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2024 DIGILAW 11 (GUJ)

Navinkumar Bhavarlal Khatik v. State Of Gujarat

2024-01-02

DIVYESH A.JOSHI

body2024
JUDGMENT : 1. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with the FIR being C.R. No.11824001211106 of 2021 registered with the Vyara Police Station, Tapi of the offence punishable under Sections 302, 307, 324, 120(B), 201, 225, 212 and 114 of the IPC and Section 135 of the G.P. Act. 2. The case of the prosecution in nutshell is as under; 2.1 On 14.05.2021, the complainant received a message that when his cousin brother, namely, Nishishbhai Manubhai, i.e, the deceased was standing near one fruit shop at the side of the highway road near the temple of Vrudavadi Hanumanji, at that time, four unknown persons, as a part of pre-planned criminal conspiracy, came in one silver colour KUV four-wheel of Mahindra company bearing registration No.GJ-05-JP-2445 and dashed the same with the Moped bike of the deceased, due to which, the deceased fell down. Thereafter, all those unknown persons got down from the said four-wheel with the sword and knife on their hands and made an assault on the deceased. As the shopkeeper Ganeshbhai and his persons tried to intervene, the accused persons started giving deadly blows to them due to which they also received serious injuries. Thereafter, all the accused persons ran after the deceased and pushed him down on the road near Shanidev Temple and rained deadly blows with the sword and knife on the head, nose, chest and different parts of the body of the deceased and thereby committed a serious offence of murder for the reasons best known to them. Hence, the impugned FIR. 3. Learned advocate Mr. Zubin Bharda assisted by learned advocate Mr. Kishan Daiya appearing for the applicant has submitted that so called incident took place on 14.05.2021 and on the very same day, the FIR came to be lodged. The applicant-accused was arrested on 31.05.2021 and since then he is in jail. It is further submitted that the investigation has already been completed and charge-sheet has also been filed. Learned advocate Mr. Bharda has submitted that the complaint does not name any person and the same came to be lodged against some unknown persons with the allegations that some persons made an assault on the deceased while he was on his way heading towards his house. Learned advocate Mr. Learned advocate Mr. Bharda has submitted that the complaint does not name any person and the same came to be lodged against some unknown persons with the allegations that some persons made an assault on the deceased while he was on his way heading towards his house. Learned advocate Mr. Bharda has further submitted that during the course of investigation, it is revealed that the deceased got married with the sister of the co-accused Vijay Mansukhbhai Patel which he did not like and keeping grudge of the same, the said Vijaybhai Patel gave a contract to the applicant-accused to kill the deceased and the applicant-accused in turn gave the said contract to the other co-accused persons. It is also submitted that the only allegation levelled against the applicant-accused is that he was given a contract to kill the deceased for which he was paid Rs.50,000/-. The said allegation was made only on the basis of the statement of the co-accused and as such there is no material or evidence to substantiate the said allegation. Learned advocate Mr. Bharda has submitted that the co-accused Vijay Mansukhbhai Patel, who alleged to have been given the contract to the applicant-accused has already been released on bail by the Hon’ble Apex Court. The entire case of the prosecution is based upon circumstantial evidence. There is no direct evidence against the applicant-accused. It is submitted that the applicant-accused has been arraigned as an accused on the basis of the statement made by the co-accused. The only role attributed to the applicant-accused is that he had facilitated the other co-accused to eliminate the deceased. It was a matter of love affair of the deceased and the sister of the main accused and the present applicant-accused has nothing to do with the same in any manner. He has been falsely implicated in the present offence. Learned advocate Mr. Bharda has further submitted that the co-accused who alleged to have been given the contract to the applicant-accused has already been enlarged on bail by the Hon’ble Supreme Court, and as such, on the ground of parity also, the applicant-accused may be enlarged on bail. It is further submitted that it is true that there are two past antecedents against the applicant-accused. However, in one offence he has been acquitted by the trial court and the other proceeding has been quashed by a Coordinate Bench of this Court. It is further submitted that it is true that there are two past antecedents against the applicant-accused. However, in one offence he has been acquitted by the trial court and the other proceeding has been quashed by a Coordinate Bench of this Court. Learned advocate Mr. Bharda has submitted that as investigation has been completed and charge-sheet has been filed and the custodial interrogation of the applicant-accused is not required and therefore the trial Court has committed grave error in not releasing the applicant on bail, more particularly when the prosecution case rests on circumstantial evidence. Under the circumstances, learned advocate Mr. Bharda for the applicant prays that the applicant may be enlarged on bail on any suitable terms and conditions. 