1. This petition under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 has been filed for quashing and setting aside the judgment and order dated 7-10-2011 passed in Cri.Misc.Appln.No.44 of 2011 by the learned Judicial Magistrate (First Class), Danta, whereby application filed by the petitioner for default bail in connection with offence registered as I.C.R.No.115 of 2006 with Ambaji Police Station was rejected and for releasing the applicant on default bail.
2. It may be stated that in the aforesaid case, charge sheet has been filed by the Gujarat State Police before the trial court wherein committal order was also passed. However, Smt.Narmada Bai, mother of the deceased Tulsiram Prajapati, preferred writ petition before the Hon'ble Apex Court being Writ Petition (Criminal) No.115 of 2007 praying to direct the Central Bureau of Investigation to register a first information report and investigate into the fake encounter killing of her son and submit its report and also praying for compensation for killing of her son in the said fake encounter. The Hon'ble Apex Court disposed of the matter vide judgment and order dated 8-4-2011 directing the Police Authorities of the Gujarat State to hand over all the records of the present case to the CBI and to investigate all aspects of the case relating to the killing of Tulsiram Prajapati and file a report to the concerned court/special court having jurisdiction within a period of six months from the date of taking over of the investigation from the State Police Authorities. According to the applicant, though the said period of six months has already been over, CBI has not filed the charge sheet on completion of investigation and hence, the present petition seeking default bail.
3. Heard learned Senior Counsel, Mr.S.V.Raju with learned advocate, Mr.Bhadrish S.Raju for the applicant, learned Addl. Public Prosecutor for the respondent No.1-State, Ms.Krina Calla and learned Special Public Prosecutor, Mr.Ejaz Khan and learned advocate, Mr.Y.N.Ravani with learned advocate, Mr.Vivek Bhamre for the respondent No.2-CBI.
4. Learned Senior Counsel, Mr.S.V.Raju for the applicant, taking this Court through paragaraph No.65 of the judgment delivered by the Hon'ble Supreme Court, has submitted that the Hon'ble Apex Court has specifically observed that investigation conducted and concluded in the present case by the State police cannot be accepted. It is further submitted that when the investigation done by the Gujarat Police is not accepted by the Hon'ble Apex, it would mean that the charge sheet filed by the Gujarat police in the trial court is also not accepted. It is further submitted that the Hon'ble Supreme Court while handing over investigation to CBI has directed it to complete the investigation and submit the report within six months. According to him, even though the said period is already over, charge sheet is not filed on completion of investigation by the CBI and hence, the applicant is entitled to be released on default bail under Sec.167(2) proviso of Cr.P.C. It is further submitted that present applicant is in jail since last more than six years. It is also submitted that the trial court has committed an error in not properly interpreting the judgment relied on by the learned advocate for the applicant in the case of Dinesh Dalmia Vs. CBI reported in (2007)8 Supreme Court Cases page 770 and other decisions. He has relied on following decisions:
i) (2007)8 SCC page 770 in the case of Dinesh Dalmia Vs. CBI;
ii) (2001)5 SCC page 453 in the case of Uday Mohanlal Acharya Vs. State of Maharashtra;
iii) (1995)4 SCC page 190 in the case of Union of India Vs. Thamisharasi and others;
iv) (1994)4 SCC page 602 in the case of Hitendra Vishnu Thakur and Others. Vs. State of Maharashtra;
v) (1992)4 SCC page 272 in the case of Aslam Babalal Desai Vs. State of Maharashtra;
vi) [1986] SCALE page 272 in the case of M/s Girdhari Lal and Sons Vs. Balbir Nath Mathur and others;
vii) (1983) 2 SCC page 372 in the case of State of Uttar Pradesh Vs. Lakshmi Brahman and another; and
viii) 1995(2) G.L.H. Page 473 in the case of Prahladbhai Rajaram Mehta Vs. Popatbhai Harahan Patel and Another;
5. Learned Special Public Prosecutor, Mr.Ejaz Khan with learned advocate, Mr.Y.N.Ravani for the respondent No.2 and Learned Addl. Public Prosecutor, Ms.Krina Calla for the respondent No.1 have submitted that in the present case, CID Crime, Gujarat Police, after collecting documentary as well as oral evidence during the course of investigation, has filed the charge sheet on 30-7-2010 against seven accused persons including the present applicant. Thereafter, two supplementary charge sheets were also filed on 31-7-2010 and 3-11-2010 and the Hon'ble Court has taken cognizance and case was committed to the Court of 5th (Ad-hoc) Addl. Sessions Judge, Palanpur, and the case is pending for trial. However, since mother of deceased Tulsiram Prajapati was not satisfied with the investigation conducted by Gujarat police, she approached the Hon'ble Supreme Court wherein investigation was handed over to CBI and now CBI, Special Crime Branch, Mumbai, has registered a case being RC.BS-1/2011/S/0003 on 29-4-2011 under Secs.120B read with Secs.341, 342, 364, 365, 368, 302 of IPC.
