Judgment Smt. Abhilasha Kumari, J.—Rule. Mr. J.M. Panchal, learned Special Public Prosecutor, waives service of notice of Rule on behalf of the respondent State of Gujarat. Mr. Ajaykumar Choksi, learned Special Public Prosecutor for SIT (Godhra Riot Case), waives service of notice of Rule on behalf of Respondent No. 2. On the facts, and in the circumstances of the case, and with the consent of the learned advocates for the respective parties, the application is being heard and finally decided. 2. The present application for bail under Section 439 of the Code of Criminal Procedure, 1973, has been preferred in connection with FIR, being CR.No. I-100/2002 dated 28-02-2002, registered with Naroda Police Station, for offences punishable under Sections 143, 147, 148, 149, 436, 395 and 302 of the Indian Penal Code and Section 135(1) of the Bombay Police Act. 3. Briefly stated, the relevant facts emerging from a perusal of the FIR and other documents on record are that, on 28-02-2002, at about 7.0 P.M., a mob of about 15,000 to 17,000 persons gathered at Naroda Patia area, near the Central Workshop (“The Workshop” for short) of the Gujarat State Road Transport Corporation (“GSRT” for short). The mob was uncontrollable, and slogans such as “Maaro” (kill) - “Kaapo” (cut) were being shouted. It is further stated that in spite of repeated announcements through Loudspeakers, bursting of tear-gas shells, and firing by the Police, the mob could not be controlled or disbursed. The mob became violent, and damaged and destroyed properties including dwelling houses, belonging to the Minority Community, by setting them on fire, after throwing burning rags. Shops were also burnt and looted. The mob was armed with deadly weapons such as iron pipes, sticks etc. It is stated that men, women and children belonging to the Minority Community were set ablaze, in the Chawl known as “Hussain-in-Chali”, resulting in the death of approximately 58 persons. 4. It has been stated by the Special Public Prosecutor for the SIT, and not denied by the learned advocate for the applicant, that subsequent investigations revealed that 95 persons have lost their lives and 38 persons have been injured. Five persons have been named in the FIR, though the applicant is not one of them. 4. It has been stated by the Special Public Prosecutor for the SIT, and not denied by the learned advocate for the applicant, that subsequent investigations revealed that 95 persons have lost their lives and 38 persons have been injured. Five persons have been named in the FIR, though the applicant is not one of them. The allegations against the applicant are that he, along with other co-accused persons, was a member of the unlawful assembly, and has allegedly committed offences punishable under Sections 143, 147, 148, 149, 436, 395 and 302 of the Indian Penal Code, and Section 135 (1) of the Bombay Police Act. The applicant has been implicated on the basis of the statements made by one of the witnesses. 5. The applicant had preferred an application for grant of bail, being Criminal Misc. Application No. 3806 of 2008, before the Sessions Court, which was rejected by order dated 30-12-2008.Thereafter, the applicant preferred an application for bail before this Court, being Criminal Misc. Application No. 315 of 2009. As this Court was not inclined to grant bail, the said application was permitted to be withdrawn, by order dated 06-03-2009. The applicant again approached the Sessions Court for grant of bail, by filing Criminal Misc. Application No. 1615 of 2009, which was rejected on 25-06-2009. Another application for bail was filed by the applicant before the Sessions Court, being Criminal Misc. Application No. 334 of 2011 which met a similar fate, vide order dated 24-02-2011. In the above background, the applicant has approached this Court by preferring the present application. 6. Mr. Hasmukh C. Patel, learned advocate for the applicant had submitted that:— (a) On the day of the incident i.e. on 28-02-2002, the applicant was on duty at the Workshop in Naroda Patia area. However, as the applicant was one of the Directors of the State Transport Employees Co-Operative Bank Ltd., and was to attend a meeting of the Board of Directors of the said Bank at Meghdoot Hotel, Sarangpur, he had left the premises of the Workshop, by taking a Duty Gate Pass. When the applicant reached the venue of the meeting, he was informed that riots had spread all over the City of Ahmedabad, and the meeting had been postponed. As no mode of transport was available, the applicant walked all the way home. When the applicant reached the venue of the meeting, he was informed that riots had spread all over the City of Ahmedabad, and the meeting had been postponed. As no mode of transport was available, the applicant walked all the way home. The applicant was not present in the Workshop at the relevant point of time on 28-02-2002, therefore, the allegations against him are baseless. (b) The case of the prosecution against the applicant rests upon the statement of one Khillubhai Abdul Gafarbhai Maniar, who is Prosecution witness No. 500 in the charge-sheet. However, the said witness died on 08.07.2009. As the sole witness on whose statement the applicant