{"id":244575,"date":"2010-09-21T00:00:00","date_gmt":"2010-09-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ajay-vs-state-on-21-september-2010"},"modified":"2016-07-30T12:11:00","modified_gmt":"2016-07-30T06:41:00","slug":"ajay-vs-state-on-21-september-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ajay-vs-state-on-21-september-2010","title":{"rendered":"Ajay vs State on 21 September, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Ajay vs State on 21 September, 2010<\/div>\n
Author: Rajesh H.Shukla,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.MA\/10466\/2010\t 27\/ 27\tJUDGMENT \n \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nMISC.APPLICATION No. 10466 of 2010\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE RAJESH H.SHUKLA\n \n \n==========================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n==========================================\n \n\nAJAY\nHARIBHAI PATEL - Applicant(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT & 1 - Respondent(s)\n \n\n========================================== \nAppearance\n: \nMR JM PANCHAL with MR KB\nANANDJIWALA for Applicant(s) : 1, \nMR PK JANI, PUBLIC PROSECUTOR\nfor Respondent(s) : 1, \nMR YN RAVANI for Respondent(s) :\n2, \n==========================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE RAJESH H.SHUKLA\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 21\/09\/2010 \n\n \n\n \n \nORAL\nJUDGMENT<\/pre>\n
\tThe
\npresent application has been filed by the applicant-original accused
\nNo. 17 for grant of anticipatory bail under sec. 438 of Criminal
\nProcedure Code in connection with CBI Case No. RCBS1\/2010\/S0004-MUM
\nregistered with C.B.I., Mumbai for the alleged offences under
\nsections 120(B), 364, 365, 368, 341,  342, 302, 384 and 201 of IPC.\n<\/p>\n
2.\tLearned
\nCounsel Mr. JM Panchal appearing with learned counsel Mr. Anandjiwala
\n submitted that he would adopt the submissions canvassed by learned
\nSr. Counsel Mr. Uday Lalit for the applicant in Criminal Misc.
\nApplication No. 10365 of 2010.\n<\/p>\n
3.\tLearned
\nCounsel Mr. Panchal, however, submitted that the first aspect he
\nwould refer to is the unfairness of the investigating agency inasmuch
\nas he was served with the summons on 18.6.2010 and he went to the CBI
\noffice at Mumbai where he was interrogated.  Learned Counsel Mr.
\nPanchal submitted that there is no summons and he had gone to USA on
\n29.6.2010 and returned on 9.8.2010.  In the meanwhile, the charge
\nsheet was filed on 26.7.2010 and also the warrant came to be issued
\nunder sec. 70. Learned Counsel Mr. Panchal referred to the papers and
\nan application made before the Court of Magistrate for issuance of
\nnon-bailable warrant and  submitted that  it was mere ipse dixit
\nwithout any material to show that  the petitioner has avoided or
\nabsconded.\n<\/p>\n
4.\tLearned
\nCounsel Mr. Panchal referred to the two reports and submitted that as
\nrequired under the law, the summons has to be served. If it was not
\nserved, some intimation\/endorsement could have been taken from the
\nfamily members for the intimation or it could have been served by
\naffixing.  No such procedure has been followed and straightway the
\nwarrant came to be issued and thereafter it is sought to be argued
\nthat warrant has been issued under sec. 70.  He further emphasised
\nthat the present applicant accused is also sought to be arraigned for
\nthe conspiracy or the main conspiracy regarding the incident of fake
\nencounter which has taken place in 2005 and he is sought to be
\narraigned in such conspiracy in 2010 without any supporting material
\nor evidence.\n<\/p>\n
5.\tLearned
\nCounsel Mr. Panchal submitted that a person could be involved in the
\nconspiracy or accused of involvement in the conspiracy before or
\nduring the conspiracy or immediately thereafter, but there is no
\nmaterial or evidence to suggest about any kind of participation or
\ninvolvement of the accused with the said incident or the so-called
\nmain conspiracy except the fact that the applicant accused, like the
\nother co-accused, is said to have persuaded the witnesses to conceal
\nfrom the CBI.  Learned Counsel Mr. Panchal submitted that in fact he
\ncannot be said to have influenced or persuaded inasmuch as there is
\nno threat or temptation.  He has only talked or discussed about the
\nmatter when the witnesses admittedly have talked to the accused in
\nconnection with their own pending cases with regard to the huge
\noutstanding dues of the bank.\n<\/p>\n
6.\tLearned
\nCounsel Mr. Panchal also submitted that the statements of the two
\nwitnesses, Ramanbhai Patel and Dashratbhai Patel, recorded under sec.
