 04:10:28 IST 2016 R/CR.MA/9784/2016 JUDGMENT Bombay (supra) will be of no avail to the petitioner in facts of this case. Even considering the ratio laid down by this Court in State of Gujarat Vs. Dipak Jaswantlal Sheth (supra) as regards alibi considering the sequence of events which are unfold in the present case, would not absolve the petitioner only because he was not present at the Bedipara Police chowky. Similarly, the ratio laid down by the Apex Court in the case of Bhadresh Bipinbhai Sheth (supra) would also not be applicable. Firstly, the instant case was not for cancellation of bail.
13. On the contrary as pointed out by the learned Public Prosecutor even the case of police atrocity has been recorded as the investigating papers reveal that the deceased was also beaten at the Police chowky. On inquiry, the Court was informed that there was no entry made in Bedipara police chowky of any arrest, detention or the purpose for which the deceased was brought to Bedipara Police chowky. The record Page 25 of 30 HC-NIC Page 25 of 30 Created On Sat May 07 04:10:28 IST 2016 R/CR.MA/9784/2016 JUDGMENT of this application as well as the investigating papers speak of the high handedness on the part of the petitioner, other accused as well as the police officers collectively. At this juncture, it would be appropriate to refer to the judgment of the Apex Court in Jai Prakash Singh Vs. State of Bihar, AIR 2012 SC 1676, wherein considering the parameters of grant of anticipatory bail under Section 438 as laid down by the Hon'ble Supreme Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors., [2011] 1 SCC 6941 has observed thus: "11. Admittedly, the FIR had been lodged promptly within a period of two hours from the time of incident at midnight. Promptness in filing the FIR gives certain assurance of veracity of the version given by the informant/complainant.
12. The FIR in criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual Page 26 of 30 HC-NIC Page 26 of 30 Created On Sat May 07 04:10:28 IST 2016 R/CR.MA/9784/2016 JUDGMENT culprits and the part played by them as well as the names of eyewitnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it looses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations.
Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question. (Vide: Thulia Kali v. The State of Tamil Nadu, AIR 1973 SC 501; State of Punjab v. Surja Ram, AIR 1995 SC 2413; Girish Yadav & Ors. v. State of M.P., (1996) 8 SCC 186; and Takdiramsuddin Sheikh v. State of Gujarat & Anr., AIR 2012 SC
37).
13. There is no substantial difference between Sections 438 and 439 Cr.P.C. so far as appreciation of the case as to whether or not a bail is to be granted, is concerned.
However, neither anticipatory bail nor regular bail can be granted as a matter of rule. The anticipatory bail being an extraordinary privilege should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after proper application of mind to decide whether it is a fit case for grant of anticipatory bail.
14. In State of M.P. & Anr. v. Ram Kishna Balothia & Anr., AIR 1995 SC Page 27 of 30 HC-NIC Page 27 of 30 Created On Sat May 07 04:10:28 IST 2016 R/CR.MA/9784/2016 JUDGMENT 1198, this Court considered the nature of the right of anticipatory bail and observed as under:
"We find it difficult to accept the contention that Section 438 of the Code of Criminal Procedure is an integral part of Article 21. In the first place, there was no provision similar to Section 438 in the old Criminal Procedure Code..... Also anticipatory bail cannot be granted as a matter of right. It is essentially a statutory right conferred long after the coming into force of the Constitution. It cannot be considered as an essential ingredient of Article 21 of the Constitution. And its non application to a certain special category of offences cannot be considered as violative of Article
21."
18. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefore. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty.
(See: D.K. Ganesh Babu v. P.T. Manokaran & Ors., (2007) 4 SCC 434; State of Maharashtra & Anr. v. Mohd. Sajid Husain Mohd. S. Husain & Ors., (2008) 1 SCC 213; and Union of India v. Padam Narain Aggarwal & Ors., (2008) 13 SCC 305)."
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14. Thus, applying the parameters as laid down by the Apex Court in the case of Siddharam Satlingappa Mhetre (supra), Jai Prakash Singh (supra) and Bhadresh Bipinbhai Sheth (supra), considering the role attributed to the petitioner as well as nature and gravity of accusation, this is not a fit case to show any unwarranted sympathy towards the petitioner as held by the Apex Court in the case of Jai Prakash Singh (supra).
15. The case on hand clearly reveals that the petitioner having fiduciary relations with the deceased who was Manager of Ahmedabad depot, took law in his hands to recover the dues, got him kidnapped by accused no.2 from Ahmedabad and was brought to Rajkot and was illegally confined at the premises belonging to the petitioner himself for two days, severally beaten, took aid of police officers without any offence being registered against the deceased and the deceased ultimately succumbed to 48 injuries, which is clearly revealed from the Page 29 of 30 HC-NIC Page 29 of 30 Created On Sat May 07 04:10:28 IST 2016 R/CR.MA/9784/2016 JUDGMENT P.M. note made available to the Court by the learned Public Prosecutor. The aforesaid cumulatively therefore requires custodial interrogation of the petitioner. Considering the statements which were made available to the Court by the learned Public Prosecutor, the investigation is at a very crucial and initial stage wherein the petitioner is yet to be arrested even after two months and even the police officers are absconding, in such circumstances, in opinion of this Court, it would not be appropriate to discuss the evidence in detail. Suffice it to say that this is not a fit case for exercise of discretion in favour of the petitioner and enlarge him on bail under Section 438 of the Code. Application therefore deserves to be dismissed and is hereby rejected. Rule discharged.
(R.M.CHHAYA, J.) mrp Page 30 of 30 HC-NIC Page 30 of 30 Created On Sat May 07 04:10:28 IST 2016