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2010 DIGILAW 509 (GUJ)

Prahladbhai Mohanbhai Gosa v. State of Gujarat

2010-10-18

RAJESH H.SHUKLA

body2010
Judgment Rajesh H. Shukla, J.— The present application has been filed by the applicants, original accused, for grant of regular bail under Section 439 of the Code of Criminal Procedure. 2. The Applicant-accused is charged with having committed offences under Sections 302, 307, 147, 148, 149, 436, 427, 504, 506(2), 201 and 120B of IPC for which FIR, being C.R. No. I-60/2002 has been registered with Visnagar Police Station, Mehsana. 3. Learned Sr. Counsel Mr. Yogesh Lakhani appearing for the applicants submitted that this is one of the matters where the Special Investigation Team (for short ‘SIT’) has been constituted. Learned Sr. Counsel Mr. Yogesh Lakhani submitted that the incident has taken place in February, 2002. Thereafter, the SIT was constituted by the order passed by the Hon’ble Apex Court in March, 2008 and further investigation was made. The SIT recorded the statements of the witnesses and thereafter the trial had commenced and it was almost on the verge of completion. 4. Learned Sr. Counsel Mr. Lakhani submitted that this background is required to be considered for the purpose of appreciating the fact that originally the applicants were not even named in the FIR or in any of the statements recorded either by the investigating agency or thereafter even by the SIT. However, when the trial commenced, the evidence of the witnesses was recorded and at that time also no whisper was even suggested about the role of the applicants herein. He further emphasised that the SIT was constituted and the statements were recorded afresh, and pursuant to the directions of the Hon’ble Apex Court, pending the trial the statements were recorded and still the name of the applicants was not referred to by anyone. However, after about 5 years the applicants were sought to be implicated falsely and for that purpose he referred to the papers pointedly emphasising the statement of the complainant dated 12.5.2008 before the SIT and submitted that they were sought to be implicated on the basis of suspicion as it is stated in a statement before the SIT that he believes, or he has suspicion, that the applicants were instigating and it is also stated that at the instance of the applicants who are influential persons, the statement/complaint was not recorded properly. 5. Learned Sr. Counsel Mr. Lakhani also referred to the testimony of witness No. 113 at Exh. 5. Learned Sr. Counsel Mr. Lakhani also referred to the testimony of witness No. 113 at Exh. 645, one Shermohammad Sindhi and submitted that he is also implicating the present applicants with the role of instigation. However, he pointedly referred to the cross-examination and submitted that it has been admitted that the officers of SIT had recorded the statements and at that time he has not mentioned about the applicants and it has also not been referred to in any of the testimony of the witnesses earlier. Further, it has been also admitted that when he deposed before the Court, he has stated for the first time attributing the role of instigation to the present applicants. 6. Learned Sr. Counsel Mr. Lakhani also referred to the other papers and testimony of witnesses and the statements. He pointedly referred to the testimony of Nazirmiya, PW 129 at Exh. 689 and submitted that he has also stated that he has never mentioned this fact in any of the statements recorded by the SIT or even his testimony before the Court recorded earlier. It is also admitted that even in his application to the Court or in the testimony before the Court, he has not mentioned about the name of the applicants. 7. Learned Sr. Counsel Mr. Lakhani, therefore, submitted that as now recording of the evidence of the concerned witnesses is already over and the matter is at the fag end, the present application may be allowed as now there is no question of interfering or influencing the witnesses or tampering with the record as the entire investigation is with the SIT and the trial is almost concluded. He has also referred to this aspect and pointedly referred to the observations made in the judgment reported in (2009) 3 SCC (Cri.) 44. Learned Sr. Counsel Mr. Lakhani therefore submitted that the application has beed given before the Sessions Court at Exh. 948 and 955 and the order came to be passed. The application was rejected and therefore they have preferred the present application. 8. He has also referred and relied upon the affidavit-in-reply filed by the Superintendent of Police, SIT and submitted that even the affidavit refers to the statement dated 12.5.2008 wherein it is stated that the complainant has a reason to believe that the applicants were involved. The application was rejected and therefore they have preferred the present application. 8. He has also referred and relied upon the affidavit-in-reply filed by the Superintendent of Police, SIT and submitted that even the affidavit refers to the statement dated 12.5.2008 wherein it is stated that the complainant has a reason to believe that the applicants were involved. However, it is also stated in this affidavit that thereafter the investigation was made and it is specifically stated that “In view of this, SIT did not find any reliable material or evidence against the present petitioners and therefore the present petitioners were not joined as an accused persons by the SIT.” He emphasised, as recorded in this affidavit, that it was during the trial both these applicants wee implicated and the order was passed under Section 319 of CrPC and they have been arraigned and the trial has proceeded further. Therefore, Learned Sr. Counsel Mr. Lakhani submitted that as now the trial is about to be concluded, they may be released on bail subject to any condition. 9. Learned Sr. Counsel Mr. Lakhani also submitted that it is not even the case of the complainant or the SIT that during any of this period they have tried to approach or influence the witnesses even when the same witnesses were recalled pursuant to the order passed by the Hon’ble Apex Court after they were arraigned as accused. Therefore, Learned Sr. Counsel Mr. Lakhani submitted that the present application may be allowed. 