\n161 and 164 of Cr.P.C. even if accepted at the face value as it is
\nand taking the case of CBI at the face value, will not suggest any
\ninvolvement or participation of the accused in the conspiracy except
\nmeeting the witnesses and that too for talk for settlement of the
\npending cases against the witnesses.    He emhasised and submitted
\nwith regard to the background of the witnesses that there were PASA
\nas well as other cases including huge amounts of the bank itself
\nwhich have been defaulted for which, on the contrary, the applicant
\nwas approached.\n<\/p>\n
7.\tLearned
\nCounsel Mr. Panchal, therefore, referred to the statements of the
\nwitnesses and submitted that, in fact, even the offence under sec.
\n201 of IPC would not be attracted and at the most it could be an
\noffence under sec. 177 for giving false information to the public
\nservant.\n<\/p>\n
8.\tLearned
\nCounsel Mr. Panchal, therefore, submitted that while considering the
\nalleged involvement or participation in the main conspiracy, the
\ncourt may also consider the time-lag as the incidence of fake
\nencounter has taken place in 2005 and till 2010 the present applicant
\nhas not been even interrogated.  There is nothing, not even a whisper
\nby anybody, with regard to his involvement, and only in the year 2010
\ntwo witnesses, as stated above, when they met, there was a talk where
\nthe present applicant accused is said to have persuaded the witnesses
\nto conceal from the CBI.\n<\/p>\n
9.\tFor
\nthat matter, again, Learned Counsel Mr. Panchal referred to the
\nstatements and referring to the statement of Ramanbhai Patel dated
\n27.3.2010 produced at page 89 (165) submitted that if it is closely
\nconsidered, what the applicant has told is that he would not have
\ninterfered in the matter but since Jayeshbhai is father-in-law of my
\nniece and he is a good friend of his, hence he had intervened in this
\nmatter. Learned counsel Mr. Panchal referred to the earlier part also
\nto emphasise that what has been discussed is about the banking
\nbusiness matters and thereafter talk about Sohrabuddin and CBI was
\nmade where the applicant is said to have informed the witnesses that
\nCBI would call them and they may be used by CBI for implicating
\nothers. Learned counsel Mr. Panchal therefore submitted that at the
\nmost it could be said to be his talk on this subject and asking or
\nadvising not to get involved in CBI matters which may lead to
\nimplicating others. He therefore submitted that the applicant is
\nfalsely implicated.\n<\/p>\n
10.\tLearned
\ncounsel Mr. Panchal also submitted that except Para 38 the one line
\naccusation which has been emphasized by learned Sr. Counsel Mr. Lalit
\nin another matter, there is nothing to show the involvement or
\nparticipation, much less any active participation by the applicant
\naccused in the main conspiracy.  Learned counsel Mr. Panchal
\ntherefore strenuously submitted that on one hand the charge sheet is
\nfiled with an accusation with regard to the involvement and the
\nparticipation in the main conspiracy for which there is no material
\nfound in the entire charge sheet and on the other, while arguing this
\napplication, submissions are made that investigation is pending, only
\nwith a view to implicate the accused without any basis or foundation.
