CR.MA/12644/2007 1/27 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 12644 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 DINESH M N (S P) - Respondent(s) ========================================================= Appearance : MR AY KOGJE APP for Applicant, MR MC BHATT for Intervener, MR PM THAKKAR SR ADV for M/S THAKKAR ASSOC. for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 25/01/2008 CAV JUDGMENT CR.MA/12644/2007 2/27 JUDGMENT 1) In this application, which is preferred by the State of Gujarat under Section 439(2) of the Code of Criminal Procedure, 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, when another cognate matter being Criminal Misc. Application No.12646 of 2007 of co-accused was listed for hearing, 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, the hearing of which was fixed on 18th and 20th December, 2007 respectively. Accordingly, on 18th December, 2007, oral order came to be passed in Criminal Misc. Application No.12646 of 2007 by this Court by directing the Registry to list both the above cases together on 20th December, 2007, since this case was not on the board for hearing on 18.12.2007. 2) This application under Section 439(2) of the Criminal Procedure Code 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.3459 of 2007 qua FIR being CR CR.MA/12644/2007 3/27 JUDGMENT No.I 5 of 2005 registered with ATS Police Station for the offences punishable under Sections 302, 364, 365, 368, 193, 197, 201, 120B, 420, 342 and 34 of the Indian Penal Code and under Section 25(1)(b)(a) and 27 of the Arms Act. 3) This application for cancellation of bail has genesis in FIR being CR No.I 5 of 2005 filed by one Abdul Rehman, a Police Officer, subordinate to the respondent and now an accused, 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) Later on, Rubabuddin Shaikh, brother of CR.MA/12644/2007 4/27 JUDGMENT Sohrabuddin, filed petition before the Hon'ble Supreme Court of India, which was registered as Writ Petition (Cri.) No.6 of 2007. Pursuant to the directions issued from time to time, the Investigating Agency of the State of Gujarat has carried out investigation and it was found by the Investigating Agency that death of Sohrabuddin and subsequently reported death of Kausarbi, wife of Sohrabuddin, was a result of a fake encounter carried out by the then officers of the Anti-Terrorist Squad (for short `ATS'), State of Gujarat and senior IPS officers of State of Gujarat and State of Rajasthan are involved in the fake encounter. All those officers were arrested and respondent-accused No.3 is one of such senior IPS officer belonging to the State of Rajasthan. 5) During the course of investigation, preliminary inquiry being Inquiry No.66 of 2006 was instituted by CID (Crime), Gujarat State, role of the respondent surfaced in the statement of one Ajay Parmar, Police Constable of ATS, Gujarat State. Considering the material which had come on record, the Director General of Police ordered further investigation under Section 173(8) of the Criminal Procedure Code on 6.3.2007. Accordingly the Metropolitan Magistrate was informed and the respondent therein was arraigned as accused. He was arrested on 24.4.2007, remanded to custody for 15 days and charge sheet was filed on 16.7.2007. The respondent preferred a regular bail CR.MA/12644/2007 5/27 JUDGMENT application being Criminal Misc. Application No.3459 of 2007 on 17.9.2007, which was allowed vide order dated 5.10.2007 by learned Additional City and Sessions Judge, Court No.6, Ahmedabad. 6) While enlarging the respondent herein on regular bail in exercise of power under Section 439 of the Criminal Procedure Code, learned Additional City and Sessions Judge, relied on various circumstances, more particularly, in three facets; first facet is prior to 26.11.2005, second facet is dated 26.11.2005 and the third facet is post 26.11.2005. The first facet was about conspiracy part and bringing Sohrabuddin from Hyderabad to Ahmedabad. Second facet is the day on which encounter of Sohrabuddin took place on 26.11.2005 and the third facet i.e. post 26.11.2005 about death of Kausarbi and destroying evidence relating to her death. 7) After recording submission of learned counsel appearing for the parties, the learned Judge noticed that the incident was of a known hardcore criminal who was associated with terrorist activities and wanted in many cases and about 25 different FIRs for various offences were registered against him in Gujarat, Rajasthan, Maharashtra and Madhya Pradesh. Learned Judge further referred to allegations of conspiracy against respondent herein and other co-accused. The learned Judge also found that evidence against the respondent-accused, as per the charge sheet, reveal the presence of the CR.MA/12644/2007 6/27 JUDGMENT respondent, as stated by one Shri Nathubha Jadeja on 26.4.2007. As per letter dated 7.5.2005 of I.O., Shri Nathubha Jadeja is shown as accused. However, later on, Smt.Gita