9911796707
TMI Blog2010 (10) TMI 1255X X X X Extracts X X X X X X X X Extracts X X X X ..... Zaraniya, Nagda, Madhya Pradesh, who was accused of offences punishable under Sections 120(b), 121,121-A, 122, 123, 307, 186, 224 of the IPC; under Section 25(1)(b) and Section 27 of the Arms Act and under Section 13(1) of the Bombay Police Act. It was further stated in the FIR that above accused Sohrabuddin was acting at the behest of ISI to spread terror and disturb the unity and integrity of the country and also entered into conspiracy by possessing arms and ammunition so as to kill big leaders of the State of Gujarat. Investigating team got secret information that said Sorabuddin was to visit Ahmedabad and was to pass near Vishala circle, Ahmedabad and therefore, all of them were on duty near Vishala Circle and at that time, said Sorabuddin came on motorcycle and when asked to surrender by the police party, fired from revolver and attempted to kill them and in return one Abdul Rehman, PI, fired two rounds from service pistol; Shyam Singh, Sub-Inspector (also one of the accused now) fired one round; one Himanshu Singh, Sub-Inspector firmed two rounds; Mr.Dabhi, PI fired one round from his service revolver on the body of the said Sorabuddin and thereafter, he was taken to Civil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of Tulsiram. One Vipul Agarwal, SP who was working under Mr.Vanzara was used to kill Tulsiram. As per Rubabuddin, one Rajkumar Pandian, SP, ATS also played active role in killing of Sohrabuddin, who was present at the relevant day. Therefore, said Rubabuddin prayed for CBI investigation. Pursuant to the directions issued by the Hon'ble Supreme Court from time to time, Investigating Agency of the State of Gujarat carried investigation. During the course of investigation, Inquiry being Inquiry No.66 of 2006 was instituted by the CID (Crimes), Gujarat State and role of various high ranking superior officers in Police Department i.e. ATS and STF were surfaced in the statements of the witnesses. Considering material which had come on record, DGP ordered further enquiry under Section 173(8) of the Code on 06.03.2007. Accordingly, learned Metropolitan Magistrate was informed. Statement of various witnesses came to be recorded during investigation, preliminary inquiry and further investigation. After conclusion of inquiry, it was found by the Investigating agency that death of Sohrabudin and subsequent death of Kausarbi was a result of fake encounter carried out by the applicants h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, Chief Investigating Officer, Superintendent of Police, CBI:SIT: Gandhinagar has filed supplementary chargesheet against in all 15 accused and so far as the applicant is concerned, for the offences under Section 120B read with 364, 365, 368, 341, 342, 302, 384 and 201 of the Indian Penal Code. That thereafter the applicant - original accused No.13 again approach the learned Special Judge, CBI Court No.4, Ahmedabad for releasing him on bail being Criminal Miscellaneous Application No.65/2010 and by judgment and order dated 20.04.2010, the learned Judge, CBI Court has rejected/dismissed the said application looking to the nature of allegation, seriousness of offence and the role attributed to the applicant. Hence, the applicant original accused No.13, the then Sub-Inspector, ATS, Ahmedabad has preferred the present application under Section 439 of the Criminal Procedure Code for releasing him on bail. [4.0] Shri B.B. Naik, learned Senior Advocate has appeared on behalf of the applicant. It is submitted by Shri Naik, learned counsel appearing on behalf of the applicant that applicant has been arrested on 07.07.2007 and he is in jail since last more than three years and still the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that in absence of any other and/or further evidence with respect to meeting of mind and/or the larger conspiracy and looking to the nature of allegation against the applicant so stated in the chargesheet filed by the CBI, it can be said that at the most the applicant has committed offence under section 201 of the ipc which is bail able offence. It is submitted that as such applicant is not connected at all with the larger conspiracy i.e. killing of Sohrabuddin and/or even Kausarbi. It is submitted that as allegation against the applicant is with respect to disposing of the dead body of Kausarbi, at the most it can be said that a case has been made out against the applicant for offence punishable under Section 201 IPC only, which is a bail able offence and therefore, the applicant deserves to be enlarged on bail. [4.4] Shri Naik, learned counsel has heavily relied upon the recent decision of the learned Single Judge in Criminal Miscellaneous Application No.10466/2010, by which the learned Single Judge has even granted anticipatory bail to two co-accused and the learned Single Judge has considered Section 201 of the Indian Penal Code. Making above submissions, Shri Naik, l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence and/or witnesses as applicant was holding position in the police department i.e. he was Sub-Inspector in Anti Terrorist Squad, Ahmedabad. [5.2] It is further submitted by the learned counsel on behalf of the respondent-Central Bureau of Investigation that in fact the applicant managed to produce the firewoods for disposing of the dead body of Kausarbi. It is further submitted that even from the statement of one Nathubha Jadeja recorded on 11.05.2010 by the CBI, while further investigating the case, it has come out that on 28.11.2005 at about 6.00 hours, he was called by Shri D.G. Vanzara in his office and told to go with tempo with Chauhan