\nLearned counsel Mr. Panchal submitted that even if the case of the
\nprosecution-CBI is accepted at the face value in light of the two
\nstatements and the transcript of the video recording made, at the
\nmost it could be an offence under sec. 201 or sec. 177 and as the
\noffence under sec. 201 is a bailable offence, they are sought to be
\nroped in by connecting them for the so-called involvement in the main
\nconspiracy after five years without any justification or material.\n<\/p>\n
11.\tLearned
\ncounsel Mr. Panchal submitted that the offence with regard to the
\nrole attributed even in the charge sheet by the CBI referring to
\nanother Para 42 is for offence under sec 201 which is a bailable
\noffence.  The court below has therefore not considered the role or
\nthe evidence and therefore the present application has been filed
\nwhich may be considered accepting the case of the prosecution at the
\nface value.\n<\/p>\n
12.\tLearned
\ncounsel Mr. Panchal further emphasized that the credibility of the
\ntwo witnesses, on the basis of which the applicant is implicated, is
\nalso required to be considered that apart from their own default in
\nhuge amount of loan and other cases, even in this case they have in
\ntheir statements clearly stated as to the amount which has been paid
\non a particular date. The witnesses have also stated that they are
\nbuilders and they would maintain kachha note meaning thereby they are
\nvery particular about it and this itself is totally false as it could
\nbe proved by documentary evidence that the present applicant accused
\nwas abroad at that time for which the passport is also produced on
\nrecord, meaning thereby that he was not present in India at all and
\ntherefore how there could be any payment of the amount by the
\nwitnesses. Therefore, learned counsel Mr. Panchal submitted that this
\napplication may be allowed.\n<\/p>\n
13.\tMr.\n<\/p>\n
Y.N. Ravani, learned counsel appearing for the CBI-the investigating
\nagency, submitted that the Hon’ble Apex Court has handed over
\nthe investigation to the CBI vide order dated 10.1.2010 and he
\nreferred to the directions, which have been referred to in the order
\npassed by the learned Special Judge, CBI, that a larger conspiracy is
\nrequired to be investigated and extension has also been granted.
\nLearned counsel Mr. Ravani submitted that, therefore, considering the
\nlimited scope of exercise of discretion under sec. 438 of CrPC, the
\ncourt may not entertain this application when the investigation is in
\nprogress.\n<\/p>\n
14.\tLearned
\nCounsel Mr. Ravani for the CBI,  emphasized, referring to the
\nprovisions of sec. 438, that the word ‘accusation’ is
\nrequired to be considered and it is different from sec. 439 and
\nsubmitted that the court has to consider only the accusation at this
\nstage and prima face case is not to be examined.  He has, referring
\nto the statements of other witnesses including of one Noor Mohamed
\nGoghari and Mahendrasinh Zala. emphasized that there is involvement
\nof the applicant accused and therefore the present application may
\nnot be entertained.\n<\/p>\n
15.
\nLearned counsel Mr. Ravani referred to the charge sheet and submitted
\nthat the two witnesses, Ramanbhai Patel and Dashratbhai Patel, had a
\nmeeting with the applicant which is recorded.  He referred to the
\nthree meetings dated 29.3.2010, 10.4.2010 and 3.3.2010.  Learned
\ncounsel Mr. Ravani also submitted that the extortion racket in
\nconnivance with the police and politicians is a matter of
\ninvestigation and this extortion was from the marble traders which is
\nrequired to be investigated.  He has also stated that the
\ninvestigation is going on.\n<\/p>\n
 Learned Counsel Mr. Ravani submitted that though the incident of
\nfake encounter and the extortion may relate back to 2005, the charges
\nare also for offence under sec. 120B (conspiracy) and therefore the
\ncourt may not entertain the present application for anticipatory
\nbail.\n<\/p>\n
16.\tLearned
\ncounsel Mr. Ravani also referred to the provisions of sec. 438 and
\nstrenuously submitted that the word used is “accusation”
\nand submitted that the court has to only consider the ‘accusation’
\nlevelled against the applicant-accused and no further material is
\nrequired to be considered.  He also submitted that the statement of
\nboth the witnesses, Ramanbhai Patel and Dashratbhai Patel, have been
\nrecorded and there is a transcript as to what transpired in the
\nmeeting, which would suggest the involvement of the applicant prima
\nfacie and therefore the application may not be entertained.\n<\/p>\n
17.\tLearned
\ncounsel Mr. Ravani also referred to the judgments of the Hon’ble
\nApex Court to emphasise about the exercise of discretion with care
\nand circumspection. He has referred to and relied upon the judgment
\nreported in (1997) 7 SCC 187 in the case of State (represented by
\nthe CBI) v. Anil Sharma and referred to the observations made in
\nPara 4 and 6. He submitted that it has also been observed that
\n“effective interrogation of a suspected person is of tremendous
\nadvantage in disinterring many useful informations and also materials
\nwhich would have been concealed.  Success in such interrogation would
\nelude if the suspected person knows that he is well protected and
\ninsulated by a pre-arrest bail order during the time he is
\ninterrogated.”\n<\/p>\n
18.\tLearned
\nCounsel Mr. Ravani also referred to and relied upon the judgment
\nreported in 2001(4) SC 224 in the case of State of Maharashtra v.
