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2001 Supreme(Guj) 237
Gujarat High Court
Judgename :C.K.BUCH
GHANSHYAMDASJI GURU HARIKISHANDASJI - Appellant
Versus
STATE - Respondent
CRI.M.A. 5810 of 2000
Decided On : 04/12/2001
Headnote:
Constitution of India - Article 21 and 32 - Evidence Act - Section 27 - Public Trusts Act - Narcotic Drugs Psychotropic Substance - Section 37 - Indian Penal Code,1860 - sections 120b, 365, 307 and 395, read with Section 149, 120b, 302, 364, 201 - Criminal Procedure Code, Section 439 - Applications Service of Rule is waived by ld. APP Mr. M. A. for Respondent No. 1 State and by Mr. M. R. Shah, ld. counsel for Respondent No. 2 in Cri. Misc. Application - Similarly service of Rule is waived by ld. APP Mr. N. D for Respondent no. 1 State and by Mr. M. R. Shah, ld. counsel for Respondent No. 2 in Cri. Misc. Application . 1-A. Both these Criminal Misc. Applications are preferred under sec .praying bail by the petitioners-accused of Sessions Case No. pending in the of ld. Addl. Sessions Judge,. Sessions Case is registered on the strength of the charge sheet filed at the conclusion of investigation of FIR registered on by CBI, Mumbai vide CR No. RC. for the offences punishable under sections CBI on investigation charge sheeted five numbers of accused persons for the offences punishable under sec - Since both the applications arise from same charge sheet involving same set of facts, the same are heard and disposed of by this common order - petitioners- original accused nos. respectively whereas Cri. Misc. Application is filed by the petitioner- original accused no. - As per the Note of Registry 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 - Counsel appearing for petitioners, petitioner of Application has approached this Court for bail for the first time after filing of the charge sheet - Held, petitioners-accused is rejected and consequently both these applications are also dismissed - Rule in each application is discharged subject to directions in earlier para-28 of this common judgment - Court had expressed its non-inclination to grant bail even to petitioner nos. 1 and 3 of said application or to the petitioner of Cri. Misc. Application at the instance of ld. counsel appearing for the petitioners of Cri. Misc. Application ld. counsel Mr. appearing for had withdrawn his earlier submission of not pressing application qua petitioner no. 2 and had submitted that this court should also record finding on merit qua petitioner - All the while, ld. counsel has argued mainly qua petitioner in view of deviation made at the end of submissions - I have dealt with case of all the petitioners on merits without expressing any sense of condemnation a against petitioner violator of the liberty granted by this Court at the time of dealing with his application for bail i. e. Cri. Misc. Application vide order dated referred to herein above. I would like to observe that he ought not to have prayed for bail raising plea only on the right flowing from sensitive Article of the Constitution - I would also like to observe that no party is entitled to change the stand totally at the conclusion of trial when he has taken a particular stand initially or in the midst of submissions. Petitioner no. 2 had not pressed for reasoned order for dismissal of his bail plea initially but has changed the plea and has pressed for reasoned order non-inclination to grant bail to petitioner nos. - This stand cannot sustain. However, as petitioner no. 2 had expressed his wish to have an order on merits, I have considered his bail plea in the context of Article of Constitution on merits with other petitioners so that he may not feel that his prayer on the strength of constitutional right has been thrown out technically by the highest Court of the State. I strongly deprecate this type of attitude of a party - Ordered Accordingly.
( 1 ) RULE in both these applications. Service of Rule is waived by ld. APP Mr. M. A. Bukhari for Respondent No. 1 State and 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 and 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 and 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 in
