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2020 DIGILAW 871 (GUJ)

Suresh Balubhai Solanki v. State Of Gujarat

2020-10-21

A.Y.KOGJE

body2020
ORDER : 1. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with FIR being I-CR No.72 of 2014 registered with Mahuva Police Station, Surat for offence under Sections 302, 201, and 120(B) of the Indian Penal Code. 2. Learned advocate Mr. Varun Mathur with learned advocate Mr. Dhruvin Mehta appearing for the applicant submits that the applicant is in custody since 2014 and therefore, the applicant is entitled to the bail as the fundamental right of the applicant under Article 21 of the Constitution of India to speedy trial is violated and therefore, is required to be enlarged on regular bail. It is submitted that the Apex Court in an application filed by the applicant being Special Leave to Appeal (Crl.) No.8672 of 2019 has passed an order on 17.02.2020, wherein direction has been issued to the trial Court to expedite the trial and complete the same within a period of six months still the trial is not concluded and therefore, the applicant is entitled to bail. Learned advocate at the outset submits that the applicant is not having criminal antecedents and therefore, this is the only case in which he is involved and that too on the basis of evidence which cannot be treated as relevant evidence. It is submitted that the applicant had been released on temporary bail and on each of this time, the applicant has complied with the condition on temporary bail and has not committed any breach nor any untoward incident is reported that the applicant has obstructed the trial or influenced the witnesses. Learned advocate submitted that out of 95 witnesses, only 23 witnesses have been examined and therefore, the trial is likely to be prolonged and therefore, the applicant may be released on bail. 2.1. Learned advocate has relied upon the decision in the case of Smt. Akhatri Bi (Smt.) vs. State of M.P., reported in 2001 (4) SCC 355 in support of his contention of right to speedy trial of the applicant. Learned advocate has also relied upon the decision in the case of Shushila Agrawal v/s. State (NCT of Delhi) and another, reported in 2020 (5) SCC 1 on paras-45 and 46. 2.2. Learned advocate has also relied upon the decision in the case of Shushila Agrawal v/s. State (NCT of Delhi) and another, reported in 2020 (5) SCC 1 on paras-45 and 46. 2.2. Learned advocate has lastly submitted that the case of the applicant also deserves consideration on the ground that the co-accused Vipulbhai Keshavbhai Parmar enlarged on regular bail vide order dated 01.08.2017 in Criminal Misc. Application No.8284 of 2017 and one of the main grounds for enlarging him on bail was to the effect that out of 95 prosecution witnesses, six or seven witnesses were only examined. It is submitted that the delay in the trial is not attributable to the applicant and therefore also the applicant is entitled to bail as in case of the co-accused Vipulbhai Keshavbhai Parmar. 3. As against this, learned Additional Public Prosecutor has submitted that it is the case of brutal murder on account of brokerage in the land deal and the role of the applicant is very much evident. It is submitted that the applicant has failed on several occasions in getting bail before the Sessions Court, before this Court as well as before the Apex Court. Time and again, bail applications have rejected on merits and now there are no subsequent circumstances which would entitle the applicant to bail. It is submitted that the trial has proceeded, wherein 24 witnesses have already examined and it is only on account of the pandemic faced that the trial is not going on otherwise, the prosecution as well as the trial Court has accorded priority to the conduct of the trial in the present case. It is submitted that from the evidence on record, sufficient evidence is found of the involvement of the applicant in a brutal murder case and therefore, discretion may not be exercised. 4. Learned advocate Mr. Jigar Gadhavi appearing for the original complainant submitted that if the trial prolonged, the same is attributed to not only the applicant, but also to the other accused persons. It is submitted that there were instances when the applicant who was on temporary bail failed to surrender before the trial Court, as a result of which the trial has been prolonged. The two accused have already absconded and are not available for the trial and that is also the reason for delay in trial. It is submitted that there were instances when the applicant who was on temporary bail failed to surrender before the trial Court, as a result of which the trial has been prolonged. The two accused have already absconded and are not available for the trial and that is also the reason for delay in trial. Learned advocate referring to the Rojkam of the Sessions Case has indicated that on most of the instances, learned advocate on behalf of the applicant and other accused persons have filed applications seeking adjournments and therefore, it is not open for the applicant to contend as a matter of right bail on account of delay in trial. 