Amit Shah Bail Gujarat HC

CR.
MA/12240/2010
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JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 12240 of 2010 For Approva a!" S#$!a%&r'( HONOURABLE MR.JUSTICE RAJESH H.SHU)LA ========================================= 1 the judgment ?
Whether Reporters of Local Papers may be allowed to see
2 To be referred to the Reporter or not ? 3 judgment ?

Whether the r Lordsh ps w sh to see the fa r copy of the
! to the nterpretat on of the const tut on of $nd a% 1&'( or

any order made thereunder ?
Whether th s case n"ol"es a substant al #uest on of law as
' Whether t s to be c rculated to the c " l judge ? ========================================= AMITBHAI ANILCHANDRA SHAH * App #+a!%,-. /'r-&CENTRAL BUREAU OF IN/ESTIGATION 0 1 * R'-po!"'!%,-. =========================================
App'ara!+' ( )R R*) +,T-)*L*.$% /R0 *1234*T,% w th )R .1 .*.*2*T$% /R0 *1234*T,% w th )R 56.*. 7 .*$5 for *ppl cant8s9 : 1% )R 5T/ T6L/$% /R0 *1234*T,% w th )R ;. R*2*.$ for Respondent8s9 : 1% )R P5 +*.$% P67L$4 PR3/,46T3R for Respondent8s9 : 2% 1R0 )656L /$.-* for 3r g nal 4ompla nant
========================================= CORAM ( HONOURABLE MR.JUSTICE RAJESH H.SHU)LA
Da%' ( 2121022010 ORAL JUDGMENT The present appl cat on has been f led by the appl cant for grant of regular ba l under sec0 !3& of the 4ode of 4r m nal
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Procedure after the charge sheet s f led0
20
The appl cant<accused
s charged w th ha" ng comm tted
offences under sect ons 3='% 3=>% 3(2% 2(1 and 12(7 of $P4 for wh ch ?$R% be ng R4 7/1@/@2(1(@(((!% has been reg stered w th 4070$0% )umba 84r m nal 4ase .o0 ' of 2(1( before the learned )ag strate90
30
Learned /r0 4ounsel )r0 Ram +ethmalan
appear ng w th
learned /r0 4ounsel )r0 .1 .ana"at w th learned ad"ocate )r0 5unan .a A for the appl cant subm tted that the appl cant had preferred 4r m nal ) sc0 *ppl cat on .o0 13B of 2(1( before the /pec al rejected0 +udge 847$9 at ) rCapur% *hmedabad wh ch came to be Learned /r0 4ounsel )r0 Ram +ethmalan subm tted that t
only d splayed the lacA of jud c al balance and the learned /pec al +udge has not cons dered the mater al placed on record and has made obser"at ons wh ch are not supported by any mater al and e" dence and% therefore% the present appl cat on has been f led0
!0
Learned /r0 4ounsel )r0 Ram +ethmalan has referred to the
charge sheet and subm tted that% as t transp res from the charge sheet% the case relates to consp racy w th regard to /ohrabudd n faAe encounter by the Dujarat Pol ce as well as the *ndhra Pradesh Pol ce0 -e subm tted that as t s stated n the br ef facts of the case n the charge sheet tself% the n"est gat on re"ealed that dur ng the
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year 2((!% the cr m nal gang of /ohrabudd n had become "ery act "e n the areas of Rajsamand% .athdwara% /uAher and 6da pur d str cts of Rajasthan0 The sa d areas are Anown for marble m n ng and trade0 Learned /r0 4ounsel )r0 Ram +ethmalan further
emphas sed referr ng to the fact that% as stated n the charge sheet% /ohrabudd n gang was one group of gang and as t s further stated% one -am d Lala was "ery act "e n th s area and protect on was pro" ded to the marble traders n return for money0 Therefore%
/ohrabudd n gang wanted to taAe all the share of protect on money by gett ng r d of -am d Lala gang0 /ohrabudd n gang real Ced that the r mage had taAen a beat ng and they ha"e to posture act "ely and n a more aggress "e and " olent manner to rega n the r lost mage and create fear among the marble traders0
'0
Learned /r0 4ounsel )r0 Ram +ethmalan subm tted that th s s
the bacAground n wh ch the alleged consp racy s sa d to ha"e taAen place between the Dujarat and Rajasthan pol ce to el m nate /ohrabudd n% wh ch led to f l ng of the present case0
=0
The present appl cant accused s the eE<-ome ) n ster of the
/tate 8*<1=9 arra gned for the alleged consp racy wh ch s not borne out from any mater al and e" dence0 Learned /r0 4ounsel )r0 Ram
+ethmalan strenuously subm tted that t s no less than a f gment of mag nat on and f ct on story created and concocted by the respondent<47$ for ult mate pol t cal mot "e0
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B0
subm tted that%
n t ally% the n"est gat on was made by the Dujarat Pol ce under the super" s on of the -onFble *peE 4ourt and the Do"ernment tself has accepted that t was a faAe encounter and reported before the 4ourt0 -owe"er% the n"est gat on came to be transferred to the 47$ for the reason that the Dujarat Pol ce was not able to dent fy the se"en personnel of the pol ce force of *ndhra Pradesh /tate when /ohrabudd n and h s w fe were accompan ed by se"enl pol ce personnel of *ndhra Pradesh Pol ce0 -e emphas sed that% though% as t s stated% adm ttedly% /ohrabudd n and h s w fe were accompan ed n a Tata /umo jeep by the personnel of the *ndhra Pradesh Pol ce as well as Dujarat Pol ce% there s no n"est gat on made n that regard w th regard to n"ol"ement of the pol ce personnel of *ndhra Pradesh because the /tate s ruled by the 4ongress<led go"ernment0
>0
Learned /r0 4ounsel )r0 Ram +ethmalan subm tted that e"en
after the order was passed% and t ll the charge sheet s f led by the 47$% there s no clue0 -e emphas sed that what was cons dered as not a proper n"est gat on by the Dujarat pol ce% the 47$% ha" ng taAen o"er the n"est gat on% t ll the charge sheet s f led% has not e"en made an attempt to maAe any further progress wh ch suggests about the n"est gat on w th pol t cal mot "e% wh ch w ll be further demonstrated wh le referr ng to the e" dence on the bas s of wh ch the appl cant s sought to be made an accused for the alleged
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consp racy on mere ipse dixit0
&0
Learned /r0 4ounsel )r0 Ram +ethmalan subm tted that one
more aspect wh ch s re#u red to be stated s that one /r0 $P/ off cer )s0 Deeta +ohr who was n"est gat ng the case had gone to
-yderabad and% as stated n deta l% as there was no response and co<operat on from the local pol ce or local persons% she could not maAe any headway0 -owe"er% there s no further attempt made by 47$% though t s a central agency% and the same )s0 +ohr has been
now sought to be arra gned% for wh ch she has f led a curat "e pet t on before the -onFble *peE 4ourt spec f cally alleg ng about the d shonest n"est gat on by the 47$ and pressur C ng her to na l the present appl cant wh ch she has spec f cally stated before the -onFble *peE 4ourt about such pressures0
1(0
Learned /r0 4ounsel )r0 Ram +ethmalan subm tted that t s n n deta l% and
th s bacAground he would refer to the e" dence
referr ng to the a"erments n the pet t on as well as the rejo nder% he subm tted that as contended% the ma n offence alleged aga nst the appl cant s A dnapp ng and A ll ng of /ohrabudd n and h s w fe0 The 47$ has not alleged any o"ert act or presence of the appl cant e"en remotely% and to mpl cate the accused he has been alleged to ha"e been n"ol"ed n consp racy w th the other co<accused based upon nadm ss ble hearsay% unrel able and concocted e" dence of the w tnesses% wh ch ha"e been stated n deta l n the rejo nder% namely%
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two Patel brothers of )@s0 Popular 7u lders% Ramanbha Patel and 1ashrathbha Patel% who are themsel"es the accused n 4r m nal 4ase .o0 112! of 2((!% who are c ted as w tnesses n the charge sheet0
110
referred to the
statements and subm tted that e"en cons der ng the statements of both these persons under sec0 1=1 and 1=!% t w ll re"eal that the statements of these two persons do not mpl cate the appl cant accused as% what has been referred to n aud o record ng of the con"ersat on between the two other accused s w th regard to settlement of the r own d spute n connect on w th huge loan
amount of the banA wh ch has been defaulted by them0
subm tted that
though the payment s sa d to ha"e been made% for wh ch a Aachha account for such payment s ma nta ned% as adm ttedly stated% but on one of the dates on wh ch the payment s sa d to ha"e been made to *jay Patel and ;ashpal 4hudasma has not tall ed wh ch has also been obser"ed by th s 4ourt wh le dec d ng the ant c patory ba l appl cat ons of )r0 *jay Patel and )r0 ;ashpal 4hudasma0 )r0 *jay Patel was abroad at that t me and therefore th s tself suggests about the maneu"er ng and falsehood by the n"est gat ng agency0 -e has also made a reference to the summary of subm ss ons before
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the /pec al 4ourt produced on record and the subm ss ons at pages 322 to 32=0
120
?urther% the statement of the brothers of /ohrabudd n are
referred% but the statement before the Dujarat Pol ce and the one recorded by the 47$ are "erbat m the same add ng a few paragraphs0 Learned /r0 4ounsel )r0 Ram +ethmalan subm tted that e"en these statements do not mpl cate the appl cant w th the ma n offence of A dnapp ng and murder0
130
Learned /r0 4ounsel )r0 Ram +ethmalan subm tted that the
charge sheet further refers to the statements and mater al wh ch s also produced n para 3 of the rejo nder referr ng to the statements of d fferent w tnesses0 -e referred to the statements of 8a9 8b9 8c9 8d9 8e9 8f9 8g9 89 Rubabudd n /he Ah 8PW 19 .ayamudd n /he Ah% brother of /ohrabudd n 8PW29 Ramanbha Patel 8PW =(9 1ashrathbha Patel 8PW =B9 20L0 /olanA 8PW 1=39 Gah d 5adr 8PW 1&39 )urtuCa 5han 8PW 1&!9 st ng operat on purported to be carr ed out by Ramanbha Patel and 1ashrathbha Patel 8j9 aud o record ng of con"ersat on alleged to ha"e taAen place
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between two co<accused% namely% 1r .050 *m n and .020 4hauhan0
1!0
Learned /r0 4ounsel )r0 Ram +ethmalan subm tted% as stated
n the wr tten subm ss ons produced on record% that the charge wh ch l nAs the present appl cant accused w th the offence of consp racy s that the Dujarat pol ce had stage<managed the Popular 7u lders shoot out case n order to create a false case aga nst /ohrabudd n to get h m and A ll h m0 -owe"er% Learned /r0 4ounsel )r0 Ram +ethmalan subm tted that n that case% be ng 4r m nal ) sc0 *ppl cat on .o0 112! of 2((!% the name of /ohrabudd n ne"er cropped up as an accused n the n"est gat on t ll after h s death and e"en as per the case of the prosecut ng agency 47$% the appl cant was not n the p cture% and n 1ecember% 2(('% after the death of /ohrabudd n% t s alleged that the present appl cant and the Dujarat pol ce pressur Ced Patel brothers to test fy n that case% though% n fact% the transcr pt and other e" dence nclud ng the r own
