amit shah bail gujarat hc

8/13/2019 Amit Shah Bail Gujarat HC

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CR.MA/12240/2010 1/51 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

=========================================

1Whether Reporters of Local Papers may be allowed to seethe judgment ?

2 To be referred to the Reporter or not ?

3Whether ther Lordshps wsh to see the far copy of thejudgment ?

!Whether ths case n"ol"es a substantal #ueston of law asto the nterpretaton of the consttuton of $nda% 1&'( orany order made thereunder ?

' Whether t s to be crculated to the c"l judge ?

=========================================AMITBHAI ANILCHANDRA SHAH * App#+a!%,-/'r-&-

CENTRAL BUREAU OF IN/ESTIGATION 1 * R'-po!"'!%,-=========================================App'ara!+' ()R R*) +,T-)*L*.$% /R0 *4*T,% wth )R . .*.**T$% /R0 *4*T,% wth)R 56.*. 7 .*$5 for *pplcant8s9 : 1%)R 5T/ T6L/$% /R0 *4*T,% wth )R ;. R**.$ for Respondent8s9 : 1%)R P5 +*.$% P67L$4 PR/,46TR for Respondent8s9 : 2%R0 )656L /$.-* for rgnal 4omplanant

=========================================

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

Da%' ( 2102010

ORAL JUDGMENT

The present applcaton has been fled by the applcant for

grant of regular bal under sec0 !3& of the 4ode of 4rmnal

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Procedure after the charge sheet s fled0

20 The applcant


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year 2((!% the crmnal gang of /ohrabuddn had become "ery

act"e n the areas of Rajsamand% .athdwara% /uAher and 6dapur

dstrcts of Rajasthan0 The sad areas are Anown for marble mnng

and trade0 Learned /r0 4ounsel )r0 Ram +ethmalan further

emphassed referrng to the fact that% as stated n the charge sheet%

/ohrabuddn gang was one group of gang and as t s further stated%

one -amd Lala was "ery act"e n ths area and protecton was

pro"ded to the marble traders n return for money0 Therefore%

/ohrabuddn gang wanted to taAe all the share of protecton money

by gettng rd of -amd Lala gang0 /ohrabuddn gang realCed that

ther mage had taAen a beatng and they ha"e to posture act"ely

and n a more aggress"e and "olent manner to regan ther lost

mage and create fear among the marble traders0

'0 Learned /r0 4ounsel )r0 Ram +ethmalan submtted that ths s

the bacAground n whch the alleged conspracy s sad to ha"e taAen

place between the Dujarat and Rajasthan polce to elmnate

/ohrabuddn% whch led to flng of the present case0

0 The present applcant accused s the eE


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B0 Learned /r0 4ounsel )r0 Ram +ethmalan submtted that%

ntally% the n"estgaton was made by the Dujarat Polce under the

super"son 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"estgaton came to be transferred to the 47$ for the

reason that the Dujarat Polce was not able to dentfy the se"en

personnel of the polce force of *ndhra Pradesh /tate when

/ohrabuddn and hs wfe were accompaned by se"enl polce

personnel of *ndhra Pradesh Polce0 -e emphassed that% though% as

t s stated% admttedly% /ohrabuddn and hs wfe were accompaned

n a Tata /umo jeep by the personnel of the *ndhra Pradesh Polce

as well as Dujarat Polce% there s no n"estgaton made n that

regard wth regard to n"ol"ement of the polce personnel of *ndhra

Pradesh because the /tate s ruled by the 4ongress


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conspracy on mere ipse dixit0

&0 Learned /r0 4ounsel )r0 Ram +ethmalan submtted that one

more aspect whch s re#ured to be stated s that one /r0 $P/ offcer

)s0 Deeta +ohr who was n"estgatng the case had gone to

-yderabad and% as stated n detal% as there was no response and

co


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two Patel brothers of )@s0 Popular 7ulders% Ramanbha Patel and

ashrathbha Patel% who are themsel"es the accused n 4rmnal

4ase .o0 112! of 2((!% who are cted as wtnesses n the charge

sheet0

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

statements and submtted that e"en consderng the statements of

both these persons under sec0 11 and 1!% t wll re"eal that the

statements of these two persons do not mplcate the applcant

accused as% what has been referred to n audo recordng of the

con"ersaton between the two other accused s wth regard to

settlement of ther own dspute n connecton wth huge loan

amount of the banA whch has been defaulted by them0

Learned /r0 4ounsel )r0 Ram +ethmalan submtted that

though the payment s sad to ha"e been made% for whch a Aachha

account for such payment s mantaned% as admttedly stated% but

on one of the dates on whch the payment s sad to ha"e been

made to *jay Patel and ;ashpal 4hudasma has not talled whch has

also been obser"ed by ths 4ourt whle decdng the antcpatory bal

applcatons of )r0 *jay Patel and )r0 ;ashpal 4hudasma0 )r0 *jay

Patel was abroad at that tme and therefore ths tself suggests

about the maneu"erng and falsehood by the n"estgatng agency0

-e has also made a reference to the summary of submssons before

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the /pecal 4ourt produced on record and the submssons at pages

