1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 414 OF 2010 Mohan Anant Shukla .. Applicant V/s Central Bureau of Investigation & Anr. .. Respondents Mr. Mahesh Jethmalani, Senior Advocate with Mr. Dinesh D. Tiwari, Ms. Lara Jasani, Mr. Jaiprakash Ameta, Ms. Pallavi Kanakagiri and Mr. Anand Tated i/b Dinesh Tiwari & Associates for the applicant. Mr. Ejaz Khan, Special Counsel with Mr. Y.M. Nakhwa, Additional P.P., Mr. D.N. Salvi and Ms. P.H. Kantharia for the C.B.I. Mr. S.A. Shaikh, A.P.P. for the State. CORAM : D.G. KARNIK, J. DATE : 4TH MARCH 2010 P.C. : 1. By this application, the applicant seeks bail in connection with C.R. No. I-20 of 2006 initially registered with Kalamboli Police Station and re-registered as RC No.1(S)/2009 by the C.B.I. for an offence punishable under section 302 read with 34 and other 2 sections of the I.P.C. 2. The basic facts are that on 3rd June 2006 Mr. Pawan Raje Nimbalkar (hereinafter referred to as “the deceased”) was travelling as a passenger in a SKODA car driven by Samad Kazi. On a highway near Kalamboli, his car was overtaken by a green coloured INDICA car in which accused nos.4, 5, 6 and 8 were travelling. The accused nos.4, 5 and 6 got down and two of them, viz. accused nos.5 and 6, shot dead the deceased with a revolver and a pistol. They also shot dead the driver Samad Kazi and made their way in the INDICA car after throwing away the weapons used. The INDICA car was also abandoned at some distance. An offence was registered at Kalamboli police station and investigation commenced. Aggrieved by the slow pace of investigation, Mrs. Anandibai Nimbalkar – wife of the deceased, moved this Court by Writ Petition No.81 of 2008. By an order dated 23rd October 2008, a Division Bench of this Court transferred the investigation to C.B.I. who commenced the investigation by registering the offence under RC No.1(S)/2009. During the course of investigation, the accused was arrested and is arrayed as accused no.3 in the charge-sheet. 3 3. According to the prosecution, Dr. Padamsinh Patil, a former minister of the State of Maharashtra (for short “Dr. Patil”), had a long standing political enmity with the deceased. The deceased had contested an election to the Legislative Assembly and had lost by a narrow margin and had filed an election petition challenging the election of Dr. Patil. Out of the political and personal enmity, Dr. Patil had arranged for elimination of the deceased. According to the prosecution, the applicant was closely connected to Dr. Patil (accused no.1) and they together had conspired for the killing of the deceased. Dr. Patil provided the finance. The applicant engaged the services of Parasmal Jain (accused no.5) who arranged for sharp shooters (accused nos.5 and 6) from Uttar Pradesh and in accordance with the pre-arranged plan effected the murder of the deceased. 4. Mr. Jethmalani, learned Senior Advocate appearing for the applicant, submitted that the applicant was entitled to bail on three grounds. Firstly, he submitted that there was no prima facie material connecting the applicant to the crime. There was no direct evidence against the applicant and the evidence the chain of circumstantial evidence was not so complete as to point to the conclusion of guilt and therefore the applicant was entitled to the bail. Secondly, he 4 submitted that the principal accused, namely Dr. Patil, has been granted bail by the Court of Sessions vide order dated 29th September 2009 and therefore the applicant was entitled to bail on the ground of parity. Lastly, he submitted that as the investigation has been completed and the charge-sheet has been filed, the presence of the applicant was not required for the purpose of investigation. There was no possibility of the applicant being not available for trial as there is not even an allegation that the applicant was likely to flee in the event he was granted bail. Therefore, there was no need to keep the applicant in custody and the applicant should be granted bail. 5. Mr. Ejaz Khan, learned Special Counsel appearing for the C.B.I. strongly opposed the request for bail. He refuted that there was no prima facie material connecting the applicant to the crime. He submitted that there was strong evidence about the conspiracy and participation of the applicant in the conspiracy to kill the deceased. Mr. Khan submitted that at the stage of bail the Court is required only to consider whether there was prima facie material against the applicant and if there was prima facie material it was enough to reject the bail. As regards the ground of parity, he submitted that the 5 case of the applicant was different from Dr. Patil who has been granted bail by the Court of Sessions. The role played by the applicant was different than the role of Dr. Patil and therefore the principle of parity was not applicable. As regards the third ground, he submitted that though custody of the applicant was not needed for the purpose of investigation, taking into consideration the nature and gravity of the offence the bail should be denied. 