CR.MA/12646/2007 1/24 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 12646 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE ANANT S. DAVE ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= THE STATE OF GUJARAT - Applicant(s) Versus DR NARENDRA K AMIN - Respondent(s) ========================================================= Appearance : MR AY KOGJE APP for Applicant, DR MUKUL SINHA for Intervener / Applicant, MR SI NANAVATI SR ADV with MR VIJAY NAIR for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 25/01/2008 CAV JUDGMENT 1) In this application, which is preferred by the State of Gujarat under Section 439(2) of the CR.MA/12646/2007 2/24 JUDGMENT Code of Criminal Procedure Code, 1973, learned Judge (Coram : D.H.Waghela, J.) vide order dated 29.10.2007 issued Rule making it returnable on 2nd November, 2007. On 18th December, 2007 this matter was listed for hearing and at that time order dated 12.12.2007 passed by the apex court in Contempt Petition (Cri.) No.8 of 2007 in Writ Petition (Cri.) No.6 of 2007 was brought to the notice of this Court by the learned counsel appearing for the parties where reference was made to Criminal Misc. Application Nos.12646 of 2007 and 12644 of 2007 pending before this Court. Accordingly, on 18th December, 2007, oral order came to be passed in this matter by this Court by directing the Registry to list both the Criminal Misc. Application Nos.12644 of 2007 and 12646 of 2007 on board for hearing on 20th December, 2007. 2) This application under Section 439(2) of the Code of Criminal Procedure, 1973 is filed by the State of Gujarat through the Investigating Officer, C.I.D. (Crime), Gandhinagar for cancellation of bail granted to respondent vide order dated 5.10.2007 passed by the learned Additional City and Sessions Judge, Ahmedabad in Criminal Misc. Application No.2359 of 2007 qua FIR being CR No.I 5 of 2005 registered with ATS Police Station for the offences punishable under Sections 302, 365, 368, 193, 197, 120B, 201, 34 of the Indian Penal Code. 3) This application for cancellation of bail has CR.MA/12646/2007 3/24 JUDGMENT genesis in one FIR being CR No.I 5 of 2005 filed by one Abdul Rehman, a Police Officer, who was a member of the Special Investigating Party formed at Udaipur, Rajasthan to investigate into various offences registered against one Sohrabuddin. As per the above FIR, one Sohrabuddin, son of Anwaruddin Shaikh, resident of Zaraniya, Nagda, Madhya Pradesh, who was accused of offences punishable under Sections 120(b), 121, 121-A, 122, 123, 307, 186, 224 of the Indian Penal Code, under Sections 25(1)(b) and Section 27A of the Arms Act and under Section 135(1) of the Bombay Police Act. In the above FIR it is alleged that the above accused (Sohrabuddin) was acting at the behest of ISI to spread the terror and to disturb the unity and integrity of the country and also entered into conspiracy by possessing arms and ammunition so as to kill one of the big leaders of the State of Gujarat and when asked to surrender by the police party, fired from his revolver and attempted to kill them. 4) According to the prosecution, role played by the respondent in the episode surfaced initially from the statements of Shri Nathubha Pravinsinh Jadeja, who is a driver with ATS and Shri Vijay Arujn Rathod, Police Inspector. Therefore, procedure was started to find out the truth for which initially summons under Section 160 of the Code of Criminal Procedure Code were issued. In response to it, the respondent did remain present before the then investigating officer, CR.MA/12646/2007 4/24 JUDGMENT Shri G.B.Padheriya and was not at all cooperating in disclosing the true facts and was trying to avoid any questions. It was apparent from the record that the respondent had already influenced the witnesses in whose statement his role has surfaced. His statement was recorded on 22.5.2007. The date of first statement of the respondent and the date of Shri Nathubha surrendering before the Chief Metropolitan Magistrate are on the same day. When Shri Nathubha appeared before the Chief Metropolitan Magistrate, IGP CID Crime submitted an affidavit dated 24.5.2007. The respondent was not available either at his residence or at the place where he was posted. Thereafter, by an order dated 8.6.2007 learned City and Sessions Court granted anticipatory bail against which SLP came to be preferred before the Apex Court and the same came to be allowed on 13.8.2007 by quashing and setting aside the order of anticipatory bail granted by the learned City and Sessions Judge. Thereafter, charge sheet was filed on 16.7.2007. 