has been implicated is now dead, in all likelihood, there would be no material or evidence against the applicant, so as to connect him with the alleged offence. The death of the said witness constitutes a material change in circumstances, therefore, the present application for bail, though a successive one, ought to be considered. (c) The trial is not likely to conclude in the near future, as about 200 witnesses are yet to be examined, which will take a sufficiently long time. (d) Several Muslim employees of the GSRT have stated in the communication dated 24-06-2002, addressed to the Managing Director of the said Corporation, that an atmosphere of harmony prevailed within the Workshop on the day of the incident, and none of the employees of the Corporation was involved in the incident. (e) The applicant has remained in custody with effect from 04-11-2008, therefore, this Court may exercise discretion and grant bail. (f) In support of the above submissions, reliance has been placed upon the following judgments:— 1.Parvinder Singh vs. State of Punjab, (2003) 12 SCC 615. 2. State of Kerala vs. Raneef, (2011) 1 SCC 784 . 7. Mr. J.M. Panchal, learned Special Public Prosecutor for the State of Gujarat has vehemently opposed the bail application by submitting that: (a) After the Godhra incident, large scale violence erupted in the State, during which mass murders took place. Grievances were raised at several levels against the investigation made by the local police in the nine cases that were filed subsequent to the Godhra riots. The Supreme Court appointed a SIT to carry out the investigation into the Godhra riot cases, and all the nine cases were transferred to SIT for investigation, including the present one. Grievances were raised at several levels against the investigation made by the local police in the nine cases that were filed subsequent to the Godhra riots. The Supreme Court appointed a SIT to carry out the investigation into the Godhra riot cases, and all the nine cases were transferred to SIT for investigation, including the present one. (b) The applicant is involved in very serious and grave offences, as a result of which 95 murders took place, 38 persons were injured, and properties worth lakhs of Rupees, belonging to both the Government and private individuals, were damaged. (c) During the course of investigation it was found that the applicant is involved in the commission of the alleged offences, on the basis of statements made by one of the witnesses. (d) The death of the said witness would not be a circumstance entitling the applicant for grant of bail, as it is quality of the evidence that is to be seen and not the quantity. As several witnesses are yet to be examined, it cannot be presumed, at this stage, that there is no evidence, whatsoever, against the applicant. (e) The ground of alibi raised by the applicant cannot be looked into by this Court, as alibi is a matter of evidence and has to be proved by leading cogent evidence at the time of trial. (f) It is a settled legal position, that the Court may not evaluate or re-appreciate evidence at the stage of bail. This Court has already rejected the bail application of one of the co-accused persons vide order dated 02-03-2009, 03-03-2009, 04-03-2009,and 06-03-2009 passed in Criminal Misc. Application No. 297 of 2009, and similar considerations would apply in the present case, therefore, bail may not be granted. 8. The application for bail has been strongly resisted by Mr. Ajaykumar Choksi, learned Special Public Prosecutor for SIT, by making the following submissions: (a) The present application for bail is a successive one. The death of PW 500 cannot be considered to be a material change in circumstances, in view of the fact that the applicant has been charged with being a member of an unlawful assembly. The same ground was pleaded by the applicant before the Sessions Court, which has rejected the bail application by passing a well-reasoned order dated 24.02.2011. The death of PW 500 cannot be considered to be a material change in circumstances, in view of the fact that the applicant has been charged with being a member of an unlawful assembly. The same ground was pleaded by the applicant before the Sessions Court, which has rejected the bail application by passing a well-reasoned order dated 24.02.2011. (b) The examination of 277 witnesses has already concluded and now the police witnesses, such as the then Investigating Officers, are being examined. The prosecution is not likely to duplicate the evidence, therefore, the examination of the remaining witnesses may not take a long time. (c) The trial is being conducted on a day-to-day basis, as per the directions of the Apex Court. (d) The allegations against the applicant and the offences with which he has been charged, are of a grave and serious nature. The incident is one where 95 persons have been brutally murdered and 38 persons have been injured. (e) The release of the applicant on bail may result in hindrances to the trial and tampering with the witnesses. (f) The submission of the applicant that he was not present at the Workshop at the relevant point of time, is a matter of evidence that may not be gone into by this Court, as alibi is to be proved by leading evidence, therefore, the application be rejected. 