statements suggest that the r meet ng w th the co<accused one *jay Patel and ;ashpal 4hudasma was for settlement of the r own cases regard ng huge default and defalcat on and P*/* and there s no reference to the /ohrabudd n case0
1'0
Therefore% the subm ss on that both the w tnesses% Ramanbha Patel% were approached s not e"en
Patel and 1ashrathbha
suggested by the 47$ that the present appl cant had made any effort
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or any d rect contact% but t was through other two co<accused who ha"e% on the contrary% suggested that t was for a d fferent
settlement altogether0 $n any case% t would be a hearsay e" dence so far as the appl cant s concerned as to what transp red between the two co<accused and the w tnesses0
1=0
Learned /r0 4ounsel )r0 Ram +ethmalan also subm tted that
the meet ngs% w th the deta ls as stated n the charge sheet as well as the transcr pt w th regard to *jay Patel 8*<1B9 and ;ashpal 4hudasma 8*<1>9% therefore% has no rele"ance for the purpose of the present appl cant0 $n fact% the transcr pt and the statements of both the w tnesses do not e"en suggest any pressure% but n fact t refers to the con"ersat on when the other two co<accused are sa d to ha"e ad" sed0 -e further subm tted that Ramanbha Patel and
1ashrathbha Patel% as t s re"ealed n th s con"ersat on% were on the contrary desperate to see that the case regard ng the r own huge default and defalcat on of the banA loans are put an end to and also n the Popular 7u lders shoot out case where they were ult mately found to be the accused0 Therefore% they ha"e fallen prey to 47$ who wanted to falsely mpl cate the present appl cant and others0 Learned /r0 4ounsel )r0 Ram +ethmalan % therefore% f the statements of both the w tnesses are
subm tted that
eEam ned% e"en f t s accepted% t would not suggest about any n"ol"ement of the present appl cant0
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1B0
Learned /r0 4ounsel )r0 Ram +ethmalan further subm tted
that the ma n w tness for the respondent<47$ s *Cam 5han who s also an accused n the Popular 7u lders case and the statements recorded by 47$ under sec0 1=1 and 1=! do not n"ol"e the present appl cant and n one statement he s sa d to ha"e stated w th regard to *bhay 4hudasma% but there s no ment on of the present
appl cant n h s statement both under sec0 1=1 and 1=! of 4rP4% where n t s alleged that Rs0 '( laAhs was offered to .a mudd n for not purs ng the matter before the -onFble *peE 4ourt0 Learned /r0
4ounsel )r0 Ram +ethmalan subm tted that th s "ery w tness has subse#uently f led an aff da" t before the )etropol tan )ag strate spec f cally alleg ng that 47$ had got a false statement recorded by h m wh ch Learned /r0 4ounsel )r0 Ram +ethmalan has po ntedly
referred to and subm tted that th s refers to the pressure and the method of n"est gat on w th ulter or mot "e to falsely mpl cate the appl cant and others0
1>0
/ m larly% Learned /r0 4ounsel )r0 Ram +ethmalan subm tted
that as stated by *Cam 5han% the call by 4hudasma 8*1'9 to .ayamudd n was made n h s presence% but sa d *Cam 5han has not made any ment on referr ng to the present appl cant0
1&0
Learned /r0 4ounsel )r0 Ram +ethmalan also referred to the of other two w tnesses Rubabudd n /he Ah and
statement
.ayamudd n /he Ah referr ng to the wr tten subm ss ons and
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subm tted that the statement of both the w tnesses recorded by the Dujarat Pol ce and 47$ s "erbat m the same% but subse#uently% the paragraph s added as stated n the retracted statement of *Cam 5han0
2(0
Learned /r0 4ounsel )r0 Ram +ethmalan therefore subm tted
that for the alleged n"ol"ement of the appl cant n the larger consp racy and@or eEtort on% the respondent<47$ has rel ed upon the statements of Patel 7rothers wh ch are not rel able and s only hearsay0 ?urther% e"en f t s read% t refers to a d fferent transact on than A ll ng /ohrabudd n and h s w fe and there s no l nA to the present appl cant suggested by such statements0 Learned /r0
4ounsel )r0 Ram +ethmalan subm tted that for the purpose of the case regard ng /ohrabudd n and h s w fe% the 47$ has n fact
accepted the statements recorded by the Dujarat Pol ce of the brothers of /ohrabudd n and thereafter they ha"e added statements of Patel 7rothers to mpl cat on0 mpro" se to support the r theory of false
-e emphas sed and subm tted that t s e" dent that
they were desperate to get out of the r own d spute and they could ha"e fallen prey0 Learned /r0 4ounsel )r0 Ram +ethmalan subm tted that e"en then% taA ng the e" dence of these w tnesses as t s% the n"ol"ement of the appl cant accused s not suggested and what has been referred to by referr ng to the con"ersat on between the co< accused and others s a hearsay e" dence and record ng of the aud o
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tape also has no e" dent ary "alue0
210
/ m larly% he subm tted% referr ng to other e" dence w th regard
to the con"ersat on between the two accused% namely% 1r0 .5 *m n and )r0 .2 4hauhan% wh ch s sa d to ha"e been a recorded
con"ersat on n the ja l% s h ghly unbel e"able0 Learned /r0 4ounsel )r0 Ram +ethmalan subm tted that how t could ha"e been recorded% that tself s maA ng t unrel able0 -e subm tted that e"en f t s
bel e"ed that such con"ersat on was recorded% st ll% the transcr pt would show that there s no reference to the present appl cant and t s stated that .2 4hauhan nforms 1r0 .5 *m n that he understood that other co<accused )r0 2anCara has rece "ed nstruct on from the h gher<up% " C0 the present appl cant% wh ch s aga n a hearsay and unbel e"able and n any case t s a con"ersat on or a statement between the co<accused not adm ss ble n e" dence0
220
Learned /r0 4ounsel )r0 Ram +ethmalan of Ramanbha Patel and
referred to the Patel and
statement
1ashrathbha
subm tted that t s re#u red to be cons dered that both these persons had f led a pet t on before the - gh 4ourt of Dujarat be ng /pec al 4r m nal *ppl cat on .o0 1B!& of 2((' and an appl cat on for amendment be ng 4r m nal ) sc0 *ppl cat on .o0 1!>1' of 2((' was also f led on 1=01202((' and t ll then there s not a wh sper or allegat on about the present appl cant0 ?urther% n th s "ery pet t on n the amendment t has been stated that they were made to s t n
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the pol ce stat on for 3<! hrs0 on 1!01202((' as well as on 1'01202(('% whereas n the statement g "en before the 47$ wh ch s at page 1=2% t s stated that they were n the *T/ off ce where the statement was recorded and the phone call came on the cell phone of )r0 2anCara and he had told the w tnesses that the accused was on l ne and the appl cant accused s sa d to ha"e d rected the w tness that he should g "e the statement to )r0 2anCara% otherw se he would be n trouble0 Learned /r0 4ounsel )r0 Ram
+ethmalan subm tted that n the or g nal ?$R f led they ha"e alleged w th regard to the f r ng at the r off ce by unAnown person0 The
pet t on was w thdrawn and the w thdrawal of the pet t on on 1=01202((' was e"en objected by the Do"ernment Pleader and the pet t oner has not stated anyth ng w th regard to th s aspect wh ch s taAen place one day pr or to w thdrawal of the pet t on wh ch aga n clearly suggests that such statements are concocted and the statements are not at all rel able0
230
subm tted that%
s m larly% the statement of /ohrabudd n wh ch s also rel ed upon% also refers to the con"ersat on w th )s +ohr 0 -owe"er% as per the "ers on of 47$ as well as the statement of )s0 +ohr herself% she has been threatened by 47$ to f E her unless she deposes aga nst the present appl cant and therefore she has f led a curat "e pet t on before the -onFble *peE 4ourt0 Th s tself would suggest that such hearsay e" dence of /ohrabudd n wh ch )s0 +ohr totally den ed and
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has% on the contrary% talAed about the pressure put upon by 47$ threaten ng to f E her unless she depose aga nst the appl cant would further maAe the pol t cal mot "e clear w th wh ch the ent re n"est gat on has been carr ed out0
2!0
so<called e" dence n the form of statement of the w tnesses or aud o " deo record ngs cannot be the bas s of mpl cat ng the
appl cant as the analys s of e" dence would clearly suggest that n fact t s a case of no e" dence% but t s only a pol t cal " ct m Cat on0
2'0
Learned /r0 4ounsel )r0 Ram +ethmalan subm tted that one
other off cer /hr 30P0 )athur has also wr tten a letter po nt ng as to how the 47$ has threatened to falsely mpl cate the appl cant fa l ng wh ch he w ll be arrested wh ch s also a part of the record0
2=0
Learned /r0 4ounsel )r0 Ram +ethmalan subm tted that )r0
/olanA had a long pend ng d spute w th regard to h s promot on and therefore he has made th s statement wh ch has no corroborat on and n fact t has been fals f ed by )s0 Deeta +ohr 0
2B0
Learned /r0 4ounsel )r0 Ram +ethmalan subm tted that one n"est gat on w th
further eEample of the d shonest and unfa r
ulter or mot "e s further demonstrated for wh ch he referred to the
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report of the 47$ wh ch reads as under :
H/hr .2 4hauhan:
$ am conf dent that th s person can be
made appro"er who w ll be made nstrumental n maA ng the case aga nst *m t /hah water t ght for the murder of 5ausar 7 0 -owe"er th s would only be poss ble to be done after the arrest of *m t /hah0 The only ca"eat here s that th s person I.2 4hauhanJ s an accused% but my apprec at on s that he w ll be read ly usable as an appro"er once /hr /hah s arrested0 $ concede that the eEtremely damag ng and cred ble e" dence of Pol ce $nspector /hr 2L /olanA can ha"e a support from /hr Ra gar and )s +ohr mmed ately after /hr /hah s arrested and h s o"erbear ng personal nfluence on these
off cers s thereby remo"ed0 $ feel that /hr Ra gar and )s +ohr w ll ha"e all ncent "e to co<operate and speaA the truth at that stage% when confronted w th the mater al e" dence aga nst them ha" ng the potent al to land them n ser ous trouble n the case0 arrested% t 4on"ersely% unless /hr *m t /hah s s fut le to endea"our to ach e"e the same
outcome0 $ ha"e tested t before0 4onclus on: $ re#uest perm ss on to arrest /hr *m t /hah and /hr P4 Pande0 $ also re#uest perm ss on to arrest /@/hr D4 Ra gar% + tendra ;ada"% and )s0 Deeta +ohr and refuse to d "ulge the truthK0 f they do not co<operate
2>0
Learned /r0 4ounsel )r0 Ram +ethmalan % therefore% subm tted