\nRitesh<\/a> s\/o Vasudeo Wanjari.\n<\/p>\n
19.\tSimilarly,
\nhe has also referred to and relied upon the judgment reported in
\n(2005) 4 SCC 303 in the case of Adri Dharan Das v. State of W.B.
\nand submitted that the power is extra-ordinary and has to be
\nexercised only in limited cases.\n<\/p>\n
20.\tLearned
\ncounsel Mr. Ravani also referred to and relied upon the judgment in
\nthe case of State of Gujarat v. Narendra K. Amin,<\/a> reported in
\n(2008) 13 SCC 594, and submitted that it is a matter of one officer
\ninvolved in fake encounter where the observations have been made for
\nexercise of discretion under sec. 438 and he emphasized that there
\nalso it was considered with regard to the aspect of custodial
\ninterrogation which is required to be considered.\n<\/p>\n
21.\tLearned
\ncounsel Mr. Ravani submitted that an attempt is made to bifurcate the
\nrole on the ground that the applicant could not be part of the main
\nconspiracy in the incident of fake encounter committed in 2005 which
\nmay not be considered at this stage. Learned counsel Mr. Ravani
\ntherefore submitted that at this stage only the nature of accusation
\nmay be considered and the discretion under sec. 438 may not be
\nexercised in favour of the applicant.  He also submitted that when
\nthe allegations are for conspiracy under sec. 120B, the individual
\nrole may not be considered and he has also referred to the orders
\nrefusing bail by the court earlier for the other accused. He,
\ntherefore, submitted that the present application may be rejected.\n<\/p>\n
22.\tIn
\nrejoinder, learned Counsel Mr. Panchal  adopted the same submissions
\nmade by learned Sr. Counsel Mr. Lalit in Criminal Misc Application
\nNo. 10365 of 2010 to focus on the contradictory stand adopted by CBI
\nonly with a view to implicate the applicant-accused. Learned counsel
\nMr. Panchal submitted that reading the statement of the two witnesses
\nRamanbhai Patel and Dashratbhai Patel both under sec. 161 and 164 and
\nalso the transcript, the court has to consider whether it suggests
\neven a prima facie case regarding the involvement for the so-called
\nmain conspiracy.\n<\/p>\n
23.\tAgain,
\nlearned counsel Mr. Panchal referred to the material and evidence and
\nsubmitted that when the investigation is in progress on the one hand
\nto resist the present application and on the other hand submitting
\nthe charge sheet with accusation for the involvement in the main
\nconspiracy without any material is required to be considered.  He
\nemphasized and submitted that the main conspiracy or the incident of
\nfake encounter has taken place in 2005. The applicant has been
\ninterrogated in 2010 and even in the charge sheet submitted by the
\nCBI what has been relied upon are the statements of the two
\nwitnesses, the transcript and taking it as it is, it cannot be said
\nthat the applicant is involved in the main conspiracy as alleged.\n<\/p>\n
24.\tLearned
\ncounsel Mr. Panchal submitted that when it is stated that further
\ninvestigation is pending it is also stated that as the investigation
\nis pending all material is not placed before the court which also
\nsuggest the unfairness to oppose the present application inasmuch as,
\n as it could be revealed from the charge sheet qua the present
\napplicant, suggesting the role for offence under sec. 201 only at
\nbest. He, therefore, submitted that as the offence under sec. 201 is
\na bailable offence, there is no question of any custodial
\ninterrogation being granted and it is only with a view to implicate
\nthe applicant accused he is sought to be implicated for the main
\nconspiracy without any supporting material.\n<\/p>\n
25.\tLearned
\ncounsel Mr. Panchal submitted that there is no inculpatory statement
\nof the applicant involving him in the main conspiracy and even the
\nstatement of the two witnesses do not suggest about any role or
\ninvolvement as, for the purpose of conspiracy, there has to be a
\nprior meeting of mind.  Learned counsel Mr. Panchal submitted that
\nmeeting of mind is essential even though there may not be a direct
\nevidence, but the entire circumstances have to be considered and,
\ntherefore, the court may consider the material which is placed on
\nrecord as to whether the applicant accused can be said to have been
\ninvolved in the main conspiracy even prima facie on the basis of the
\nmaterial. He emphasized and submitted that a reference has even been
\nmade to the larger conspiracy, extortion and the fake encounter.