6. It is settled principle of law that at the stage of considering an application for grant of bail, a detailed examination of the evidence and elaborate discussion of the merits of the case is not to be undertaken, lest it may prejudice the trial. Recently, this principle has been reiterated by the Apex Court in its decision in State of Maharashtra v. Dhanendra Shriram Bhurle, AIR 2009 SC 1706 wherein the Supreme Court observed: “As noted above, at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. But that does not mean that while granting bail some reasons for prima facie concluding why bail was being granted is not 6 required to be indicated.” In view of dicta that reasons are required to be indicated for why the bail is being granted are required to be indicated and also the fact that the learned counsel for the C.B.I. elaborately referred to the statements of at least two witnesses and a confessional statement of a co-accused, it is unavoidable to refer to them hereafter. 7. Before I refer to the material pointed out by Mr. Khan, it is necessary to state that there is no eye witness to the crime. There is no direct evidence connecting the applicant directly to the actual killing. The case of the prosecution is of a conspiracy. The role alleged against the applicant is that of being a part of the conspiracy. The evidence is entirely circumstantial. 8. Mr. Khan, learned Special Counsel for the C.B.I., specifically referred to the confessional statements of Parasmal Badla/Jain (accused no.5) and the statements of two witnesses, namely Mrs. Varsha Parasmal Badala (Jain) (proposed P.W.41) and Mrs. Nandini Chandrakant More (Proposed P.W.51) to show the involvement of the present applicant. 7 9. Nearly half a century ago in Hariharan Kurmi and another vs. State of Bihar, AIR 1964 SC 1184, a Constitution Bench of the Supreme Court held that the confession of a co-accused cannot be treated as a substantive evidence and can be pressed into service only when the Court is inclined to accept other evidence and feels the necessity of seeking an assurance in support of its conclusion deducible from the said evidence. More recently, in Suresh Budharmal Kalani vs. State of Maharashtra, AIR 1998 SC 3258, the Supreme Court following its decision in Kashmira Singh v. State of Madhya Pradesh, AIR 1952 SC 159, in regard to a confessional statement of a co-accused, held that the proper way to approach was first to marshal the evidence against the accused excluding the co- accused’s confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify 8 himself in believing what without the aid of the confession he would not be prepared to accept. Aforesaid decisions of the Supreme Court make it clear that a confessional statement of a co-accused cannot be the starting point of the marshalling of evidence. There must be evidence independent of confession of a co-accused which, if believed, would lead to a conviction of the accused. But if the Court is not prepared to convict the accused on the basis of that evidence, as it stands, enough to sustain conviction, perhaps on the principle that the Court must be satisfied about the guilt of the accused beyond reasonable doubt, then the Court can use the confessional statement of a co-accused only to reassure itself about its conclusion of the guilty of the accused. Therefore, the confessional statement of Parasmal Badala (Jain), who is a co-accused, cannot be looked into as the principal evidence even at the stage of consideration of the application for bail. Statement of Ms. Varsha Parasmal Badala (Jain), who is a daughter of Parasmal Jain, is about the confession made to her by her father. She has stated that her father had confessed to her about the crime and about the involvement of seven other persons including the present applicant. So far as her evidence against her father is concerned, it may be a primary evidence. But so far as she says that Parasmal Jain had also confessed about the involvement of 9 others, her statement would be hear-say as she had only heard Parasmal saying so. Varsha Jain is not an eye witness and is not a witness to the conspiracy nor