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that th s nternal report of the 47$ tself% wh ch was n fact traced wh le obser" ng one T2 4hannel% and on that bas s t has been found about the d shonest method of n"est gat on0 Learned /r0 4ounsel
)r0 Ram +ethmalan subm tted that th s report speaAs for tself that such powers of n"est gat on by the n"est gat ng agency g "en by the d rect on of the -onFble *peE court has been abused and m sused result ng n a mocAery of just ce0 -e has referred to and rel ed upon the judgment of the -onFble *peE 4ourt reported n 82((=9 = /44 =130
2&0
Learned /r0 4ounsel )r0 Ram +ethmalan % therefore% referr ng
to the aforesa d d scuss on on the e" dence% subm tted that the court s re#u red to cons der the nature and character of e" dence and t s capable of be ng m sunderstood0 -e subm tted that the court has to cons der whether% on the bas s of such e" dence% the present appl cant could be den ed ba l and n fact t would be a case for ac#u ttal0 -e subm tted that the jur sd ct on of th s court for dec d ng a ba l appl cat on s not re#u red to be much elaborated though he emphas sed that n a #uash ng pet t on t would be a d fferent case altogether where not a word would be added or subtracted from the compla nt% wh ch s not the case wh le dec d ng the ba l appl cat on0
3(0
Learned /r0 4ounsel )r0 Ram +ethmalan emphas sed and
subm tted that the case of the prosecut on has to be eEam ned on
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the probab l t es and the burden of the accused s "ery less for the purpose of ba l0 $n support of h s subm ss on% he has referred to and rel ed upon the judgment of the -onFble *peE 4ourt reported n 81&>!9 1 /44 2>! n the case of B3a$#ra%3-#!3 -2o Ma3#pa%-#!3 Ja"'4a v. S%a%' of G&4ara%.
310
subm tted that
therefore the court has to eEam ne w th reference to the state of e" dence when cons der ng the alleged n"ol"ement of the appl cant accused n the consp racy0 -e subm tted that there s no d rect
e" dence and the consp racy w th regard to A ll ng of /ohrabudd n and h s w fe has therefore to be cons dered on the bas s of c rcumstant al e" dence as there s no other e" dence0 -e
emphas sed and subm tted that there has to be an e" dence of such nature wh ch can be sa d to be cogent and con" nc ng for suggest ng an nference about the n"ol"ement of the accused n the consp racy0 -e further emphas sed that before a person can be accused of n"ol"ement n a consp racy% the well accepted cr ter a that t has to be establ shed about the cr me or the meet ng of m nd for the purpose of do ng the act and there s no e" dence to l nA the appl cant accused or e"en remotely suggest ng about hs
n"ol"ement n A ll ng of /ohrabudd n and s w fe0
320
Learned /r0 4ounsel )r0 Ram +ethmalan emphas sed that n
fact the /tate Do"ernment has accepted before the -onFble *peE
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4ourt about the faAe encounter and therefore the 4ourt may cons der when the e" dence aga nst the accused s so concocted% unrel able and e"en the genu neness of such aud o<" deo record ng can be doubted whether t can be sa d to be a suff c ent e" dence suggest ng the n"ol"ement of the accused n the consp racy0 -e
emphas sed and subm tted that as suggested by the theory of the prosecut on 47$ w th regard to eEtort on or consp racy for eEtort on lead ng to the A ll ng of /ohrabudd n% there s no case% there s no e" dence and n fact there has to be some semblance of e" dence or nstance where the appl cant can be sa d to ha"e been ndulg ng n such act " ty0 47$ has not been able to throw any l ght or collect any e" dence e"en when the charge sheet s f led0 Learned /r0 4ounsel
)r0 Ram +ethmalan therefore subm tted that t s noth ng but a pol t cal " ct m sat on merely because he was the -ome ) n ster of an oppos t on party rul ng the /tate wh ch has led to such fabr cated stor es0
330
subm tted that
therefore the present appl cat on for ba l s re#u red to be cons dered on the bas s of well accepted pr nc ples regard ng grant of ba l for wh ch he referred to and rel ed upon the judgment n the case of B3a$#ra%3-#!3 -2o Ma3#pa%-#!3 Ja"'4a 8supra90 -e further
subm tted that now to oppose the ba l% w th a " ew to see that the appl cant accused s not released% what has been harped and
alleged s tamper ng w th the e" dence0 -owe"er% he% referr ng to
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the judgment of the -onFble *peE 4ourt n the case of S%a%' ,D' 3# A"5#!#-%ra%#o!. v. Sa!4a6 Ga!"3# reported n 81&B>9 2 /44 !11% emphas sed that t has been obser"ed that the fact that the
w tnesses had turned host le must be shown to bear a causal connect on w th the subject "e n"ol"ement there n of the
respondent% mean ng thereby% t must be establ shed or shown that there s some connect on n the w tnesses turn ng host le and the appl cant ha" ng any A nd of n"ol"ement0 -e further subm tted that mere preponderance of probab l t es that the accused has tampered w th the w tnesses w ll not be suff c ent as t has to be cons dered by the test of balance of probab l t es that the accused has abused h s l berty or that there s a reasonable apprehens on that he w ll nterfere w th the course of just ce and therefore t s necessary for the prosecut on n order to succeed n an appl cat on for cancellat on of ba l0
3!0
Learned /r0 4ounsel )r0 Ram +ethmalan subm tted that t may
be cons dered that when the statements of such w tnesses are recorded% the appl cant was a ) n ster where he could ha"e w elded some nfluence% and when the statements are st ll recorded% there s no #uest on of nterfer ng or nfluenc ng the w tnesses0 -e subm tted that the retract on wh ch has been rel ed upon suggest ng the nfluence by the appl cant may not be bel e"ed as at that t me the appl cant was n ja l and adm ttedly there s no reason to nterfere part cularly when he s n ja l and there s no connect on for the sa d
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purpose0 -e further subm tted that n fact a person may maAe an attempt for retract on of the statement of w tnesses f there s anyth ng aga nst h m% but as stated abo"e% the statement as t s% most of them do not e"en refer to the name of the appl cant and therefore there s no reason for h m to e"en maAe any such effort0
3'0
Learned /r0 4ounsel )r0 Ram +ethmalan also referred to the
judgment of the -onFble *peE 4ourt reported n B3a$#ra%3-#!3 -2o Ma3#pa%-#!3 Ja"'4a 8supra9 and emphas sed the obser"at ons made n Para ' wh ch reads as under: H00000$f there s no pr ma fac e case there s no #uest on of cons der ng other c rcumstances0 7ut e"en where a pr ma fac e case s establ shed% the approach of the court n the matter of ba l s not that the accused should be deta ned by way of pun shment but whether the presence of the accused would be read ly a"a lable for tr al or that he s l Aely to abuse the d scret on granted e" dence0000K n h s fa"our by tamper ng w th
3=0
deta led reference to the subm ss ons and the aff da" t< n<rejo nder has been made wh ch may be cons dered0
3B0
Learned /r0 4ounsel )r0 5T/ Tuls
for the respondent<47$
po ntedly referred to the obser"at ons made by the -onFble *peE 4ourt n ts judgment and order by wh ch the n"est gat on was handed o"er to the 47$ and subm tted that t was not merely a
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fa lure to dent fy the personnel of the *ndhra Pradesh Pol ce wh ch has led to transfer of the n"est gat on% but the -onFble *peE 4ourt has g "en s E reasons and one of the same was that the mot "e for the offence has not been n"est gated and there was an attempt to destroy human w tnesses wh ch led to the order of n"est gat on by the -onFble *peE 4ourt0 -e therefore subm tted that for the purpose of a fa r and mpart al n"est gat on% t has been handed o"er to the 47$ and t s n th s bacAground% the n"est gat on has been made and the charge sheet has been f led w th substant al e" dence nclud ng the statements under sec0 1=! of 4rP4 of the w tnesses% wh ch would pr ma fac e establ sh the case aga nst the appl cant0 Learned /r0 4ounsel )r0 Tuls also subm tted to emphas se that earl er the ba l granted to 1r0 .5 *m n had been cancelled by the -onFble *peE 4ourt and the factors wh ch are rele"ant for the purpose of grant ng ba l would always be a reasonable apprehens on of tamper ng@ nfluenc ng the w tnesses has to be cons dered0 Learned /r0 4ounsel )r0 Tuls subm tted that the past eEper ence has clearly establ shed that the w tnesses ha"e retracted at the nstance of the appl cant and% therefore% only on th s count% the appl cat on may not be enterta ned0
3>0
Learned /r0 4ounsel )r0 Tuls subm tted that the case of the
prosecut on s that the appl cant s part and parcel of the larger consp racy n the A ll ng of /ohrabudd n% h s w fe and Tuls ram
Prajapat and also the consp racy w th regard to eEtort on of money0
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-e subm tted that the Dujarat Pol ce and Rajasthan Pol ce were n touch w th regard to /ohrabudd n and -am d Lala gangs0 -e
subm tted that e"en before the threat to the marble traders was g "en% the consp racy was already there0 -e emphas sed and
subm tted that the present appl cant 8*<1=9 had pres ded o"er the eEtort on synd cate and /ohrabudd n was h s a d nclud ng other pol ce persons0
3&0
Learned /r0 4ounsel )r0 Tuls % therefore% subm tted that the
gra" ty of the offence s re#u red to be cons dered n bacAground of these facts0 -e subm tted that after the murder of -am d Lala%
/ohrabudd n refused to part w th the eEtort on money w th others and he has been el m nated% lead ng to the alleged case for the faAe encounter and the n"ol"ement of the present appl cant and others0 Learned /r0 4ounsel )r0 Tuls subm tted that as referred here nabo"e% the n"est gat on was handed o"er to 47$ and n fact% as per the commun cat on from the Do"ernment of Rajasthan% the phones of /ohrabudd n were ntercepted by one of the co<accused% )r0 )0.0 1 nesh unauthor sedly0