4. The learned APP Mr. H.K. Patel appearing on behalf of the respondent-State has opposed grant of regular bail looking to the nature and gravity of the offence. Learned APP has submitted that the present applicant-accused is involved in the commission of the offence from the very inception. Learned APP Mr. Patel has further submitted that the present applicant-accused had purchased two swords and one iron pipe which have been used in the commission of the offence. The said fact is evident from the CCTV footages collected by the Investigating Officer from the place from where the said weapons were purchased by the applicant-accused. It is further submitted that the present applicant-accused had given a complete details about the movement of the deceased to the other co-accused persons that the deceased used to go to the particular place at this time and used to come back at this particular time. Learned APP Mr. Patel has also submitted that during the course of investigation, the Investigating Officer has collected the Call Data Record (CDR) of the applicant-accused which shows that the applicant-accused was in constant touch with the other co-accused persons at the relevant point of time. Not only that, after the commission of the offence, the present applicant-accused aided the other co-accused persons in fleeing away in one car which was in possession of the applicant-accused at that point of time. The applicant-accused was not the owner of the said car. However, the statement of the owner of the car was also recorded wherein he has very categorically stated that at the relevant point of time, his car was with the applicant-accused. The applicant-accused was not the owner of the said car. However, the statement of the owner of the car was also recorded wherein he has very categorically stated that at the relevant point of time, his car was with the applicant-accused. The movement of the said car is also found from the CCTV footages around the place of offence on the date of the incident. Learned APP Mr. Patel has also submitted that so far as the ground of parity is concerned, his bail application was considered on two grounds; firstly that he was having only motive and motive is considered as a weak piece of evidence and secondly the offences which are cited as antecedents against Vijay Patel are the family disputes. Learned APP Mr. Patel has further submitted on the contrary the circumstances or rather the evidence available against the applicant-accused is quite large in number than the evidence available against Vijay Mansukhbhai Patel and, therefore, parity cannot be claimed. Learned APP Mr. Patel has submitted that considering the role attributed to the applicant-accused, this is a fit case wherein discretionary power of this Court is not required to be exercised in favour of the applicant-accused. 5. The present bail application has also been opposed by learned advocate Mr. Daifraz Havewala appearing for the original complainant. Learned advocate Mr. Havewala has submitted that while considering application for bail on the ground of parity, the Court has to examine two things; firstly the role of the applicant-accused vis-a-vis the role of the other co-accused who has been released on bail and secondly the evidence which is forming a part of the charge-sheet against the applicant-accused and the person who has already been released on bail. It is submitted that the role of the present applicant-accused is not as simple as projected by the learned advocate for the applicant. It was the present applicant-accused, who had purchased the weapons used in the commission of the offence and such weapons were recovered at the instance of the applicant-accused which is evident from the recovery Panchnama. Moreover, after the commission of the offence, while fleeing away, the applicant-accused was there in the car along with the other co-accused persons. Learned advocate Mr. Moreover, after the commission of the offence, while fleeing away, the applicant-accused was there in the car along with the other co-accused persons. Learned advocate Mr. Havewala has also submitted that the present applicant-accused is the main conspirator who has procured the weapons which were used in the commission of the offence as also made arrangement for the logistic to flee away from the spot after committing the offence which is evident from the statements of the witnesses. The present applicant-accused made a recky of the deceased and at that point of time, he was found to be in constant touch with the other co-accused. So far as the role of Vijay Mansukhbhai Patel is concerned, his role is very limited that he has given contract to the applicant-accused. It is further submitted that from the materials available on record, it appears that the present applicant-accused is a contract killer having past antecedents of kidnapping, robbery etc. Learned advocate Mr. Havewala has submitted that there are number of statements recorded by the Investigating Agency including the statements of the shopkeepers from where the applicant-accused