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2010 Supreme(Guj) 382
2011 (1) GCD 193 (Guj)
Hon’ble Mr. Justice Rajesh H. Shukla
Amitbhai Anilchandra Shah
Versus
Central Bureau of Investigation & Anr.
Criminal Misc. Application No. 12240 of 2010—Decided on 29/10/2010
Appearance :
Mr. Ram Jethmalani, Sr. Advocate, with Mr. N.D. Nanavati, Sr. Advocate, with Mr. Kunan B. Naik, for the Applicant No. 1.
Mr. K.T.S. Tulsi, Sr. Advocate with Mr. Y.N. Ravani, for the Respondent No. 1.
Mr. P.K. Jani, Public Prosecutor for the Respondent No. 2.
Dr. Mukul Sinha, for the Original Complainant.
Point in Issue :
Whether applicant accused is entitled for bail in the facts of the case.
Headnote:Head Note :
Criminal Procedure Code, 1973 (Central Act 2 of 1974) — Section 439 — [Indian] Penal Code, 1860 (Central Act 45 of 1860) — Sections 365, 368, 302, 201 and 120-B — Offences under — Bail — Admissibility — Scope of — Court considering the rival contentions of Counsel for applicant and Counsel for CBI held that on basis of material and evidence relied upon prima facie case suggesting the involvement of the accused applicant is not made out for the purpose of deciding the complainant of the accused in the light of the character of evidence — Balance has to be struck between rival claims of the parties and it has to be taken care of the presence of the accused to secure — Court in the back ground allowed the application to release the accused applicant on bail subject to conditions indicated in the order.
Held :
It is well-accepted that this Court is not required to appreciate and scrutinize the evidence in detail at this stage.
The matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail. . . . . . . . [Para 77]
Therefore, though a detailed scrutiny of the evidence may not be necessary, however, for considering even the prima facie case for the purpose of granting bail as per the guidelines referred to hereinabove, some evidence has to be referred for the purpose of indicating the reasons for arriving at the conclusion. It is also well accepted that ‘reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at.’ [Para 78]
In the facts of the preset case, the applicant was a Minister when such statement or incriminating material was collected by the investigating agency, CBI. When the retractions have been made, he was in jail and there is no evidence prima facie suggesting connection or link with such retraction. Further, the investigation is made by CBI where the applicant cannot have any say. Therefore, balance has to be struck between the rival claims of the accused for liberty as well as the apprehension of the investigating agency. Further, it can also be taken care of that the presence of the accused is secured by providing normal condition of reporting. [Para 96]
The application is accordingly allowed. Subject to the further conditions that he shall :
(a) not take undue advantage of his liberty or abuse his liberty.
(b) not to try to tamper or pressurize the prosecution witnesses or complainant in any manner;
(c) not act in any manner injurious to the interests of the prosecution.
(d) maintain law and order and should co-operate with the investigating officers;
(e) mark his presence before the I.O., CBI, in RC BS1/S/2010/0004, registered with C.B.I., Mumbai once in the first week of every calendar month between 11.00 am and 2.00 pm for one year.
(f) furnish the address of his residence to the investigating officer and also to the Court at the time of execution of the bond and shall not change his residence without prior permission of the court.
(g) surrender his passport, if any, to the lower court, within a week.
(h) not leave India without the prior permission of the court. [Para 100]
Law Laid Down :
In deciding the application of accused to release on bail the moot question required to be considered is whether the material and evidence on record suggest the involvement of accused in alleged conspiracy in commission of the offence alleged.
Case Law Analysis :
Bhagirathsinh s/o Mahipatsinh Jadeja vs. State of Gujarat, (1984) 1 SCC 284 [Para 30];; State (Delhi Administration) vs. Sanjay Gandhi, (1978) 2 SCC 411 [Para 33];; Jayendra Saraswathi Swamigal vs. State of T.N., (2005) 2 SCC 13 [Paras 72 & 98];; State of U.P. through CBI vs. Amarmani Tripathi, (2005) 8 SC 21 [Para 77].—Relied on
Rajesh H. Shukla, J.—The present application has been filed by the applicant for grant of regular bail under Section 439 of the Code of Criminal Procedure after the charge sheet is filed.
2. The Applicant-accused is charged with having committed offences under Sections 365, 368, 302, 201 and 120B of IPC for which FIR, being RC BS1/S/2010/0004, has been registered with C.B.I., Mumbai (Criminal Case No. 5 of 2010 before the learned Magistrate).
3. Learned Sr. Counsel Mr. Ram Jethmalani appearing with learned Sr. Counsel Mr. ND Nanavati with Learned Advocate Mr. Kunan Naik for the applicant submitted that the applicant had preferred Criminal Misc. Application No. 137 of 2010 before the Special Judge (CBI) at Mirzapur, Ahmedabad which came to be rejected. Learned Sr. Counsel Mr. Ram Jethmalani submitted that it only displayed the lack of judicial balance and the learned Special Judge has not considered the material placed on record and has made observations which are not supported by any material and evidence and, therefore, the present application has been filed.
4. Learned Sr. Counsel Mr. Ram Jethmalani has referred to the charge sheet and submitted that, as it transpires from the charge sheet, the case relates to conspiracy with regard to Sohrabuddin fake encounter by the Gujarat Police as well as the Andhra Pradesh Police. He submitted that as it is stated in the brief facts of the case in the charge sheet itself, the investigation revealed that during the year 2004, the criminal gang of Sohrabuddin had become very active in the areas of Rajsamand, Nathdwara, Sukher and Udaipur districts of Rajasthan. The said areas are known for marble mining and trade. Learned Sr. Counsel Mr. Ram Jethmalani further emphasised referring to the fact that, as stated in the charge sheet, Sohrabuddin gang was one group of gang and as it is further stated, one Hamid Lala was very active in this area and protection was provided to the marble traders in return for money. Therefore, Sohrabuddin gang wanted to take all the share of protection money by getting rid of Hamid Lala gang. Sohrabuddin gang realized that their image had taken a beating and they have to posture actively and in a more aggressive and violent manner to regain their lost image and create fear among the marble traders.
5. Learned Sr. Counsel Mr. Ram Jethmalani submitted that this is the background in which the alleged conspiracy is said to have taken place between the Gujarat and Rajasthan police to eliminate Sohrabuddin, which led to filing of the present case.
6. The present Applicant accused is the ex-Home Minister of the State (A-16) arraigned for the alleged conspiracy which is not borne out from any material and evidence. Learned Sr. Counsel Mr. Ram Jethmalani strenuously submitted that it is no less than a figment of imagination and fiction story created and concocted by the Respondent-CBI for ultimate political motive.
7. Learned Sr. Counsel Mr. Ram Jethmalani submitted that, initially, the investigation was made by the Gujarat Police under the supervision of the Hon’ble Apex Court and the Government itself has accepted that it was a fake encounter and reported before the Court. However, the investigation came to be transferred to the CBI for the reason that the Gujarat Police was not able to identify the seven personnel of the police force of Andhra Pradesh State when Sohrabuddin and his wife were accompanied by sevenl police personnel of Andhra Pradesh Police. He emphasised that, though, as it is stated, admittedly, Sohrabuddin and his wife were accompanied in a Tata Sumo jeep by the personnel of the Andhra Pradesh Police as well as Gujarat Police, there is no investigation made in that regard with regard to involvement of the police personnel of Andhra Pradesh because the State is ruled by the Congress-led government.
8. Learned Sr. Counsel Mr. Ram Jethmalani submitted that even after the order was passed, and till the charge sheet is filed by the CBI, there is no clue