5) As per the charge sheet and the statements of witnesses, the role played by the respondent is that the respondent is a qualified doctor having degree of M.D. (DGO) and had also worked as a Civil Surgeon with State of Gujarat. The headache for the ATS team was Kausarbi, who witnessed the fake encounter of Sohrabuddin. Therefore, the team decided to do away with Kausarbi. As per the statement of Shri CR.MA/12646/2007 5/24 JUDGMENT V.A.Rathod, Police Inspector, he was in the tempo carrying the woods along with Shri Nathubha, driver and from Chiloda circle, the tempo was asked to follow one jeep belonging to ATS and was driven by co-accused, Inspector, Shri Chaube was accompanied by one another person sitting in a jeep. These two vehicles joined by another vehicle from Himatnagar, which was occupied by DIG, Shri Vanzara and SP, Shri Rajkumar Pandian. Under the instructions of Shri Vanzara, bundles of grass were lifted from the adjoining farm and loaded in a tempo. Thereafter all these vehicles proceeded towards isolated forest area and when they reached the riverbed of Dhavdi, the tempo got struck. Attempts to bring out the tempo failed. At that time, Dy.S.P., Shri Amin had alighted from the jeep driven by Shri Chaube. As per the statement of Nathubha, he took a tempo filled with wooden logs at Chiloda circle and at that time co-accused, Inspector, Shri Chaube was present at Chiloda circle in a jeep. Shri Nathubha states that as the tempo could not come out, the higher officer decided to burn the dead body of Kausarbi at that place only and therefore accordingly burnt the dead body of Kausarbi and two accused collected the remains of the body and left for destroying the same. Thereafter, DIG, Shri Vanzara, Shri Rajkumar Pandian and the respondent returned to Ahmedabad in Maruti Zen whereas Shri V.A.Rathod and Shri Nathubha were dropped at Himmatnagar to find out of crane to remove the tempo which was struck in CR.MA/12646/2007 6/24 JUDGMENT river Dhavdi. 6) Thus, presence of respondent-herein at the end of cremation of dead body of Kausrbi near Illol on the river bed of Dhavdi surfaced on record on the basis of the above mentioned facts. 7) Shri A.Y.Kogje, learned APP, appearing for the applicant-State relying on the charge sheet dated 16.7.2007 submits that role of the respondent, who is accused No.12, is briefly narrated in Column No.5 of the charge sheet at page Nos.283 and 284 of the compilation of the petition and he is charged with the offences punishable under Section 302, 193, 201, 120B, 34 etc. of the Indian Penal Code. Shri Kogje, learned APP, further submits that though presence of respondent was very much evident as per the statements of witness Shri Nathubha, driver and Shri Vijay Rathod, Police Inspector of ATS, grant of bail in exercise of power under Section 439 of the Code of Criminal Procedure by the learned Judge is contrary to the evidence on record. 8) Shri Kogje, learned APP, next submits that in the present case respondent herein has not cooperated with the investigation and the date of first statement of the respondent and the date of Shri Nathubha surrendering before the Chief Metropolitan Magistrate are on the same day and during that period only Shri Nathubha tried to retract his statement and requested the learned Magistrate to join him as accused. Shri CR.MA/12646/2007 7/24 JUDGMENT Kogje, learned APP, then submitted that anticipatory bail application was applied on 4.6.2007 and it came to be granted on 8.6.2007. Thereafter SLP was preferred by the State on 4.8.2007 whereby order came to be passed by the apex court on 13.8.2007 where the order passed by the learned Judge granting anticipatory bail came to be quashed and set aside. According to learned APP, the observations made by the Apex Court in para 5 of the order dated 13.8.2007 are not taken into consideration by the learned Judge and only observations made in para 6 of the order are taken note by the learned Judge. According to learned APP barring few factors, consideration for grant of anticipatory bail and regular bail are similar and when order of anticipatory bail was quashed and set aside by the Apex Court, there was no justification for the learned Judge to grant regular bail in exercise of power under Section 439(1) of the Code of Criminal Procedure. Shri Kogje, learned APP, next submits that the learned Judge ought not have held as under :- “The nature and gravity of the offence alleged against the present applicant is serious but as it emerges from the record as discussed hereinabove, there is no cogent, sufficient and reliable evidence to support the prosecution case”. The above observation amounts to granting clean chit to the respondent herein and it would amount to acquittal and such observations and findings are not warranted at the time of grant CR.MA/12646/2007 8/24 JUDGMENT of bail. It was further contended by Shri Kogje that the learned