\nThere is no reference to any such evidence in the charge sheet so far
\nas the present applicant accused is concerned and therefore the
\npresent application may be allowed, particularly when the offence
\nunder sec. 201 is bailable and the accused has a right to be released
\non bail.\n<\/p>\n
26.\tIn
\nsupport of this submission, learned counsel Mr. Panchal has referred
\nto and relied upon the judgment reported in the case of Rasiklal
\nv. Kishore<\/a> s\/o Khanchand Wadhwani, reported (2009) 4 SCC 446
\nwherein it has been observed that “The right to claim bail
\ngranted by Section 436 of the Code in a bailable offence is an
\nabsolute and indefeasible right. In bailable offences there is no
\nquestion of discertion in granting bail as the words of Section 436
\nare imperative.”\n<\/p>\n
27.\tIn
\nview of rival submissions, it is required to be considered whether
\nthe present application can be entertained or not.\n<\/p>\n
28.\tThough
\nthe Court is not required to discuss in detail at this stage the
\nvarious aspects while deciding the present application since
\nsubmissions have been made at length as recorded hereinabove, some of
\nthe relevant aspects are required to be focused.  The court is
\nconscious of the fact that that further investigation has been handed
\nover to the CBI in view of directions of the Hon’ble apex Court
\nin January 2010.\n<\/p>\n
29.\tIt
\nis well settled by catena of judicial pronouncements that the
\ndiscretion under sec. 438 of CrPC has to be exercised with care and
\ncircumspection.  Though much emphasis has been made by learned
\ncounsel Mr. Ravani for the CBI on this aspect, particularly referring
\nto the provisions of sec. 438 that the words used are “when any
\nperson has  reason to believe that he may be arrested on an
\naccusation of having committed a non-bailable offence” and
\nemphasis on ‘accusation’ is required to be considered.\n<\/p>\n
30.\tAs
\nit is revealed from the papers including the charge sheet submitted
\nby the CBI, the applicant has been shown as an accused.  Further,
\nthere is a distinction between the suspect and the accused.  It is
\nalso required to be considered in light of the submissions canvassed
\nreferring to the charge sheet as well as the statement of the
\nwitnesses and even the transcript that the court is only required to
\nconsider mere accusation made or whether the court has also to
\nconsider the material suggesting the prima facie involvement.
\nTherefore, the submission made by learned counsel Mr. Ravani that
\nonly the nature of accusation has to be seen, and not even the prima
\nfacie case or the material, is misconceived and cannot be accepted.\n<\/p>\n
31.\tIt
\nis required to be noted that even while considering the exercise of
\npowers under the preventive detention laws, when such powers are
\nconferred in public interest, a judicial scrutiny is permitted to
\nexamine whether it satisfies the test of “subjective
\nsatisfaction based on objective material.”\n<\/p>\n
32.\tTherefore,
\nwhile considering the present application, the court is required to
\nconsider the well accepted guidelines laid down by the Hon’ble
\napex Court in catena of judicial pronouncements.  The Hon’ble
\nApex Court in a judgment in reported in (1980) 2 SCC 565 in the case
\nof Shri Gurbaksh Singh Sibia and ors. V. State of Punjab has
\nconsidered at length the legislative intent and the scope of exercise
\nof such discretion and the restraint on such discretion and it has
\nconsidered the judgment of the Full Bench of the Punjab & Haryana
\nHigh Court referring to the various factors for exercise of such
\ndiscretion as well as the provisions of sec. 438 of CrPC.  It has
\nbeen observed specifically in Para 15 and again in Para 26 :\n<\/p>\n
\t“We
\nfind a great deal of substance in Mr. Tarkunde’s submission that
\nsince denial of bail amounts to deprivation of personal liberty, the
\ncourt should lean against the imposition of unnecessary restrictions
\non the scope of Section 438, especially when no such restrictions
\nhave been imposed by the legislature in the terms of that section.
