1. Heard Mr. Raju, learned Senior Counsel with Ms. Pinky, M. Trivedi, learned advocate for the applicant and Mr. Jani, learned APP for the respondent State.
2. The application under Section 439 of the Code of Criminal Procedure, 1973 has been taken out by the applicant seeking regular bail in connection with offence registered with Bavla Police Station, Ahmedabad bearing I-CR No.-119 of 2011 for the offence punishable under Sections 307 of the Indian Penal Code, 1860 and Section 25(1)(b) of the Arms Act.
3. Mr. S.V. Raju, learned Senior Counsel has appeared with Ms. Pinki M. Trivedi, learned advocate for the applicant and has submitted that though it is true that before the Chargesheet was filed the applicant herein had preferred Criminal Misc. Application No.14363 of 2011 seeking regular bail, however present application is preferred after chargesheet came to be filed i.e. in view of change in circumstances on account of filing of chargesheet. Mr. Raju, learned Senior Counsel for the applicant has submitted that the applicant was arrested on 8.9.2011 in connection with the alleged offence punishable under Section 307 of the Indian Penal Code, 1860 and Section 25(1)(b) of the Arms Act. Mr. Raju, learned Senior Counsel for the applicant has submitted that the applicant is wrongly involved in the offence on incorrect allegation made against him. He further submitted that now the statements of all persons are recorded and the the investigation is over and the chargesheet has been filed and that therefore the applicant deserves to be enlarged on bail. Mr. Raju, learned Senior Counsel for the applicant has submitted that when the complainant is discharged from hospital the accused deserves to be enlarged on bail. In support of his submission Mr. Raju, learned Senior Counsel for the applicant has submitted that the offence allegedly occurred on 7.9.2011 and according to record the complaint has been discharged from the hospital on 15.9.2011. He also submitted that the petitioner is out of danger and according to the injury certificate the injury caused to the complainant is not very serious injury and therefor also the applicant deserves to be enlarged on bail. Mr. Raju, learned Senior Counsel for the applicant further submitted that according to the panchnama the alleged firing had taken place from long distance of about 96 meters and at the time when the panchnama was drawn, any blood / blood stains were not found at the place of alleged incident. He also claimed that the bullets were not fired from the applicant's firearm (revolver). On the strength of such details, Mr. Raju, learned Senior Counsel for the applicant has submitted there was no material for involving the applicant for the alleged offence and yet on incorrect allegations made by the complainant in the FIR the applicant herein has been wrongly involved in the alleged offence. Mr. Raju, learned Senior Counsel for the applicant has submitted that the applicant's license for owing and carrying firearm has been suspended by the competent authority which is another reason which deserves to be taken into account and the applicant deserves to be enlarged on bail.
4. Mr. Jani, learned GP has vehemently opposed the application and submitted that the applicant had admitted, as recorded in the panchnama, that the bullet rounds (three in number) were fired by him from his revolver. Learned APP also submitted that in presence of panchas the discovery and recovery of bullets was made and the applicant led the panchas to the place wherefrom the bullet / cartridge were recovered. Learned APP submitted that so far as the contentions raised on the ground that the alleged firing of bullets was done from distance at 96 meters and / or that at the relevant time blood / blood stains were not found and such other aspects are matter of evidence which can be considered at the time of trial. Learned APP has submitted that after his arrest the applicant herein had filed application seeking regular bail from the Court of the 4th Additional Sessions Judge and the said application was rejected on merits and thereafter the above referred application being Misc. Criminal Application No.14363 of 2011 was filed in this Court and then it came to be withdrawn. Learned APP also submitted that now, present application is preferred on the ground that there is change in circumstances because the chargesheet is filed, however actually any other change has not taken place and therefore also the application does not deserve to be entertained. Learned APP also submitted that three rounds were fired and one of the bullets hit the complainant on the left side of his neck and considering the part of body where the complainant suffered the injury and the way in which the three rounds were fired the attack was made with intention to cause death and therefore also the applicant does not deserve to be enlarged on bail.
5. It emerges from the record that the complainant lodged FIR on 7.9.2011 in connection with the alleged incident wherein it was alleged that when the complainant was engaged in Pooja / Havan at the farm house, the petitioner reached there and fired three rounds from his revolver and due to the said firing the complainant suffered bullet injury on left side of his neck. It was also alleged that the complainant was rushed to the hospital by his wife and son. The complainant alleged that a dispute was going on between the owner of the farm and the petitioner and though some sort of settlement was arrived at the petitioner was not satisfied with the settlement and therefore he reached the farmhouse and fired three shots from his revolver at the complainant which resulted into the injury on the left side of his neck.
5.1 After the FIR was filed on 7.9.2011 it appears that the applicant was arrested on 8.9.2011. Thereafter on or around 14.9.2011 he filed application for regular bail in the Court of 4th Additional Sessions Judge which was registered as Criminal Misc. Application No.1457 of 2011 and vide order dated 7.10.2011 the said application was rejected.
5.2 Thereafter the petitioner filed Criminal Misc. Application No.14363 of 2011 in this Court. The said application was filed on or around 10.10.2011 and after matter was heard the applicant had withdrawn the said application under order dated 8.11.2011.
5.3 It is claimed that subsequently when the chargesheet (in connection with the above mentioned FIR dated 7.9.2011) came to be filed the applicant preferred another application seeking regular bail, before the Court of 4th Additional Sessions Judge which was registered as Criminal Misc. Application No.1775 of 2011. The learned Court, after hearing the parties rejected the application vide order dated 20.12.2011. Thereafter, on or around 22.12.2011 present application came to be filed by the applicant. As mentioned above, the applicant is seeking regular bail in connection with offence registered with Bavla Police Station, Ahmedabad bearing I-CR No.-119 of 2011 for the offence punishable under Sections 307 of the Indian Penal Code, 1860 and Section 25(1)(b)(c) of the Arms Act.