322 to 320

120 urther% the statement of the brothers of /ohrabuddn are

referred% but the statement before the Dujarat Polce and the one

recorded by the 47$ are "erbatm the same addng a few

paragraphs0 Learned /r0 4ounsel )r0 Ram +ethmalan submtted that

e"en these statements do not mplcate the applcant wth the man

offence of Adnappng and murder0

130 Learned /r0 4ounsel )r0 Ram +ethmalan submtted that the

charge sheet further refers to the statements and materal whch s

also produced n para 3 of the rejonder referrng to the statements

of dfferent wtnesses0 -e referred to the statements of

8a9 Rubabuddn /heAh 8PW 19

8b9 .ayamuddn /heAh% brother of /ohrabuddn 8PW29

8c9 Ramanbha Patel 8PW (9

8d9 ashrathbha Patel 8PW B9

8e9 0L0 /olanA 8PW 139

8f9 Gahd 5adr 8PW 1&39

8g9 )urtuCa 5han 8PW 1&!9

89 stng operaton purported to be carred out by Ramanbha

Patel and ashrathbha Patel

8j9 audo recordng of con"ersaton alleged to ha"e taAen place

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between two co


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or any drect contact% but t was through other two co


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1B0 Learned /r0 4ounsel )r0 Ram +ethmalan further submtted

that the man wtness for the respondent


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submtted that the statement of both the wtnesses recorded by the

Dujarat Polce and 47$ s "erbatm 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 submtted

that for the alleged n"ol"ement of the applcant n the larger

conspracy and@or eEtorton% the respondent


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tape also has no e"dentary "alue0

210 /mlarly% he submtted% referrng to other e"dence wth regard

to the con"ersaton between the two accused% namely% r0 .5 *mn

and )r0 . 4hauhan% whch s sad to ha"e been a recorded

con"ersaton n the jal% s hghly unbele"able0 Learned /r0 4ounsel

)r0 Ram +ethmalan submtted that how t could ha"e been recorded%

that tself s maAng t unrelable0 -e submtted that e"en f t s

bele"ed that such con"ersaton was recorded% stll% the transcrpt

would show that there s no reference to the present applcant and t

s stated that . 4hauhan nforms r0 .5 *mn that he understood

that other co


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the polce staton for 3

pettoner has not stated anythng wth regard to ths aspect whch

s taAen place one day pror to wthdrawal of the petton whch

agan clearly suggests that such statements are concocted and the

statements are not at all relable0

230 Learned /r0 4ounsel )r0 Ram +ethmalan submtted that%

smlarly% the statement of /ohrabuddn whch s also reled upon%

also refers to the con"ersaton wth )s +ohr0 -owe"er% as per the

"erson of 47$ as well as the statement of )s0 +ohr herself% she has

been threatened by 47$ to fE her unless she deposes aganst the

present applcant and therefore she has fled a curat"e petton

before the -onFble *peE 4ourt0 Ths tself would suggest that such

hearsay e"dence of /ohrabuddn whch )s0 +ohr totally dened and

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has% on the contrary% talAed about the pressure put upon by 47$

threatenng to fE her unless she depose aganst the applcant would

further maAe the poltcal mot"e clear wth whch the entre

n"estgaton has been carred out0

2!0 Learned /r0 4ounsel )r0 Ram +ethmalan submtted that the

so


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report of the 47$ whch reads as under :

H/hr . 4hauhan: $ am confdent that ths person can be

made appro"er who wll be made nstrumental n maAng the

case aganst *mt /hah water tght for the murder of 5ausar

70 -owe"er ths would only be possble to be done after the

arrest of *mt /hah0

The only ca"eat here s that ths person I. 4hauhanJ s an

accused% but my apprecaton s that he wll be readly usable

as an appro"er once /hr /hah s arrested0

$ concede that the eEtremely damagng and credble e"dence

of Polce $nspector /hr L /olanA can ha"e a support from

/hr Ragar and )s +ohr mmedately after /hr /hah s

arrested and hs o"erbearng personal nfluence on these

offcers s thereby remo"ed0 $ feel that /hr Ragar and )s +ohr

wll ha"e all ncent"e to co0 Learned /r0 4ounsel )r0 Ram +ethmalan% therefore% submtted