Judge ought not have observed again as under:- “There is no sufficient reliable and cogent evidence to connect directly the applicant with the alleged crime and therefore, the applicant who has also served the department with sincerity and dedication, to curb the anti national and antisocial elements should not be subjected to unnecessary humiliation and harassment, when there is possibility of securing his presence by imposing appropriate conditions during the course of trial”. According to Shri Kogje, learned APP, the above observations and findings made on the part of the learned Judge is contrary to law and such findings would amount to passing of order of acquittal which ought to have been avoided by the learned Judge. 9) According to Shri Kogje, learned APP, when the respondent herein was in no way connected with ATS wing of Gujarat Police, his presence at the scene of offence where the body of Kausarbi was burnt, was sufficient enough to deny discretionary relief under Section 439 of the Code of Criminal Procedure. Shri Kogje next contended that there was ample evidence in the form of various statements of owner of `Disha Farm' where the victims were illegally confined. Not only that but telephonic conversation with one Shri D.G.Vanzara between 25.11.2005 to 29.11.2005, though Dr.Amin had no case, inquiry or investigation with ATS, mobile tracking CR.MA/12646/2007 9/24 JUDGMENT indicate presence of the respondent at Disha Farm. Even weekly dairy shows presence in court during this period but actually he was not in the court and some place was kept vacant in weekly dairy and surprisingly during the entire operation mobile phone of the respondent was switched off. Shri Kogje submits that apart from that investigation in the case is pending and periodical reports about the death of Kausarbi are being submitted before the apex court informing the developments of investigation, learned Trial Judge ought not have granted bail to the respondent. 10)Shri A.Y.Kogje, learned APP, has mainly relied on the following decisions :- i) (2005)8 SCC 21 : State through C.B.I. v. Amarmani Tripathi ii)AIR 2006 SCW 4339 : Anil Kumar Tulsiyani vs. State of U.P. iii)2005(3) SCC 143 : Panchanan Mishra vs. Digambar Mishra iv)2002(3) SCC 598 Ram Govind Upadhyay v. Sudarshan Singh v) 2001(6) SCC 338 Puran v. Rambilas vi)2004(7) SCC 528 Kalyan Chandra Sarkar v. Rajesh Ranjan Alias Pappu Yadav 11)Shri Kogje, lastly submits that considering the overall aspects of the matter, bail granted in exercise of power under Section 439 of the Criminal Procedure Code by the learned CR.MA/12646/2007 10/24 JUDGMENT Additional City and Sessions Judge needs to be cancelled and direction be issued to the respondent to surrender forthwith. 12)Shri Sudhir Nanavati, learned Senior Advocate, appearing for respondent has vehemently defended the order dated 5.10.2007 passed by the learned Judge and submits that absolutely there is no evidence so far as the respondent herein is concerned and make believe story of the prosecution reflected in the form of untrustworthy and contradictory statements of Shri Nathubha and Shri Vijay Rathod, who did not even confirm the date of incident i.e. death of Kausarbi. Shri Nanavati, learned Senior Advocate submits that the respondent herein had nothing to do with the retracted statement of Shri Nathubha and he never tried to influence any witness or tamper with the evidence. On the contrary, according to Shri Nanavati, the respondent herein has cooperated with the investigation and on different occasions six statements came to be recorded and was investigated for 29 hours and 15 minutes before remand and after remand application came to be rejected again the interrogation continued where four further statements were recorded during the interrogation of 25 hours. Thus, the respondent herein had given 11 statements and total interrogation lasted for more than 54 hours and 15 minutes during which nothing was found from the respondent and therefore, also the order passed by the learned Judge cannot be faulted CR.MA/12646/2007 11/24 JUDGMENT with. 13)Shri Nanavati, learned Senior Advocate, further submits that statement of Shri Nathubha which is retracted later on cannot be relied on and the same consists of full of contradiction and did not get any corroboration with any other statement. Shri Nanavati next submits that there is no material whatsoever which connects the present respondent with the crime alleged and even the statements relied on by the prosecution at the most reveal presence of respondent at the place of alleged crime. Therefore, according to Shri Nanavati, learned Senior Advocate appearing for the respondent, when there are different considerations for grant of bail and cancellation