5. In rejoinder, learned advocate for the applicant submits that the right to speedy trial is to be considered not from the date on which directions were issued by the Apex Court to conclude the trial within six months, but has to be considered from the date on which the applicant was apprehended that is to say since 2014. It is submitted that objections raised by the complainant that the applicant surrendered late cannot be taken into consideration as the applicant was under temporary bail and was arrested in bed ridden condition which fact has been taken into consideration by the Apex Court in its order dated 25.3.2019 relegating the applicant to file an application before the High Court for temporary bail which ultimately came to be granted. It is submitted that the applicant is not responsible for the delay. 6. The Court has considered the rival submissions of the parties and perused the documents placed on record. The applicant is an accused of offence being I-CR No.72 of 2014 registered with Mahuva Police Station, Surat punishable under Sections 302, 201 and 120(B) of the Indian Penal Code. The Sessions Court while rejecting the bail application of the applicant has observed that due to business rivalry and other reason, the accused persons had conspired and then murdered the deceased and thereafter, to cover up the offence to make the evidence disappear set the car ablaze. The investigation revealed from the Call Detail Records of the mobile phones of the accused and co-accused about their conspiracy and role of the applicant in giving fatal blow with a weapon and thereafter, throwing clothes into the river. The investigation revealed from the Call Detail Records of the mobile phones of the accused and co-accused about their conspiracy and role of the applicant in giving fatal blow with a weapon and thereafter, throwing clothes into the river. The bail application of the applicant thereafter, came to be rejected by order dated 12.09.2018 in Criminal Misc. Application No. 13599 of 2018 by this Court giving detailed reasons. Thereafter, again another application was filed being Criminal Misc. Application No.15350 of 2019 which also came to be dismissed by reasoned order dated 21.10.2019. It appears that the applicant thereafter, preferred Special Leave to Appeal (Crl.) No.8672 of 2019, which appears to be the application against the order dated 19.09.2019 in Criminal Misc. Application No.15739 of 2019, wherein the Apex Court has held as under:- “This petition is directed against the order dated 19.08.2019 passed by the High Court of Gujarat at Ahmedabad in R/Criminal Misc. Application No.15739 of 2019 whereby the High Court dismissed the application for grant of temporary bail to the petitioner. Having heard learned counsel for the parties and carefully perusing the records, we are not inclined to interfere with the impugned order passed by the High Court in exercise of our jurisdiction under Article 136 of the Constitution. The special leave petition is accordingly dismissed. As a sequel to the above, pending interlocutory application also stands disposed of. However, taking into consideration the facts and circumstances of the instant case, we direct the trial Court to expedite the trial and complete the same within a period of six months from today.” 7. It is in the aforesaid order that the directions were given to conduct the trial within a period of six months. Thereafter, once again the applicant filed Criminal Misc. Application No.5592 of 2020 which came to be rejected on 26.06.2020. In the aforesaid order, it is observed as under:- “The Court has taken into consideration the submission made by learned advocate for the applicant more particularly when the trial Court is under the direction of the Apex Court to conclude the trial within a period of six months from the date of the order of the Apex Court. The Court is not inclined to interfere at this stage. The Court is not inclined to interfere at this stage. Learned advocate therefore seeks permission to withdraw this application, however seeks liberty to file afresh in case if the trial does not get concluded within the period stipulated by the Apex Court.” 8. Thereafter, present application is filed wherein this Court by order dated 03.09.2020 called upon the Principal District Judge to submit report regarding the Sessions Case as the trial Court was under the direction of the Apex Court to conclude the same within a period of six months. The report was produced by separate communication dated 17.09.2020, wherein reference is made to a communication vide letter No.409/2020 dated 25.08.2020 to the Hon’ble Supreme Court of India by the Sessions Court seeking extension of time limit for concluding the trial of the case having regard to the fact of suspension of ongoing trial due to Covid-19 Pandemic situation. In para-2 of such report, following is reported. “In the background of the aforesaid factual position, I am to submit that subsequent to the transfer of case to the Court of 2nd Addtl. Sessions Court, Bardoli, depositions of 17 witnesses have been recorded, however, the trial of the said case has been delayed as accused Nos.1 and 2 did not surrender before the Jail Authority within time as per the condition imposed by Hon’ble High Court of Gujarat and also did not remain present during the course of trial of the said case. Moreover, it is also found that Witness No.24 has been examined in 16.03.2020 that is, subsequent to the order passed by the Hon’ble Supreme Court of India on 17.02.2020 in Petition for Special Leave to Appeal (Crl.) No.8672 of 2019. Thereafter, due to suspension of physical functioning of the subordinate Courts by the Hon’ble High Court of Gujarat on account of Covid-19 pandemic trial of the said case also appears to have been delayed due to that reason.” 