Johri, I.G.P. has declared in her affidavit before the learned Chief Metropolitan Magistrate that Shri Nathubha is witness and on 25.5.2007 Shri Nathubha stated in his affidavit before the Chief Metropolitan Magistrate that his statement dated 26.4.2007 was recorded under duress. Other statements of driver-Puranmal Prabhudayal Mina only indicate that the respondent-accused herein had come along with other Police Officers from Udaipur to Ahmedabad on 24.11.2005. He states that he was not present at the time of encounter and he had no personal knowledge. Another statement of Shri Bhailal K. Rathod do not specifically indicate the presence of the respondent herein though he was present at the place of encounter. According to learned Judge, these statements leave room for doubt about the involvement of the respondent-accused. At the same time, learned Judge observed that truthfulness of allegations levelled against the respondent and satisfaction of the ingredients of various sections applied are subject matter of appreciation of evidence and it can be considered at the time of trial. According to learned Judge, prima facie, committing of heinous crime punishable with death or life imprisonment, sufficient evidence did not surface against the respondent herein. Considering the factor of possibility of CR.MA/12644/2007 7/27 JUDGMENT tampering with evidence, the learned Judge thought it fit that when charge sheet is submitted, by imposing strict conditions, the above aspect can be taken care of. The learned Judge after discussing the credentials of the accused-Sohrabuddin against whom as many as 25 FIRs are lodged and considering the remarkable service record of the respondent herein, observed that police officer like the respondent herein should not be allowed to be harassed and humiliated unless strong prima facie evidence or material for committing serious offence, is found. Learned Judge also relied on the decision in the case of Jayendra Saraswathi Swamigal v. State of Tamil Nadu reported in (2005)2 SCC 13 and after imposing various conditions, including not to leave the territory of Rajasthan without permission of the court, accused-respondent came to be enlarged on bail. 8) The above considerations weighed with the learned Judge are sharply assailed by learned APP for applicant-State of Gujarat by urging strenuous submissions to the extent that the very approach of the learned Judge of weighing evidence even prima facie is contrary to law laid down by the apex court and the same is erroneous and based on presumptions and exercise of power under Section 439 of the Criminal Procedure Code ought not have exercised by the learned Judge in favour of the respondent. 9) Shri A.Y.Kogje, learned APP, appearing for CR.MA/12644/2007 8/27 JUDGMENT applicant-State of Gujarat submits that role of the respondent surfaced when Sohrabuddin, a wanted accused, involved in an offence registered with Hathipole Police Station, Udaipur, which was under his jurisdiction. The respondent contacted Ahmedabad Police to trace out Sohrabuddin. When Sohrabuddin was apprehended, information was given to the respondent and therefore, respondent herein informed his superior officers to send a team to Ahmedabad. The respondent herein was the leader of that team and before any formal order could be passed forming a team, the weapons were procured from the Kotwali. Upon his arrival in Ahmedabad, he had coordinated and participated in the fake encounter along with ATS officers of State of Gujarat. Thus, according to learned APP, it is a clear case of well thought conspiracy attracting ingredients of Section 120B of the Indian Penal Code. 10)It was next submitted by learned APP that the whole case is based on circumstantial evidence and from the charge sheet, needle of suspicion exist towards the respondent herein also and the circumstantial evidence is in the form of statement of witnesses, which indicate that the respondent on receipt of information about apprehending Sohrabuddin on 23.11.2005, formed a team of police officers to visit Ahmedabad, procured weapons for the operation, reached Ahmedabad, met ATS officers and participated in the encounter on 26.11.2005, are sufficient CR.MA/12644/2007 9/27 JUDGMENT enough to attract the ingredients of Sections for the alleged offence. According to learned APP, learned Judge misread the above circumstantial evidence with chain of events linked with each other while granting regular bail to the respondent. 11)Shri Kogje, learned APP, next submitted that the respondent herein was present at the place of offence on 26.11.2005 as per the statement of two different witnesses viz. Bhailal Rathod and Nathubha Jadeja and close reading of statements of both the above witnesses, no inconsistency or contradiction is found at the stage of grant of bail and according to Shri Kogje, that aspect has to be looked into exclusively by the Trial Court at the time of appreciating the evidence on record. 