of bail, this Court may not exercise power under Section 439(2) of the Code of Criminal Procedure. Shri Nanavati, lastly submits that the respondent herein is already suspended from service and is ordered to be out of Ahmedabad District and has abided by all the conditions of the order of bail and in any way would influence witnesses or tamper with the record because charge sheet is already filed and the impugned order of granting bail does not require any interference by this Court. Shri Nanavati, further submits that the order passed by the learned Judge is absolutely in consonance with what is observed by the apex court in para 6 of the order dated 13.8.2007 and irrespective of what was observed in the above order, it was kept open for the learned Judge to CR.MA/12646/2007 12/24 JUDGMENT decide the regular bail application on its own merits. 14)Shri Nanavati, relying on the decision of the apex court in the case of Mohan Singh v. Union Territory, Chandigarh, reported in AIR 1978 SC 1095 submits that refusal of bail is not an indirect process of punishing an accused person before he is convicted. Shri Nanavati, relying on the decision in the case of Bhagirathsinh Jadeja v. State of Gujarat reported in AIR 1984 SC 372 submits that after grant of bail no condition is violated by the respondent herein and very cogent and overwhelming circumstances are necessary for cancellation of the bail. Shri Nanavati, further relying on the decision in the case of Daulatram vs. State of Haryana reported in 1995 SCC (Cri.) 237 submits that case in hand do not fall in the criteria of cogent and overwhelming circumstances for cancellation of bail since there is no interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. Shri Nanavati has also relied on the following decisions of the apex court :- i) Subhendu Mishra v. Subratkumar Mishra reported in AIR 1999 SC 3026 ii)Ram Charan v. State of M.P. Reported in 2004(13) SCC 617 iii)Nityanand Rai v. State of Bihar reported CR.MA/12646/2007 13/24 JUDGMENT in 2005(4) SCC 178 Shri Nanavati, learned Senior Advocate, appearing for the respondent herein has also relied on all the decisions relied by Shri P.M.Thakkar, learned Senior Advocate, appearing for respondent in cognate matter being Criminal Misc. Application No.12644 of 2007. 15)Shri A.Y.Kogje, learned APP, relying on affidavit in rejoinder reiterated his submissions and submits that the statements of Shri Nathubha Jadeja and Shri V.A.Rathod forms one of the change in the circumstance and the role of the respondent in misusing the Government machinery for subverting the course of justice. 16)Dr.Mukul Sinha, learned counsel appearing for the original intervener-complainant-Rubabuddin vehemently submitted that the respondent being a police officer, a protector and duty bound to prevent the crime himself is involved in a grave offence itself is sufficient to deny bail to the respondent. Dr.Sinha further submits that the order of learned Judge granting bail is illegal per se inasmuch as irrelevant considerations have weighed in the form of antecedents of victim-Sohrabuddin and registration of 25 FIRs against him and orderly action of respondent as police officer in preventing the crime against the society and subjecting such offices to humiliation and harassment. Dr.Sinha further CR.MA/12646/2007 14/24 JUDGMENT submits that the respondent herein is involved in heinous crime and comparison of prima facie in nature while granting bail is thoroughly unwarranted and the present case is required to be appreciated from that angle. Dr.Sinha further submits that Sohrabuddin is a victim of crimes committed by the respondent and, therefore also, above comparison ought not have been made while hearing the case of the prosecution about the theory of conspiracy on the basis of material on record. Dr.Sinha submits that retraction of statement of Nathubha Jadeja can be adjudged at the stage of trial and not at the stage of bail. Dr.Sinha also relied on one complaint registered against respondent herein for involvement in serious offence. Of course, the same is controverted by learned counsel for the respondent and submitted that after full-fledged inquiry respondent herein came to be exonerated. 17)Dr.Mukul Sinha, learned counsel for the original complainant, adopts other arguments of Shri A.Y.Kogje, learned APP for applicant-State of Gujarat. 