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that ths nternal report of the 47$ tself% whch was n fact traced

whle obser"ng one T 4hannel% and on that bass t has been found

about the dshonest method of n"estgaton0 Learned /r0 4ounsel

)r0 Ram +ethmalan submtted that ths report speaAs for tself that

such powers of n"estgaton by the n"estgatng agency g"en by

the drecton of the -onFble *peE court has been abused and

msused resultng n a mocAery of justce0 -e has referred to and

reled upon the judgment of the -onFble *peE 4ourt reported n

82((9 /44 130

2&0 Learned /r0 4ounsel )r0 Ram +ethmalan% therefore% referrng

to the aforesad dscusson on the e"dence% submtted that the court

s re#ured to consder the nature and character of e"dence and t s

capable of beng msunderstood0 -e submtted that the court has to

consder whether% on the bass of such e"dence% the present

applcant could be dened bal and n fact t would be a case for

ac#uttal0 -e submtted that the jursdcton of ths court for decdng

a bal applcaton s not re#ured to be much elaborated though he

emphassed that n a #uashng petton t would be a dfferent case

altogether where not a word would be added or subtracted from the

complant% whch s not the case whle decdng the bal applcaton0

3(0 Learned /r0 4ounsel )r0 Ram +ethmalan emphassed and

submtted that the case of the prosecuton has to be eEamned on

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the probabltes and the burden of the accused s "ery less for the

purpose of bal0 $n support of hs submsson% he has referred to and

reled upon the judgment of the -onFble *peE 4ourt reported n

81&>!9 1 /44 2>! n the case of B3a$#ra%3-#!3 -o Ma3#pa%-#!3

Ja"'a v. S%a%' of G&ara%.

310 Learned /r0 4ounsel )r0 Ram +ethmalan submtted that

therefore the court has to eEamne wth reference to the state of

e"dence when consderng the alleged n"ol"ement of the applcant

accused n the conspracy0 -e submtted that there s no drect

e"dence and the conspracy wth regard to Allng of /ohrabuddn

and hs wfe has therefore to be consdered on the bass of

crcumstantal e"dence as there s no other e"dence0 -e

emphassed and submtted that there has to be an e"dence of such

nature whch can be sad to be cogent and con"ncng for suggestng

an nference about the n"ol"ement of the accused n the conspracy0

-e further emphassed that before a person can be accused of

n"ol"ement n a conspracy% the well accepted crtera that t has to

be establshed about the crme or the meetng of mnd for the

purpose of dong the act and there s no e"dence to lnA the

applcant accused or e"en remotely suggestng about hs

n"ol"ement n Allng of /ohrabuddn and s wfe0

320 Learned /r0 4ounsel )r0 Ram +ethmalan emphassed 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

consder when the e"dence aganst the accused s so concocted%

unrelable and e"en the genuneness of such audo


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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!a6 Ga!"3#reported n 81&B>9 2 /44 !11%

emphassed that t has been obser"ed that the fact that the

wtnesses had turned hostle must be shown to bear a causal

connecton wth the subject"e n"ol"ement theren of the

respondent% meanng thereby% t must be establshed or shown that

there s some connecton n the wtnesses turnng hostle and the

applcant ha"ng any And of n"ol"ement0 -e further submtted that

mere preponderance of probabltes that the accused has tampered

wth the wtnesses wll not be suffcent as t has to be consdered by

the test of balance of probabltes that the accused has abused hs

lberty or that there s a reasonable apprehenson that he wll

nterfere wth the course of justce and therefore t s necessary for

the prosecuton n order to succeed n an applcaton for cancellaton

of bal0

3!0 Learned /r0 4ounsel )r0 Ram +ethmalan submtted that t may

be consdered that when the statements of such wtnesses are

recorded% the applcant was a )nster where he could ha"e welded

some nfluence% and when the statements are stll recorded% there s

no #ueston of nterferng or nfluencng the wtnesses0 -e submtted

that the retracton whch has been reled upon suggestng the

nfluence by the applcant may not be bele"ed as at that tme the

applcant was n jal and admttedly there s no reason to nterfere

partcularly when he s n jal and there s no connecton for the sad

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purpose0 -e further submtted that n fact a person may maAe an

attempt for retracton of the statement of wtnesses f there s

anythng aganst hm% but as stated abo"e% the statement as t s%

most of them do not e"en refer to the name of the applcant and

therefore there s no reason for hm 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 -o