!(0
Learned /r0 4ounsel )r0 Tuls tr ed to emphas se on the aspect
of consp racy and n"ol"ement of the appl cant referr ng to the statement of Rubabudd n and subm tted that one of the co<accused )r0 4hudasma had pressur sed for w thdrawal of the pet t on and offered Rs0 '( laAhs and stated that the name of the present
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appl cant s also referred that he was angry and he can get both the w tnesses el m nated0 -e also referred to the statement of
.ayamudd n on the same l ne0
!10
Learned /r0 4ounsel )r0 Tuls also referred to the statement of
one *Cam 5han recorded under sec0 1=1 of 4rP4 dated 220202(1( to emphas se that /ohrabudd n was ndulg ng n eEtort on from the bus nessmen% bu lders etc0 wh ch s recorded n deta l0 -e also referred to the confess onal statement recorded under sec0 1=! before the )etropol tan )ag strate% )umba 0
!20
Gah d 5adr dated 210B02(1( and subm tted that th s w tness has also stated about other co<accused )r0 RajAumar Pand an asA ng h m to g "e the statement mpl cat ng /ohrabudd n and others n the nc dent of f r ng at the off ce of Ramanbha Patel and 1ashrathbha Patel0 The co<accused )r0 Pand an s also sa d to ha"e referred the name of the present appl cant<accused that he has the perm ss on to encounter by the present appl cant0 -e has also stated that he was pressur sed to w thdraw the pet t on but he d d not w thdraw0
!30
/ m larly%
Learned /r0 4ounsel )r0 Tuls
referred to the
statement of one )urtuCaAhan on the same l ne as well as that of .oor )ohd0 Dhogar 0
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!!0
?urther% he has also referred to the statement of )ahendras nh
+hala also recorded under sec0 1=1 of dated 110302(1( and also the statement recorded under sec0 1=! of 4rP40 Learned /r0 4ounsel
)r0 Tuls emphas sed that t also refers to the name of the appl cant that the other co<accused *bhay 4hudasma had stated to h m that he has rece "ed a message from the appl cant for g " ng an aff da" t aga nst the 47$0
!'0
*Cam 5han recorded under sec0 1=! of 4rP4 before the +ud c al )ag strate 8? rst 4lass9% 2ash % 1 st0 Thane% dated 1=01(02(1( and subm tted that he has narrated as to what had transp red0 -e emphas sed that the dates are rele"ant that after h s statement was recorded and pend ng hear ng of the ba l appl cat on before the /pec al +ude% 47$% the w tness *Cam 5han was p cAed up by the off cers of Dujarat pol ce and was Aept n a hotel and the statement was recorded under sec0 1=! by the 47$ as to how he was taAen and the aff da" t was taAen from h m0 Therefore% he subm tted that t shows tamper ng w th the e" dence or w tnesses and therefore the present appl cat on may not be enterta ned0
!=0
has also referred to the
statement of )r0 20L0 /olanA and subm tted that as can be seen from the statement of th s w tness% how one of the off cers )s0 +ohr has stated to the w tness about the present appl cant ha" ng g "en
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nstruct ons w th regard to the report0
n"est gat on and chang ng the
!B0
Learned /r0 4ounsel )r0 Tuls further referred to the statement
of P0*0 to )s0 +ohr and how she had also tr ed to change the note at the nstance of the appl cant0 Learned /r0 4ounsel )r0 Tuls has
passed on the sa d note to the 4ourt and also has referred to the document to emphas se that she was try ng to tamper w th t by correct ng the words Hcerta n agenc esK nstead of H/tate
Do"ernmentK0
!>0
-e also subm tted referr ng to the bacAground regard ng
nterrogat on of /yl"ester and Tuls ram Prajapat that on one hand t has been stated that she des res to nterrogate and on the other t s also stated that Tuls was encountered0
!&0
Learned /r0 4ounsel )r0 Tuls subm tted that the c rcumstances
are also re#u red to be not ced that the co<accused )r0 2anCara was transferred to the 7order Range about that t me and he could not ha"e been there unless orders of transfer were passed by the appl cant as the ) n ster n<charge0
'(0
-e has also referred to the statement of )r0 Ra gar dated
2=0B02(1( who was a sen or off cer of the Dujarat Pol ce and who
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had stated about the pressure put upon by the appl cant and as he was not happy he was transferred0
'10
Learned /r0 4ounsel )r0 Tuls subm tted that th s e" dence s
suff c ent to suggest the n"ol"ement of the appl cant<accused n the consp racy and t also suggests the pressure eEerted by the
appl cant% and f he s released on ba l% t would allow h m putt ng the thumb at the system0 -e also referred to the aspect that one of the co<accused 1r0 .050 *m n has been transferred to another ja l and some record ng has also been made0 Learned /r0 4ounsel )r0 Tuls subm tted that these are the c rcumstances suggest ng n"ol"ement of the appl cant and t could not be a matter of chance0
'20
Learned /r0 4ounsel )r0 Tuls % therefore% subm tted that n l ght
of th s e" dence suggest ng pr ma fac e case aga nst the accused and also h s attempts of tamper ng w th the w tnesses% the present appl cat on may not be enterta ned0 -e has subm tted that the pr nc ples regard ng grant of ba l are well settled and one of the rele"ant cons derat ons or parameters s the pr ma fac e case and the apprehens on of the appl cant tamper ng w th the w tnesses0
'30
$n support of h s subm ss on% he has referred to and rel ed
upon the judgment of the -onFble *peE n the case of )a 6a!
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C3a!"ra Sar7ar v. Ra4'-3 Ra!4a! 8 Papp& 9a"av a!" a!r.: reported n 82((!9 B /44 '2>% and has emphas sed the
obser"at ons made n Para >% & and 1(0 -e subm tted that the per od of ncarcerat on already undergone s not the cons derat on0 -e subm tted that for grant of ba l% the c rcumstances@factors wh ch are re#u red to be cons dered are stated n Para 11 " C0
H8a9
The nature of accusat on and the se"er ty of pun shment n case of con" ct on and the nature of support ng e" dence0
8b9
Reasonable apprehens on of tamper ng w th the w tness or apprehens on of threat to the compla nant
8c 9
Pr ma fac e sat sfact on of the court n support of the charge0K
-e also referred to the obser"at ons made n Para 1> to emphas se that nducement to the w tnesses s also a rele"ant factor0
'!0
Learned /r0 4ounsel )r0 Tuls has also referred to the judgment
of the -onFble *peE 4ourt n the case of S%a%' of U.P. T3ro&$3 CBI / A5ar5a!# Tr#pa%3#% reported n 82(('9 > /44 21% aga n referr ng to the cr ter a@parameters for grant of ba l0 -e emphas sed% referr ng to the obser"at ons n Para 1> w th regard to the rele"ant cr ter a or parameters for grant of ba l and also the obser"at ons made n Para 2=% 2B and 2> as well as 31 to emphas se that the pr ma fac e case as well as the apprehens on of the accused tamper ng w th the w tnesses has to be cons dered0
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''0
Learned /r0 4ounsel )r0 Tuls subm tted that the appl cant was
cocA ng a snooA at the law as the ent re /tate mach nery was at h s becA and call0
'=0
Learned /r0 4ounsel )r0 Tuls has also referred to and rel ed
upon the judgment of the -onFble *peE 4ourt reported n 82((=9 & /44 !2' a!r0 n the case of A!# )&5ar T& -#6a!# v. S%a%' of UP 0
-e has also refereed to the judgment n the case of Dr.
Nar'!"ra ). A5#! v. S%a%' of G&4ara% 0 a!r0% reported n 2((> *$R /4W 32=>% and also n the case of D#!'-3 M.N. v. S%a%' of G&4ara%% reported n 2((> *$R /4W 3=BB% w th much emphas s as both the abo"e judgments also refer to the same case0
'B0
Learned 4ounsel )r0 )uAul / nha has re#uested that he may
be heard% wh ch was objected by learned /r0 4ounsel )r0 .ana"at for the appl cant stat ng that 4r m nal Re" s on *ppl cat on .o0 !!! of 2(1( was f led for the same purpose for jo n ng party% wh ch has not been granted% and he has been perm tted to f le the wr tten subm ss ons at the t me of hear ng of the ba l appl cat on0 Therefore% he has made the wr tten subm ss ons and also% n sp te of
reser"at ons by learned /r0 4ounsel )r0 .ana"at for the appl cant% learned counsel )r0 / nha was perm tted to address the 4ourt to supplement the subm ss ons made on behalf of the prosecut ng
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agency% 47$0
'>0
Learned 4ounsel )r0 / nha referred to the statement of one
2 jay 5umar Rathod% another co<accused% at page =( and referred to the statement at p0 =10 -e has subm tted that he has stated as to how the dead body of 5ausar 7 was d sposed of0 -e has also
referred to the deta ls of the telephone call record between 23rd L 2&th wh ch s produced on record and subm tted that the deta ls of the telephone calls s a d rect e" dence% though corroborat "e
e" dence0 -e referred to the judgment of the -onFble *peE 4ourt n the case of S%a%' ,NCT of D' 3#. v. Nav4o% S#""3&% reported n *$R 2((' /4 3>2(% and po ntedly referred to Para 1' on th s aspect that t can be cons dered0
'&0
-e has also referred to the judgment of the -onFble *peE 4ourt
reported n 82((>9 13 /44 '>! n the case of Nar'!"ra ). A5#! ,Dr. v. S%a%' of G&4ara% 0 a!r. % and obser"at ons made w th
regard to the telephone call deta ls between 2'01102((' to 2&01102((' and referr ng to the deta ls of these mob le phone calls% he subm tted that one of the numbers s of the appl cant referr ng to 1' calls0 -e has therefore subm tted that th s s one of the
c rcumstances that a ) n ster s talA ng to a 1y0/0P0 of the 4r me 7ranch% though the protocol would demand that such fre#uent calls would not be made0 -e emphas sed that the appl cant was the
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-ome ) n ster and the sa d co<accused was worA ng
n the