Saheb and the tempo was parked outside the gate and when he came out from the office, outside the office one old type 407 tempo was parked and PSI Chauhan was standing near the tempo. Therefore, it is submitted that it is not that the applicant joined on the way and went to Illol. It is submitted that therefore, it is prima facie established that presence of applicant was there from the very beginning and/or atleast it can be said that he was a party to the conspiracy, otherwise he would not have been there outside the office of Shri Van ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [7.0] Heard learned counsels appearing on behalf of respective parties at length. At the outset it is required to be noted that a supplementary chargesheet has been filed against the applicant - original accused No.13 for the offences punishable under Section 120B read with Sections 364, 365, 368, 341, 342, 302, 384 and 201 of the Indian Penal Code. As emerging from the chargesheet and evidence collected during the course of investigation, entire case can be said to have happened in three parts. First part is prior to 26.11.2005, second part is dated 26.11.2005 and third part is post dated 26.11.2005. First facet was about conspiracy part bringing Sohrabuddin from Hyderabad to Ahmedabad, second part is on the date on which the alleged encounter of Sohrabuddin took place i.e. 26.11.2005 and third part is post 26.11.2005 about death of Kausarbi and destroying evidence relating to her dead body. At this stage, it is required to be noted that prior to Hon'ble Supreme Court's intervention in the matter and directing further investigation by the Special Investigating Team, whereabouts of Kausarbi wife of Sohrabuddin was not known and even after the matter was adjourned before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;ble Supreme Court's directions to unearth the larger conspiracy wherein the involvement of other important functionaries is being investigated upon. It is further submitted that as the investigation is in progress, a supplementary chargesheet would be filed before the Hon'ble Court on completion of further investigation. Therefore, as the further investigation is being carried out by the CBI, applicant cannot be released on bail at this stage, as anything can come out at any time during further investigation. It is to be noted that when initially the investigation was carried out, nobody was aware and/or it was not disclosed with respect to killing of Kausarbi and only after further investigation, pursuant to the direction issued by the Hon'ble Supreme Court, it was declared before the Hon'ble Supreme Court with respect to killing of Kausarbi, wife of Sohrabuddin and disposing of her dead body at Illol, Sabarkantha District. Therefore, till the investigation is concluded and the final chargesheet is filed, no inference and/or final conclusion can be drawn as sought to be contended on behalf of the applicant, that at the most, it can be said that the applicant has c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riors and therefore, they be released on bail cannot accepted. Entire conduct of the respective applicants is required to be considered and till Hon'ble Supreme Court intervened and further investigation was carried out by CID (Crimes) and Special Investigation Team, nobody disclosed correct facts. prima-facie they are part and parcel of the conspiracy and their presence at different stages is proved by the aforesaid witnesses. Therefore, merely because they are officials lower in rank, gravity of offences alleged against them will not be decreased and therefore, on that ground they cannot be released on bail. 37. It is required to be noted that while deciding aforesaid two cases, the Hon'ble Supreme Court has considered three facets (1) prior to 26.11.2005; (2) dated 26.11.2005 and (3) post 26.11.2005 i.e. bringing Sohrabuddin from Hyderabad to Ahmedabad; killing Sohrabuddin on 26.11.2005 in fake encounter and death of Kausarbi and destroying evidence relating to her death. It also appears that the Hon'ble Supreme Court has considered statements of witnesses more particularly Nathubhai Jadeja and his so called retractions. Thus considering decision of the learned Singl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stage it is also required to be noted that even Rubabuddin brother of Sohrabuddin is also not satisfied with the investigation with respect to killing of Kausarbi and his application for further investigation under Section 173(8) of the Cr.P.C. is pending before the learned trial Court. (after all these applications were heard and kept for orders and before even order is pronounced, it is reported that the learned trial Court has accepted the application submitted by said Rubabudin for further investigation under Section 173(8) of the Cr.P.C. and has directed investigating agency to hold further inquiry / investigation). Therefore, also the applicants are not required to be released on bail as there are all possibilities of tampering with further investigation. 39. Learned Advocate appearing on behalf of the respective applicants have made lengthy submissions on merits also, however, while considering applications for bail such detailed investigation on the merits of the case and/or appreciation of evidences in detail and making observation on merits at this stage is not justified and/or will not be proper. As such same is impermissible. What is required to be considered at this s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and not as a matter of course. [9.0] It is to be noted that after the earlier chargesheet was filed by the CID Crime, Gandhinagar, there was a further investigation of the case by the CBI pursuant to the direction issued by the Hon'ble Supreme Court and a supplementary chargesheet has been filed and in the supplementary chargesheet, the allegation against the applicant in paras 28, 30, 39, 41, 42 reads as under. 