IMPORTANT POINT
The court underscored the principle that mere allegations without substantial evidence, particularly in serious criminal cases, do not warrant denial of bail.

ORDER :

DINESH MEHTA, J.

1. This application for bail has been preferred by the applicant under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’) in connection with FIR No.68/2023 registered at Police Station Ambamata, District Udaipur for the offences under Sections 302, 120-B, 201 and 115 of the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’) and Section 5/25 of the Arms Act.

2. Mr. Dheerendra Singh, learned Senior Counsel submitted that the applicant has been falsely implicated and in spite of the admitted fact that during the relevant period, including the date of incident i.e. 06.02.2024, the applicant was behind the bars in Central Jail, Udaipur, he has been branded as a kingpin and enroped in the case with an allegation that it was the applicant, who had hatched the conspiracy to kill the deceased (Rajendra Parmar).

3. Learned Senior Counsel submitted that the charge-sheet has been filed and as per the charge-sheet, the only incriminating evidence which has been relied upon is, purported transcript of the call which is said to have been taken place between the applicant and one Karan @ Kanhaiyalal.

4. While maintaining that such audio/transcript cannot be used against the applicant, learned counsel argued that neither any mobile has been recovered from the conscious possession of applicant nor even a case under Section 42 of the Jail Ordinance has been registered against him.

5. Learned Senior Counsel argued that the Police has created a concocted story which is not only difficult to be proved, but hard to be believed.

6. Mr. Bhati, learned Public Prosecutor and Mr. Avin Chhangani, learned counsel for the complainant both vehemently opposed the bail application by contending that the transcript of the phone recording which has been placed on record clearly establishes applicant’s involvement and role in the offence.

7. Taking the Court through the transcript, it was argued that the present applicant was in contact with the co-accused Karan @ Kanhaiyalal while clearly referring to shooters.

8. It was also underscored that as many as 32 cases are pending against the applicant and argued that looking to his criminal antecedents, the applicant is not entitled for any sort of indulgence.

9. Heard learned counsel for the parties and perused the material available on record.

10. As per the prosecution, it was the applicant who had hatched the conspiracy for murdering (Rajendra Parmar) and a consideration of Rs.30,00,000/- was agreed to be paid by the applicant to the shooters and his aids apart from giving a house and bearing cost of the marriage of the sister of the accused person.

11. The incriminating evidence which the prosecution is relying is the purported transcript of call between the applicant and Karan @ Kanhaiyalal. It is to be noted that such transcript is a recording of telephonic conversation purportedly taken place between the applicant and the co-accused (Karan @ Kanhaiyalal) and the same was allegedly recorded by a Constables (Dharamveer and Anil Kumar), while the co-accused Karan @ Kanhaiyalal was talking to the applicant.

12. While expressing its doubt about the evidentiary value and the veracity of such recording, this Court would observe that it is difficult nay impossible to believe that an accused person would keep his phone on speaker mode and allow others to hear such discussion even to the extent that a Police Constable present around him would record such conversation.

13. That apart, even if the same is taken to be correct for the sake of arguments, admittedly no phone has been recovered from the applicant. Though some phones were recovered from the barrack in which the applicant is lodged (on 06.02.2023 & 12.02.2023), but investigation is pending and so far even charge-sheet for the offence under Section 42 of the Jail Ordinance has not been filed against him. That apart, the Investigating Officer has though placed on record CDR (Call Detail Report), Location R