IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No 5810 of 2000 with CRIMINAL MISC APPLICATION No 2185 of 2001 For Approval and Signature: Hon'ble MR.JUSTICE C.K.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- GHANSHYAMDASJI GURU HARIKISHANDASJI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: CRI.MISC. APPLICATION No 5810 of 2000 : MR KB ANANDJIWALA, FOR MR.AJ YAGNIK for Petitioners MR MA BUKHARI, APP for Respondent No. 1 MR MUKESH R SHAH for Respondent No. 2 CRI.MISC. APPLICATION No 2185 of 2001 : MR J.B.DASTOOR FOR MR.I.H.SYED for Petitioners MR ND GOHIL, APP for Respondent No. 1 MR MUKESH R SHAH for Respondent No. 2 -------------------------------------------------------------- CORAM : MR.JUSTICE C.K.BUCH Date of decision: 12/04/2001 ORAL COMMON JUDGEMENT 1. Rule in both these applications. Service of Rule is waived by ld. APP Mr.M.A.Bukhari for Respondent No.1 State & by Mr.M.R.Shah, ld. counsel for Respondent No.2 in Cri.Misc.Application No.5810/2000. Similarly, service of Rule is waived by ld. APP Mr. N.D.Gohil for Respondent no.1 State and by Mr.M.R.Shah, ld. counsel for Respondent No.2 in Cri.Misc. Application No.2185/2001. 1-A. Both these Criminal Misc. Applications are preferred under sec. 439 of CrPC praying bail by the petitioners-accused of Sessions Case No. 369/99 pending in the Court of ld. Addl. Sessions Judge, Nadiad. Sessions Case is registered on the strength of the chargesheet filed at the conclusion of investigation of FIR registered on 29.10.1998 by CBI, Mumbai vide CR No. RC.3(S)/SCB/98-Mumbai for the offences punishable under sections 120B, 365 of IPC. CBI, Mumbai on investigation, chargesheeted five numbers of accused persons for the offences punishable under sec.120B, 302, 364, 201 of IPC. Since both the applications arise from same chargesheet involving same set of facts, the same are heard and disposed of by this common order. 2. Cri.Misc. Application No. 5810/2000 is filed by the petitioners- original accused nos. 4, 3 & 5 respectively whereas Cri.Misc. Application No.2185/2001 is filed by the petitioner- original accused no.2. As per the Note of Registry, 10 other bail applications were moved earlier before this Court raising bail plea and they are heard and decided by this Court at the relevant time. Out of aforesaid applications, some of the applications were moved by the petitioners-accused before filing of the chargesheet by CBI and some of the applications were moved after receipt of the chargesheet papers. According to ld. counsel appearing for petitioners, petitioner no.3 of Cri.Misc. Application No. 5810/2000 has approached this Court for bail for the first time after filing of the chargesheet. Rest of the three petitioners have moved 2nd time or 3rd time for bail after filing of the chargesheet. 3. Ld. counsel Mr. K.B.Anandjiwala appearing for ld. counsel Mr.A.J.Yagnik for the petitioners of Cri.Misc. Application No.5810/2000 has argued at length on all the relevant points. Ld. counsel Mr. J.B.Dastoor appearing for ld. counsel Mr. I.H.Syed for the petitioner of Cri.Misc. Application No. 2185/2001 has mainly adopted the submissions advanced by ld. counsel Mr. Anandjiwala and has tried to distinguish the case of the petitioner Shrijicharandas Swami and by placing reliance on some judgments of the Apex Court, has submitted that the petitioner Shrijicharandas Swami be enlarged on bail for want of legal and/or adequate evidence. Mr. M.R.Shah, ld. counsel appearing for CBI and ld. APP Mr. N.D.Gohil & Ld. APP Mr. M.A.Bukhari appearing for the State of Gujarat, have resisted the bail plea of all the petitioners from all the corners. 4. Some facts in nutshell of the prosecution case may be stated so as to appreciate the submissions advanced by the parties and other technical and/or legal contentions raised during the course of submission. As per the say of the prosecution, one Shri Gadadharanandji, one of the key person of Vadtal Swaminarayan Temple having large number of disciples, was kidnapped on 3.5.1998. The fact of his missing was initially reported to Chaklasi Police Station by one Jatin Bhagat, disciple of missing Gadadharanandji.On 5.5.1998, Chaklasi Police Station registered "Janvajog Entry" in Chaklasi Police Station vide SL No.27/98 on the strength of written report by Jatin Bhagat and an inquiry was initiated. This Jatin Bhagat, by moving Cri.Misc. Application No.3996/98 before this Court, alleged inter alia that the investigation is not being done properly by police and suspected accused having very good influence and they themselves being very influential persons in the area, agency is not carrying investigation properly. It was also alleged that investigation has been carried out as per the signals given by the accused persons. Ultimately, the entire investigation was transferred to CBI, Mumbai. It is pertinent to note