Point in Issue :
Whether in the facts of the case applicant is entitled to anticipatory bail.

Rajesh H. Shukla, J.—The present application has been filed by the applicant-original accused No. 18 for grant of anticipatory bail under Section 438 of Criminal Procedure Code in connection with CBI Case No. RCBS1/2010/S/0004-MUM registered with C.B.I., Mumbai for the alleged offences under Sections 120(B), 364, 365, 368, 341, 342, 302, 384 and 201 of IPC.

2. Sr. Counsel Mr. Uday Lalit appearing with learned Counsel Mr. J.M. Panchal for the applicant submitted that the charge sheet has been filed by the respondent No. 1-CBI, which is at Page 50, and the applicant has been shown as ‘not arrested’. Learned Sr. Counsel Mr. Lalit submitted that the applicant is the Director of the Co-operative Bank and the gravamen of the charges levelled against the present applicant-accused may be considered, which have not been appreciated by the trial Court.

3. Learned Sr. Counsel Mr. Lalit referred to the charge sheet and pointedly referred to Paras 37, 38, 42, 46 and 48 and submitted that, as stated in Para 46 referring to the present applicant, the offence alleged is under Section 201 of IPC. However, Learned Sr. Counsel Mr. Lalit submitted that even in Para 37 and 38, what has been attributed is influencing the witnesses to conceal from CBI, though Para 38 refers to his involvement in the conspiracy.

4. Learned Sr. Counsel Mr. Lalit submitted that the incident of fake encounter has taken place in the year 2005 and the case has been investigated by CBI, as per the direction of the Hon’ble Apex Court, in 2010, after the Hon’ble Apex Court passed the order dated 10.1.2010. Learned Sr. Counsel Mr. Lalit, therefore, submitted that the person could not be a part of the conspiracy after years of the incident having taken place.

5. He emphasised and submitted that the conspiracy could be attributed before or during the pendency or immediately thereafter regarding the involvement or the role played by the accused. Learned Sr. Counsel Mr. Lalit submitted that there is no role attributed to the present applicant-accused except what is referred to hereinabove. However, he emphasised that in Para 38 of the charge sheet only one line, which he pointedly referred and emphasised, has been added, viz. “The audio-visual records also indicate that these two accused viz. Ajay Patel (A-17) and Shri Yashpal Chudasama (A-18) had actively participated in the main conspiracy and the crime committed in furtherance to the conspiracy.”

6. Learned Sr. Counsel Mr. Lalit, therefore, submitted that from the material and evidence, which has been submitted with the charge sheet, by no stretch of imagination it could be said that there is any kind of participation or involvement of the present applicant in the main conspiracy with regard to the fake encounter, much less any active participation. Therefore, Learned Sr. Counsel Mr. Lalit submitted that, on the one hand, the respondent CBI has filed a charge sheet accusing the present applicant of conspiracy and active participation in the main conspiracy and, on the other, except the statement of two brothers and the transcript, there is nothing to substantiate the allegation except bare words. He emphasised and submitted that on the one hand it is claimed that the applicant has actively participated in the main conspiracy for which the aforesaid offences are registered, whereas the material do not indicate any role, except, at the most, for offence under Section 201 of IPC. He, therefore, strenuously submitted that on the one hand the accusations are made for involvement in the conspiracy without any material to substantiate it and on the other hand it is submitted that the investigation is going on and which is not over and therefore this application may not be entertained.

7. Learned Sr. Counsel Mr. Lalit, therefore, submitted that taking the case of CBI regarding the accusations or charges levelled against the present accused on demurrer - at the face value – at the highest the accused could be attributed with the rol