\nSection 438 is a procedural provision which is concerned with the
\npersonal liberty of the individual, who is entitled to the benefit of
\nthe presumption of innocence since he is not, on the date of his
\napplication for anticipatory bail, convicted of the offence in
\nrespect of which he seeks bail.  An over generous infusion of
\nconstraints and conditions which are not to be found in Section 438
\ncan make its provisions constitutionally vulnerable since the right
\nto personal freedom cannot be made to depend on compliance with
\nunreasonable restrictions.  The beneficent  provision contained in
\nSection 438 must be saved, not jettisoned.  No doubt can linger after
\nthe decision in Maneka Gandhi, that in order to meet the challenge of
\nArticle 21 of the Constitution, the procedure established by law for
\ndepriving a person of his liberty must be fair, just and reasonable.”\n<\/p>\n
33.\tFurther,
\nit has been laid down in this very judgment that such a discretion
\nhas to be exercised on careful consideration of the facts and
\nmaterial as it is a “device to secure individual’s
\nliberty; it is neither a passport to the commission of crimes nor a
\nshield against any and all kinds of accusations.”  It has also
\nbeen observed that no hard and fast rule and no inflexible principle
\ngoverning the exercise of discretion can be laid down as it will
\ndepend upon the facts and circumstances.\n<\/p>\n
34.\tTherefore,
\na balance has to be maintained between the rival claims of the
\naccused as well as the investigating agency depending upon the facts
\nand circumstances and the material suggesting prima face case.\n<\/p>\n
35.\tThe
\nsame view has been reiterated from time to time in various judgments
\nincluding the judgment of the Hon’ble Apex Court in the case of
\nPravinbhai Kashirambhai Patel v. State of Gujarat and ors.<\/a>,
\nreported  in (2010) 7 SCC 598 . Considering the same judgment as well
\nas the judgment of the Hon’ble Apex Court reported in (2005) 8
\nSCC 21 in the case of State of U.P. Through CBI v\/ Amarmani
\nTripathi as well as the judgment cited by learned counsel Mr.
\nRavani, the Hon’ble Apex Court has observed that “except
\nfor indicating the broad outlines for grant of bail and\/or
\nanticipatory bail, no straitjacket formula can be prescribed for
\nuniversal application, as each case for grant of bail has to be
\nconsidered on its own merits and in the facts and nuances of each
\ncase.”\n<\/p>\n
36.\tIt
\nis in this background, therefore, the facts of the present case are
\nrequired to be considered in light of the rival submissions made at
\nlength.\n<\/p>\n
37.\tWithout
\nmuch elaboration on this aspect, the following aspects are required
\nto be noted that further investigation has been ordered to be carried
\nout in view of the directions of the Hon’ble Apex Court to the
\nCBI. The applicant accused has been interrogated in 2010. The charge
\nsheet has been filed and Para 37, 38, 42, 46 & 48 are relevant
\nand in Para 38 of the charge sheet, as rightly emphasized by learned
\nCounsel Mr. Panchal, there is one line  accusing the applicant of
\ninvolvement in the main conspiracy, whereas Para 46 refers
\nspecifically to the charge of tampering with the evidence and for
\noffence under sec. 201 of IPC.\n<\/p>\n
38.\tIt
\nis in light of this the submissions have been canvassed that even if
\nthe accusation made by the prosecuting agency, CBI, is accepted at
\nthe face value and the statements of the two witnesses along with the
\ntranscript is read as it is, at best it would attribute the applicant
\nwith the role and offence under sec. 201 of IPC and there is no
\nevidence to connect or suggest the involvement of the applicant
\naccused for conspiracy.\n<\/p>\n
39.\tTherefore,
\nwhen the charge sheet has been filed accusing the applicant accused
\nfor involvement and active participation in the main conspiracy and
\nthe incident of fake encounter or the extortion, no material has been
\nplaced except this.  Even if the submission made by learned counsel
\nMr. Ravani referring to the statements and the transcript are
\naccepted, it refers to the meeting which prima facie suggests about
\nthe talk for settlement of the cases of the two witnesses about the
\ndefault in repayment of the huge loan amount and PASA.  Moreover, it