that though CBI has some infrastructure and office in the State of Gujarat at Ahmedabad, the investigation was entrusted to CBI, Mumbai and accordingly, above-referred complaint came to be registered on 29.10.1998. As per the short summary brought to the notice of this Court by the ld. counsel Mr. M.R. Shah for CBI, Mumbai, the case of the prosecution rests entirely on circumstantial evidence and on some part of confessional statement. Nature of evidence collected by CBI is of various type. Prosecution relies on statements of certain key witnesses and some important documents like document of ownership of Maruti Van bearing Registration No. GJ-06-1894 recovered. Said Maruti van was recovered in a burnt condition owned by the original accused no.2 Madhavprasad on 15.12.1998 and panchanama drawn by officer of Vinchhiwada Police Station in State of Madhya Pradesh as well as panchanamas drawn by CBI under sec.27 of the Evidence Act etc. Opinion evidence of Doctor and Forensic Science Expert is also collected. Some photographs are also taken and some videography is also made. Papers of one complaint registered on 4.5.1998 at Vinchhiwada Police Station by one tribal named Mangala Dhula Damor and inquest panchanama drawn by the Station House Officer Mr. Narayansinh of said police station on 4.5.1998, are also relevant. In short, I have considered all the relevant aspects brought to the notice of this court during the course of submissions. I have also considered the motive pleaded by the prosecution and existence of wheel within the wheel amongst Sadhus & Disciples having faith in Vadtal Gadi of Swaminarayan Sampraday, one of the sects of Hinduism. Vadtal Swaminarayan Temple is a religious-cum-spiritual institution managed as per the scheme framed under the relevant provisions of the Bombay Public Trusts Act. Initially, complaint registered by CBI was against four suspects named in the FIR at Annex.A to both the petitions, but on investigation, as per CBI, it has unearthed the correct story and the events occurred right from kidnapping of Gadadharanandji on 3.5.1998 till he was done to death and disposed of in the forest area located under Vinchhiwada Police Station of Madhya Pradesh. CBI has entered into investigation after lapse of some months. Approach of some of the witnesses after deadbody of victim Gadadharanandji was found, may have change, but this needs scrutiny. 5. Mr. Anandjiwala, ld. counsel appearing for ld. Counsel Mr. A.J.Yagnik for the petitioners-accused of Cri.Misc. Application No. 5810/2000, has argued that the case of the petitioners should be considered on merits also as after the order passed by this Court on 5.4.2000 (Coram: R.P.Dholakia,J) in Cri.Misc.Application NO. 7388/99, accused had applied for the statements recorded by the State Investigating Agency to enable them to meet with the case against them. Non-supply of such documents to the accused with papers of chargesheet was likely to cause prejudice to the defence side. Petitioners were supplied with the set of statements recorded by the State Investigating Agency later on. Ld. Counsel Mr. Anandjiwala has tried to point out material contradictions and improvements made by the witnesses cited in the police challan filed by CBI Mumbai and has argued that there is no prima facie case of criminal conspiracy against any of the petitioners and, therefore, they should be enlarged on bail pending trial. There is no direct evidence against any of the petitioners. The alleged confessional statements on which prosecution relies, are inadmissible in evidence in the Court of law and, therefore, in absence of legal and/or adequate evidence, the petitioners should not languish in jail for indefinite period and this Court should exercise its discretion in favour of the petitioners. During the course of submissions, ld. counsel while giving response to the affidavit filed by the I.O. Mr. Gopal Motilal Krushikar, Deputy Supdt. of Police, CBI, Mumbai, has fairly conceded that petitioner no.2 Madhavprasad Swami had escaped from the police custody in the month of April, 2000 from Navli Gurukul when he was given temporary liberty for one day with police escort and CBI was not able to trace him for several days and with great difficulties, after 40 days, agency could apprehend him. All the three petitioners have approached for bail on the same ground. I agree that a wrong committed by petitioner no.2 should not be viewed prejudicially qua rest of the petitioners and their say on the plea of bail should be appreciated individually and on their own merits. Petitioner no.1 Ghanshyam Prakashdasji is before this Court for bail second time after filing of the chargesheet. He is praying bail on two grounds; namely (i) on delayed trial, and (ii) on the contradictions found in the evidence of the witnesses from the police papers supplied to the