had purchased the weapons wherein they have very categorically stated that the present applicant-accused has purchased the weapons from their shops. The present applicant-accused is a hardcore criminal who is indulged in the activity of kidnapping, robbery and killing by accepting ransom. It is submitted that after a detailed investigation, the applicant-accused along with the other co-accused have been charge-sheeted for the offences under Sections 302, 307, 201 and 120(B) etc. of the IPC for having hatched the criminal conspiracy and killed the deceased for monetary benefits. Learned advocate Mr. Havewala prays that looking to the nature and gravity of the offence committed by the applicant-accused, the present application may be rejected and the applicant-accused may not be enlarged on bail. 6. I have heard the learned counsel for the respective parties at length. I have gone through the impugned judgment and order passed by the trial court rejecting the bail application of the applicant-accused. It appears from a bare reading of the order passed by the trial court that sufficient reasons have been assigned by the trial court while rejecting the bail application of the applicant. The trial court has very well adverted to the material collected during the course of the investigation. It appears from a bare reading of the order passed by the trial court that sufficient reasons have been assigned by the trial court while rejecting the bail application of the applicant. The trial court has very well adverted to the material collected during the course of the investigation. The trial court has also taken into consideration all material aspects while rejecting the bail application in such a serious offence of hatching conspiracy to kill the deceased. Merely because the prosecution case rests on circumstantial evidence cannot be a ground to release the accused on bail, if during the course of the investigation the evidence/material has been collected and prima facie the complete chain of events is established. As observed herein above, while rejecting the bail application of the applicant-accused, the trial court has adverted to and/or considered all the materials/evidences collected during the course of the investigation, which is a part of the charge-sheet. It is argued by learned advocate for the applicant that the other co-accused has been enlarged on bail by the Hon’ble Supreme Court and, therefore, the case of the applicant-accused may be considered on the ground of parity. I am of the opinion that in a case of committing murder and hatching conspiracy to kill a person and looking to the seriousness of the offence, the aforesaid can hardly be a ground to release the accused on bail. 7. At this stage, few decisions of the Hon’ble Supreme Court on grant of bail are required to be referred to. a) In Gudikanti Narasimhulu & Ors. vs. Public Prosecutor, High Court of Andhra Pradesh, (1978) 1 SCC 240 , Krishna Iyer, J., while elaborating on the content of Article 21 of the Constitution of India in the context of liberty of a person under trial, has laid down the key factors that have to be considered while granting bail, which are extracted as under: “7. It is thus obvious that the nature of the charge is the vital factor and the nature of the evidence also is pertinent. The punishment to which the party may be liable, if convicted or conviction is confirmed, also bears upon the issue. 8. Another relevant factor is as to whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being. 9. The punishment to which the party may be liable, if convicted or conviction is confirmed, also bears upon the issue. 8. Another relevant factor is as to whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being. 9. Thus the legal principles and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record – particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further about the criminal record of a defendant, is therefore not an exercise in irrelevance.” b) In Prahlad Singh Bhati vs. NCT of Delhi & ORS – (2001) 4 SCC 280 the Hon’ble Supreme Court highlighted the aspects which are to be considered by a court while dealing with an application seeking bail. The same may be extracted as follows: “The jurisdiction to grant bail has to be exercised on the basis of well settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behavior, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge.” c) The Supreme Court in Ram Govind Upadhyay vs. Sudarshan Singh, (2002) 3 SCC 598 , speaking through Banerjee, J., emphasized that a court exercising discretion in matters of bail, has to undertake the same judiciously. In highlighting that bail cannot be granted as a matter of course, bereft of cogent reasoning, this Court observed as follows: “3. Grant of bail though being a discretionary order — but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the court and facts, however, do always vary from case to case. While placement of the accused in the society, though may be considered but that by itself cannot be a guiding factor in the matter of grant of bail and the same should and ought always to be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic considerations for the grant of bail — more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter.” d) In Kalyan