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2019 DIGILAW 174 (GUJ)

Rasulmiyan Lalamiya Chauhan v. State of Gujarat

2019-02-28

VIPUL M.PANCHOLI

body2019
JUDGMENT : Vipul M. Pancholi, J. This application is filed under Section 438 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code" for short) by the applicant with a prayer to release him on anticipatory bail in connection with FIR being C.R. No.I-78 of 2018 registered with Nandasan Police Station, District Mehsana. 2. Heard learned advocate Mr.Bhargav Bhatt assisted by learned advocate Mr.Kishan Chakwawala for the applicant and learned Public Prosecutor Mr.Mitesh Amin for the respondent State. 3. That the FIR being C.R. No.I-78 of 2018 is registered against one Imtiyaz, resident of Rajpur and four others under Sections 307, 324, 143, 147, 148 and 149 of the Indian Penal Code ('IPC' for short) and under Section 135 of the Gujarat Police Act. In the said FIR, the applicant is described as Rasulmiyan, resident of Village Rajpur. After registration of the FIR, Rajubhai Gandabhai Rabari succumbed to the injuries and, therefore, Section 302 of IPC is added. 4. Mainly, it has been alleged in the FIR that first informant is residing at Rabarivas, Village Kherpur and doing his agriculture work. He has three brothers and one sister, out of which elder brother is Rajubhai and younger brother is Motibhai. It is alleged that at around 11 O'clock in the night, the first informant received a phone call from his elder brother Rajubhai and informed that they have to go to Ahmedabad to meet their aunt and Jinal and accordingly called them to his farm house. The first informant and his younger brother Motibhai reached to the farm house. Thereafter, all the three brothers along with one Prakashbhai left the farm house in a Creta car of his brother and at around 11:30 O'clock in the night, they reached near Kalapi Hotel. At that juncture, one Imtiyaz, who was armed with knife, Rasulmiyan of Village Rajpur, who was armed with sword, Piriyo Musalman of Village Rajpur, who was armed with sword, Taufik of Village Rajpur, who was armed with Pipe along with one other Muslim person, who was armed with stick, were standing on the road and intercepted the car, which was driven by Prakashbhai and Rajubhai was sitting besides him whereas the first informant and Motibhai were sitting in the back side of the car. It is further alleged in the FIR that Imtiyaz opened the door of the car and gave a knife blow below the armpit of Rajubhai. It is also alleged that Rasulmiyan had also given knife blows on the left thigh and left side back portion of the first informant. During this scuffle, Rajubhai was fell down on the road. Thereafter, Motibhai had brought Rajubhai to the Government Hospital, Mehsana, for treatment and for further treatment, the first informant was brought to Zydus Hospital, where the Doctor had operated the first informant. It is stated in the FIR that while giving the information, the first informant was fully conscious. 5. At this stage, it is required to be noted that the Investigating Officer has filed a charge-sheet against the co-accused, who are arrested and the concerned Court issued warrant under Section 70 of the Code against the applicant, who is not available for interrogation. 6. Learned advocate Mr.Bhatt appearing for the applicant submitted that prior to the registration of the present FIR on 25.07.2018, on 21.07.2018, FIR being C.R. No.I-59 of 2018 came to be registered with Nandasan Police Station for the alleged offence punishable under Section 507 of the IPC. In the said FIR, Imtiyazmiya Sujatmiya Chauhan is the first informant, who has filed the said FIR against one Rabari Lallubhai Govabhai. Learned advocate has referred the said FIR, a copy of which is produced at Page-24 of the compilation. It is submitted that in the said FIR, names of Rasulmiya Samatmiya and Bhikhumiya Sujatmiya are referred as the friends of the said first informant. However, name of the present applicant is Rasulmiyan Lalamiya Chauhan. At this stage, learned advocate for the applicant has referred the cross FIR being C.R. No.I-77 of 2018, which is filed on the very same day i.e. on 25.07.2018 for the offences punishable under Sections 307, 326, 506(2), 143, 147, 148 and 149 of the IPC against Rabari Rajubhai Gandabhai and others. It is submitted that in the said case also, there is no reference with regard to the present applicant. It is submitted that Rajubhai Gandabhai Rabari i.e. the deceased and Kamshibhai Rabari i.e. the first informant of the present FIR and other accused were aggressors, who went at the place of the first informant Imtiyazmiya Sujatmiya Chauhan. It is submitted that in the said case also, there is no reference with regard to the present applicant. It is submitted that Rajubhai Gandabhai Rabari i.e. the deceased and Kamshibhai Rabari i.e. the first informant of the present FIR and other accused were aggressors, who went at the place of the first informant Imtiyazmiya Sujatmiya Chauhan. After referring the aforesaid First Information Reports, it is contended that the name of the applicant is not reflected in the aforesaid two incidents and, therefore, the applicant herein has no connection with the aforesaid two groups. 