12)Shri Kogje, learned APP, further submits that as per the statement recorded by Shri Nathubha Jadeja on 26.4.2007, the presence of the respondent is shown at the place of encounter, which is sufficient enough to deny any relief under Section 439 of the Criminal Procedure Code. It is next contended that the learned Judge further failed to appreciate the fact that there is sufficient evidence on record to falsify the story of fake encounter as narrated in CR No.I 5 of 2005 by one of the co-accused police officer of Rajasthan and creation of the above FIR itself amounts to misuse of power by the respondent herein so as to misguide the CR.MA/12644/2007 10/27 JUDGMENT investigating agency, though such incident as narrated in the above FIR never took place. 13)Shri Kogje, learned APP, further submits that even retraction of statement of Nathubha dated 25.5.2007 is to be viewed from the affidavit filed by Mrs.Gita Johri, I.G.P. CID (Crime) on 25.4.2007. Even otherwise, according to learned APP, evidentiary value of the retracted statement can only be looked into by the Trial Court at the stage of considering the case of the accused under Section 439 of the Code of Criminal Procedure. It is further contended that the respondent herein is highly responsible police officer and is in a position to influence the witnesses directly or indirectly and therefore also discretion was not required to be exercised in favour of the accused. 14)It is further contended that comparison of characteristics of Sohrabuddin, who was killed in fake encounter, against whom more than 25 FIRs were registered and meritorious service and noble intention of the respondent herein was wholly unwarranted. In drawing the comparison of above nature, according to Shri A.Y.Kogje, the learned Judge has side tracked the main issue about gravity of offence and involvement of high ranking Police Officers in commission of the alleged crime. That certain observations and remarks while granting regular bail to the respondent-accused, may be even of prima facie nature has bearing on the merit of the case and CR.MA/12644/2007 11/27 JUDGMENT according to Shri Kogje, discussion on the merit of the statements of witnesses, was unwarranted. 15)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 16)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 Additional City and Sessions Judge needs to be cancelled and direction be issued to the respondent to surrender forthwith. 17)Shri P.M.Thakkar, learned Senior Advocate, appearing for the respondent, submits that learned Sessions Judge has rightly observed that statement of Nathubha Jadeja cannot be taken into consideration that it was recorded under duress and threat. The above witness Nathubha Jadeja had no personal knowledge and had not CR.MA/12644/2007 12/27 JUDGMENT seen the incident in question. Learned Senior Advocate further submits that there are inconsistencies in the statements of Nathubha Jadeja, which were recorded on 26.4.2007 and no overt act alleged against the respondent since gun shots were fired by accused Nos.5, 7, 8 and 9 only. 18)Shri Thakkar, learned Senior Advocate, further submits that after grant of bail on 5.10.2007, later on police has also filed supplementary charge sheet on 10.12.2007 and there also nothing surfaced on record against the respondent herein. He further submits that even statement of Puranmal Mina, Driver of Rajasthan Police and Shri Bhailal Rathod, who is also Driver do not indicate that the respondent was present at the place of encounter. Shri Thakkar further submits that since the petitioner was arrested on 24.4.2007 and charge sheet was filed on 14.7.2007 and even during the period of remand of 15 days nothing is recovered or discovered from the respondent and the respondent herein remained in judicial custody for more than 5 months and considering the good service record of the respondent and considering the fact that there is no antecedent, no interference is called for by this Court in the order of bail granted to the respondent. Shri Thakkar, learned Senior Advocate, then submitted that in the retraction statement of Nathubha Jadeja, the present respondent had no role to play. CR.MA/12644/2007 13/27 JUDGMENT 19)Shri Thakkar, learned Senior Advocate, further submits that case of bail simply cannot be judged on the basis of alleged sections and gravity of crime is to be ascertained in the backdrop of relevant material available during the course of investigation. Therefore, according to learned counsel for the respondent when the gravity is to be judged from the facts in existence and not from extraneous considerations, in the present case, at the most, according to prosecution also the presence of the respondent is shown and nothing beyond that is there on record. When there is no overt act on the part of the respondent officer the order impugned does not require any interference. Shri Thakkar, further submits that the cases relied upon by learned APP have no application to the facts of this case inasmuch as in the case of Amarmani Tripathi (supra) where the apex court cancelled the bail was an extreme case of accused interfering the course of investigation and even directing the officer in-charge to change the Investigating Officer and administering threats to the complainant and other witnesses from time to time and no such circumstance exist in the present case and therefore bail granted to the respondent herein does not required to be cancelled. 