10. Lastly, Learned Sr. Counsel Mr. Lakhani, referring to the conduct of the complainant, strenuously submitted that it is a case of false implication, over implication and the Court should also consider the right of an accused under Article 21 of the Constitution. He has submitted that considering the nature of offence and the facts, the Hon’ble Apex Court has constituted the SIT and thereafter again the investigation has been made and the trial has also been conducted and therefore there is no chance for the applicants to abuse or misuse the liberty and they cannot be kept in jail when even after such evidence, at the most, the role attributed is with regard to instigation and nothing further. 11. Learned Sr. Counsel Mr. Lakhani for that purpose emphasized th conduct of the applicants and the lawyer Mr. Tirmizi at the time of hearing of this application. 11. Learned Sr. Counsel Mr. Lakhani for that purpose emphasized th conduct of the applicants and the lawyer Mr. Tirmizi at the time of hearing of this application. He submitted that initially the Court had not acceded to the request pending examination of the witnesses to be recalled and therefore the witnesses were recalled and examined and the Learned Counsel for SIT was also directed to take instructions. This would take care of the apprehension and thereafter when this matter was again taken up for hearing after the evidence of the witnesses who have been recalled was recorded, there are no complaints for any kind of influence. He submitted that in spite of that the affidavit has been filed by Learned Advocate Mr. Tirmizi for the complainant raising the objection and the affidavit has been filed with a view to deny bail to the applicants making allegations which have been found to be false. For that purpose he pointedly referred to the papers and submitted that purshis at Exh. 1011 was given by the accused who are not present and the purshis was given for exemption on 30.9.2010 when the witnesses are said to have been threatened on 30.9.2010. This itself suggest about the conduct and the intention to keep the applicants behind bars at any cost. He submitted that when the accused were not even present before the Court on 30.9.2010 due to the bandobast and purshis was given for exemption there was no question of threat given when they were not present at all in the Court compound. 12. He further submitted that an application has been given to the Court which has been directed to be verified by the Court by the SIT and as it appears from the record, the said application is dated 24.9.2010 which is struck and corrected as 30.9.2010, meaning thereby even before 30.9.2010 this application was prepared and typed which suggests about the mala fide intention about false implication which is now evident even from the report which is produced with the additional affidavit filed on behalf of the SIT and Para 11 of the said report clearly suggests that the complainant had got it typed from typist Jabir Hussain who has also confirmed that he has typed and the said application was brought by two other persons including one reporter and he does not even know the complainant. It is also stated that police protection is also provided and therefore these allegations as stated in the additional affidvit by the SIT dated 13.10.2010 itself confirms about the mala fide intention of the complainant. He therefore submitted that it is a clear case of false implication and liberty of the applicants accused under Article. 21 of the Constitution of India may also be considered and therefore the present application may be allowed. 13. Learned Sr. Counsel Mr. Menon appearing with Learned Advocate Mr. Choksi for the SIT submitted that in peculiar facts and circumstances of the case the SIT was constituted as per the order of the Hon’ble Apex Court. He submitted that the statements have been recorded and the names of the applicants were not initially mentioned. However, learned Sr. Counsel Mr. Menon submitted that considering the nature of offence and the apprehension about influencing the witnesses, this Court has taken the care as per the order passed on 20.9.2010 and the hearing of the bail application was postponed till the witnesses who are recalled have been examined. Learned Sr. Counsel Mr. Menon submitted that, therefore, the apprehension is now taken care of and the affidavit has been filed by the SIT. 14. Learned Sr. Counsel Mr. Menon further submitted that as per the order passed by this Court dated 7.10.2010 with regard to an application tendered by Learned Advocate Mr. Tirmizi for the complainant with regard to the grievance and/or influence or threat to the witnesses has been verified and an additional affidavit has been submitted. He submitted that as stated in the additional affidavit with regard to verification of the application given by Learned Advocate Mr. Tirmizi, the statements have been recorded, which clearly suggests that the allegations made in the application are without any basis and the report is self-explanatory, which is annexed to the additional affidavit. Learned Sr. Counsel Mr. Menon, therefore, submitted that when this application given by Learned Advocate Mr. Tirmizi was sent for verification and the statements were recorded, an affidavit has been tendered by Learned Advocate Mr. Tirmizi, which again is found to be incorrect, to avoid any harsh language. 15. Learned Sr. Counsel Mr. Menon submitted that the attitude is unfair on the part of the complainant as it is indicated that the charges are also levelled against SIT or the I.O. and the other higher officer. Learned Sr. Tirmizi, which again is found to be incorrect, to avoid any harsh language. 