6.1 Learned advocate Mr.Bhatt, thereafter, would refer the Injury Certificate of the first informant i.e. Rabari Kamshibhai Gandabhai, a copy of which is produced at Page-123 of the compilation. It is contended that the said first informant has not given the name of the applicant while giving history before the concerned Doctor. At this stage, learned advocate has also referred the Injury Certificate of the said first informant produced at Page-131 of the compilation, wherein also, name of the applicant is not referred by the first informant while giving history. Thus, from the aforesaid material, it is contended that the applicant, who is Ex-Sarpanch of the Village, is falsely implicated by the Investigating Agency. 6.2 Learned advocate Mr.Bhatt further submits that when the applicant came to know about his false implication in the aforesaid case, he submitted representation dated 18.08.2018 to the Honourable the Chief Minister, Honourable Law Minister, Honourable Home Minister and Police Authorities and requested that the investigation be handed over to the independent Investigating Agency. At this stage, learned advocate has also referred the documents produced at Pages-177 and 178 of the compilation and submitted that the concerned District Superintendent of Police gave interview to the concerned news channel wherein the said District Superintendent of Police has stated that seven accused are arrested, however, two other accused, whose role is yet not clear, are not arrested as the investigation is going on. It is further stated by the said District Superintendent of Police that against deceased Rajubhai Gandabhai Rabari, number of cases were registered in Mehsana District and there is an enmity between the two groups. From the aforesaid document, it is contended that the present applicant is nowhere connected with the aforesaid groups. It is further stated by the said District Superintendent of Police that against deceased Rajubhai Gandabhai Rabari, number of cases were registered in Mehsana District and there is an enmity between the two groups. From the aforesaid document, it is contended that the present applicant is nowhere connected with the aforesaid groups. 6.3 It is further submitted that the applicant has filed a petition before this Court with a prayer that the respondent Police Authorities be directed to carry out the investigation of the FIR in question in a fair, unbiased and impartial manner and transfer the said investigation to some other higher independent Investigating Agency. Learned advocate for the applicant has referred the averments made in the said petition and submitted that the applicant herein has shown willingness to undergo Narco Analysis Test and any other Scientific Test to bring out the truth. However, it is fairly submitted that the said petition is still pending and this Court has not passed any order for transfer of investigation or permitting the applicant to go for Narco Analysis Test. 6.4 At this stage, learned advocate Mr.Bhatt for the applicant referred the statements of two so-called eye-witnesses, namely, Irfanmiya Sikandarmiya Chauhan and Akbarmiya @ Shakal Sarumiya Nathumiya Qureshi. It is submitted that though the Investigating Officer has recorded the statements of the said eyewitnesses, the said eye-witnesses filed a petition being Special Criminal Application No.8789 of 2018 before this Court wherein it was prayed for transfer of investigation with a further direction to the concerned respondent to record the statements of the said petitioners and witnesses before him or before Executive Magistrate. It is submitted that this Court passed an order dated 10.10.2018 whereby direction was issued to the concerned District Superintendent of Police to personally look into the complaint addressed to him by the said petitioners and if need be, the said witnesses be taken to the concerned Judicial Magistrate for recording their statements. It is submitted that pursuant to the aforesaid order, the statements of aforesaid two eye-witnesses were recorded wherein name of the present applicant was not found. 6.5 Learned advocate Mr. It is submitted that pursuant to the aforesaid order, the statements of aforesaid two eye-witnesses were recorded wherein name of the present applicant was not found. 6.5 Learned advocate Mr. Bhatt for the applicant, thereafter, submits that even assuming without admitting the fact that the statements of the witnesses given against the applicant are correct, even then, the role attributed to the applicant is that he had given knife blow to the first informant Kamshibhai Rabari and not to the deceased Rajubhai. Even as per the statements of the witnesses, the applicant had not given any blow to the first informant Kamshibhai Rabari on any vital part of the body. Thus, at the most, offence punishable under Section 324 of IPC can be attracted against the applicant and, therefore, this Court may consider the case of the applicant for anticipatory bail. 6.6 At this stage, learned advocate for the applicant requested that the applicant is ready and willing to undergo Narco Analysis Test or any Scientific Test and, therefore, the Investigating Agency be directed to carry out the said test and till the said exercise is carried out, the applicant may not be arrested. Learned advocate has referred Rule 137 of the Gujarat Police Manual, which provides that the Investigating Officer has to investigate the offence in a fair, impartial and in legal manner. 