According to them, registering of FIR by CBI is for initiation of investigation by CBI, however, it cannot be said that applicant has not been charge sheeted entitling him to bail under Sec.167(2) proviso of Cr.P.C. It is further submitted that the applicant has not been arrested by CBI and therefore also, the applicant is not entitled for default bail. According to them, the applicant is a high ranked police officer and is involved in the fake encounter and, therefore, considering the gravity and nature of offence, this Hon'ble Court may not exercise its discretion. It is also stated that looking to the position of the applicant as a high ranked police officer, there are all chances of he misusing the bail. They have also relied on many decisions. Some of them are as under :
i) (2011)3 SCC page 758 in the case of Ashok Kumar Todi Vs. Kishwar Jahan and Others;
ii) (2010)2 SCC page 200 in the case of Rubabbuddin Sheikh Vs. State of Gujarat and others;
iii) (2007)8 SCC page 770 in the case of Dinesh Dalmia Vs. CBI;
iv) (2001)5 SCC page 453 in the case of Uday Mohanlal Acharya Vs. State of Maharashtra; and
v) 2005(1)G.L.H. Page 540 in the case of Mohamad Ansar Kutubuddin Ansari and others Vs. State of Gujarat.
6. Considering the rival submissions made on behalf of the parties, this Court has gone through the impugned judgment and order dated 7-10-2011 passed in Cri.Misc.Appln.No.44 of 2011 by the learned Judicial Magistrate (First Class), Danta, whereby application filed by the petitioner for default bail was rejected.
7. This Court has also gone through the decisions relied on by the learned counsel for the respective parties. There cannot be any dispute regarding the law laid down therein. However, considering the law laid down therein, this Court proceeds further.
8. This Court has also gone through the judgment delivered by the Hon'ble Apex Court in the present case which has been reported in (2011)5 Supreme Court Cases page 79. It has been held by the Hon'ble Apex Court in paragraph Nos.65 and 71 of the said judgment as under:
“65. In view of our discussions and submission of learned counsel on either side and keeping in mind the earlier directions given by this Court, although, charge-sheet has been filed by the State of Gujarat after a gap of 3 ½ years after the incident, that too after pronouncement of judgment in Rubbabudin’s case and considering the nature of crime that has been allegedly committed not by any third party but by the police personnel of the State of Gujarat, we are satisfied that the investigation conducted and concluded in the present case by the State police cannot be accepted. In view of various circumstances highlighted and in the light of the involvement of police officials of the State of Gujarat and police officers of two other States, i.e. Andhra Pradesh and Rajasthan, it would not be desirable to allow the Gujarat State Police to continue with the investigation, accordingly, to meet the ends of justice and in the public interest, we feel that the CBI should be directed to take the investigation.”
“71. In view of the above discussion, the Police Authorities of the Gujarat State are directed to handover all the records of the present case to the CBI within two weeks from this date and the CBI shall investigate all aspects of the case relating to the killing of Tulsiram Prajapati and file a report to the concerned court/special court having jurisdiction within a period of six months from the date of taking over of the investigation from the State Police Authorities. We also direct the Police Authorities of the State of Gujarat, Rajasthan and Andhra Pradesh to cooperate with the CBI Authorities in conducting the investigation.”
9. It is explicitly clear from observations made by the Hon'ble Apex Court in paragraph Nos.65 and 71 of the aforesaid reported judgment that in light of involvement of Police Officers of State of Gujarat and other two states i.e. Andra Pradesh and Rajastan, it would not be desirable to allow the Gujarat State Police to continue with the investigation. It was under said circumstances that the Hon'ble Apex Court felt it necessary to hand over investigation to the CBI for continuing with the investigation. However, the Hon'ble Supreme Court has not expressed any opinion on the merits of the matter. It may be noted that the Hon'ble Supreme Court has also not quashed the charge sheet filed by the State of Gujarat on 30-7-2010 nor has the cognizance taken by the learned Magistrate. As far as the charge sheet filed by the State of Gujarat qua the present applicant is concerned, no opinion has been expressed by the Hon'ble Apex Court to the effect that the present applicant has been falsely involved in committing the crime. It is evidently clear from the concluding paragraph of the judgment of the Hon'ble Apex Court that the observations made in the writ petition were qua the limited purpose of deciding the issue whether investigation is to be handed over to CBI or not. Therefore, whatever findings given by the Hon'ble Supreme Court have to be treated in that regard. In view of this, the submission of Mr.Raju that, as the investigation is not completed and charge sheet is not filed by CBI within stipulated time, applicant is entitled to be released on default bail cannot be accepted.
10. It is to be noted that the trial court, discussing each and every authorities cited and considering the facts of the present case, has rightly come to the conclusion that decisions relied on by the learned advocate for the applicant would not be applicable in the present case as the facts of the decisions cited by the learned advocate for the applicant and facts of the present case are different.
11. This Court also would not opine anything about the merits of the matter as it may prejudice the investigation being carried out by CBI or the trial.
12. From the above, it is clear that though the Hon'ble Supreme Court has not accepted the investigation carried out by the Gujarat Police, the Hon'ble Supreme Court has not held the charge sheet filed in the Court to be invalid. Merely using the words in the judgment “not accepted the investigation” would not mean that the charge sheet filed by the State is not accepted and is quashed especially when it is SCR.A/2698/2011 10/10 JUDGMENT clearly held by the Hon'ble Apex Court that the observations made in the writ petition were for the limited purpose of deciding the issue whether investigation is to be handed over to CBI or not. Now the investigation has been handed over to CBI to continue with the investigation and the CBI has registered the offence and is continuing with the investigation to reach to the root of the offence. In view of the above, in the opinion of this Court, proviso to section 167 of Cr.P.C. cannot not be made available to the applicant to be released on default bail.
13. Thus, this application is rejected. Rule is discharged.
14. The observations made by this Court in this order being made for the purpose of deciding this [M.D.SHAH,J.] radhan