Chandra Sarkar vs. Rajesh Ranjan alias Pappu Yadav & Anr., (2004) 7 SCC 528 , the Hon’ble Apex Court held that although it is established that a court considering a bail application cannot undertake a detailed examination of evidence and an elaborate discussion on the merits of the case, the court is required to indicate the prima facie reasons justifying the grant of bail. e) In Prasanta Kumar Sarkar vs. Ashis Chaterjee, (2010) 14 SCC 496 the Hon’ble Supreme Court observed that where a High Court has granted bail mechanically, the said order would suffer from the vice of non-application of mind, rendering it illegal. e) In Prasanta Kumar Sarkar vs. Ashis Chaterjee, (2010) 14 SCC 496 the Hon’ble Supreme Court observed that where a High Court has granted bail mechanically, the said order would suffer from the vice of non-application of mind, rendering it illegal. The Supreme Court held as under with regard to the circumstances under which an order granting bail may be set aside. In doing so, the factors which ought to have guided the Court’s decision to grant bail have also been detailed as under: “It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail.” f) In Neeru Yadav vs. State of UP & Anr., (2016) 15 SCC 422 , after referring to a catena of judgments of the Supreme Court on the considerations to be placed at balance while deciding to grant bail, it is observed in paragraphs 15 and 18 as under: “15. This being the position of law, it is clear as cloudless sky that the High Court has totally ignored the criminal antecedents of the accused. What has weighed with the High Court is the doctrine of parity. A history-sheeter involved in the nature of crimes which we have reproduced hereinabove, are not minor offences so that he is not to be retained in custody, but the crimes are of heinous nature and such crimes, by no stretch of imagination, can be regarded as jejune. What has weighed with the High Court is the doctrine of parity. A history-sheeter involved in the nature of crimes which we have reproduced hereinabove, are not minor offences so that he is not to be retained in custody, but the crimes are of heinous nature and such crimes, by no stretch of imagination, can be regarded as jejune. Such cases do create a thunder and lightening having the effect potentiality of torrential rain in an analytical mind. The law expects the judiciary to be alert while admitting these kind of accused persons to be at large and, therefore, the emphasis is on exercise of discretion judiciously and not in a whimsical manner. x x x 18. Before parting with the case, we may repeat with profit that it is not an appeal for cancellation of bail as the cancellation is not sought because of supervening circumstances. The annulment of the order passed by the High Court is sought as many relevant factors have not been taken into consideration which includes the criminal antecedents of the accused and that makes the order a deviant one. Therefore, the inevitable result is the lancination of the impugned order.” 8. In Anil Kumar Yadav vs. State (NCT of Delhi), (2018) 12 SCC 129 , it is observed and held by the Hon’ble Supreme Court that while granting bail, the relevant considerations are, (i) nature of seriousness of the offence; (ii) character of the evidence and circumstances which are peculiar to the accused; and (iii) likelihood of the accused fleeing from justice; (iv) the impact that his release may make on the prosecution witnesses, its impact on the society; and (v) likelihood of his tampering. 9. Emphasizing on giving brief reasons while granting bail, it is observed by the Supreme Court in the case of Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana (Koli) and others, reported in (2021) 6 SCC 630 that though it is a well settled principle that in determining as to whether bail should be granted, the High Court, or for that matter, the Sessions Court deciding an application under Section 439 Cr.P.C. would not launch upon a detailed evaluation of the facts on merits since a criminal trial is still to take place. It is further observed that however the Court granting bail cannot obviate its duty to apply a judicial mind and to record reasons, brief as they may be, for the purpose of deciding whether or not to grant bail. It is observed that the outcome of the application has a significant bearing on the liberty of the accused on one hand as well as the public interest in the due enforcement of criminal justice on the other and the rights of the victims and their families are at stake as well and therefore while granting bail, the Court has to apply a judicial mind and record brief reasons for the purpose of deciding whether or not to grant bail. It is further observed by this Court in the aforesaid decision in paragraph 36 as under: “36. Grant of bail Under Section 439 of the Code of Criminal Procedure is a matter involving the exercise of judicial discretion. Judicial discretion in granting or refusing bail-as in the case of any other discretion which is vested in a court as a judicial institution-is not unstructured. The duty to record reasons is a significant safeguard which ensures that the discretion which is entrusted to the court is exercised in a judicious manner. The recording of reasons in a judicial order ensures that the thought process underlying the order is subject to scrutiny and that it meets objective standards of reason and justice.” 