9. I have heard learned counsel for the respective parties, perused the averments made in the application, contents of the documents annexed thereto, and the relevant record. 10. At this stage, it would be pertinent to notice the circumstances in which the incident that has been described in the FIR, took place. As an aftermath of the riots, that took place after what is popularly known as “the Godhra incident”, several petitions came to be filed by individuals, organisations, victims and their families. Investigation was carried out by the then Investigating Agency. There were allegations that the investigation was not properly conducted, statements were not properly recorded and, on the whole, it did not inspire confidence. Considering the sensitive nature of the cases, the Supreme Court, by order dated 26-03-2008, directed the appointment of the Special Investigation Team. The State Government issued the necessary Notification, on 01-04-2008. 11. Initially the trial in nine cases was stayed. Considering the sensitive nature of the cases, the Supreme Court, by order dated 26-03-2008, directed the appointment of the Special Investigation Team. The State Government issued the necessary Notification, on 01-04-2008. 11. Initially the trial in nine cases was stayed. However, the stay has since been lifted and the trials are being conducted on a day-to-day basis. The present is one such case, in which the investigation has been handed over to the SIT (Godhra Riot Case). 12. The applicant is an employee of the Gujarat State Road Transport Corporation which has its Workshop in the Naroda Patia area, where the incident as described in the FIR, took place. The main thrust of the submissions made by the learned advocate for the applicant are two-fold. The first submission advanced by him is that the applicant, though was on duty at the Workshop on 28-02-2002, had left the premises at about 10.30 A.M., in order to attend a meeting of the Board of Directors of the State Transport Employees Co-operative Bank Ltd., of which he was one of the Directors. It has been submitted that, on reaching Meghdoot Hotel which was the venue of the meeting, the applicant was informed that the meeting had been postponed, due to spreading of riots all over the City. The applicant had, therefore, gone home, and not returned to the Workshop. In other words, the applicant is trying to set up the defence of alibi. 13. It is a settled position of law, enunciated in a catena of judgments by the Supreme Court, that alibi has to be proved by leading evidence before the Trial Court during the trial, and the plea of alibi cannot be considered at the stage of bail. In Rajendra Singh vs. State of U.P., (2007) 3 SCC (Cri) 375, it has been held as below:— “8. That apart, the plea taken by the respondent Kapil Dev Singh in his petition under Section 482 Cr.P.C. was that of alibi. Section 103 of the Evidence Act says that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is proved by any law that the proof of that fact lie on any particular person. Section 103 of the Evidence Act says that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is proved by any law that the proof of that fact lie on any particular person. The second illustration to Section 103 reads as under :— “B wishes the Court to believe that at the time in question, he was elsewhere. He must prove it.” This provision makes it obvious that the burden of establishing the plea of alibi set up by Respondent No. 2 in the petition filed by him under Section 482 Cr.P.C. before the High Court lay squarely upon him. There is hardly any doubt regarding this legal proposition. (See Gurcharan Singh vs. State of Punjab AIR 1956 SC 460 , Chandrika Prasad Singh vs. State of Bihar AIR 1972 SC 109 and State of Haryana vs. Sher Singh AIR 1981 SC 1021 ). This could be done by leading evidence in the trial and not by filing some affidavits before the High Court. In such a case the prosecution would have got an opportunity to cross-examine those witnesses and demonstrate that their testimony was not correct. Learned counsel for the appellant has submitted that in fact no affidavits were filed in the High Court but what was filed were copies of two or three affidavits which were given by some persons before the Superintendent of Police, Allahabad. Thus, there was absolutely no legal evidence in support of the plea of alibi of Kapil Dev Singh, which the High Court chose to rely upon and accept for the purpose of quashing the order passed by the learned Sessions Judge.” (emphasis supplied) 14. In Gurcharan Singh vs. State of Punjab, 1956 SC 460, it has been held as under:— “The burden of proving alibi undoubtedly lies on the accused setting up the defence. But even so, the burden of proving the case against the accused is on the prosecution irrespective of whether or not the accused have made out a plausible defence. (Paras 5, 6) 15. The second ground on which emphasis has been laid by the learned advocate for the applicant is regarding the death of one of the prosecution witnesses, namely, PW 500, Khillubhai Abdul Gafarbhai Maniar, on whose statements the applicant has been