The presence of the accused as a team member in a pre-planned conspiracy does not establish their involvement in the conspiracy. Unimpeachable evidence is required to establish the indefensible, mala-fide, and vindictive nature of the accused's actions.

ORDER :

1. By way of the present petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’), the petitioner has prayed for quashing and setting aside the order dated 30.03.2017 passed below Exh.12 in CBI Criminal Misc. Application No. 141 of 2015 in CBI Sessions Case No. 1 of 2013 and all other consequential orders discharging qua the petitioner.

2. Mr. Virat Popat, learned advocate for the petitioner submits that the prosecution is to the effect that one Shabbir Jamal Mehtar filed Special Criminal Application No. 963 of 2007 before this Court and in the proceedings, direction was issued for registration of FIR, and to, carry out the investigation in connection with the alleged encounter of Sadiq Jamal-brother of the petitioner. The investigation culminated into chargesheet, which alleges that the encounter of Sadiq Jamal Mehtar was a pre-planned conspiracy and stage managed.

2.1 Advocate Mr.Popat submits that the allegations are to the effect that the person viz. Tarunkumar Amrutlal Barot named as accused No. 8 in the chargesheet, alongwith other staff took the custody of the deceased from Mumbai on 02.01.2003 and confined the deceased in Bungalow No. 15, Duffinala, Shahibaug, Ahmedabad till 12.01.2003; in the intervening night of 12.01.2003, it is alleged that the deceased-Sadiq Jamal Mehtar was killed in stage managed encounter.

2.2 Referring to the chargesheet, Advocate Mr.Popat submitted that the only role attributed to the present petitioner is of being with other PSI and PI and P.C. on 12.01.2003 in the alleged part of preplanned conspiracy and all had discussed the modalities of elimination of Sadik Jamal in a stage managed encounter at Sai Baba Complex area, Galaxy Cinema, Naroda, Ahmedabad.

2.3 Advocate Mr.Popat submits that the persons, who were alleged to have led together are discharged by the orders of the trial Court, and even the accused, who having graver role than of the present petitioner have been discharged. The only observation which the learned trial Court Judge made while rejecting the application of discharging the present petitioner, to the contention raised that no role has been attributed to the present petitioner at the time of commission of offence, except that he was present there only as a team member, is that, unless the presence of the petitioner, no team could be formulated and that there is a charge of criminal conspiracy, and the petitioner presence as a team member is required to be looked into at the time of framing of charge and the probative value of the materials on record cannot be ignored.

2.4 Advocate Mr.Popat submits that since all other accused, who were also to be considered as the team member are discharged from the case, there would not be any question of any team, to constitute an offence of criminal conspiracy.

3. Countering the arguments, Mr.R.C.Kodekar, learned Special Public Prosecutor for respondent No. 1-CBI submitted that in Para 9 of the chargesheet, role of the present petitioner has been laid down, who was a member of the team in a pre-planned conspiracy on 12.01.2003.

3.1 Referring to the Affidavit of the Police Inspector, CBI, Mr.Kodekar submitted that the revision application challenging the order dated 30.03.2017 passed by the Special Judge, CBI, Court, Ahmedabad in CBI Criminal Misc. Application No. 141 of 2015 in CBI Sessions Case No. 1 of 2013 was rejected, and the chargesheet was filed on 21.12.2012 against eight accused.

3.2 Mr.Kodekar submits that it is the case of the prosecution that the complainant-J.G.Parmar in his complaint dated 13.01.2003 stated that on 12.01.2003 an information was received by Crime Branch, Ahmedabad that Sadik Jamal was to come near Jai Ambe Traders, Sai Baba Complex, Galaxy Cinema, Naroda, Ahmedabad to meet his associate at about 23.30 hours. The Crime Branch Officers kept a watch near the said place and at about 1.15 hours on 13.01.2003, when efforts were made to apprehend Sadik Jamal, he op