5.4 It is noticed from the record that complainant was hospitalized because of the injury received by him on account of the firing of the bullet shots allegedly done by the applicant and the complainant had to remain in hospital from 7.9.2011 to 15.9.2011.
5.5 While it is true that the complainant has been discharged from the hospital, it is also a fact that the complainant remained hospitalized for almost 8 days on account of the injury.
5.6 It is also noticed from the record that in present proceedings the complainant has filed objection wherein it is mentioned that the petitioner is a headstrong person and is also very influential. The complainant, in his objection has expressed serious apprehension in the event the applicant is enlarged on bail. In the objection filed on record of present proceedings, the complainant has also alleged that certain Criminal Case has been filed against the father and brother of the applicant. It is mentioned and alleged in the objection dated 27.12.2011 that :
"15.
That the present applicant is strong headed person and the Office Bearers of Gram Panchayat and other residents of village also send one written representation to the District Superintendent of Police Ahmedabad Rural stating that present applicant is strong headed person and requested to take strict action against present applicant. Annexed hereto and marked as Annexure-R/7 is the copy of the representation.
17. That when the present deponent was admitted as indoor patient in the V.S. Hospital at that time the wife and son of present deponent were alone at the farmhouse and the associates of present applicant threatened the deponent's wife and son that "next time you will not be alive". It is submitted that present applicant is very dangerous person and when present applicant is in judicial custody and his associates threats then possibility cannot be ruled out that if present applicant is granted bail then definitely present deponent and his family will be killed by present applicant.
18. The deponent submits that the family members of present applicant are also involved in the criminal offence. That on 19.7.2009 an FIR was lodged with Bavla Police Station bearing 1st C.R. No.57 of 2009 against Kantilala Mulshankar Pandit (father of present applicant) and Manish Kantilal Pandit (brother of present applicant) and other for the offences under Section 365, 428, 506(2), 341, 465, 468, 420 120(B) and 114 of IPC. Annexed hereto and marked as annexure-R/8 is the copy of FIR lodged by Mahavirsinh Dilubhai Waghela."
5.7 It is also noticed from the record that in the affidavit filed by the Investigating Officer, the officer has also expressed apprehension of repetition of similar incidence if the applicant is enlarged on bail.
5.8 Thus, the complainant as well as the Investigating Officer have expressed serious apprehension in the event the applicant is enlarged on bail.
5.9 Besides this, it is also noticed from the record that the residents of the village have also filed application before the police making allegations against the applicant. The said application (which appears to have been signed by about 10 residents of the same village) is placed on record of present proceedings wherein signatories of the said application have alleged that the applicant indulges in the activity of land grabbing by force.
5.10 Furthermore, it is also noticed from the available record that panchnama were made and in the panchnama dated 9.9.2011, it is recorded that the applicant had led the panchas to the place of incident and he had pointed out the place (page 110) wherefrom the bullets / cartridge were discovered and recovered (page 110). In the said panchnama dated 9.9.2011 it is also recorded that at the place of incident, there was rainfall (page 110) before the panchas reached the place of incidence.
In the panchnama made on 8.9.2011 it is also recorded that the applicant had mentioned before the panchas that he had fired three rounds from his revolver (page 106).
Mr.
Raju, learned Senior Counsel for the applicant has relied on the decision of the Apex Court in case of Bhanusaheb Nagu Dhavare vs. State of Maharashtra (2001 [3] Crimes 410) wherein the Apex Court passed order enlarging the accused on bail considering that the applicant accused was in jail for 8 months period. It is, in this context necessary to note that the Apex Court had passed the said order also in view of the fact of the said case and more particularly upon being satisfied that "....as on today there is no prospect of the offence being escalated to higher counts....". whereas in present case as mentioned hereinabove earlier, not only the complainant but the residents of the village and more particularly the investigating officer has also expressed serious apprehensions in the event the applicant is enlarged on bail. Similarly so far as the decision by the Apex Court in the case of Sanjay Chandra vs. CBI (2011 [13] SCALE 107) relied by the learned Counsel for the applicant, it is necessary to note that the facts of present case as noted hereinabove stand on different footing.
6. So far as the contention raised by the learned Counsel for the applicant that any blood / blood stains were not found at the place of incident and that the petitioner had not fired the rounds alleged by complainant and that the alleged firing is said to have been made from the distance of about 96 meters, it is necessary to note that all the said aspects are matters of evidence which will be examined at the time of trial and at this stage when Court is considering only the application for bail the said aspects do not deserve to be taken into account.
7. On consideration of the facts of the case and having regard to the above mentioned aspects emerging from the material available on record of the application and considering the sentence for the alleged offence and the apprehension expressed by the complainant as well as the residents of the village and also by the Investigating Officer and considering the fact that though the complainant happens to be only an employee / caretaker at the farmhouse and yet the applicant allegedly fired not one but three bullet shots on the complainant, I am not inclined to entertain and grant present application.
8. Thus, for the foregoing reasons and having regard to the aspects discussed hereinabove and the facts emerging from the material available on record, I am not inclined to entertain and grant present application. Hence present application is rejected.
It is clarified that the observations made in present order are only prima facie observations made for the purpose of considering present application and they shall not, in any manner whatsoever, influence the trial proceedings.
(K.M.THAKER,J.) Suresh* Top