\nwill not be advisable to discuss the statement and the transcript at
\nthis stage and therefore only for considering the prima facie case
\nfor deciding the alleged persuasion of the witnesses for concealment
\nof the facts to the CBI  in course of the talk by the present
\napplicant has to be considered.\n<\/p>\n
40.\tTherefore,
\nwithout any further elaboration, the aspect which is required to be
\nconsidered is with regard to charge of conspiracy and also the prima
\nfacie case suggesting involvement of the applicant accused in a
\nlarger or the main conspiracy and active participation.  The
\nmaterial, as discussed above, in the opinion of this court, do not
\nsupport the submissions made by learned counsel Mr. Ravani for the
\nCBI.  The accusation may be serious, but there has to be a prima
\nfacie case suggesting the involvement, which, as discussed above,
\ncannot be said to have been substantiated prima facie.\n<\/p>\n
41.\tFurther,
\nthe law as regards conspiracy for offence under sec. 120B is well
\nsettled with regard to the meeting of mind and even if the person may
\nnot be present or may not be involved, it could be at any stage prior
\nto the incident, at the time of the incident or immediately
\nthereafter. However, even considering these principles with regard to
\nthe aspect of conspiracy, it is not required to be discussed in
\ndetail at this stage. It would be sufficient to observe that when the
\nperson is accused in the charge sheet about active participation, it
\nhas to be substantiated by some material suggesting the prima facie
\ninvolvement. On the other hand, it is argued that the investigation
\nis in progress, which itself reflects out the manner of
\ninvestigation.\n<\/p>\n
42.\tThe
\nobservations made by the Hon’ble Apex Court in a judgment
\nreported in (2005) 11 SCC 600 in the case of State (NCT of Delhi)
\nv. Navjot SANDHU<\/a> alias AFSAN GURU on the aspect of the genesis of
\nthe crime and the complicity of the accused is required to be
\nconsidered and for complicity of the accused in the conspiracy, the
\nprima facie material suggesting the involvement is required to be
\nconsidered.\n<\/p>\n
43.\tFurther,
\nthis aspect is also required to be considered in light of the fact
\nthat if the applicant is charged or suggested prima facie involvement
\nfor offence under sec. 201, which is a bailable offence, the same is
\nrequired to be considered in light of the judgment of the Hon’ble
\nApex Court  in the case of Rasiklal v. Kishore<\/a> s\/o Khanchand
\nWadhwani (supra), wherein it
\nhas been observed,<\/p>\n
“The
\nright to claim bail granted by Section 436 of the Code in a bailable
\noffence is an absolute and indefeasible right. In bailable offences
\nthere is no question of discretion in granting bail as the words of
\nSection 436 are imperative.”\n<\/p>\n
44.\tIt
\nis also required to be mentioned that one of the relevant
\nconsiderations is the character of evidence which is required to be
\nappreciated, particularly when the two witnesses are alleged to have
\nbeen involved in many cases and they have themselves stated regarding
\nsettlement of the cases as it is revealed from their statements.\n<\/p>\n
45.\tOne
\nmore aspect is required to be considered with regard to the process
\nand warrant under sec. 70.  It may be noted that admittedly before
\nthe issuance of warrant, no summons has been served, no intimation
\nhas been given and any endorsement for any such attempt to serve the
\nsummons or intimation to the accused persons at their residence or
\noffice is not there.\n<\/p>\n
46.\tThe
\napplicant is said to have accepted the money for which details are
\nstated with dates and as emphasized by the learned counsel for the
\napplicant he was abroad when the payment is stated to have been made
\nby the witnesses. These witnesses have also stated that they have
\nmade kachha note with dates whereas admittedly the applicant was
\nabroad for which the passport is also submitted to the CBI.
\nTherefore, it has also a reference to the character of evidence which
\nhas to be prima facie considered.\n<\/p>\n
47.\tThe
\njudgments referred to by learned counsel Mr. Ravani were in the facts
\nof the case as in the case of State (represented by the CBI v.