15. Learned Sr. Counsel Mr. Menon submitted that the attitude is unfair on the part of the complainant as it is indicated that the charges are also levelled against SIT or the I.O. and the other higher officer. Learned Sr. Counsel Mr. Menon therefore submitted that he would, while adopting a fair and reasonable stand, state that no complaint has been made by the complainant and though, in fact he had the opportunity to draw the attention of the I.O. or any person, it has not been stated to anyone about the so-called influence or threat. For the first time he has disclosed it in this Court and gave the application. Learned Sr. Counsel Mr. Menon submitted that this was therefore, as rightly directed by this Court, verified and as the report is self-explanatory, the allegations are not found to be well-founded. Therefore, Learned Sr. Counsel Mr. Menon submitted that as it transpires, and they have stated it in the earlier affidavit initially, the petitioners were not implicated. Subsequently, on the basis of the evidence further investigation has been made and now even the evidence of the witnesses who were sought to be recalled is also over and therefore appropriate order may be passed. 16. In view of rival submissions, it is required to be considered whether the present application can be entertained or not. 17. It is well accepted that this Court is not required to appreciate or scrutinize the evidence in detail at this stage. Further, it is required to be emphasized at the outset that the Court is very much cautious about the nature of the case where the Hon’ble Apex Court has constituted the SIT and it is in background of what has transpired thereafter the present application qua the applicants is required to be considered. However, though a detailed appreciation and scrutiny of the evidence may not be required, at least for considering the prima facie case or involvement, relevant factors like the nature of offence, the manner in which it is alleged to have been committed, role attributed and other attending circumstances are required to be considered (emphasis supplied). 18. As it appears from the facts on record, admittedly, the applicants have been arraigned as accused at a much later stage. Detailed submissions have been made by learned Sr. Counsel Mr. 18. As it appears from the facts on record, admittedly, the applicants have been arraigned as accused at a much later stage. Detailed submissions have been made by learned Sr. Counsel Mr. Lakhani which has taken note of the fact that pending trial investigation has been ordered and pursuant to that investigation the statements are recorded before the SIT. Even at that stage there is no role attributed to the applicants and subsequently during the course of recording of evidence it has been stated leading to the arraignment of the present applicants as accused. Thereafter, considering the nature of offence, this Court had not entertained the application, pending recording of the evidence of the witnesses who were required to be recalled and, therefore, as per the order dated 20.9.2010, taking care of the apprehension voiced fairly by learned Sr. Counsel Mr. Menon, the Court had declined to entertain the application at that time to rule out even the slightest possibility of influencing the witnesses and therefore it was directed that only after recording of evidence of the witnesses who were to be recalled is overm, the present application can be considered. 19. It is in background of these facts, when the entire evidence is already recorded and when there is no allegation, Learned Advocate Mr. Tirmizi for the complainant has tendered an application on 7.10.2010 when the hearing of this matter was taken up. Therefore, again, making note of this application, it was directed that the copy may be served to Learned Counsel Mr. Menon who in turn may get it verified and report may be submitted to the Court after verification of the application given by the complainant. Therefore, it has been verified by the SIT and the report has been submitted with the additional affidavit filed on behalf of the SIT dated 13.10.2010 and the report is self-explanatory which has been highlighted by learned Sr. Counsel Mr. Lakhani. 20. Therefore, it has been verified by the SIT and the report has been submitted with the additional affidavit filed on behalf of the SIT dated 13.10.2010 and the report is self-explanatory which has been highlighted by learned Sr. Counsel Mr. Lakhani. 20. Further, as the application has been given, as the things would have been, the allegations have been belied from the record that the applicants-accused were not brought to the Court at all due to the bandobast and therefore as they were not there in the compound at all and were in jail, without any further elaboration, considering the well-accepted principles regarding grant of bail and also considering the provisions of Article 21 of the Constitution of India, the present application deserves to be allowed. 21. The application is accordingly allowed. The applicants are ordered to be released on bail in connection with C.R. No. I-60/2002 registered with Visnagar Police Station, Mehsana. on their executing a personal bond of Rs. 50,000/- (Rupees Fifty Thousand only) each with one solvent surety for the like amount to the satisfaction of the lower Court and subject to the further conditions that they shall :— (a) not take undue advantage of his liberty or abuse his liberty. (b) not to try to tamper or pressurize the prosecution witnesses or complainant in any manner; (c ) not act in any manner injurious to the interests of the prosecution. (d) maintain law and order and should co-operate with the investigating officers; (e) mark their presence before the concerned Police Station on the first Monday of every calendar month between 11.00 am to 2.00 pm till the trial is over. (f) furnish the 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 his residence without prior permission of the Court. (g) surrender their passport, if any, to the lower Court, within a week. 22. If breach of any of the above conditions is committed, the concerned Sessions Judge will be free to issue warrant or take appropriate action in the matter. 23. Bail before the lower Court having jurisdiction to try the case. It would be open to the trial Court concerned to give time to furnish the solvency certificate, if prayed for. Rule is made absolute. D.S. permitted.