TMI Blog2012 (10) TMI 1273X X X X Extracts X X X X X X X X Extracts X X X X ..... arraigned as an accused in crime/F.I.R. No. 163/2010 for the aforesaid offences and the investigation was conducted by the CID (Crime), Ahmedabad. The prosecution case, in brief, is that an FIR was registered against two persons on 20th of July, 2010 about 8.40 pm. They came on a Bajaj motorcycle having registration No. GJ-1-DQ-2482. At the corner of Satyamev Complex-I , Opposite Gujarat High Court at S.G. Highway, they fired at one Amitbhai Bhikhabhai Jethwa from their country made revolver on the left part of his back and caused injuries to which he succumbed and they immediately disappeared from the scene of occurrence. After the criminal law was set in motion, the investigating agency commenced investigation and after completion, placed the charge-sheet before the competent court. 4. During pendency of investigation, an application was filed before the learned Session Judge for grant of bail contending, inter alia, that the name of the Appellant was not found in the FIR; that he had no nexus with the commission of crime; that the case of the prosecution that he had conspired for murder of the deceased who was an RTI activist was absolutely incredulous inasmuch as the allega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad remained in custody since 7.9.2010 and the charge-sheet had been filed under Sections 302, 201 and 120-B of the Indian Penal Code solely on the basis of the statement of Abhesinh Kesarsinh Zala, a Peon serving in the office of the Appellant. It was also canvassed that there was no iota of material to rope him in the crime and a maladroit effort had been made to demolish his political career and demolish his social image. 8. It was further urged that the first application for bail having been withdrawn, there was no bar to entertain and dispose of second bail application on merits in favour of the accused-Appellant; that the Appellant is a childhood friend of accused, Bahadursinh Vadher, a police constable, having business of mines and he is engaged in the business of mobile towers and had held the post of the ex-President of Kodinar Nagar Palika and Vice-President at the time of incident and had been roped in such a crime solely on the base that the accused-Bahadursinh had met him at his office in Kodinar where allegedly a conspiracy was hatched to eliminate the deceased, which was sans substance; that as far as theory of conspiracy is concerned, nothing had been remotely bro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al and Mr. Mohit D. Ram, learned Counsel for Respondent No. 2. 12. Mr. Rohatgi, learned senior counsel for the Appellant, accused No. 4, has submitted that the reliance on the statement of the peon who had only mentioned that accused No. 1 Bahadursinh, was a frequent visitor to the office of the Appellant, but he had not been able to hear any conversation because of glass doors, makes the impugned orders sensitively unsustainable as such kind of statement does not render any assistance to the prosecution case. He would further submit that the allegation that the Appellant provided the finance in hiring the contract killer has no semblance of truth inasmuch as it is manifest from the statement of Amarsinh, the brother of Bahadursinh, that he had given rupees nine lakhs in cash to his brother for purchase of land in Kodinar area and thus, the Appellant had no involvement with the alleged financing. It is his submission that the voice in the mobile phone was not recorded and only a singular call was made by the accused No. 2 and such a stray incident cannot even suggest in the remotest manner any kind of conspiracy and, therefore, regard being had to the period of incarceration, he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words reasonable grounds for believing instead of the evidence which means the court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt. 17. In State of U.P. through C.B.I. v. Amarmani Tripathi (2005) 8 SCC 21, while emphasizing on the relevant factors which are to be taken into consideration, this Court has expressed thus: - While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the view this Court has expressed pertaining to criminal conspiracy. In Damodar v. State of Rajasthan (2004) 12 SCC 336, a two-Judge Bench after referring to the decision in Kehar Singh v. State (Delhi Admn.) (1988) 3 SCC 609, State of Maharashtra v. Somnath Thapa (1996) 4 SCC 659, has stated thus:- The most important ingredient of the offence being the agreement between two or more persons to do an illegal act. In a case where criminal conspiracy is alleged, the court must inquire whether the two persons are independently pursuing the same end or they have come together to pursue the unlawful object. The former does not render them conspirators but the latter does. For the offence of conspiracy some kind of physical manifestation of agreement is required to be established. The express agreement need not be proved. The evidence as to the transmission of thoughts sharing the unlawful act is not sufficient. A conspiracy is a continuing offence which continues to subsist till it is executed or rescinded or frustrated by choice of necessity. During its subsistence whenever any one of the conspirators does an act or series of acts, he would be held guilty under Section 120-B of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. 24. The present factual matrix is required to be tested on the aforesaid touchstone of law. There is no denial of the fact that the deceased was an RTI activist and extremely keen in exposing certain matters which pertain to illegal mining and many other such arenas. It is not in dispute that the deceased was murdered about 8.30 p.m. on the Public Road just opposite the High Court and near the corner of Satyamev Complex-I where situates the office of Bar Council of Gujarat. The Appellant is a dealer in mobile phones and there is some material on record that he had handed over mobile phones to his friend who is a police constable and owns mines; and that a call has been traced from the mobile of the contract killer to the Appellant. Mr. Rohtagi would argue with vehemence that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affected by his applications under the RTI Act, could have a motive to contribute into his killing. Therefore, a perfunctory investigation on the basis of statements of the accused persons themselves may not unearth the whole truth and meet the ends of justice. Therefore, it is imperative that proper and comprehensive investigation is undertaken by an agency which is not under the control of the State Government. 14. The Right to Information Act, 2005 declared in its Preamble that, whereas the Constitution of India has established democratic Republic and democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed; and to preserve the paramountcy of the democratic ideal, that it was enacted. The Constitutional powers conferred upon the highest judicial institution in the State to entertain public interest litigation and issue necessary direction was also a step forward in enforcing the fundamental rights of the citizens and ensuring the rule of law. These progressive steps cannot be allowed to be nullified and no one sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d over the records of the present case to the CBI authorities within ten days and thereafter the CBI shall take up comprehensive investigation in all matters related to the offence and report thereof shall be submitted to the Court of competent jurisdiction and, in the meantime, further proceeding pursuant to the charge-sheets submitted by Respondent No. 5 shall remain stayed. 26. On a perusal of the aforesaid order, it is demonstrable that the High Court has expressed its dissatisfaction with regard to the investigation conducted by the investigating agency. It has called it perfunctory. After ascribing reasons, it has directed the C.B.I. to expeditiously undertake further investigation. We may hasten to add that the legal propriety of the said order is not the subject matter of challenge in the present appeal. It has only been brought to our notice that C.B.I. has been directed to conduct a comprehensive investigation. Needless to state, it is open to the Appellant to challenge the legal substantiality of the said order. But for the present, suffice it to say, as there is a direction for fresh investigation, it should be inapposite to enlarge the Appellant on bail. We may add ..... X X X X Extracts X X X X X X X X Extracts X X X X
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