petitioners at a subsequent stage, after filing of the chargesheet. Mr. Anandjiwala has tried to justify the bail plea of petitioner nos. 1 & 3 ignoring the fact that petitioner no.2 had misused some liberty granted to him by this Court temporarily i.e. for a day and that too under police escort. The petitioners accused being under-trial for a period of around two years, should be released on bail considering the totality of the facts and circumstances of the case, is the backbone of the submission of ld. counsel Mr. Anandjiwala. Material improvements made by the prosecution witnesses after investigation was transferred to CBI, Mumbai, should be viewed seriously and visualing anticipated result, petitioners should be enlarged on bail, is the second submission of ld. counsel Mr. Anandjiwala. 6. Ld. Counsel Mr. J.B.Dastur for Ld.counsel Mr. I.H.Syed for petitioner of Cri.Misc. Application No. 2185/2001 has submitted that though this application is second application for bail after filing of chargesheet, the say of the petitioner should be considered on merits as earlier application bearing Cri.Misc. Application No. 67/2001 was withdrawn unconditionally with a view to approach Apex Court. Such withdrawal should not be treated as dismissal on merits. Ld. counsel has taken me through entire set of facts and finding recorded by this Court while dealing with bail application preferred by the accused persons prior to the chargesheet and subsequent to the chargesheet. It is also pointed out that petitioner Shrijicharandas swami had applied for bail after filing of the chargesheet before this Court and very recently on 16.3.2001, bail application preferred by him has been withdrawn unconditionally and in couple of days, said accused has preferred Criminal Misc. Application No. 2185/2001 on the ground that his plea of bail was not entertained on merits after chargesheet and he is otherwise entitled to pray for bail on the ground of delayed trial considering the provisions of Article 21 of the Constitution of India. This very petitioner had applied for bail and was granted temporary bail by this Court vide order dated 31.7.2000 (Coram: Kundan Singh, J) while dealing with Spl.Cri. Application NO. 620/2000. In support of this say, he has tendsered zerox copy of the said order. It is submitted that during the period for which he was enlarged on bail, he has not tried to tamper with any witness nor he has jumped the bail. He was released on bail on health ground and was all the time under medical treatment. He has further submitted that the apprehension expressed by the Investigating Officer that this petitioner would play with key prosecution witnesses, is baseless and that petitioner is unnecessarily languishing in jail for no fault on his part. It is original complainant Jatin Bhagat who has approached this Court challenging the legality of the charge framed by the ld. trial Judge and has obtained stay of proceedings, when trial was about to begun. It is submitted that it is not even possible to assess the time by which trial would be culminated. Ld. Counsel Mr. Dastoor has mainly relied on three decisions of the Apex Court,namely :- (1) Raj Deo Sharma (I) v/s State of Bihar, reported in (1998) 7 SCC P.507. (2) Vivekkumar v/s State of U.P., reported in (2000) 9 SCC P.443. (3) Raj Deo Sharma (II) v/s State of Bihar, reported in (1999)7 SCC P.605. It has been further submitted that the prosecution intends to examine 111 witnesses. Though this Court was aware that the facts of the case are complex and prosecution may examine large number of witnesses this being a case of circumstantial evidence, had directed vide order dated 4.4.2000 ( Coram: R.P.Dholakia, J) while dealing with Cri.Misc. Application No. 7388/99,that prosecution should conclude the trial within six months. Even than, the prosecution has failed in even commencing the trial and, therefore, in view of the pronouncement of the Apex Court in the case of Rajdeo Sharma (supra), the present petitioner should be enlarged on bail pending trial. 7. Mr. M.R.Shah, ld. counsel appearing for CBI, Mumbai has drawn my attention to the earlier orders passed by this Court while dealing with various applications preferred by the petitioners before this Court. Mr. Shah has submitted that the case of any of these petitioners need not be appreciated on merits as being successive applications after chargesheet. Technically, petitioner no.3 of Cri.Misc. Application No. 5810/2000 had not preferred fresh bail application after chargesheet, but prima facie case against all the accused facing charge of criminal conspiracy for the murder of Gadadharanandji has been appreciated by this Court. The accused who are granted bail by the Court of Sessions or otherwise, are facing bail cancellation applications preferred by the CBI. He has also submitted that as per the say