1epartment under hh m and therefore these c rcumstances would po nt a f nger regard ng the n"ol"ement of the appl cant accused0 -e emphas sed that t establ shes the neEus n the consp racy0
=(0
-e referred to the letter of Rubabudd n dated 1&01(02(1( at
*nneEure<4 n h s comp lat on and subm tted that t refers to the name of the appl cant referr ng to the same alleged nterference to w thdraw the case before the -onFble /upreme 4ourt for Rs0 '( laAhs wh ch s also referred to n the statement0 Learned 4ounsel )r0 / nha% therefore% subm tted that t s a reasonable apprehens on that the appl cant would nfluence the w tnesses f released and therefore the present appl cat on may not be enterta ned
cons der ng the nature of offences also0
=10
Learned counsel )r0 Ra"an appear ng for the 47$ subm tted
that pend ng hear ng of th s appl cat on a supplementary charge sheet s f led and therefore the appl cant should approach the
/pec al 4ourt for wh ch he has referred to the pre" ous appl cat on of the co<accused0 -e has also referred to the judgments of th s 4ourt reject ng the ba l appl cat ons of other co<accused )r0 .020 4hauhan% RajAumar Pand an% Rajendra +a n% 1 nesh )0.0% .020 4hauhan and ors0% and subm tted that these "ery subm ss ons ha"e been cons dered and at th s stage the court s not re#u red to apprec ate or cons der the e" dence n deta l0 -e also subm tted that *Cam
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5han has also retracted the statement0 -e has also referred to the letter by the w fe of co<accused 1r0 .050 *m n stat ng that as there was a threat% adm ttedly% he has been sh fted to another ja l0
=20
Learned counsel )r0 Ra"an that subm tted that the letter of
)r0 30P0 )athur s not form ng part of the charge sheet and he could ha"e ssued such letter to fa"our the appl cant0 / m larly% he s before the
subm tted that the curat "e pet t on f led by )s0 +ohr
*peE 4ourt and to sa"e herself and to eEpunge the remarAs she m ght ha"e made the appl cat on wh ch cannot be cons dered0
=30
Learned /r0 4ounsel )r0 .010 .ana"at
appear ng for the
appl cant% n rejo nder% subm tted that the case s bu lt up on the mater al w thout any e" dence0 -e emphas sed that there s no e" dence aga nst the appl cant and he has been falsely mpl cated after the order of the -onFble *peE 4ourt transferr ng the
n"est gat on to the 47$ dated 120102(1(0 -e subm tted that t refers to a pre<arranged scr pt that as per the ?$R produced at *nneEure<*% an offence of consp racy for A dnapp ng and abduct ng has been reg stered% and as subm tted earl er% he was called just one day earl er where he could not rema n present and thereafter% after he was nterrogated% stra ghtway he was arrested and the charge sheet runn ng nto pages was f led0 Th s tself suggests the manner n
wh ch he was called for nterrogat on and mmed ately thereafter he was arrested and the charge sheet was Aept ready% wh ch tself
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suggests pre<determ nat on0
=!0
-e has also referred to the d rect ons of the -onFble *peE
4ourt and also the obser"at ons n Para == for that purpose and tr ed to subm t that after that the f rst statement was recorded% wh ch s h ghl ghted% s that of Rubabudd n and he s sa d to ha"e been nformed by h s brother .ayamudd n about the pressure appl ed% wh ch s a hearsay0 -e subm tted that the statement of Rubabudd n s recorded on 1>0202(1( after the n"est gat on was handed o"er to 47$0
='0
Learned /r0 4ounsel )r0 .010 .ana"at subm tted that though
he may not aga n refer to these statements% t would be e" dent that the compla nant was before the *peE 4ourt% there was a lawyer% he does not d sclose anyth ng w th regard to any A nd of such pressure or offer for w thdrawal of the pet t on and thereafter has made a statement0 -e subm tted that% s m larly% the statement of *Cam
5han has been recorded and n h s f rst statement there s not a word about the appl cant% but subse#uently n a latter statement recorded under sec0 1=!% the appl cant has been mpl cated0
Learned /r0 4ounsel )r0 .ana"at subm tted that the statement recorded by the 47$ of both these w tnesses s "erbat m the same as recorded by the Dujarat Pol ce0 -owe"er% one paragraph s added subse#uently0 / m larly% he referred to the statement of *Cam 5han and subm tted that n h s earl er statement he had not referred to
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the name of the appl cant0 Thereafter% when 47$ recorded h s statement% the name of the appl cant s ncluded on hearsay and aga n he has retracted0
==0
?urther%
Learned /r0 4ounsel )r0
.ana"at subm tted that
thereafter% and pend ng hear ng of th s appl cat on before th s 4ourt% a supplementary charge sheet s f led and aga n the statement of *Cam 5han s produced that he was taAen by the Dujarat Pol ce% Aept n a hotel% and at the r nstance he had addressed a letter@statement to the court under pressure0 -owe"er% Learned /r0 4ounsel )r0 .ana"at subm tted that th s latest statement of *Cam 5han does not refer to the name of the appl cant0
=B0
.ana"at subm tted that% therefore%
the court may cons der th s mater al on the bas s of wh ch the appl cant s sought to be mpl cated% wh ch has no credence0 ?urther% he emphas sed that the so<called cl nch ng e" dence% n fact% s re#u red to be apprec ated n l ght of the ent re mater al and the manner n wh ch the n"est gat on has been made0 -e emphas sed that one statement of Ramanbha Patel% where he s sa d to ha"e stated and wh ch has been much emphas sed by the learned counsel for the 47$% where the name of the appl cant has been referred that he s sa d to ha"e stated that deceased /ohrabudd n had closed all the opt ons% s only hearsay and t s re#u red to be cons dered n l ght of h s own statements and con"ersat on w th the
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other co<accused wh ch has been placed on record0 4ounsel )r0 .ana"at subm tted that t
Learned /r0 to hs
refers
understand ng@percept on as could be seen from the read ng of the statement0
=>0
.ana"at has also referred to the
statement of )r0 20L0 /olanA dated 2B0'02(1( wh ch s produced along w th the comp lat on g "en by the learned counsel for the 47$% and subm tted that he s sa d to ha"e stated that the meet ng of the three off cers% )s0 +ohr % )r0 Pandey and )r0 Ra gar was called by the appl cant for change n the report% though% n fact% th s statement s only a hearsay as he has n h s statement referred to )s0 +ohr ha" ng talAed to h m% whereas n fact )s0 +ohr has spec f cally stated about 47$ ha" ng pressur sed her for wh ch she has e"en mo"ed the -onFble *peE 4ourt by way of a curat "e pet t on and therefore th s statement has no rele"ance and there was no such meet ng0
=&0
?urther% e"en the statement of )r0 Ra gar% wh ch has been
recorded by the 47$ and rel ed upon by the learned counsel for the 47$% has also not referred to th s aspect about ha" ng con"ened any meet ng0 $n fact% he has also stated that no re#uest was made by )r0 /olanA for go ng to 6da pur0 Learned /r0 4ounsel )r0 .ana"at has also subm tted that th s w tness n fact s arra gned as an accused as per the order passed by th s 4ourt and% st ll% he has been remo"ed from the l st of accused and s made a w tness w thout any order by
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any court nclud ng the - gh 4ourt or the *peE 4ourt0
Therefore%
Learned /r0 4ounsel )r0 .ana"at subm tted that th s suggests the manner of the n"est gat on and the ult mate object or mot "e0
B(0
.ana"at subm tted that% s m larly%
another sen or off cer )r0 30P0 )athur has wr tten a letter after h s statement was recorded as to how he was hum l ated and pressur sed to g "e the name of the present appl cant by the 47$0 Learned /r0 4ounsel )r0 .ana"at has subm tted that t s re#u red to be noted that the appl cant had remo"ed h m as he was not prepared to accept llegal d rect ons or the nstruct ons0 The fact rema ns that subse#uently )r0 )athur was n<charge of 4$1 and
dur ng h s tenure between *pr l 2((B to +une 2((B the arrest of the pol ce off cers has been made% wh ch tself would fals fy the
allegat ons w th regard to nterfer ng w th the n"est gat on and wh ch also bel es the allegat ons about nterference and tamper ng w th the n"est gat on by the appl cant0
B10
.ana"at also subm tted that the
deta ls of telephone calls% wh ch has been emphas sed by learned counsel )r0 / nha% cannot be e"en a bas s for draw ng any ad"erse nference% much less t can be sa d to be any e" dence0 -e
subm tted that as eEpla ned n h s wr tten subm ss ons n deta l% there was abduct on of a young boy wh ch was n"est gated by )r0 *m n and% therefore% as a publ c representat "e and -ome ) n ster%
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he was constantly Aept n touch to get the nformat on about the progress of the matter and as a publ c representat "e n such
s tuat on he s not to see the protocol and% on the contrary% the protocol s not re#u red to be followed n such s tuat on as med a was also focus ng on that case0
B20
.ana"at % therefore% subm tted that
th s case s only pol t cally mot "ated for " ct m C ng the appl cant0 -e referred to and rel ed upon the judgment of the -onFble *peE 4ourt n the case of Ja6'!"ra Sara-;a%3# S;a5#$a v. S%a%' of T.N.% reported n 82(('9 2 /44 13% and subm tted that the -onFble *peE 4ourt has cons dered the ba l appl cat on and the same content ons wh ch ha"e been ra sed by learned /r0 4ounsel )r0 Tuls for 47$% ha"e not been accepted0 obser"at ons -e po ntedly referred to the
n Para 1= to emphas se that% rely ng upon the
judgment of the *peE 4ourt n the case of Kalyan Chandra Sarkar v. Rajesh Ranjan I82((!9 Bn /44 '2>J the same content ons were made w th regard to tamper ng w th the w tnesses and the publ c nterest% the *peE 4ourt has n th s judgment clearly obser"ed that the case of 5alyan 4handra /arAar was dec ded on ts own pecul ar facts where se"en appl cat ons for ba l were made before the - gh 4ourt and were rejected and t has no general appl cat on n e"ery case0 -e subm tted that t has been spec f cally obser"ed that n Ja6'!"ra Sara-;a%3# S;a5#$a 8supra9 t was the ba l