6.7 Learned advocate has placed reliance upon the following decisions: 1. Laksmi Singh Vs. State of Bihar reported in, (1976) AIR SC 2263 2. Bhagwan Sahai and Anr vs. State of Rajasthan reported in, (2016) 13 SCC 171 3. Ravindra Saxena Vs. State of Rajasthan reported in, (2010) 1 GLH 382 (SC) 4. Solanki Ravibhai Dipubhai Vs. State of Gujarat reported in, (1992) 1 GLR 631 5. Smt. Selviand and Ors. Vs. State of Karnataka reported in, (2010) 2 GLH 357 (SC) 7. On the other hand, learned Public Prosecutor Mr.Mitesh Amin has vehemently opposed this application and submitted that there is ample material in the investigation papers against the present applicant, from which, it can be said that the applicant is involved in the alleged offence. Learned Public Prosecutor Mr.Amin has referred the statements of Irfanmiya Sikandarmiya Chauhan and Akbarmiya @ Shakal Sarumiya Nathumiya Qureshi, Bijalbhai Haribhai Rabari, Lallubhai Govabhai Rabari, Motibhai Gandabhai Desai and Prakashkumar Jamabhai Rabari. Learned Public Prosecutor Mr.Amin has referred the statements of Irfanmiya Sikandarmiya Chauhan and Akbarmiya @ Shakal Sarumiya Nathumiya Qureshi, Bijalbhai Haribhai Rabari, Lallubhai Govabhai Rabari, Motibhai Gandabhai Desai and Prakashkumar Jamabhai Rabari. It is submitted that the applicant is absconder and is not available for interrogation and, therefore, the concerned Court has issued warrant under Section 70 of the Code against the applicant. It is submitted that the allegation against all the accused is that they formed an unlawful assembly and, thereafter, committed alleged offences and, therefore, Sections 302, 307, 324, 143, 147, 148 and 149 of the IPC are alleged against the applicant and other accused. Therefore, in a case of serious and heinous crime like offence punishable under Section 302 of IPC, separate role played by the applicant is not required to be examined, at this stage, by this Court. 8. It is further submitted that the applicant accused cannot mandate the Investigating Officer that he should conduct investigation in a particular manner. If the applicant is ready and willing to undergo Lie Detection Test or Narco Analysis Test, after his arrest, he can submit necessary application before the concerned Court. It is further submitted that for the said request, separate petition is filed by the applicant before this Court, in which, till today, this Court has not passed any order in favour of the applicant and, therefore, in this application, the applicant cannot insist that under the protection of this Court, the Investigating Officer should carry out the Narco Analysis Test of the applicant. 8.1 It is further submitted that meticulous examination of the material in the charge-sheet filed against co-accused is not required at this stage, while considering the anticipatory bail application of the present applicant. 8.2 It is further submitted that the decision rendered by the Honourable Supreme Court in the case of Laksmi Singh Vs. State of Bihar (supra) would not be applicable to the present case, as in the said case, the Honourable Supreme Court was considering the case after the trial was over. 8.3 It is further submitted that a decision rendered by the Honourable Supreme Court in the case of Smt. Selviand and Ors. Vs. State of Karnataka (supra) would not be applicable to the present case, as the issue before the Honourable Supreme Court was whether the accused can be compelled to go for Narco Analysis Test without his consent? 8.3 It is further submitted that a decision rendered by the Honourable Supreme Court in the case of Smt. Selviand and Ors. Vs. State of Karnataka (supra) would not be applicable to the present case, as the issue before the Honourable Supreme Court was whether the accused can be compelled to go for Narco Analysis Test without his consent? Learned Public Prosecutor has also distinguished the other decisions upon which reliance is placed by the learned advocate for the applicant. It is, therefore, urged that this application be dismissed. 8.4 Learned Public Prosecutor placed reliance upon the order dated 29.10.2018 passed by the Honourable Supreme Court in Criminal Appeal No.1309 of 2018 (Sangitaben Shaileshbhai Datanta Vs. the State of Gujarat & Anr). 9. Having heard learned advocates appearing for the parties and having gone through the material produced on record, it has emerged that in the FIR in question, the first informant has given the name of the present applicant as Rasulmiyan. However, no further detail was given. Even from the history given by the first informant Rabari Kamshibhai, though he has not specifically stated about the name of the applicant and role played by him, it is stated that one Imtiyazmiya Sujatmiya and five others made assault with sword and knife at the Highway of Rajpur Village. Thus, there is a specific reference with regard to the other five accused. Eye-witness Irfanmiya Sikandarmiya Chauhan has specifically named the present applicant in his statement, which was recorded on the date of the incident i.e. on 25.07.2018 and also stated that the applicant had given knife blow to the first informant. Similar statement was given by eye-witness Akbarmiya @ Shakal Sarumiya Nathumiya Qureshi. However, the aforesaid two eye-witnesses have not implicated the present applicant in their subsequent statements. However, immediately on 27.07.2018, statements of Motibhai Gandabhai Desai and Prakashkumar Jamabhai Rabari were recorded wherein they have specifically stated about the role played by the applicant herein. The injury received by the first informant Kamshibhai Rabari is corroborated with the statements of the eyewitnesses. Thus, at this stage, there is ample material against the applicant that he was a member of unlawful assembly and he was present with the co-accused at the place of incident, and also played vital role by giving knife blows to the first informant. Hence, there is a prima-facie case against the applicant. 