2010 (10) TMI 1255 - HC - Indian Laws

Summary

Issues Involved:
1. Application for bail under Section 439 of the Code of Criminal Procedure.
2. Allegations against the applicant in connection with the fake encounter and disappearance of Kausarbi.
3. Arguments by the applicant's counsel for bail.
4. Opposition by the Central Bureau of Investigation (CBI).
5. Court's evaluation of the evidence and allegations.
6. Previous orders and observations on similar bail applications.
7. Legal precedents and principles governing bail applications.

Issue-wise Detailed Analysis:

1. Application for Bail under Section 439 of the Code of Criminal Procedure
The applicant, a former Sub-Inspector with the Anti-Terrorist Squad (ATS) in Ahmedabad, sought bail under Section 439 of the Criminal Procedure Code. The application was made in connection with a complaint registered with the ATS Police Station, Ahmedabad, concerning the fake encounter of Sohrabuddin and the disappearance of his wife, Kausarbi.

2. Allegations Against the Applicant
The applicant was accused of being involved in a conspiracy to destroy Kausarbi's dead body after setting it on fire. The charges included offences under Sections 201, 120B, 193, and 34 of the Indian Penal Code. The applicant was alleged to have driven a tempo loaded with firewood to Illol, where Kausarbi's body was cremated to destroy evidence.

3. Arguments by the Applicant's Counsel for Bail
The applicant's counsel argued that:
- The applicant had been in jail for over three years without the conclusion of the investigation.
- The charges against the applicant, at most, could be under Section 201 of the IPC, which is bailable.
- The tempo was arranged by another accused who had been dropped by the CBI.
- There was no evidence of the applicant's involvement in the larger conspiracy to kill Sohrabuddin and Kausarbi.
- The applicant's case was similar to that of another accused who had been granted anticipatory bail.

4. Opposition by the Central Bureau of Investigation (CBI)
The CBI opposed the bail application, arguing that:
- The present application was a successive bail application with no changed circumstances since the previous rejection.
- The investigation was still ongoing, and the applicant's release could lead to tampering with evidence.
- The applicant's involvement was established through statements and evidence, indicating his presence and participation in the conspiracy.
- The applicant managed the firewood for disposing of Kausarbi's body and was aware of the entire conspiracy.

5. Court's Evaluation of the Evidence and Allegations
The court considered the supplementary chargesheet and the evidence collected, which indicated the applicant's involvement in the conspiracy. The court noted:
- The case involved three parts: the conspiracy to bring Sohrabuddin to Ahmedabad, the fake encounter, and the post-encounter events, including Kausarbi's death.
- The applicant's presence and actions indicated his awareness and participation in the conspiracy.
- The ongoing investigation by the CBI and the potential for new evidence justified denying bail.

6. Previous Orders and Observations on Similar Bail Applications
The court referred to its earlier order rejecting the applicant's bail application, considering the nature of the accusations, the seriousness of the offences, and the potential for tampering with evidence. The court highlighted:
- The gravity of the charges against police officers involved in fake encounters and evidence destruction.
- The reasonable apprehension of tampering with evidence if the applicant were released on bail.

7. Legal Precedents and Principles Governing Bail Applications
The court cited several Supreme Court decisions outlining the principles for granting bail, emphasizing:
- The nature and gravity of the accusations.
- The severity of the punishment.
- The likelihood of tampering with evidence or witnesses.
- The prima facie satisfaction of the court regarding the charges.

Conclusion
The court concluded that no case was made out to release the applicant on bail, given the prima facie evidence against him and the ongoing investigation. The application was dismissed, and the rule was discharged.