18)At this juncture, it is noteworthy to reproduce paras 5 and 6 of the order dated 13.8.2007 passed by the Apex Court in Criminal Appeal No.1065 of 2007 (arising out of Special Leave Petition (Cri.) No.4294 of 2007), which reads as under:- CR.MA/12646/2007 15/24 JUDGMENT “Para-5. We think that in view of the fact that the application for regular bail made by the respondent is pending before the concerned court, it would not be appropriate for us to go into the various aspects projected before us. All the same, we think that the approach made by the Sessions Court in granting anticipatory bail to the respondent, leaves much to be desired. The apprehension that the respondent is in a position to influence, induce or coerce witnesses to desist from furnishing relevant information to the investigating agency cannot be considered to be imaginary and the court ought to have considered that aspect seriously before granting anticipatory bail. The court also should have considered the need put forward for custodial interrogation of the respondent for finding out what exactly happened to Kausarbi or how she met with her end. Sufficient it to say that in the circumstances, we are inclined to interfere with the order granting anticipatory bail to the respondent but only to the limited extent of setting it aside and leaving the bail application of the appellant to be dealt with by the trial court in accordance with law and after taking note of all the relevant aspects. Thus, even though we set aside the order, we do not think it proper to go into the question on merits and to pass a final order on that application. This course, we think, will sub-serve the interests of justice and prejudice neither. Para-6. Thus, we allow this appeal, set aside the order of the court below granting anticipatory bail to the respondent but consider it not necessary to decide that application at this stage since in a sense, the said order has worked itself out. We direct the sessions Court to deal with the application for bail made by the respondent under Section 439 of the Code in accordance with law, consider that application totally uninfluenced by anything contained in the order challenged before us and by anything we have said in this order vacating it”. CR.MA/12646/2007 16/24 JUDGMENT Above two paragraphs assume importance while deciding this application preferred by the State of Gujarat for cancellation of bail. 19)Heard learned counsel for the parties and perused the record of the case, including charge sheet and other papers, which form part of charge sheet. What is challenged in this petition is applicability of the settled principles of law while enlarging respondent officer on bail under Section 439 of the Criminal Procedure Code. In short, this Court is called upon to consider the above aspects in exercise of power under Section 439(2) of the Criminal Procedure Code. 20)Taking into consideration the overall facts and circumstances of the case, I am of the opinion that the following aspects of the matter are not appreciated by the learned Judge in proper perspective :- a) There is a bar as per the law laid down by the apex court to enlarge the accused involved in serious offences and more particularly the accused involved in the offence under Section 302 read with Section 120B of the Indian Penal Code. b) Even perusal of Section 439(1) and 439(2) and Section 437 of the Code, reveal special powers conferred upon High Court and Sessions Court with regard to grant and cancellation of bail. At the same time, what is provided under Section CR.MA/12646/2007 17/24 JUDGMENT 437 of the Code will have to be kept in mind by the court concerned while exercising power under Section 439(1) as well as 439(2) of the Code of Criminal Procedure. c) When the corpse of Kausarbi was cremated, presence of the respondent officer is established by the statement of witnesses. d) Retraction of the statement of Shri Nathubha or any other statement by any other person is to be considered at the stage of Trial as laid down by the apex court in case of State Through C.B.I. vs. Amarmani Tripathi reported in 2005(0) GLHEL- SC 35775 = (2005) 8 SCC 21. e) Irrelevant comparison about lodgment of 25 FIRs for various serious offences against Sohrabuddin and meritorious service of the respondent- Officer by the learned Judge amounts to extraneous consideration. f) Likelihood of influencing the witnesses and tampering of the evidence at high ranking officers like respondent herein and imposition of condition about restricting movement of the officer by keeping him out of Ahmedabad District only was not sufficient and arena of influencing witnesses by such high ranking officer is possible by using different modes of communication. g) Submission of periodical reports before the apex court about status of investigation by the investigating agency and even subsequent event about murder of Kausarbi, wife of Sohrabuddin and investigation is at a very crucial stage, CR.MA/12646/2007 18/24 JUDGMENT therefore, the respondent officer was not to be enlarged on bail. 21)If the order of the learned Judge is perused, the material/evidence