9. The Court has perused the Rojkam. The relevant dates indicate the conduct of the applicant which came to be recorded as that on 28.12.2018 it is recorded that the applicant continued to remain absent as a result of which in his continued absence it was recorded that the subsequent recording of evidence would be continued even in his absence. 9.1. The Court has perused the Rojkam. The relevant dates indicate the conduct of the applicant which came to be recorded as that on 28.12.2018 it is recorded that the applicant continued to remain absent as a result of which in his continued absence it was recorded that the subsequent recording of evidence would be continued even in his absence. 9.1. On 11.01.2019, it is recorded that despite the expiry of temporary period, the applicant has not surrendered to the jail as he remained absent before the Court during the date of the trial. Again on 11.01.2019 arrest warrant has been issued against the applicant and on 21.01.2019, the applicant came to be arrested pursuant to arrest warrant. On 08.03.2019, coaccused Ketanbhai Jivanbhai Mahyavanshi is not remained present though on temporary bail and witnesses have remained present. On 29.06.2020, it is recorded that the communication has been received from Lajpore Central jail with regards to the applicant having not remained present after the temporary bail period. In the communication from Lajpore Central Jail dated 25.11.2018, it is recorded that the applicant who was enlarged for five days on bail on conditions has breached the condition and though was required to remain present on 11.11.2018, he has failed to surrender himself and therefore, warrant to arrest was prayed for by the authority. 10. Insofar as the submission of learned advocate seeking parity with co-accused, the Court finds on record that the conduct of co-accused Vipulbhai Keshavbhai Parmar after his arrest does not indicate as is observed herein in the preceding paras the manner in which the applicant has conducted and affected the trial itself. It is in para-9 of the order in case of Vipulbhai Keshavbhai Parmar, it is categorically observed that the said applicant is not been a hurdle in speedy disposal of the trial, which is not the case in the facts of the present applicant. 11. Learned advocate has placed reliance on the decision of Smt. Akhatri Bi (supra). However it is pertinent to note that the Supreme Court was considering the right to bail due to prolonged trial where the appeal against the conviction was pending in the High Court for long. 11. Learned advocate has placed reliance on the decision of Smt. Akhatri Bi (supra). However it is pertinent to note that the Supreme Court was considering the right to bail due to prolonged trial where the appeal against the conviction was pending in the High Court for long. Moreover, the Apex Court had also taken into consideration the facts of that case, the appellant being an old and infant lady and her daughter in law died during the pendency of trial giving birth to a male child who was also kept alongwith the appellant in the jail and on this fact, the Apex Court had enlarged the appellant therein on permanent bail pending the appeal. The facts as narrated in this case do not attract the proposition laid down by the Apex Court more particularly when the Court finds that the delay in trial to great extent is attributable to the applicant and coaccused persons. 12. Reliance placed by the applicant on the decision in the case of Shushila Agrawal (supra), in the opinion of this Court, is unfounded as Supreme Court was in consideration of the applicability of Section 438 of Code of Criminal Procedure for anticipatory bail and the span of operation of such anticipatory bail. It is in that context that the Supreme Court made observations in paras-45 and 46 with regards to the concept of bail. There cannot be any viewed different than what is recorded by the Apex Court recognizing as a norm which includes governing principles enabling the setting of accused on liberty subject to safeguards, required to make sure that he is present whenever needed. However, in the present case, the bail applications of the applicant time and again have rejected on merits and the applicant has not put up a case of any subsequent development for preferring the present bail application except for the right of the applicant to speedy trial. As narrated in the preceding paras, the Court does not find anything on record to come to a indefeasible conclusion that prolonged trial is not attributable to the applicant and co-accused, but only to the prosecution. 13. In view of the aforesaid facts and circumstances, the Court is of the view that the applicant has failed in getting admitted to bail in all his previous efforts before this Court as well as before the Apex Court. 13. In view of the aforesaid facts and circumstances, the Court is of the view that the applicant has failed in getting admitted to bail in all his previous efforts before this Court as well as before the Apex Court. The conduct of the applicant during the course of trial indicates that the applicant and other accused persons are responsible to great extent in delaying the ongoing trial and therefore, the Court is not inclined to exercise discretion in favour of the applicant on the ground of right to speedy trial. 14. In view of the aforesaid, the application stands dismissed.