Ma3#pa%-#!3 Ja"'a 8supra9 and emphassed the obser"atons

made n Para ' whch reads as under:

H00000$f there s no prma face case there s no #ueston of

consderng other crcumstances0 7ut e"en where a prma

face case s establshed% the approach of the court n the

matter of bal s not that the accused should be detaned by

way of punshment but whether the presence of the accused

would be readly a"alable for tral or that he s lAely to abuse

the dscreton granted n hs fa"our by tamperng wth

e"dence0000K

30 Learned /r0 4ounsel )r0 Ram +ethmalan submtted that the

detaled reference to the submssons and the affda"t


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falure to dentfy the personnel of the *ndhra Pradesh Polce whch

has led to transfer of the n"estgaton% but the -onFble *peE 4ourt

has g"en sE reasons and one of the same was that the mot"e for

the offence has not been n"estgated and there was an attempt to

destroy human wtnesses whch led to the order of n"estgaton by

the -onFble *peE 4ourt0 -e therefore submtted that for the purpose

of a far and mpartal n"estgaton% t has been handed o"er to the

47$ and t s n ths bacAground% the n"estgaton has been made

and the charge sheet has been fled wth substantal e"dence

ncludng the statements under sec0 1! of 4rP4 of the wtnesses%

whch would prma face establsh the case aganst the applcant0

Learned /r0 4ounsel )r0 Tuls also submtted to emphasse that

earler the bal granted to r0 .5 *mn had been cancelled by the

-onFble *peE 4ourt and the factors whch are rele"ant for the

purpose of grantng bal would always be a reasonable apprehenson

of tamperng@nfluencng the wtnesses has to be consdered0

Learned /r0 4ounsel )r0 Tuls submtted that the past eEperence has

clearly establshed that the wtnesses ha"e retracted at the nstance

of the applcant and% therefore% only on ths count% the applcaton

may not be entertaned0

3>0 Learned /r0 4ounsel )r0 Tuls submtted that the case of the

prosecuton s that the applcant s part and parcel of the larger

conspracy n the Allng of /ohrabuddn% hs wfe and Tulsram

Prajapat and also the conspracy wth regard to eEtorton of money0

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-e submtted that the Dujarat Polce and Rajasthan Polce were n

touch wth regard to /ohrabuddn and -amd Lala gangs0 -e

submtted that e"en before the threat to the marble traders was

g"en% the conspracy was already there0 -e emphassed and

submtted that the present applcant 8*


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applcant s also referred that he was angry and he can get both the

wtnesses elmnated0 -e also referred to the statement of

.ayamuddn on the same lne0

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

one *Cam 5han recorded under sec0 11 of 4rP4 dated 220202(1( to

emphasse that /ohrabuddn was ndulgng n eEtorton from the

busnessmen% bulders etc0 whch s recorded n detal0 -e also

referred to the confessonal statement recorded under sec0 1!

before the )etropoltan )agstrate% )umba0

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

Gahd 5adr dated 210B02(1( and submtted that ths wtness has

also stated about other co


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!!0 urther% he has also referred to the statement of )ahendrasnh

+hala also recorded under sec0 11 of dated 110302(1( and also the

statement recorded under sec0 1! of 4rP40 Learned /r0 4ounsel

)r0 Tuls emphassed that t also refers to the name of the applcant

that the other co


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nstructons wth regard to the n"estgaton and changng the

report0

!B0 Learned /r0 4ounsel )r0 Tuls further referred to the statement

of P0*0 to )s0 +ohr and how she had also tred to change the note at

the nstance of the applcant0 Learned /r0 4ounsel )r0 Tuls has

passed on the sad note to the 4ourt and also has referred to the

document to emphasse that she was tryng to tamper wth t by

correctng the words Hcertan agencesK nstead of H/tate

Do"ernmentK0

!>0 -e also submtted referrng to the bacAground regardng

nterrogaton of /yl"ester and Tulsram Prajapat that on one hand t

has been stated that she desres to nterrogate and on the other t s

also stated that Tuls was encountered0

!&0 Learned /r0 4ounsel )r0 Tuls submtted that the crcumstances

are also re#ured to be notced that the co


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had stated about the pressure put upon by the applcant and as he