implicated. (Paras 5, 6) 15. The second ground on which emphasis has been laid by the learned advocate for the applicant is regarding the death of one of the prosecution witnesses, namely, PW 500, Khillubhai Abdul Gafarbhai Maniar, on whose statements the applicant has been implicated. It is submitted that the said witness expired on 08-07-2009, therefore, the charges against the applicant cannot be proved and bail be granted to him. 16. In this regard it deserves to be noted that the effect of the death of the said witness upon the case of the applicant is an issue that falls within the realm of appreciation of evidence by the Trial Court. No presumptions or inferences can be made in this regard at the stage of deciding an bail application. It cannot be lost sight of, that several witnesses are still to be examined. At this stage the nature and quality of the evidence that may come on record cannot be known, and the effect of the evidence, in totality, upon the case of the applicant cannot be gauged. The death of the concerned witness, therefore, is not a ground entitling the applicant for grant of bail, in the background of the facts of the case. It cannot be lost sight of, that the applicant is facing charges of a grave and serious nature. It is alleged that he was a part of the unlawful assembly that acted under a criminal conspiracy, targeting a particular community as a result of which, 95 individuals lost their lives, while 38 persons were injured, and property worth lakhs of Rupees was destroyed. It has been submitted by the learned Special Public Prosecutor for the SIT, that 277 witnesses have already been examined, and though 200 witnesses remain, the prosecution would not duplicate the evidence, and some of those witnesses may be dropped at the appropriate stage. The trial is being conducted on a day-to-day basis, as per the directions of the Apex Court. The fact that the applicant has remained in custody with effect from 04-11-2008 will not, by itself, be a relevant ground for grant of bail, taking into consideration the totality of the facts and circumstances of the case, nature and gravity of the offences alleged, and the impact upon the public and the rule of law. The fact that the applicant has remained in custody with effect from 04-11-2008 will not, by itself, be a relevant ground for grant of bail, taking into consideration the totality of the facts and circumstances of the case, nature and gravity of the offences alleged, and the impact upon the public and the rule of law. An apprehension has also been expressed that release of the applicant on bail may hinder the trial and result in tampering of the witnesses. 17. Insofar as the judgment in Parvinder Singh vs. State of Punjab (Supra), relied upon by the learned advocate for the applicant is concerned, it pertains to the maintainability of a fresh bail application, after withdrawal of the earlier one. The principle of law enunciated in this judgment is not in dispute as the present application of the applicant is being considered, therefore, this judgment would not be relevant. 18. Insofar as the judgment in State of Kerala vs. Raneef (Supra) is concerned, it pertains to delay in trial which has been held to be an important factor to be considered while granting bail. 19. As has been stated by the learned Special Public Prosecutor for SIT and learned Special Public Prosecutor for the State, the trial is being conducted on a day-to-day basis. 277 witnesses have already been examined and the prosecution does not intend to duplicate evidence, therefore some witnesses may even be dropped. The principles of law enunciated in the said judgment, though not disputed, would not come to the aid of the applicant, in the present case. 20. Considering the totality of the facts and circumstances of the case, the nature and gravity of the offences and the apprehensions voiced by the learned Special Public Prosecutor for the SIT to the effect that if the applicant is released on bail it may cause hindrances in the trial and the witnesses may be tampered with, in the considered view of this Court, no valid reasons exist for grant of bail to the applicant. 21. It may be noted that the present case is not comparable with any ordinary case. It is a case involving wanton mass carnage, where fury has been vented upon the members of a particular community. Such offences have a negative impact upon the larger interest of society, resulting in undermining constitutional values which form the foundation of the rule of law. 22. It is a case involving wanton mass carnage, where fury has been vented upon the members of a particular community. Such offences have a negative impact upon the larger interest of society, resulting in undermining constitutional values which form the foundation of the rule of law. 22. For reasons stated hereinabove, the application is rejected. Rule is discharged. It is clarified that the Court has examined the matter only from the perspective of grant of bail, without entering into the merits of the case. The Trial Court may keep this aspect in mind during the trial, and decide the matter, in accordance with law, without being influenced by any observation made in this order. P P P P P