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2011 (8) Supreme 460
SUPREME COURT OF INDIA
Cyriac Joseph and T.S. Thakur, JJ.
Jetha Bhaya Odedara — Petitioner
versus
Ganga Maldebhai Odedara and Anr. — Respondents
Special Leave Petition (Crl.) No.4010 of 2011
Decided on : 16-12-2011
Facts of the Case :
A- Order passed by High Court enlarging respondent, on bail under Section 439 of CrPc.
B-. The present Special Leave Petition has been filed by the complainant assailing the said order.
Findings of the Court :
A- While petitioner-complainant had described the respondent and other accused persons as a desperate gang active in Porbandar area and involved in commission of several offences, respondent had in the counter affidavit filed by him made a similar allegation giving particulars of cases registered against petitioner and some of the witnesses. The petitioner had not filed any rejoinder to counter affidavit filed on behalf of respondent. If allegations made in special leave petition and those made in counter affidavit were correct, incident appeared to have been result of a gang war between ‘Kotda Gang’ of which respondent was a member and ‘Arjun Gang’ of which complainant-petitioner and some of the witnesses were said to be active members.
B. It is true that while no one including a gangster has any right to take law into his own hands or to criminally assault any other gangster operating in any area or any one else for that matter, the fact that two gangs appeared to be at war with each other and involved in commission of several offences, made it imperative that rival versions presented before Court in connection with incident in question are examined carefully and with added circumspection.
C. Bail order was passed nearly two years back. It was no case of complainant that respondent had during this period either tried to tamper with the evidence or committed any other act that may affect the fairness of the trial. Equally significant was the fact that there was no gunshot injury to either complainant or deceased or any other person involved in the incident. In the circumstances and keeping in view the fact that prosecution shall be free to apply for cancellation of bail should the respondent fail to comply with any of conditions imposed upon him by High Court in the order under challenge, no interference was called for with order granting bail at this stage. Special leave petition was dismissed
JUDGMENT
T.S. Thakur, J.
1. The High Court of Gujarat at Ahmedabad has by its order dated 13th September, 2010 allowed Criminal Misc. —Application No.9119/2010 and enlarged the respondent, Ganga Maldebhai Odedara on bail under Section 439 of Code of Criminal Procedure. The present Special Leave Petition has been filed by the complainant assailing the said order.
2. Briefly stated, the prosecution case is that 14th January, 2007, being Makar Sankranti Day, the complainant-Jetha Bhaya Odedara, the petitioner before us, was sitting at the house of one Abha Arjan, along with Navgan Arasi, Rama Arasi Jadeja, Suresh Sanghan Odedara and a few ladies of the house, named, Aarsi Munja, Maliben and Puriben. At around 8.00 p.m. one Ramde Rajsi Odedara, one of the accused persons is alleged to have come to the place where the complainant was sitting and started using abusive language. He was asked not to do so, thereupon he left the place only to return a few minutes later with accused Punja Ram, Lakha Ram, Devsi Rama, Vikram Keshu Odedara, Gangu Ranmal, Vikram Devsi Odedara, Ramde Rajsi Odedara and the respondent and some others armed with knives and a pistol which the —respondent was allegedly carrying with him. The accused persons started abusing and assaulting the complainant and others who were sitting with him resulting in knife injuries to Vikram Keshu, Navgan Arasi, Rama Arasi and Puriben. Respondent Ganga Maldebhai Odedara is alleged to have fired multiple rounds from the pistol in the air exhorting his companions to kill the complainant and others with him. Navgan Arasi died in the hospital on account of the injuries sustained by him leading to the registration of FIR No. I Cr.No.4/2007 in the Kirti Mandir Police Station, Porbandar City against the respondent and his companions for offences punishable under Sections 302, 307, 324, 147, 148, 149, 323, 504, 507 (2) of IPC read with Section 25(1) of the Arms Act and Section 135 of the Bombay Police Act. With the death of the deceased, Navgan Arasi, in due course the investigation was completed and a charge sheet for the offences mentioned above filed before the Sessions Judge, Porbandar, who made over the case to Fast Track Court, Porbandar for trial and disposal in accordance with law.
3. An application, being Crl. Misc. Application No.3/2010 was then filed by the respondent before the trial Court for grant of bail which was opposed by the prosecution and eventually dismissed by its order dated 11th February, 2010. The trial Court was of the view that no case for the grant of bail to the respondent-applicant had in the facts and circumstances of the case been made out particularly in view of the fact that the respondent was involved in several criminal cases apart from the one in which he was seeking bail. The trial Court was also of the view that the respondent was a member of the gang operating in Porbandar area and that he had absconded for a month before he was arrested. It was also of the view that the role played by the respondent and his association with the other accused persons was likely to affect the smooth conduct of the trial.
4. Aggrieved by the order passed by the trial Court the respondent filed Criminal Misc. Application No.9119/2010 before the High Court of Gujarat at Ahmedabad which application as noticed earlier, was allowed by the High —Court in terms of the impugned order in this petition. The High Court has without scrutinizing and appreciating the evidence in detail come to the conclusion that the respondent had made out a case for grant of bail. The High Court also noticed the fact that no injury was caused with the help of the firearm which the respondent was allegedly carrying with him. The High Court accordingly allowed the application subject to the condition that the respondent shall not take undue advantage of his liberty, tamper with or pressurize the witnesses and that he shall maintain law and order and mark his presence before the concerned poli
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