was not happy he was transferred0

'10 Learned /r0 4ounsel )r0 Tuls submtted that ths e"dence s

suffcent to suggest the n"ol"ement of the applcant


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C3a!"ra Sar7ar v. Ra'-3 Ra!a! 8 Papp& 9a"av a!" a!r.:

reported n 82((!9 B /44 '2>% and has emphassed the

obser"atons made n Para >% & and 1(0 -e submtted that the perod

of ncarceraton already undergone s not the consderaton0 -e

submtted that for grant of bal% the crcumstances@factors whch are

re#ured to be consdered are stated n Para 11 "C0

H8a9 The nature of accusaton and the se"erty of punshment n

case of con"cton and the nature of supportng e"dence0

8b9 Reasonable apprehenson of tamperng wth the wtness or

apprehenson of threat to the complanant

8c 9 Prma face satsfacton of the court n support of the charge0K

-e also referred to the obser"atons made n Para 1> to emphasse

that nducement to the wtnesses 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% agan referrng

to the crtera@parameters for grant of bal0 -e emphassed% referrng

to the obser"atons n Para 1> wth regard to the rele"ant crtera or

parameters for grant of bal and also the obser"atons made n Para

2% 2B and 2> as well as 31 to emphasse that the prma face case

as well as the apprehenson of the accused tamperng wth the

wtnesses has to be consdered0

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''0 Learned /r0 4ounsel )r0 Tuls submtted that the applcant was

cocAng a snooA at the law as the entre /tate machnery was at hs

becA and call0

'0 Learned /r0 4ounsel )r0 Tuls has also referred to and reled

upon the judgment of the -onFble *peE 4ourt reported n 82((9 &

/44 !2' n the case of A!# )&5ar T&-#6a!# v. S%a%' of UP

a!r0 -e has also refereed to the judgment n the case of Dr.

Nar'!"ra ). A5#! v. S%a%' of G&ara% a!r0% reported n 2((>

*$R /4W 32>% and also n the case of D#!'-3 M.N. v. S%a%' of

G&ara%% reported n 2((> *$R /4W 3BB% wth much emphass 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% whch was objected by learned /r0 4ounsel )r0 .ana"at

for the applcant statng that 4rmnal Re"son *pplcaton .o0 !!!

of 2(1( was fled for the same purpose for jonng party% whch has

not been granted% and he has been permtted to fle the wrtten

submssons at the tme of hearng of the bal applcaton0 Therefore%

he has made the wrtten submssons and also% n spte of

reser"atons by learned /r0 4ounsel )r0 .ana"at for the applcant%

learned counsel )r0 /nha was permtted to address the 4ourt to

supplement the submssons made on behalf of the prosecutng

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agency% 47$0

'>0 Learned 4ounsel )r0 /nha referred to the statement of one

jay 5umar Rathod% another co


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-ome )nster and the sad co


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5han has also retracted the statement0 -e has also referred to the

letter by the wfe of co


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suggests pre0202(1( after the n"estgaton was handed o"er to

47$0

'0 Learned /r0 4ounsel )r0 .00 .ana"at submtted that though

he may not agan refer to these statements% t would be e"dent that

the complanant was before the *peE 4ourt% there was a lawyer% he

does not dsclose anythng wth regard to any And of such pressure

or offer for wthdrawal of the petton and thereafter has made a

statement0 -e submtted that% smlarly% the statement of *Cam

5han has been recorded and n hs frst statement there s not a

word about the applcant% but subse#uently n a latter statement

recorded under sec0 1!% the applcant has been mplcated0

Learned /r0 4ounsel )r0 .ana"at submtted that the statement

recorded by the 47$ of both these wtnesses s "erbatm the same as

recorded by the Dujarat Polce0 -owe"er% one paragraph s added

subse#uently0 /mlarly% he referred to the statement of *Cam 5han

and submtted that n hs earler statement he had not referred to

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the name of the applcant0 Thereafter% when 47$ recorded hs

statement% the name of the applcant s ncluded on hearsay and

agan he has retracted0

0 urther% Learned /r0 4ounsel )r0 .ana"at submtted that

thereafter% and pendng hearng of ths applcaton before ths 4ourt%

a supplementary charge sheet s fled and agan the statement of

*Cam 5han s produced that he was taAen by the Dujarat Polce% Aept

n a hotel% and at ther nstance he had addressed a letter@statement

to the court under pressure0 -owe"er% Learned /r0 4ounsel )r0

.ana"at submtted that ths latest statement of *Cam 5han does

not refer to the name of the applcant0

B0 Learned /r0 4ounsel )r0 .ana"at submtted that% therefore%

the court may consder ths materal on the bass of whch the

applcant s sought to be mplcated% whch has no credence0 urther%

he emphassed that the so


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other co


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any court ncludng the -gh 4ourt or the *peE 4ourt0 Therefore%