case of
appl cat on for the f rst t me0
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B30
Learned /r0 4ounsel )r0 .ana"at has also subm tted that the
aspect of consp racy has also been referred n th s judgment and n Para 12 t has been obser"ed%
HThe open ng words
n /ect on 1( are Hwhere there is $f pr ma fac e s g "en and
reasonable ground to believe that two or more persons have conspired together to commit an offence.K e" dence of the eE stence of a consp racy
accepted% the e" dence of acts and statements made by any one of the consp rators n furtherance of the common object s adm ss ble aga nst all000000000000000 .o worthwh le pr ma fac e e" dence apart from the alleged confess ons ha"e been brought to our not ce to show that the pet t oner along w th *< 2 and *<! was party to a consp racy0K
B!0
Learned /r0 4ounsel )r0 .ana"at subm tted that n the facts of
the present case% there s not e"en a confess onal statement of any of the co<accused and merely on the bas s of the statement of the w tnesses wh ch are e ther hearsay% concocted and based on the r bel e"e% the appl cant s mpl cated0 -e emphas sed that e"en n some statements% as subm tted earl er% n t ally the name of the appl cant s not found% but subse#uently% mpro" s ng the same% later on aga n the statements of the w tnesses ha"e been recorded add ng a paragraph0 Therefore% learned /r0 4ounsel )r0 .ana"at subm tted that the present appl cat on may be allowed0
B'0
Learned /r0 4ounsel )r0 .ana"at subm tted that though the
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letter wr tten by the w fe of )r0 *m n s referred to% all papers are not con"en ently placed on record for the so<called threat for wh ch an appl cat on was g "en by one ja l w thdrawn before the court0 nmate wh ch has been
B=0
$n " ew of r "al subm ss ons% t s re#u resd to be cons dered
whether the present appl cat on can be enterta ned or not0
BB0
$t s well<accepted that th s 4ourt s not re#u red to apprec ate
and scrut n Ce the e" dence n deta l at th s stage0 The -onMble *peE 4ourt n a judgment n the case of S%a%' of U.P. %3ro&$3 CBI v. A5ar5a!# Tr#pa%3#% reported n 82(('9 > /4 21 % has% n fact% la d down the gu del nes and has obser"ed n Para 1> : K$t s well settled that the matters to be cons dered n an appl cat on for ba l are 8 9 whether there s any pr ma fac e or reasonable ground to bel e"e that the accused had comm tted the offenceN 8 9 nature and gra" ty of the chargeN 8 9 se"er ty of the pun shment n the e"ent of con" ct onN 8 "9 danger of the accused abscond ng or flee ng% f released on ba lN 8"9 character% beha" our% means% pos t on and stand ng of the accusedN 8" 9 l Ael hood of the offence be ng repeatedN 8" 9 reasonable apprehens on of the w tnesses be ng tampered w thN and 8" 9 danger% of course% of just ce be ng thwarted by grant of ba lOOO0K
?urther% n th s "ery judgment t has been obser"ed% HThough at the stage of grant ng ba l a deta led eEam nat on of
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facts and elaborate documentat on of mer ts of the case need not be undertaAen% there s a need to nd cate n such orders reasons for pr ma fac e conclud ng why ba l was be ng granted part cularly where the accused s charged of ha" ng comm tted a ser ous offence0K
B>0
Therefore% though a deta led scrut ny of the e" dence may not
be necessary% howe"er% for cons der ng e"en the pr ma fac e case for the purpose of grant ng ba l as per the gu del nes referred to here nabo"e% some e" dence has to be referred for the purpose of nd cat ng the reasons for arr " ng at the conclus on0 $t s also well accepted that Freasons are l "e l nAs between the m nd of the dec s on<taAer to the contro"ersy n #uest on and the dec s on or conclus on arr "ed at0F
B&0
Therefore% for cons der ng the present appl cat on% some
rele"ant factors@gu del nes w th reference to the e" dence s re#u red to be cons dered to dec de the pr ma fac e case or the n"ol"ement of the appl cant0
Pr#5a Fa+#' Ca-'
>(0
The f rst aspect w th regard to n"ol"ement of the appl cant n
the larger consp racy% as t s can"assed by learned /r0 4ounsel )r0 Tuls for the 47$ w th regard to the alleged eEtort on racAet and the A ll ng of /ohrabudd n and h s w fe% s re#u red to be apprec ated0 *s
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per the charge sheet tself% one -am d Lala gang was act "e who was g " ng protect on to the marble traders aga nst /ohrabudd n lead ng to the ult mate murder of -am d Lala and t also refers to the fact that one )an lal Doshal had lent money to Ramanbha Patel Patel of Popular 7u lders and as these two
and 1ashrathbha
brothers were not able to maAe repayment of the amount and the nterest% there was some d spute0 Therefore% the case of the
prosecut on w th regard to the alleged consp racy and n"ol"ement of the appl cant has to be supported by mater al and e" dence wh ch can be the bas s or foundat on for draw ng the nference0 There may not be a d rect e" dence for the consp racy% but the nference can be drawn on the bas s of some mater al lay ng the foundat on or the bas s for draw ng the nference w th regard to such consp racy0
>10
$t s also well accepted w th regard to the law of consp racy
that there has to be a meet ng of m nd or agreement to do an act0 *s obser"ed by the -onMble *peE n a judgment n the case of E-3'r S#!$3 v. S%a%' of A!"3ra Pra"'-3% reported n *$R 2((! /4 3(3(% t s well accepted that before the charges for consp racy could be attracted% necessary ngred ents ha"e to be establ shed% namely% agreement or meet ng of m nd0 4r m nal consp racy has foundat on on an agreement to comm t the offence0 ts
$n th s
judgment% the -onMble *peE 4ourt has also referred to -alsburyMs Laws of ,ngland% !th ,dn0% 2ol0 11% p0 !! L '>0 Therefore% the moot #uest on s re#u red to be cons dered whether the mater al and
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e" dence on record suggest the n"ol"ement of the appl cant n the alleged consp racy0
>20
Therefore% w thout any further elaborat on% the subm ss ons
made w th regard to the alleged consp racy for racAet of eEtort on and A ll ng of /ohrabudd n suggest ng n"ol"ement of the appl cant w ll ha"e to be apprec ated n bacAground of the mater al and e" dence0 *ga n% for that purpose% some reference to the
statements of w tnesses wh ch ha"e been referred n deta l by both the s des are re#u red to be made w thout much elaborat on only taA ng a b rdFs eye " ew0
C3ara+%'r of Ev#"'!+'
>30
* reference to the character of e" dence as one of the
gu del nes la d by the -onMble apeE 4ourt w ll ha"e to be made0 The statement of Rubabudd n states that *Cam 5han had gone to h s brotherMs house and con"eyed that *bhay 4hudasma had suggested for w thdrawal of the pet t on and payment of Rs0 '( laAhs0 *s
.ayamudd n 8brother9 d d not agree% *bhay 4hudasma s sa d to ha"e stated to the brother .ayamudd n that the present appl cant was angry and he would meet the same fate as /ohrabudd n and the appl cant would get h m el m nated0 The statements of both these brothers wh ch ha"e been recorded by the /tate Pol ce and also by 47$% as emphas Ced% are the same eEcept the last paragraph and
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e"en accept ng the same as t s% t would pr ma fac e suggest about the con"ersat on between the w tness and the other co<accused0
>!0
/ m larly% the statement of *Cam 5han% as t s e" dent% has
been recorded0 Thereafter% he has retracted and aga n there s a further statement of *Cam 5han recorded under sec0 1=! wh ch was recorded and aga n there s a statement pend ng hear ng of th s appl cat on wh ch has been rel ed upon by learned /r0 4ounsel )r0 Tuls w th much emphas s that he has been made to retract0 The latest statement of the sa d w tness *Cam 5han recorded under sec0 1=! of 4rP4% t s e" dent that he has not referred to the name of the appl cant0 Therefore% t suggests about the con"ersat on of the
w tness w th some co<accused where the name of the appl cant s referred0 / m larly% the statements are also retracted0 Therefore%
e"en the confess onal statement recorded under sec0 1=! does not stand as t s and the confess onal statement and retracted
statement w ll ha"e to be cons dered wh ch s n the realm of apprec at on of e" dence at the tr al0 -owe"er% the fact rema ns that the statements are retracted0 ?urther% t s also well accepted that such confess onal statement can be a corroborat "e p ece of e" dence% but cannot be a substant al e" dence0 The confess onal statements are not of the co<accused and such statements under sec0 1=! are of the w tnesses0
>'0
/ m larly% the statement of Ramanbha Patel and 1ashrathbha
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Patel% both under sec0 1=1 and 1=! of 4rP4% ha"e been recorded wh ch ha"e been also referred to emphas se that when the statement was recorded on 1'01202((' by *T/% *hmedabad% the co< accused )r0 2anCara had ns sted to g "e the statement and at that t me 2anCara rece "ed a phone call stat ng that t was the
appl cantMs phone and the w tness had talAed% recogn Ced the "o ce of the appl cant and the w tness was asAed by the appl cant to g "e the statement as suggested by )r0 2anCara0 *ga n% th s statement as t s had to be apprec ated n l ght of the subm ss ons made by learned /r0 4ounsel )r0 +ethmalan as e"en the earl er statement dated 2B0302(1( of the same w tness% Ramanbha Patel% there s a reference to settlement of d spute w th regard to huge amount defaulted by the w tness and the meet ng w th the other co<accused *jay Patel and ;ashpal 4hudasma wh ch was also subse#uently stated to ha"e been recorded and also P*/* cases0 >=0 / m larly% )r0 20L0 /olanA who was the accused n the charge