10. Applying the law laid down by the Hon’ble Supreme Court in the aforesaid decisions to the facts of the present case, the impugned order passed by the trial court directing not to release the applicant-accused on bail is sustainable both, on law as well as on facts. Whatever reasons are given by the trial court are genuine and germane. As observed herein above, the trial court has very well adverted to the relevant material/evidence collected during the course of the investigation, which are the part of the charge-sheet. During the course of the investigation and even as per the chargesheet it is alleged that for the monetary benefits, the applicant-accused hatched a criminal conspiracy with other co- accused to kill the deceased by accepting the ransom. During the course of the investigation, the name of the present applicant-accused has come on surface. During the course of the investigation and even as per the chargesheet it is alleged that for the monetary benefits, the applicant-accused hatched a criminal conspiracy with other co- accused to kill the deceased by accepting the ransom. During the course of the investigation, the name of the present applicant-accused has come on surface. Statements of number of witnesses have been recorded by the investigating officer during the course of investigation wherein some of the witnesses have very categorically stated that the applicant-accused had purchased the weapons from their shops which were subsequently used in the commission of the crime. Thus, it appears that there are ample evidence collected by the Investigating Agency against the applicant-accused in the form of statements of witnesses, drawing of discovery panchnama etc. It has also come on record that the applicant-accused is a contract killer by profession having past criminal antecedents. It also appears that at the relevant point of time, while committing the said offence, the applicant-accused was in constant touch with the other co-accused. The trial court has rightly considered all the materials available on record while rejecting the bail application of the applicant-accused in a serious offence of murder and hatching conspiracy to kill the deceased. Therefore, looking to the seriousness of the offence and the nature and gravity of the offence committed by the applicant-accused, I am not inclined to exercise my discretion in favour of the applicant-accused. 11. So far as the ground of parity is concerned, the Hon’ble Supreme Court, in the case of Tarun Kumar vs. Asst. Director, Directorate of Enforcement, SLP (Crl.) No. 9431 of 2023, Bela M. Trivedi, J., speaking for the Bench has observed thus; “18. The submission of learned Counsel Mr. Luthra to grant bail to the appellant on the ground that the other co-accused who were similarly situated as the appellant, have been granted bail, also cannot be accepted. It may be noted that parity is not the law. While applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration. It is not disputed in that the main accused Sh. Kewal Krishan Kumar, Managing Director of SBFL, and KMP of group companies and the other accused Devki Nandan Garg, owner/ operator/ controller of various shell companies were granted bail on the ground of infirmity and medical grounds. It is not disputed in that the main accused Sh. Kewal Krishan Kumar, Managing Director of SBFL, and KMP of group companies and the other accused Devki Nandan Garg, owner/ operator/ controller of various shell companies were granted bail on the ground of infirmity and medical grounds. The co-accused Raman Bhuraria, who was the internal auditor of SBFL has been granted bail by the High Court, however the said order of High Court has been challenged by the respondent before this Court by filing being SLP (Crl.) No. 9047 of 2023 and the same is pending under consideration. In the instant case, the High Court in the impugned order while repelling the said submission made on behalf of the appellant, had distinguished the case of Raman Bhuraria and had observed that unlike Raman Bhuraria who was an internal auditor of SBFL (for a brief period statutory auditor of SBFL), the applicant was the Vice President of Purchases and as a Vice President, he was responsible for the day-to-day operations of the company. It was also observed that the appellant’s role was made out from the financials, where direct loan funds have been siphoned off to the sister concerns of SBFL, where the appellant was either a shareholder or director. In any case, the order granting bail to Raman Bhuraria being under consideration before the coordinate bench of this Court, it would not be appropriate for us to make any observation with regard to the said order passed by the High Court.” 12. Keeping in mind the aforesaid principle laid down by the Hon’ble Apex Court in the above referred judgment, I am of the view that the discretion cannot be exercised in favour of the applicant-accused on the ground of parity as the role of the applicant-accused is quite distinct and different than the role of the co-accused who has been enlarged on bail by the Hon’ble Supreme Court. 13. For the foregoing reasons, the present application fails and is hereby rejected.