of the Investigating Officer who is present in the Court today, CBI is receiving complaints from the witnesses and in view of the post-bail activities, CBI is going to move the competent court for cancellation of bail. This case being the case based on circumstantial evidence, release of any of the petitioners may seriously prejudice the entire case. The petitioners are well-off and competent enough in playing with key witnesses of the prosecution. Petitioner no.2 Madhavprasad Guru Harjivandasji known as "Maldar Swami" had applied for temporary bail for two months before this Court by filing Criminal Misc. Application No. 1730/2000. However, this Court, (Coram: R.P.Dholakia,J), vide order dated 5.4.2000, refused bail plea and passed the following order:- ".... Looking to the facts and circumstances of the case, I direct the Jail Authority, District Jail, Nadiad, to take the prisoner- Madhav Prasad Madhavdas Swami Guru Harijivandasji Kothari, who is in jail in connection with the offence registered as R.C.3/S/98 of C.B.I., Mumbai along with the police protection at Swami Narayan Temple at Vadtal where Guru Swami Harijivandasji Kothari is taking rest in the morning of 7.4.2000 and bring him back in the evening on the same day before 6.00 P.M. ....." Ld. Counsel Mr. Shah has submitted that though petitioner Madhav Prasad was escorted by two police constables, was able to escape from Navli Gurukul which is under the administration and control of Vadtal Swaminarayan Temple Administration and CBI could not trace him for 40 days. On 40th day, he was apprehended from Bombay while he was in the dress of a "Sansari" with altogether a different look. Investigating Officer has apprehended that petitioners or any of the petitioner, if are granted bail, then they may jump the bail and can also play with the witnesses because of their thick link in the local area. Scope of misuse of the liberty is one of the main grounds advanced on behalf of CBI. Mr. Shah has also submitted that considering the complexity of facts and number of witnesses to be examined and nature of experts need to be examined, period of two years as under-trial cannot be said to be unreasonable. Gravity of the offence, sensitivity and delicacy attached to the matter should be focused and while exercising jurisdiction vested with this Court under Section 439 of CrPC, this Court should strike the balance. Mr. Shah has pointed out some observations of the Apex Court in some decisions, namely:- (1) Common Cause Judgments reported in (1996) 4 SCC P.33 & (1996)6 SCC 775; (2) Set of decisions in Raj Deo Sharma referred to herein above. 8. Having given anxious consideration to the entire facts and circumstances of the case brought before me by the parties and relevant legal contentions, I am of the view that bail plea raised by all the petitioners requires to be rejected. I have considered the nature of evidence collected by the prosecution. Summary brought before this Court as to the nature of evidence collected by CBI is indicative of one fact that CBI must have tried and made all good efforts to unearth the crime. Some suspects named in FIR are not even chargesheeted after conclusion of investigation. The persons against whom some evidence was available with links of criminal conspiracy and accused against whom CBI was prima facie able to establish links, are chargesheeted and now the Court of Sessions has framed the charge against all the petitioners. Charge against petitioners-accused came to be framed by the ld. Addl. Sessions Judge and date for recording of evidence was fixed on 21.11.2000. However, because of the stay order granted by this Court while dealing with Criminal Misc. Application No. 6742/2000 filed by the original complainant Jatin Bhagat vide order dated 20.11.2000, i.e. on the previous day of recording of evidence fixed by the Court of Sessions, the trial could not effectively commenced. I am told that three witness were kept ready in the Court of Sessions when it was informed about the stay of trial granted by this Court. There is no lethargy or deliberation to protract the trial on the part of CBI. Ld. counsel appearing for CBI has submitted that original informant Jatin Bhagat had approached this Court after some months of filing of the chargesheet and the framing of charge by Sessions Court agitating the grievance against the report filed under sec.173 of CrPC without informing or joining CBI as party in the above said application and has obtained ex-parte stay against trial. As this Court being the bail Court, is not supposed to comment upon such ex-parte stay prayer or persuation and act of approaching this Court without joining CBI as party. I am told that grievance of the original complainant Jatin Bhagat is that some of the key accused and mainly "Gadipati" (The Head) of the Institution namely Mr. Ajendraprasad is illegally dropped from the list of the accused by CBI. CBI smells something with the conduct of the original informant Jatin Bhagat and ld. counsel Mr. Shah has submitted that CBI is eager to see that trial proceeds on vacation or other appropriate modification of stay order granted by this Court. 