sheet f led by the /tate Pol ce n th s "ery case has been made a w tness and as t s e" dent from the papers of the charge sheet tself% he s *<1! and t has been stated n the charge sheet% column P2$$ wh ch states that he had only acted on nstruct on of *1 and *20 -e does not ha"e any act "e role n the case and also there was no meet ng of m nd w th the ma n consp rators0 Therefore% h s name s be ng remo"ed from the l st of accused n the case0 $t s re#u red to be ment oned that h s name was added as an accused pursuant to the order passed by th s 4ourt and w thout any procedure%
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perm ss on of any court% nclud ng the - gh 4ourt or the -onMble *peE 4ourt% t s stated clearly n th s manner0
>B0
The authent c ty and genu neness of the e" dence n the form
of transcr pt of record ng of the con"ersat on and the statements w ll ha"e to be cons dered based on the subm ss ons made0
>>0
These statements of the w tnesses are re#u red to be read
along w th the transcr pt of con"ersat on w th the co<accused wh ch has been recorded% though a deta led apprec at on s not des rable and% therefore% t s not referred to0 $t w ll clearly suggest a reference to the settlement of the r pend ng d spute0 ?urther% these w tnesses ha"e stated n the statement recorded on 1'01202((' before the *T/ one "ers on% whereas the statement n a pet t on f led before the - gh 4ourt t s d fferent and t s w thdrawn on the neEt day wh ch has been referred to by learned /r0 4ounsel )r0 +ethmalan for the appl cant0
>&0
*ga n% reference s made to the statement of other w tnesses
nclud ng Gah d 5adr % where he has stated that the other co<accused )r0 Pand an s sa d to ha"e stated to g "e the statement as des red w th regard to the f r ng at the Patel 7rotherMs off ce% otherw se )r0 Pand an w ll do encounter as d rected by the appl cant0 -e has also mo"ed the -onMble *peE 4ourt and though he has stated about the pressure% he has also stated n th s "ery statement that he had not
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w thdrawn the pet t on0
&(0
The nternal note of the 47$ w th regard to the arrest of the
present appl cant clearly refers to the cons derat on for arrest wh ch has been much emphas sed by learned /r 4ounsel )r0 +ethmalan 0 Th s clearly states that t s emphas sed that an accused can be usable as an appro"er after /hr /hah 8accused9 s arrested wh ch s also #uoted n deta l n the paper<booA0 Th s tself w ll reflect about the manner of n"est gat on0 -owe"er% as the -onFble *peE 4ourt s super" s ng the n"est gat on% t s not proper to maAe any comment on t0 8emphas s suppl ed9
&10
Th s s further re#u red to be cons dered n " ew of the fact
that )s0 Deeta +ohr who was n"est gat ng the case has spec f cally alleged about the manner and method of n"est gat on by 47$ that she has been compelled to g "e a statement mpl cat ng the accused and a curat "e pet t on s f led before the -onMble *ped 4ourt0
&20
?urther% )r0 30P0 )athur% another h gher off cer% has also stated
on the same l nes0
&30
for the 47$% on one hand%
therefore% referred to th s e" dence much emphas C ng as cl nch ng e" dence and also emphas C ng about the nature of offence and emphas C ng about the apprehens on about tamper ng w th the
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w tnesses to oppose the ba l0
3n the other hand% learned /r0
4ounsel )r0 +ethmalan and learned /r0 4ounsel )r0 .ana"at ha"e emphas Ced about the fact that t s a case of no e" dence or% at the most% t s a sAetchy e" dence and coupled w th the subm ss ons wh ch ha"e been recorded here nabo"e w th regard to the manner of n"est gat on and the pol t cal mot "e0
&!0
Therefore% w thout any further d scuss on or elaborat on of the
e" dence% on the bas s of the mater al and e" dence rel ed upon% pr ma fac e case suggest ng the n"ol"ement of the accused s not made out for the purpose of dec d ng the compl c ty of the accused n l ght of the character of e" dence0
&'0
The 4ourt s consc ous about the fact that the -onMble *peE
4ourt has d rected the n"est gat on to be made by 47$ and as the -onMble *peE 4ourt s super" s ng% t would not be des rable to further reflect on the e" dence at th s stage0 -owe"er% from the d scuss on made here nabo"e% t suggests about the tw st n the tale by the n"est gat ng agency% wh ch has a reference to the character of e" dence0
REASONABLE APPREHENSION
&=0
The -onMble *peE 4ourt
n a judgment
n the case of
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A5ar5a!# Tr#pa%3# 8supra9 has also referred to th s aspect n the gu del nes wh ch has been #uoted here nabo"e referr ng to the obser"at ons n Para 1> where the gra" ty of the offence and the pun shment has also been cons dered w th the character of e" dence% beha" or% pos t on and stand ng of the accused and reasonable apprehens on of the w tnesses be ng tampered w th and danger of just ce be ng thwarted by grant of ba l0 $n the facts of the preset case% the appl cant was a ) n ster when such statement or ncr m nat ng mater al was collected by the n"est gat ng agency% 47$0 When the retract ons ha"e been made% he was n ja l and there s no e" dence pr ma fac e suggest ng connect on or l nA w th such retract on0 ?urther% the n"est gat on s made by 47$ where the
appl cant cannot ha"e any say0 Therefore% balance has to be strucA between the r "al cla ms of the accused for l berty as well as the apprehens on of the n"est gat ng agency0 ?urther% t can also be taAen care of that the presence of the accused s secured by pro" d ng normal cond t on of report ng0
&B0
)oreo"er% the judgment@order of th s 4ourt reject ng the ba l
appl cat ons of the other co<accused referred to by learned counsel )r0 Ra"an w ll not ha"e appl cat on to the facts of the case as those appl cat ons ha"e been cons dered on the bas s of the role attr buted to the accused concerned0 The accused there n were the pol ce
off cers who were present and@or attr buted w th an o"ert act n the alleged encounter of /ohrabudd n and h s w fe% wh ch s not the case
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here0
&>0
)oreo"er% as obser"ed n the judgment of the -onMble *peE
4ourt n the case of Ja6'!"ra Sara-;a%3# S;a5#$a v. S%a%' of T.N.% reported n 82(('9 2 /44 13% the same content ons w th regard to the apprehens on of tamper ng w th w tnesses ha"e been cons dered and therefore% n l ght of the gu del nes w th regard to grant of ba l% the present appl cat on deser"es to be allowed0
&&0
7efore part ng%
s re#u red to be ment oned that the
obser"at ons made by the learned /pec al +udge% 47$% wh le dec d ng the ba l appl cat on are unwarranted and unjust f ed0
1((0 The appl cat on
s accord ngly allowed0
The appl cant
ordered to be released on ba l n connect on w th ?$R% be ng R4 7/1@/@2(1(@(((!% reg stered w th 4070$0% )umba 84r m nal 4ase .o0 ' of 2(1( before the learned )ag strate9 on h s eEecut ng a personal bond of Rs0 1%((%(((@< 8Rupees 3ne lac only9 w th one sol"ent surety for the l Ae amount to the sat sfact on of the lower court 8*ddl0 4h ef +ud c al )ag strate% 47$% ) rCapur% *hmedabad9 and subject to the further cond t ons that he shall :
8a9
not taAe undue ad"antage of h s l berty or abuse h s l berty0
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8b9
not to try to tamper or pressur Ce the prosecut on w tnesses or compla nant n any mannerN
8c 9
not act
n any manner
njur ous to the
nterests of the
prosecut on0 8d9 ma nta n law and order and should co<operate w th the n"est gat ng off cersN 8e9 marA h s presence before the $030% 47$% n R4 7/1@/@2(1(@(((!% reg stered w th 4070$0% )umba once n the f rst weeA of of e"ery calendar month between 110(( am and 20(( pm for one year0 8f9 furn sh the address of h s res dence to the n"est gat ng off cer and also to the court at the t me of eEecut on of the bond and shall not change h s res dence w thout pr or perm ss on of the court0 8g9 surrender h s passport% f any% to the lower court% w th n a weeA0 8h9 not lea"e $nd a w thout the pr or perm ss on of the court0
1(10 $f breach of any of the abo"e cond t ons s comm tted% the concerned /ess ons +udge w ll be free to ssue warrant or taAe appropr ate act on n the matter0
1(20 7a l before the lower court ha" ng jur sd ct on to try the case0 $t would be open to the tr al court concerned to g "e t me to furn sh
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the sol"ency cert f cate% f prayed for0
Rule s made absolute0 10/0 perm tted0
8Rajesh -0 /huAla% +09 FURTHER ORDER *fter the order was pronounced% learned counsel )r0 Ra"an for the 47$ as well as learned counsel 1r0 )uAul / nha ha"e re#uested that the order may be stayed for a per od of three weeAs to enable them to carry the matter before the -onFble *peE 4ourt0 Learned counsel )r0 Ra"an has also referred to and rel ed upon the judgment of th s - gh 4ourt n the case of S%a%' of G&4ara% v. La 4# Popa% a!" or-0% reported n 1&>>829 DL- 11! % stat ng that cons der ng the nature of offence% the release of the appl cant on ba l may prejud ce the prosecut on0
Learned /r0 4ounsel )r0 .ana"at appear ng for the appl cant has objected to the re#uest and subm tted that the facts of the case c ted w ll not ha"e any appl cat on and the appl cant s not l Aely to abscond and he w ll co<operate0 -e also subm tted that any other add t onal cond t on may be mposed0
$n " ew of the subm ss ons and n the facts and c rcumstances%
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the re#uest made by learned counsel )r0 Ra"an for the 47$ and learned counsel 1r0 )uAul / nha cannot be accepted and%
accord ngly% the re#uest stands rejected0
8Rajesh -0 /huAla% +09 8hn9
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Amit Shah Bail Gujarat HC

