1. Applicant is arrested in connection with CR.No.I-32 of 2011 registered with Khokhara police station, Ahmedabad for offences punishable under Sections 302,323,324 and 114 of the Indian Penal Code read with Section 135 of the Bombay Police Act.
2. It is alleged in the complaint that on 31.12.2011, the complainant along with his deceased friend Motibhai Vershibhai Desai had gone for morning walk. At that point of time, a Wagon-R came from Hatkeshwar Circle and stopped near the complainant and deceased Motibhai. Some unknown persons came out with sticks and started giving stick blows to Motibhai on his head and on his forehead. Thereafter, accused ran away from the spot in the very car and the complainant lodged this complaint. It appears that initially the case was lodged for offences punishable under Sections 323,324 and 114 of the Indian Penal Code. However, eventually, when Motibhai died, Section 302 of the Indian Penal Code was added.
3. During the course of investigation, name of the present applicant was revealed and he had preferred anticipatory bail application before the City Sessions Court being Criminal Miscellaneous Application No. No.2091 of 2012, which was rejected on 21.6.2012. The applicant preferred an application thereafter before this Court, which also came to be rejected as the applicant chose to withdraw such application.
4. On his arrest on 29.3.2012 his custodial remand was also sought and the chargesheet has been filed on completion of the investigation against the present applicant accused. It is the say of the applicant that as prima facie no involvement of the applicant is culling out from the papers of chargesheet, he preferred regular bail before the City Sessions Court being Criminal Miscellaneous Application No. 2091 of 2012 and the Court rejected the said application on 21.6.2012.
5. It is urged by the learned Senior Counsel Mr. N.D. Nanavati that name of the applicant is neither mentioned in the complaint nor in the papers of chargesheet. It was only on the basis of the statement of the co-accused that he was arrested. It was merely on the ground of suspicion that he was suspected to be the accused and that there being no direct or indirect evidence to connect him with the crime, he does not need to undergo pre-trial punishment. It is further urged that even if he has past criminal antecedents, with nothing to connect him with the present crime, his case needs to be considered. It is urged that in the statement of Balvantbhai Maganbhai Thakor, recorded on 10.1.2012 he did not name the present applicant. However, subsequently, his presence was shown by narrating that Rs.50,000/- had been given to the co-accused for beating up Motibhai. In such circumstances, he urged the Court to allow the regular bail application of the applicant.
6. It is the case of the learned Senior Counsel that base ball stick allegedly used in the present crime was recovered by the Investigating Officer and the same has not been sent to FSL. It also was the say of the learned Senior Counsel that the investigating officer had demanded bribe to the tune of Rs. 5 lakhs for not implicating him in the present case over the telephone and a Criminal Inquiry Case No.92 of 2012 before the Special City Sessions Judge(ACB), Ahmedabad was made. The Court also issued the order under Section 156(3) of the Code of Criminal Procedure. In such circumstances his involvement is concocted and with no possibility of any tampering of evidence, such request of grant of bail needs consideration. Learned Senior Counsel further submitted that modus allegedly employed by the applicant as per the version of prosecution is too far-fetched and in such circumstances, a strong connection of the accused with the crime requires to be established.
7. Learned Additional Public Prosecutor urged that due to old enmocity, present applicant conspired and gave supari to accused No.2 and accused No.3, namely, Chottalal Ramlakhan Patel and Raju Karsan Makwana for beating Motilal Rabari. They in turn had also engaged one Navin Ramjibhai Solanki, who is a juvenile, and a black coloured Wagon-R car numbered bearing registration number as GJ-1-HJ-7820 and a base ball stick had been provided to applicants No.1,2 and 3, who had gone to Hatkeshwar Circle in the said Wagon-R car co-accused Chottalal Ramlakhan Patel and Raju Karsan Makwana went in a red coloured Skoda Octivia car numbered as GJ.1-HF-3534 and then went with the accused in Wagon-R car. While the deceased and the complainant were walking towards the ground they were intimated by the the present applicant over mobile phone pin-pointing at the deceased, who was wearing red coloured shawl and the accused No.1 had given the blow on the head and forehead of the deceased with the base ball stick and the deceased scummed to the injuries thereafter.
8. Learned Additional Public Prosecutor has pointed out from call data record and from the version of one witness that black Wagon-R car in which the accused had approached the deceased and the complainant was given to the present applicant by way of pledge by one Charanjit Singh Kukheja, who had borrowed the amount of Rs.1.5 lakhs from the present applicant. It was before 25 days that the car was pledged with him in lieu of the money he advanced to the witness, who was in the business of brokerage of land and shops. He also stated that in the affidavit-in-reply of Investigating Officer the statement of Balvantbhai Maganbhai Thakor is referred to which indicates that on 31.12.2012 three persons had gone to his place on Activa and this applicant was talking about beating up some people. The Investigating Officer is also of the opinion that some of the accused are yet to be arrested and, therefore also, he cannot be enlarged on regular bail.
9. Having heard both the sides exhaustively and having considered closely the versions of both the sides, this application is not being entertained for the reasons to be followed hereinafter:-
10.1 It appears that as far as inquiry is concerned, the same has been concluded and closed. Even if inquiry is wrongly concluded or is pending, the outcome of the same will need to be communicated to both the sides and appropriate decision shall be taken, if there is no truth found in such allegations. However, for the present, the merit of the present case requires to be considered for examination of the request of the present applicant.
11. It emerges from the record of investigation that the present applicant is the main perpetrator of the crime and he appears to have hired the mercenaries to do away with the deceased, who was going on a morning walk with his friend, who is the complainant herein. Not only the persons of present applicant is said to be in red coloured Skoda Octivia car near Hatkeshwar Circle, there is substantiating evidence to indicate his presence through call data records. There is a witness to state that on 30.12.2011 he was talking about the said incident to some of the persons, who had gone to his place on Activa. Moreover, person, who had advanced the money has also been categorical about his having given the car three weeks prior to the said incident to the present applicant. He is alleged to have conspired and chosen to provide the car as well as weapons. Therefore, absence of the owner of the car will not, in any manner, affect the case of the prosecution. This is not the stage for the Court to evaluate in detail the pros and cons of evidence or the strength and the weakness of such evidence, as the trial is likely to be started very soon. Moreover, there are other strong reasons for this Court to not to consider this application. Applicant has following criminal antecedents:-
12. Considering the above past criminal antecedents and the role attributed to him in the present case, this Court is of the strong opinion that there is a greater possibility of tampering with the evidence. Moreover, the Investigating Officer also indicated such threat to son of the nephews of the deceased while he was absconding and was on the temporary bail.
13. It also further can be noted that considering the past criminal antecedents of the present applicant possibility of his fleeing away from the justice cannot be ruled out as it is a serious crime in which he has involved himself. It would be profitable at this stage to reproduce the judgment of the Apex Court reported in (AIR 2001) SC 1444 in the case of Prahlad Singh Bhati vs. N. C. T., Delhi and another, wherein the Apex Court has held as under:-
“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, behaviour, 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. It is not excepted, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.”
14. Under these circumstances, when there is clear apprehension of quality of justice to be jeopardized, the Court necessarily will have to balance between the personal liberty and the need of the society and this is one case where tilt will be to safeguard the interest of the society. Hence, this application is dismissed.
(Ms.Sonia Gokani, J.) sudhir