10. Thus, at this stage, there is ample material against the applicant that he was a member of unlawful assembly and he was present with the co-accused at the place of incident, and also played vital role by giving knife blows to the first informant. Hence, there is a prima-facie case against the applicant. 10. It is well settled that this Court is not required to examine the evidence and contentions of the parties meticulously while deciding the application for anticipatory bail. In the FIR, Sections 143, 147, 148 and 149 of the IPC are also applied and, therefore, contention of the learned advocate for the applicant that at the most, alleged role of the applicant attracts only Section 324 of the IPC cannot be accepted at this stage, as the applicant was the member of unlawful assembly. 11. Learned Public Prosecutor has rightly submitted that the decision upon which reliance is placed by the learned advocate for the applicant would not be applicable in the facts of the present case, as this Court is considering the application of the applicant for grant of anticipatory bail. 12. In the case of Sangitaben Shaileshbhai Datanta Vs. the State of Gujarat & Anr (supra), the Honourable Supreme Court in Paragraphs-7 and 8 has observed as under: "7. Having heard the counsels for the parties, it is surprising to note the present approach adopted by the High Court while considering the bail application. The High Court ordering the abovementioned tests is not only in contravention to the first principles of criminal law jurisprudence but also violates statutory requirements. While adjudicating a bail application, Section 439 of the Code of Criminal Procedure, 1973 is the guiding principle wherein Court takes into consideration, inter alia, the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds. Each criminal case presents its own peculiar factual matrix, and therefore, certain grounds peculiar to a particular case may have to be taken into account by the court. However, the court has to only opine as to whether there is prima facie case against the accused. Each criminal case presents its own peculiar factual matrix, and therefore, certain grounds peculiar to a particular case may have to be taken into account by the court. However, the court has to only opine as to whether there is prima facie case against the accused. The court must not undertake meticulous examination of the evidence collected by the police, or rather order specific tests as done in the present case. 8. In the instant case, by ordering the abovementioned tests and venturing into the reports of the same with meticulous details, the High Court has converted the adjudication of a bail matter to that of a minitrial indeed. This assumption of function of a trial court by the High Court is deprecated." 13. It is also required to be noted that the applicant has shown willingness to undergo Narco Analysis Test under the protection of this Court. However, the petition filed by the applicant herein for transfer of investigation or for fair, unbiased and impartial investigation by the concerned respondent Investigating Agency, is pending before the Co-ordinate Bench of this Court and till today, no order is passed in the said matter in favour of the applicant. Learned Public Prosecutor is right in submitting that after the applicant is arrested, it is open for him to submit necessary application before the concerned Court that he is ready and willing to undergo Scientific Test i.e. Narco Analysis Test. However, in the present application, the request of the applicant cannot be entertained. 14. At this stage, it is required to be noted that the learned advocates appearing for the parties have made detailed submissions on merits and, therefore, this Court has considered their submissions in the present order. However, observations made by this Court in this order can be considered as prima-facie observations while deciding the anticipatory bail application and the same would not come in the way of the applicant at the time of trial or while deciding other applications. 15. In view of the aforesaid facts and circumstances of the present case, this Court is of the view that the custodial interrogation of the applicant is required and when the concerned Court has issued warrant under Section 70 of the Code as the applicant is not available for interrogation, this Court is not inclined to exercise discretion in favour of the applicant. At this stage, it is required to be noted that the learned advocate for the applicant has submitted that for cancellation of warrant, the applicant has filed an application under Section 70(2) of the Code before the concerned Court. However, it is not disputed that till today, such warrant is not cancelled by the concerned Court. 16. The application is rejected. Rule is discharged.