1 This successive application is filed under Section 439 of the Code of Criminal Procedure in connection with first information report registered at C.R.No.I-135 of 2009 with Anand Town police station for the offences punishable under Sections 302, 307 r/w 34 of the Indian Penal Code and under Sections 25(1)BA, 27(1), 29 of the Arms Act, and under Section 135 of the Bombay Police Act.
2 Earlier, the bail application of the applicant, being Criminal Misc. Application No.759 of 2010, came to be rejected with reasons by the Coordinate Bench of this Court [Coram: H.B. Antani, J. as His Lordship then was], which reads as under:
"1. This is an application preferred under Section 439 of the Code of Criminal Procedure, 1973 by the applicant who has been arrested in connection with CR No. I-135 of 2009 registered with Anand Town Police Station for the offence punishable under sections 302, 307 and 34 of Indian Penal Code, sections 25[1B][a], 27[1] and 29 of the Arms Act as well as section 135 of the Bombay Police Act.
2. As per the case of the the applicant, he is an innocent person and he has been falsely implicated in the commission of offence in question. Prosecution has foisted false and fabricated case on the applicant. Name of the applicant is not disclosed in the FIR and subsequently, he has been roped in after about two and half months. The applicant is not directly or indirectly connected with the alleged commission of offence and there is no incriminating material against the applicant even to remotely connect him with the commission of crime.
3. Mr.
N.D.Nanavati, learned Sr. Advocate, appearing with Mr. Raxit J. Dholakia, learned advocate for the applicant submitted that on perusal of the FIR and the role attributed to the applicant, the applicant has not committed the offence of murder. Heavy reliance is placed by learned advocate on behalf of the applicant on the statements of Rajubhai @ Batko dated 25.8.09 and Pravinbhai Mali dated 20.8.09 in support of the submission that on perusal of the statements of the aforesaid witnesses, involvement of the applicant is not prima facie established and, therefore, it is a fit case to enlarge the applicant on bail. Learned advocate submitted that the applicant is publishing a daily newspaper, namely, "Sardar Gurjari" and he is the Chief Editor of the newspaper. He has time and again published news articles against Jairaj and Devang and has also received threats for publishing news against them. It is submitted that because of this aspect, name of the applicant was given by Jairaj and other co-accused in their statements during the course of investigation and the applicant has been unnecessarily dragged into the offence where there is no iota of evidence to connect him with the commission of crime. Learned advocate submitted that son of the applicant is suffering from Cancer and he has been given treatment and one operation at P.D. Hinduja National Hospital & Medical Research Centre, Bombay is also performed on him and he is also required to take radiation and advised chemotherapy for Cancer. Therefore, even on the humanitarian ground, the case of the applicant deserves to be considered and he be released on bail as prayed for in the application.
4. Mr.
H.L. Jani, learned APP, representing the opponent State while opposing the bail application submitted that the applicant is involved in serious offence punishable under sections 302, 307 and 34 of Indian Penal Code, sections 25[1B][a], 27[1] and 29 of the Arms Act as well as section 135 of the Bombay Police Act. Considering the role attributed to the applicant and the manner in which the offence is committed by the applicant in tandem with other accused, he is not entitled to claim discretionary relief as prayed for in the application. Learned APP placed reliance on the statement of Rajubhai @ Batko dated 25.8.09 in support of the submission that on perusal of the statement of Raju @ Batko, role of the applicant comes to the fore and considering the role attributed to the applicant and the manner in which deceased Alpesh @ Chaka was done to death, no discretionary relief deserves to be granted to the applicant and the application be dismissed.
5. Mr.
P.M. Thakkar, learned Sr. Advocate appearing for the complainant submitted that the applicant is involved in serious offence of murder. It is submitted that the applicant is also absconder and a warrant under Section 70 of the Code of Criminal Procedure was issued against the applicant in connection with FIR being CR No. I-395 of 2008 which was registered with Anand Town Police Station. The applicant has remained absconder for almost nine months. The applicant is also having criminal antecedents. It is submitted that the applicant is involved in the following cases:-
[a] CR No. I-103/1999 registered with Anand Town Police Station for the offence punishable under sections 147, 148, 149, 324, 325 and 326 of IPC.
[b] CR No. I-136/1999 registered with Anand Town Police Station for the offence punishable under sections 147, 148, 149, 504, 506[2] of IPC.