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Amit Shah Bail Gujarat HC

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CR.

2 To be referred to the Reporter or not ? 3 judgment ?

! to the nterpretat on of the const tut on of $nd a% 1&'( or

Whether th s case n"ol"es a substant al #uest on of law as

========================================= CORAM ( HONOURABLE MR.JUSTICE RAJESH H.SHU)LA

Procedure after the charge sheet s f led0

The appl cant<accused

s charged w th ha" ng comm tted

Learned /r0 4ounsel )r0 Ram +ethmalan

Learned /r0 4ounsel )r0 Ram +ethmalan has referred to the

Learned /r0 4ounsel )r0 Ram +ethmalan subm tted that th s s

The present appl cant accused s the eE<-ome ) n ster of the

Learned /r0 4ounsel )r0 Ram +ethmalan

subm tted that%

consp racy on mere ipse dixit0

th s bacAground he would refer to the e" dence

Learned /r0 4ounsel )r0 Ram +ethmalan

amount of the banA wh ch has been defaulted by them0

Learned /r0 4ounsel )r0 Ram +ethmalan

subm tted that

?urther% the statement of the brothers of /ohrabudd n are

between two co<accused% namely% 1r .050 *m n and .020 4hauhan0

Learned /r0 4ounsel )r0 Ram +ethmalan subm tted% as stated

Patel and 1ashrathbha

subm tted that

Learned /r0 4ounsel )r0 Ram +ethmalan further subm tted

/ m larly% Learned /r0 4ounsel )r0 Ram +ethmalan subm tted

.ayamudd n /he Ah referr ng to the wr tten subm ss ons and

Learned /r0 4ounsel )r0 Ram +ethmalan therefore subm tted

-e emphas sed and subm tted that t s e" dent that

tape also has no e" dent ary "alue0

/ m larly% he subm tted% referr ng to other e" dence w th regard

Learned /r0 4ounsel )r0 Ram +ethmalan of Ramanbha Patel and

referred to the Patel and

Learned /r0 4ounsel )r0 Ram +ethmalan

subm tted that%

further eEample of the d shonest and unfa r

ulter or mot "e s further demonstrated for wh ch he referred to the

report of the 47$ wh ch reads as under :

$ am conf dent that th s person can be

Learned /r0 4ounsel )r0 Ram +ethmalan % therefore% subm tted

Learned /r0 4ounsel )r0 Ram +ethmalan % therefore% referr ng

Learned /r0 4ounsel )r0 Ram +ethmalan emphas sed and

Learned /r0 4ounsel )r0 Ram +ethmalan

subm tted that

n"ol"ement n A ll ng of /ohrabudd n and s w fe0

Learned /r0 4ounsel )r0 Ram +ethmalan emphas sed that n

Learned /r0 4ounsel )r0 Ram +ethmalan

subm tted that

alleged s tamper ng w th the e" dence0 -owe"er% he% referr ng to

Learned /r0 4ounsel )r0 Ram +ethmalan also referred to the

Learned /r0 4ounsel )r0 5T/ Tuls

for the respondent<47$

Prajapat and also the consp racy w th regard to eEtort on of money0

Learned /r0 4ounsel )r0 Tuls tr ed to emphas se on the aspect

.ayamudd n on the same l ne0

Learned /r0 4ounsel )r0 Tuls also referred to the statement of

Learned /r0 4ounsel )r0 Tuls also referred to the statement of

Learned /r0 4ounsel )r0 Tuls

?urther% he has also referred to the statement of )ahendras nh

Learned /r0 4ounsel )r0 Tuls also referred to the statement of

Learned /r0 4ounsel )r0 Tuls

has also referred to the

nstruct ons w th regard to the report0