20)Shri Thakkar, learned Senior Advocate, further submits that there is not an iota of material to CR.MA/12644/2007 14/27 JUDGMENT bring the case of the respondent within the purview of Section 120B of the Indian Penal Code inasmuch as forming a team for investigating crime and apprehending the accused cannot be a base for canvassing theory of conspiracy and nothing is brought on record to substantiate the allegations about theory of conspiracy. Learned Senior Advocate further submits that statements of witnesses recorded after 2 years have no relevance, particularly, when the respondent officer had nothing to do with bringing of Sohrabuddin from Hyderabad to Ahmedabad by ATS officers. Therefore, according to Shri Thakkar, the charges levelled have no basis and order impugned does not deserve any interference by this court. Shri Thakkar, relying on the decision of the apex court in the case of Jayendra Saraswathi Swamigal (supra) submits that if principle laid down in the above decision is applied, it is a case for correct application of principle of law for grant of bail and order passed by the learned Judge cannot be faulted with. 21)Shri Thakkar further submits that even if the case is taken to farthest, only presence of the respondent officer is noted by the witnesses and bare version of the FIR indicates that accused Nos.5, 7, 8 and 9 had fired shots. Such eventuality considered by the learned Judge while granting bail cannot be said to be unusual or irrelevant consideration which deserves to be set right by this Court. He further submits CR.MA/12644/2007 15/27 JUDGMENT that much hue and cry is made by the learned APP and the counsel appearing for the affected parties about comparison drawn by the learned Judge about registration of various offences vide different FIRs against Sohrabuddin and meritorious service record of the respondent officer cannot be said to be irrelevant. He further submits that it was one of the factors along with other facts and circumstances which may have weighed with the learned Judge and it cannot be said that the learned Judge has taken into consideration irrelevant facts and decided contrary to law. He further submits that since adequate care is taken by the learned Judge by imposing strict conditions and even about retraction statement of Shri Nathubha in the month of May, 2007, the respondent officer was in jail and nothing can be presumed against him for influencing Shri Nathubha and now the movement of respondent is restricted to State of Rajasthan only and he was ordered not to leave State of Rajasthan without seeking permission and even witnesses are out of the State of Rajasthan, therefore, it cannot be said that the respondent herein will influence the witnesses in any manner whatsoever during the course of the trial. 22)Shri Thakkar, learned Senior Advocate appearing for respondent relied on various decisions of the apex court and this court. Shri Thakkar, relying on the decision of the apex court in the case of Mohan Singh v. Union Territory, CR.MA/12644/2007 16/27 JUDGMENT 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 Thakkar, 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 Thakkar, 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 Thakkar 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 in 2005(4) SCC 178 23)Shri A.Y.Kogje, learned APP, relying on affidavit in rejoinder reiterated his CR.MA/12644/2007 17/27 JUDGMENT submissions and submits that the statements of Nathubha Jadeja 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. 24)Shri M.C.Bhatt, learned counsel appearing for the original 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. Shri Bhatt 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. Shri Bhatt further 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. Shri Bhatt further submits that Sohrabuddin is a victim of crime committed by respondent-officer 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. Shri Bhatt further submits that retraction of statement of CR.MA/12644/2007 18/27 JUDGMENT Nathubha Jadeja can be adjudged at the stage of trial and not at the stage of bail. 25)Shri M.C.Bhatt, learned counsel for the original complainant-Rubabuddin, adopts other arguments of Shri A.Y.Kogje, learned APP for applicant- State of Gujarat. 26)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. 27)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) Misuse