[c] CR No. I-255/1999 registered with Anand Town Police Station for the offence punishable under sections 147, 148, 149, 307, 395, 397, 323, 324, 427 of IPC and section 135 of the Bombay Police Act.
[d] CR No. I-182/1999 registered with Vidhyanagar Police Station for the offence punishable under sections 147, 148, 149, 323, 325 and 504 of IPC.
[e] CR No.I-270/2002 registered with Anand Town Police Station for the offence punishable under sections 147, 148, 149, 337 and 427 of IPC as well as Section 135 of the B.P. Act.
[f] CR No. I-254/2001 registered with Anand Town Police Station for the offence punishable under sections 147, 148, 149, 307, 324, 504 and 506[2] of IPC, section 25[c] of Arms Act as well as Section 135 of B.P. Act.
[g] CR No. I-203/2007 registered with Anand Town Police Station for the offence punishable under sections 406, 467, 468, 477 and 120B of IPC.
[h] CR No. I-395/2008 registered with Anand Town Police Station for the offence punishable under sections 406 and 420 of IPC.
Thus, considering the past antecedents, the applicant is not entitled to claim discretionary relief as prayed for in the application and the application deserves to be rejected.
6. I have heard Mr. N.D. Nanavati, learned Sr. Advocate appearing with Mr. Raxit J. Dholakia for the applicant, Mr. H.L. Jani, learned APP for the opponent State as well as Mr. P.M. Thakkar, learned Sr. Advocate , appearing on behalf of the complainant, at length and in great detail. I have considered the role attributed to the applicant as reflected in the FIR as well as the police papers, statements of witnesses such as, Raju @ Batko dated 25.8.09, Pravinbhai Mali dated 20.8.09, Ranchhodbhai Bharvad dated 22.8.09 and Jairaj Gilubha Raj dated 16.8.09 which have been relied upon by the learned advocates of both the sides. Affidavit in reply filed by the complainant and the rejoinder affidavit filed on behalf of the applicant are also considered by me. The applicant is facing charge under sections 302, 307 and 34 of Indian Penal Code, sections 25[1B][a], 27[1] and 29 of the Arms Act as well as section 135 of the Bombay Police Act. As per the prosecution case, complaint was filed by one Vinodbhai Vallabhbhai Parmar, alleging that on 2.5.09, when he along with the persons named in the complaint were present at the place of incident, some unknown persons came with guns in their hands and opened fire on the deceased. It is also alleged in the complaint that in the alleged assault, one Kinjalbhai also sustained injuries. Deceased had sustained serious injuries and was taken to hospital where he was found dead. Statements of witnesses prima facie indicate involvement of the applicant in the commission of offence. The act of brutal murder of Alpesh @ Chaka was carried out by the applicant in tandem with other accused and, therefore, provision of Section 34 of IPC has been invoked along with sections 302 and 307 of Indian Penal Code, sections 25[1B][a], 27[1] and 29 of the Arms Act as well as section 135 of the Bombay Police Act. Criminal antecedents of the applicant which are referred to and relied upon by the complainant cannot be overlooked by this Court while considering the bail application under Section 439 of the Code of Criminal Procedure. Thus, considering the totality of the facts and circumstances of the case, gravity of offence in which the applicant is involved and the manner in which the brutal murder of Alpeshbhai took place, role played by the applicant along with other accused as well as the provisions of sections 302, 307 and 34 of Indian Penal Code, sections 25[1B][a], 27[1] and 29 of the Arms Act as well as section 135 of the Bombay Police Act, quantum of punishment etc., I am of the view that the applicant has not made out a case for grant of relief as prayed for in the application.
7. For the foregoing reasons, there is no merit in the application and it is hereby dismissed. Rule is discharged."
3 Thereafter, a successive bail application, being Criminal Misc. Application No.11152 of 2011 came to be filed by the applicant, wherein, this Court passed order dated 10th August 2011, which reads as under:
"Learned advocate for the applicant seeks permission to withdraw this successive bail application at this stage.
Permission is granted.
This application stands disposed of as withdrawn.
The trial court is directed to make all the endeavour for expeditious trial.
Direct service is permitted."
4. Considering nature of allegations levelled against the applicant and prima-facie involvement of the applicant, more particularly when there is no change in facts, circumstances or law, no bail can be granted in favour of the applicant. In a heinous crime like the present one, the principle of parity cannot be applied in view of the peculiar role attributed to the applicant. Hence, this application is rejected with a direction to the trial court to expedite the trial.
(Anant S. Dave, J.) (swamy) Top