\nAnil Sharma (supra) it was a case regarding disproportionate
\nassets, whereas in the judgment in the case of State of Gujarat v.
\nNarendra K. Amin<\/a> (supra) the facts were totally different as the
\nconcerned police officer was found to have been directly involved in
\nthe main conspiracy\/encounter.\n<\/p>\n
48.\tIt
\nis in these circumstances, while maintaining the balance between the
\nright of the accused and the investigating agency-CBI,  the court is
\nof the opinion that the present application deserves to be allowed.
\nIt is required to be mentioned that the apprehension that it may
\nhamper the investigation will also not be sustainable as this aspect
\nhas also been considered in the aforesaid judgment in the case of
\nShri Gurubakh Singh Sibia and ors. (supra) and usual
\nconditions are there for co-operating with the investigating agency.\n<\/p>\n
49.\tIn
\nthe result, the present application stands allowed.
\nThe applicant-accused AJAY HARIBHAI PATEL
\nis
\nordered to be released on bail in the event of his arrest in
\nconnection with C.B.I. Case No. RCBS1\/2010\/S\/0004-MUM in respect of
\nthe offence alleged against him on his executing a personal bond of
\nRs. 1,00,000\/- (Rupees One lakh only) each with one solvent surety
\nfor the like amount  and on further conditions that he shall :\n<\/p>\n
(a)\tremain
\npresent before the trial court regularly as and when directed on the
\ndates fixed;\n<\/p>\n
(b )\tmake
\nhimself available for interrogation by the I.O., CBI,  whenever and
\nwherever required.\n<\/p>\n
(c)\tnot
\ndirectly or indirectly make any inducement, threat or promise to any
\nperson acquainted with the facts of the case so as to dissuade him
\nfrom disclosing such facts to the court or to the CBI.\n<\/p>\n
(d)\tnot to
\nobstruct or hamper the investigation and not to play mischief with
\nthe evidence collected or  yet to be collected by the CBI;\n<\/p>\n
(e)\tat the
\ntime of executing the bond, furnish his address to the I.O. and the
\ncourts concerned, and shall not change his residence till the final
\ndisposal of the case or till further orders;\n<\/p>\n
(f)\tnot to
\nleave India without the permission of the court and if having a
\npassport, shall deposit the same before the trial court within a
\nweek;\n<\/p>\n
50.\tIt
\nwould be open to the I.O. to file an application for remand if he
\nconsiders it proper and just and the learned Magistrate would decide
\nit on merits.\n<\/p>\n
51.\tThis
\norder will hold good if the applicant is arrested at any time within
\n90 days from today.  The order for release on bail will remain
\noperative only for a period of 10 days from the date of his arrest
\nduring which it will be open to the applicant to make a fresh
\napplication for being enlarged on bail in usual course which, when it
\ncomes before the competent court, will be disposed of in accordance
\nwith law having regard to all the attending circumstances and the
\nmaterials available at the relevant time uninfluenced by the act that
\nanticipatory bail was granted.\n<\/p>\n
52.\tWhen
\nthe order was pronounced, learned counsel Mr. Ravani was asked as to
\nwhere he would like the applicant-accused to remain present as per
\nthe usual conditions. However, learned counsel Mr. Ravani has stated
\nthat his client would like to take the matter before the Hon’ble Apex
\nCourt and therefore no date or place for remaining present is
\nrequired to be stated and, therefore, it is not specifically observed
\nas to when and where the applicant-accused should remain present.
\nHowever, it goes without saying that the applicant-accused shall make
\nhimself available for interrogation and co-operate with the
\ninvestigating agency.\n<\/p>\n
\tRule is
\nmade absolute.   D.S. permitted.\n<\/p>\n
(Rajesh H.\n<\/p>\n
Shukla, J.)<\/p>\n
(hn)<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Ajay vs State on 21 September, 2010 Author: Rajesh H.Shukla,&Nbsp; Gujarat High Court Case Information System Print CR.MA\/10466\/2010 27\/ 27 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 10466 of 2010 For Approval and Signature: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA ========================================== 1 Whether Reporters of Local Papers may be […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-244575","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nAjay vs State on 21 September, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ajay-vs-state-on-21-september-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ajay vs State on 21 September, 2010 - 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