Learned /r0 4ounsel )r0 .ana"at submtted that ths suggests the

manner of the n"estgaton and the ultmate object or mot"e0

B(0 Learned /r0 4ounsel )r0 .ana"at submtted that% smlarly%

another senor offcer )r0 0P0 )athur has wrtten a letter after hs

statement was recorded as to how he was humlated and

pressursed to g"e the name of the present applcant by the 47$0

Learned /r0 4ounsel )r0 .ana"at has submtted that t s re#ured to

be noted that the applcant had remo"ed hm as he was not

prepared to accept llegal drectons or the nstructons0 The fact

remans that subse#uently )r0 )athur was n


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he was constantly Aept n touch to get the nformaton about the

progress of the matter and as a publc representat"e n such

stuaton he s not to see the protocol and% on the contrary% the

protocol s not re#ured to be followed n such stuaton as meda

was also focusng on that case0

B20 Learned /r0 4ounsel )r0 .ana"at% therefore% submtted that

ths case s only poltcally mot"ated for "ctmCng the applcant0

-e referred to and reled upon the judgment of the -onFble *peE

4ourt n the case ofJa6'!"ra Sara-;a%3# S;a5#$a v. S%a%' of

T.N.% reported n 82(('9 2 /44 13% and submtted that the -onFble

*peE 4ourt has consdered the bal applcaton and the same

contentons whch ha"e been rased by learned /r0 4ounsel )r0 Tuls

for 47$% ha"e not been accepted0 -e pontedly referred to the

obser"atons n Para 1 to emphasse that% relyng 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 contentons were

made wth regard to tamperng wth the wtnesses and the publc

nterest% the *peE 4ourt has n ths judgment clearly obser"ed that

the case of 5alyan 4handra /arAar was decded on ts own pecular

facts where se"en applcatons for bal were made before the -gh

4ourt and were rejected and t has no general applcaton n e"ery

case0 -e submtted that t has been specfcally obser"ed that n

case of Ja6'!"ra Sara-;a%3# S;a5#$a 8supra9 t was the bal

applcaton for the frst tme0

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B30 Learned /r0 4ounsel )r0 .ana"at has also submtted that the

aspect of conspracy has also been referred n ths judgment and n

Para 12 t has been obser"ed%

HThe openng words n /ecton 1( are Hwhere there is

reasonable ground to believe that two or more persons have

conspired together to commit an offence.K $f prma face

e"dence of the eEstence of a conspracy s g"en and

accepted% the e"dence of acts and statements made by any

one of the consprators n furtherance of the common object s

admssble aganst all000000000000000 .o worthwhle prma face

e"dence apart from the alleged confessons ha"e been

brought to our notce to show that the pettoner along wth * :

K$t s well settled that the matters to be consdered n an

applcaton for bal are 89 whether there s any prma face or

reasonable ground to bele"e that the accused had commtted

the offenceN 89 nature and gra"ty of the chargeN 89 se"erty

of the punshment n the e"ent of con"ctonN 8"9 danger of the

accused abscondng or fleeng% f released on balN 8"9

character% beha"our% means% poston and standng of the

accusedN 8"9 lAelhood of the offence beng repeatedN 8"9

reasonable apprehenson of the wtnesses beng tampered

wthN and 8"9 danger% of course% of justce beng thwarted by

grant of balOOO0K

urther% n ths "ery judgment t has been obser"ed%

HThough at the stage of grantng bal a detaled eEamnaton of

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facts and elaborate documentaton of merts of the case need

not be undertaAen% there s a need to ndcate n such orders

reasons for prma face concludng why bal was beng granted

partcularly where the accused s charged of ha"ng commtted

a serous offence0K

B>0 Therefore% though a detaled scrutny of the e"dence may not

be necessary% howe"er% for consderng e"en the prma face case for

the purpose of grantng bal as per the gudelnes referred to

herenabo"e% some e"dence has to be referred for the purpose of

ndcatng the reasons for arr"ng at the concluson0 $t s also well

accepted that Freasons are l"e lnAs between the mnd of the

decson(0 The frst aspect wth regard to n"ol"ement of the applcant n

the larger conspracy% as t s can"assed by learned /r0 4ounsel )r0

Tuls for the 47$ wth regard to the alleged eEtorton racAet and the

Allng of /ohrabuddn and hs wfe% s re#ured to be apprecated0 *s

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per the charge sheet tself% one -amd Lala gang was act"e who