28. Investigation further revealed that on the way to Illol, Shri V.A. Rathod, PI, Shri N.V. Chauhan (A-13) and Shri Nathuba Jadeja saw one grey colour Maruti Zen Car, with Shri D.G. Vanzara (A-1) and Shri Rajkumar Pandiyan (A-2) standing. Shri N.V. Chauhan (A-13) met Shri D.G. Vanzara (A-1), who instructed them to follow the car. Behind that car, navy blue colour Jeep No.GJ-1G-4359 of ATS was also there in which Shri Shri R. Choubey (A-6), Dr. N.K. Amin (A-12), Dy.SP, City Crime Branch, Ahmedabad were seated. Shri N.V. Chauhan (A-13) and Shri V.A. Rathod (A-14) followed the car and the Jeep. All the vehicles started moving together from that place. Shri Vanzara (A-1), Shri V.A. Rathod (A-14), Shri Nathubha Jadeja, Shri Rajkumar Pandiyan (A-2) fetched bundles of hay fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Narmada river. 39. During the investigation, accused Dr. Narendra Kumar Amin (A-12) was taken into Police Custody. He made disclosure before two independent witnesses that while he was in jail, he had long talk with his roommate and co-accused, Shri N.V. Chauhan (A-13) regarding the details of the fake encounter of Sohrabuddin and killing of Kausarbi. During this conversation, Shri Chauhan (A-13) disclosed some vital information which he recorded in his Phillips Gogear 2GB device with FM Radio and voice recorder. The recorded conversation revealed that while Sohrabuddin and his wife were in illegal custody of ATS, Gujarat Police, Shri D.G. Vanzara (A-1) was in constant touch over telephone with Shri Amit Shah (A-16), MOS and was continuously seeking instructions. The recordings also revealed that instructions of killing of Kauserbi were also given by Amit Shah (A-16), MOS to Shri D.G. Vanzara (A-1). 41. In view of the above stated facts the accused A-1 to A-18 except A-10, A-11 and A-14 have committed offences under section 120-B r/w 364, 365, 368, 341, 302, 384 and 201 IPC. Further A-2 and A-5 committed an offence under section 364 and 365. 42. A-1, A-2, A-3, A-4, A-5, A-6, A-7, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted at this stage while considering the application for bail. As stated herein above, even further investigation is going on and the investigation is still incomplete. Therefore also, the applicant cannot be released on bail. It appears to the Court that a prima facie case has been made out against the applicant a prima facie there is a material against the applicant for the offences alleged against him. [10.0] Now, so far as the contention on behalf of the applicant that name of Shri V.A. Rathod, Police Inspector, ATS who was also along with the applicant in the tempo and who managed the tempo, is dropped by the CBI and therefore, the applicant should be released on bail. It is to be noted that as such the case of the applicant cannot be compared with the said Shri Rathod, as it appears his presence was found for the first time on the way to Illol on cross road. It is to be made clear that this Court is not expressing any opinion on merits with respect to the case against Shri Rathod and is not accepting the report of CBI to drop him from the chargesheet. It is ultimately for the competent Court to accept the report and to consider whether he should be dropped from the chargesheet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s on the High Court or the Court of Session in respect of bail. Unlike under S. 437 (1) there is no ban imposed under S. 439 (1), Cr. P. C. against granting of bail by the High Court or the Court of session to persons accused of an offence punishable with death or imprisonment for life. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Even so the High Court or the Court of session will have to exercise its judicial discretion in considering the question of granting of bail under S. 439 (1), Cr. P.C. of the new Code. The overriding considerations in granting bail to which we adverted to earlier and which are common both in the case of S. 437 (1) and S. 439 (1) Cr. P. C. of the new code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice; of repeating the offence, of jeopardising his own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of tampering of the witness or apprehension of threat to the complainant: 3. prima facie satisfaction of the Court in support of the charge.' Aforesaid principle is again reiterated in the case of Kalyan Chandra sarkar V/s. Rajesh Ranjam @ Pappu Yadav and Anr. reported in (2004) 7 SCC 528. It is held by the Hon'ble Supreme Court in the said decision that merely because the accused has undergone certain period of custody by itself would not entitle the accused to being enlarged on bail, nor the fact that the trial is not likely to be concluded in the near future either by itself or coupled with the period of incarceration would be sufficient for enlarging the appellant on bail when the gravity of the offence alleged is severe and there are allegations of tampering with the witnesses by the accused during the period he was on bail. It is also further held by the Hon'ble Supreme Court in the said decision that the admissibility or otherwise of the confessional statement and the effect of the evidence already adduced by the prosecution and the merit of the evidence that may be adduced by the herein after are to be considered at the stage of trial and same is not permissib ..... X X X X Extracts X X X X X X X X Extracts X X X X
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