9. CBI has supplied all the relevant papers to the accused before the commencement of the trial and framing of charge. On behalf of the petitioners accused, it was submitted that the petitioners should be supplied with the papers of earlier stage of investigation i.e. papers of inquiry conducted by Chaklasi Police or any other investigating agency. Prosecuting Agency -CBI does not rely on these papers. However, in view of the accepted principles of criminal jurisprudence and to offer fair trial, on demand, accused are supplied with papers of inquiry conducted by the local police. As the papers are of inquiry, most of the statements recorded are signed by the concerned witnesses. Improvements or contradictions found from two sets of papers need detailed appreciation and the bail court is not supposed to deal with or appreciate the evidence. Issue of admissibility or mode of using previous statements of witnesses, is supposed to raise various factual and/or legal contingencies during the examination of these witnesses. So, it is rightly said in more than one decisions of this Court and the Apex Court that bail Court should not try to do this venture of appreciation of evidence. It may seriously prejudice either side. CBI has chargesheeted the accused persons and Addl. Sessions Judge, Nadiad framed charge on 7.6.2000. Thereafter, petitioners moved application before the Addl. Sessions Judge demanding all previous statements of witnesses vide application exh.20 on 20.6.2000. On 26.7.2000, the court concerned directed the prosecution to provide the accused all previous statements recorded by the investigating agencies other than CBI. I am told that these statements were supplied to the petitioners in the month of August,2000. 10. Petitioner no.1 of Cri.Misc. Application No. 5810/2000 Ghanshyamdasji prayed for bail on the identical ground by filing Cri.Misc. Application No. 7388/99. After some adjournments, aforesaid application came to be disposed of by this Court ( Coram: R.P. Dholakia, J) vide following order on 4.4.2000 :- " Heard ld. counsel for the petitioners Mr. H.N.Jhala, ld. APP for the respondent no.1 State Mr. H.L.Jani and ld. Special Public Prosecutor for C.B.I. Mr. J.M.Panchal. At the end of arguments, ld. counsel for the petitioner seeks permission to withdraw this petition with a liberty to expedite the trial since the petitioner is in jail since long. It is a fair and just request made by the ld. counsel for the petitioner. Permission is granted as prayed for. This petition stands disposed of as withdrawn. Looking to the facts and circumstances of the case, I direct the District and Sessions Judge, Kheda to proceed with the trial of the Sessions Case which has arisen from CR No. RC-3(S)-SB, Mumbai and dispose of as expeditiously as possible and if possible, complete the same before the end of June,2000. Ld. counsels for the parties have given assurance that they will give full co-operation to the court below. Notice is discharged." 11. Accused Shrijicharan Swami- petitioner of Cri.Misc. Application No. 2185/2001 had approached this Court for bail by filing Cri. Misc. Application No. 7131/99 and amongst other grounds, he had also taken following two grounds in support of his bail plea:- "(ix) Similarly there is also contradiction in the statements of different witnesses regarding timing of the last seeing of Swamiji and sitting by him in the Maruti Van by different witnesses. (x) The statements recorded by the Local Crime Branch investigating officer have not been supplied to the accused and it is necessary for the just decision of the bail application that the entire record of the investigation carried out prior to the investigation by CBI may be ordered to be brought on the record of the Hon'ble High Court. " After some adjournments, this Court (Coram: R.P.Dholakia,J) passed the following order on 4.4.2000 after hearing Mr. Jhala, ld. Counsel for the accused Shrijicharandas Swami, in Cri.Misc. Application No.7131/99:- " Heard ld. counsel for the petitioners Mr. H.N.Jhala, ld. APP for the respondent no.1 State Mr. H.L.Jani and ld. Special Public Prosecutor for C.B.I. Mr. J.M.Panchal. At the end of arguments, ld. counsel for the petitioner seeks permission to withdraw this petition with a liberty to expedite the trial since the petitioner is in jail since long. It is a fair and just request made by the ld. counsel for the petitioner. Permission is granted as prayed for. This petition stands disposed of as withdrawn. Looking to the facts and circumstances of the case, I direct