was g"ng protecton to the marble traders aganst /ohrabuddn

leadng to the ultmate murder of -amd Lala and t also refers to the

fact that one )anlal Doshal had lent money to Ramanbha Patel

and ashrathbha Patel of Popular 7ulders and as these two

brothers were not able to maAe repayment of the amount and the

nterest% there was some dspute0 Therefore% the case of the

prosecuton wth regard to the alleged conspracy and n"ol"ement

of the applcant has to be supported by materal and e"dence whch

can be the bass or foundaton for drawng the nference0 There may

not be a drect e"dence for the conspracy% but the nference can be

drawn on the bass of some materal layng the foundaton or the

bass for drawng the nference wth regard to such conspracy0

>10 $t s also well accepted wth regard to the law of conspracy

that there has to be a meetng of mnd 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 conspracy could be

attracted% necessary ngredents ha"e to be establshed% namely%

agreement or meetng of mnd0 4rmnal conspracy has ts

foundaton on an agreement to commt the offence0 $n ths

judgment% the -onMble *peE 4ourt has also referred to -alsburyMs

Laws of ,ngland% !th ,dn0% ol0 11% p0 !! '>0 Therefore% the moot

#ueston s re#ured to be consdered whether the materal and

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e"dence on record suggest the n"ol"ement of the applcant n the

alleged conspracy0

>20 Therefore% wthout any further elaboraton% the submssons

made wth regard to the alleged conspracy for racAet of eEtorton

and Allng of /ohrabuddn suggestng n"ol"ement of the applcant

wll ha"e to be apprecated n bacAground of the materal and

e"dence0 *gan% for that purpose% some reference to the

statements of wtnesses whch ha"e been referred n detal by both

the sdes are re#ured to be made wthout much elaboraton only

taAng a brdFs eye "ew0

C3ara+%'r of Ev#"'!+'

>30 * reference to the character of e"dence as one of the

gudelnes lad by the -onMble apeE 4ourt wll ha"e to be made0 The

statement of Rubabuddn states that *Cam 5han had gone to hs

brotherMs house and con"eyed that *bhay 4hudasma had suggested

for wthdrawal of the petton and payment of Rs0 '( laAhs0 *s

.ayamuddn 8brother9 dd not agree% *bhay 4hudasma s sad to

ha"e stated to the brother .ayamuddn that the present applcant

was angry and he would meet the same fate as /ohrabuddn and the

applcant would get hm elmnated0 The statements of both these

brothers whch ha"e been recorded by the /tate Polce and also by

47$% as emphasCed% are the same eEcept the last paragraph and

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e"en acceptng the same as t s% t would prma face suggest about

the con"ersaton between the wtness and the other co!0 /mlarly% the statement of *Cam 5han% as t s e"dent% has

been recorded0 Thereafter% he has retracted and agan there s a

further statement of *Cam 5han recorded under sec0 1! whch was

recorded and agan there s a statement pendng hearng of ths

applcaton whch has been reled upon by learned /r0 4ounsel )r0

Tuls wth much emphass that he has been made to retract0 The

latest statement of the sad wtness *Cam 5han recorded under sec0

1! of 4rP4% t s e"dent that he has not referred to the name of the

applcant0 Therefore% t suggests about the con"ersaton of the

wtness wth some co


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CR.MA/12240/2010 43/51 JUDGMENT

Patel% both under sec0 11 and 1! of 4rP4% ha"e been recorded

whch ha"e been also referred to emphasse that when the

statement was recorded on 1'01202((' by *T/% *hmedabad% the co>0 These statements of the wtnesses are re#ured to be read

along wth the transcrpt of con"ersaton wth the co&0 *gan% reference s made to the statement of other wtnesses

ncludng Gahd 5adr% where he has stated that the other co


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wthdrawn the petton0

&(0 The nternal note of the 47$ wth regard to the arrest of the

present applcant clearly refers to the consderaton for arrest whch

has been much emphassed by learned /r 4ounsel )r0 +ethmalan0

Ths clearly states that t s emphassed that an accused can be

usable as an appro"er after /hr /hah 8accused9 s arrested whch s

also #uoted n detal n the paper


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wtnesses to oppose the bal0 n the other hand% learned /r0