was she aware of any conspiracy. She became aware of the same for the first time when her father allegedly made an extra judicial confession to her. Her statement is therefore certainly not a primary evidence qua the applicant. As regards the evidence of Mrs. Nandini Chandrakant More (proposed P.W.51), she has stated that she had been to a restaurant at Marine Drive with Mohan Shukla – the present applicant. At that time, Parasmal Jain came there and is alleged to have narrated to Mohan Shukla, in her presence, the complete sequence how he along with others killed the deceased and his driver. Even if the statement is believed in toto, all that she has stated is about the confession made by Parasmal Jain to Mohan Shukla – the present applicant. I fail to see how this connects the applicant to the crime. Even if it is assumed that at the first meeting with Mrs. Nandini, Parasmal Jain made any confession, still there was no occasion for Parasmal Jain to make confession to Mohan Shukla if Mohan Shukla was a part of the conspiracy and one of the conspirator. Secondly, Mrs. Nandini has not stated that Parasmal Jain anywhere made any statement regarding involvement of Mohan Shukla to the crime. No other 10 witness was referred to by the learned counsel for the C.B.I. The evidence on record as pointed out by the learned counsel for the C.B.I. fails to connect the applicant to the crime even prima facie. 10. Even otherwise, the thrust of the case of the prosecution is that Dr. Patil wanted to eliminate the deceased on account of a political rivalry and other enmity. He is the accused no.1 and the man behind the crime. He is the person who hatched the conspiracy. The role, if any, of the present applicant is not alleged to be more than the role played by Dr. Patil. As Dr. Patil has been granted bail by the Court of Sessions, there is no reason to deny the bail to the present applicant. Learned counsel for the C.B.I. submitted that an application for cancellation of the bail granted to Dr. Patil has been filed by the C.B.I. The mere fact that such an application is filed is no ground for denying parity to the applicant. At the most, it may be a ground for cancellation of bail granted to the present applicant in the event the bail granted to Dr. Patil is cancelled, subject of course to the limitations applicable to the cancellation of bail. 11. As regards the last ground urged by Mr. Jethmalani that charge-sheet has been filed and hence custody of the applicant is no 11 longer required as there would be no occasion for him hindering the investigation, learned counsel for the C.B.I. submitted that though the charge-sheet has been filed, the investigation is still not over and the permission of the Court has been obtained under section 173(8) of the Cr. P.C. for continuing the investigation. He submitted that one accused is still absconding, and taking that into consideration and also taking into consideration the gravity of the offence and the fact that the offence, if proved, is punishable with death or imprisonment for life, it would not be appropriate to grant the request for bail at this stage on this ground. In view of the fact that I am inclined to grant bail on first two grounds, the bail cannot be refused even if the applicant fails to make out the third ground. 12. While granting bail, it would be appropriate to impose strict conditions so as to ensure availability of the applicant at the time of trial and also to ensure that the prosecution witnesses are not threatened. Hence, I pass the following order:- ORDER The applicant be released on bail on his executing a P.R. bond of Rs.2,00,000/- with one or two solvent sureties for the aggregate 12 amount of Rs.2,00,000/- subject to the following conditions: (i) The applicant shall not threaten any of the prosecution witnesses and would not also make any contact with any of the prosecution witnesses till the conclusion of the trial. (ii) The applicant, within 48 hours of his release, shall inform to the C.B.I. is present residential address, residential telephone number and mobile number and intimate any change thereof within 48 hours of the change. (iii) The applicant shall cooperate with the further investigation which is going on and shall attend the office of the C.B.I. as and when required for the purpose of investigation. After this order was pronounced in the open Court, learned counsel for the C.B.I. prayed for stay of the operation of this order as the C.B.I. wants to challenge the order to the Supreme Court. The operation of this order is stayed for a period of 3 weeks. (D.G. KARNIK, J.)