4ounsel )r0 +ethmalan and learned /r0 4ounsel )r0 .ana"at ha"e

emphasCed about the fact that t s a case of no e"dence or% at the

most% t s a sAetchy e"dence and coupled wth the submssons

whch ha"e been recorded herenabo"e wth regard to the manner of

n"estgaton and the poltcal mot"e0

&!0 Therefore% wthout any further dscusson or elaboraton of the

e"dence% on the bass of the materal and e"dence reled upon%

prma face case suggestng the n"ol"ement of the accused s not

made out for the purpose of decdng the complcty of the accused

n lght of the character of e"dence0

&'0 The 4ourt s conscous about the fact that the -onMble *peE

4ourt has drected the n"estgaton to be made by 47$ and as the

-onMble *peE 4ourt s super"sng% t would not be desrable to

further reflect on the e"dence at ths stage0 -owe"er% from the

dscusson made herenabo"e% t suggests about the twst n the tale

by the n"estgatng agency% whch 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 ths aspect n the

gudelnes whch has been #uoted herenabo"e referrng to the

obser"atons n Para 1> where the gra"ty of the offence and the

punshment has also been consdered wth the character of

e"dence% beha"or% poston and standng of the accused and

reasonable apprehenson of the wtnesses beng tampered wth and

danger of justce beng thwarted by grant of bal0 $n the facts of the

preset case% the applcant was a )nster when such statement or

ncrmnatng materal was collected by the n"estgatng agency%

47$0 When the retractons ha"e been made% he was n jal and there

s no e"dence prma face suggestng connecton or lnA wth such

retracton0 urther% the n"estgaton s made by 47$ where the

applcant cannot ha"e any say0 Therefore% balance has to be strucA

between the r"al clams of the accused for lberty as well as the

apprehenson of the n"estgatng agency0 urther% t can also be

taAen care of that the presence of the accused s secured by

pro"dng normal condton of reportng0

&B0 )oreo"er% the judgment@order of ths 4ourt rejectng the bal

applcatons of the other co


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here0

&>0 )oreo"er% as obser"ed n the judgment of the -onMble *peE

4ourt n the case ofJa6'!"ra Sara-;a%3# S;a5#$a v. S%a%' of

T.N.% reported n 82(('9 2 /44 13% the same contentons wth regard

to the apprehenson of tamperng wth wtnesses ha"e been

consdered and therefore% n lght of the gudelnes wth regard to

grant of bal% the present applcaton deser"es to be allowed0

&&0 7efore partng% t s re#ured to be mentoned that the

obser"atons made by the learned /pecal +udge% 47$% whle decdng

the bal applcaton are unwarranted and unjustfed0

1((0 The applcaton s accordngly allowed0 The applcant s

ordered to be released on bal n connecton wth $R% beng R4

7/1@/@2(1(@(((!% regstered wth 4070$0% )umba 84rmnal 4ase .o0

' of 2(1( before the learned )agstrate9 on hs eEecutng a personal

bond of Rs0 1%((%(((@< 8Rupees ne lac only9 wth one sol"ent surety

for the lAe amount to the satsfacton of the lower court 8*ddl0 4hef

+udcal )agstrate% 47$% )rCapur% *hmedabad9 and subject to the

further condtons that he shall :

8a9 not taAe undue ad"antage of hs lberty or abuse hs lberty0

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8b9 not to try to tamper or pressurCe the prosecuton wtnesses or

complanant n any mannerN

8c 9 not act n any manner njurous to the nterests of the

prosecuton0

8d9 mantan law and order and should co


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the sol"ency certfcate% f prayed for0

Rule s made absolute0 0/0 permtted0

8Rajesh -0 /huAla% +09

FURTHER ORDER

*fter the order was pronounced% learned counsel )r0 Ra"an for

the 47$ as well as learned counsel r0 )uAul /nha ha"e re#uested

that the order may be stayed for a perod 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 reled upon the judgment

of ths -gh 4ourt n the case of S%a%' of G&ara% v. La# Popa%

a!" or-0% reported n 1&>>829 DL- 11! % statng that consderng the

nature of offence% the release of the applcant on bal may prejudce

the prosecuton0

Learned /r0 4ounsel )r0 .ana"at appearng for the applcant

has objected to the re#uest and submtted that the facts of the case

cted wll not ha"e any applcaton and the applcant s not lAely to

abscond and he wll co


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the re#uest made by learned counsel )r0 Ra"an for the 47$ and

learned counsel r0 )uAul /nha cannot be accepted and%

accordngly% the re#uest stands rejected0

8Rajesh -0 /huAla% +09

8hn9

amit shah bail gujarat hc

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