TMI Blog2008 (4) TMI 708X X X X Extracts X X X X X X X X Extracts X X X X ..... n Contempt Petition (Crl.) No.8/2007 in Writ Petition (Crl.) No. 6/2007. 4. The application under Section 439(2) was filed by the State of Gujarat through Investigating Officer, C.I.D. (Crime), Gandhinagar for cancellation of bail granted to the appellant by order dated 5.10.2007 by learned Additional City and Sessions Judge, Ahmedabad in Criminal Miscellaneous Application No.3459/2007 qua FIR being CR No. I-5/2005 registered with ATS Police Station for the offences punishable under Sections 302, 364, 365, 368, 193, 197, 201, 120B, 420, 342 read with Section 34 of the Indian Penal Code, 1860 (in short the 'IPC') and under Sections 25 (1)(b)(a) and 27 of the Arms Act, 1950 (in short the 'Arms Act'). 5. Background facts sans unnecessary details are as follows: The application for cancellation of bail had matrix in FIR being CR No. I-5 of 2005 filed by one Abdul Rehman, a Police Officer, subordinate to the appellant and now an accused, who was a member of the Special Investigating Party formed at Udaipur, Rajasthan to investigate into various offences registered against one Sohrabuddin. As per the above FIR, said Sohrabuddin, son of Ahwaruddin Shaikh, resident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Sessions Judge, relied on various circumstances, more particularly on three facets:- first facet is prior to 26.11.2005, second facet is dated 26.11.2005 and the third facet is post 26.11.2005. The first facet was about conspiracy part and bringing Sohrabuddin from Hyderabad to Ahmedabad. Second facet is the day on which alleged encounter of Sohrabuddin took place on 26.11.2005 and the third facet, i.e. post 26 11.2005 about death of Kausarbi and destroying evidence relating to her death. The evidence against the accused appellant revealed his presence as stated by one Nathubha Jadeja on 26.4.2007. As per the letter dated 7.5.2005 of Investigating Officer said Shri Nathubha Jadeja is shown as accused, but later on Smt. Gita Johri, a senior police officer declared in her affidavit before learned Chief Judicial Magistrate that Shri Nathubha Jadeja is a witness and on 25.5.2007 Shri Jadeja had stated in his affidavit before the learned CJM that his statement dated 26.4.2007 was recorded under duress. The other statements of the driver Puranmal Prabhudayal Mina clearly indicate that the accused had come alongwith other police officers from Udaipur to Ahmedabad on 24.11.2005. He st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... send a team to Ahmedabad. He was leader of the team. Before any formal order came to be passed for forming a team, weapons were procured from Kotwali upon his arrival in Ahmedabad. He coordinated in the fake encounter alongwith ATS officers of the State of Gujarat. Therefore, it was contended that it was a clear case of conspiracy attracting ingredients of Section 120B IPC. It was pointed out that the whole case is based on circumstantial evidence and from the charge sheet, needle of suspicion unerringly pointed out at the accused and the circumstantial evidence even the form of statements of witnesses and in view of the role played by accused as afore-noted, the trial Court should not have granted bail. So far as the alleged discrepancies in the evidence of different witnesses are concerned, it was submitted that the stage for assessing the contradictions, if any, has not come. It is pointed out that as per the statement of Nathubha on 26.4.2007 presence of the respondent was shown at the place of encounter which was sufficient to deny the protection under Section 439 of the Code. A very significant factor was pointed out to falsify claim of encounter as narrated in C.R. I-5/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re-appreciation of evidence. It is pointed out that in Mehboob's case (supra) and Amarmani's case (supra) the bail was cancelled as it was established that there were serious attempts to tamper with the evidence and to interfere and sidetrack the investigation and threaten the witnesses. It is pointed out that as laid down by this Court in Sanjay Gandhi's case (supra) and Dolat Ram's case (supra) the bail granted should not have been cancelled by way of re- appreciating evidence. 7. In response, learned counsel for the State of Gujarat submitted that it has not been laid down by this Court that only if supervening circumstances are there, on assessing the same bail can be cancelled. He referred to findings of the High Court as to how appellant has tried to divert attention and thereby defeat the course of justice. 8. As is evident from the rival stands one thing is clear that the parameters for grant of bail and cancellation of bail are different. There is no dispute to this position. But the question is if the trial Court while granting bail acts on irrelevant materials or takes into account irrelevant materials whether bail can be cancelled. Though it was ur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the present accused had earlier made seven applications for grant of bail which were rejected by the High Court and some such rejections have been affirmed by this Court also. It is seen from the records that when the fifth application for grant of bail was allowed by the High Court, the same was challenged before this Court and this Court accepted the said challenge by allowing the appeal filed by the Union of India and another and cancelled the bail granted by the High Court as per the order of this Court made in Criminal Appeal No. 745 of 2001 dated 25-7-2001. While cancelling the said bail this Court specifically held that the fact that the present accused was in custody for more than one year (at that time) and the further fact that while rejecting an earlier application, the High Court had given liberty to renew the bail application in future, were not grounds envisaged under Section 437(1)(i) of the Code. This Court also in specific terms held that the condition laid down under Section 437(1)(i) is sine qua non for granting bail even under Section 439 of the Code. In the impugned order it is noticed that the High Court has given the period of incarceration already under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-`-vis the High Court. 14. The perversity as highlighted in Puran's case (supra) can also flow from the fact that as noted above, irrelevant materials have been taken into consideration adding vulnerability to the order granting bail. The irrelevant materials should be of a substantial nature and not of a trivial nature. In the instant case, the trial Court seems to have been swayed by the fact that Sohrabuddin had shady reputation and criminal antecedents. That was not certainly a factor which was to be considered while granting bail. It was nature of the acts which ought to have been considered. By way of illustration, it can be said that the accused cannot take a plea while applying for bail that the person whom he killed was a hardened criminal. That certainly is not a factor which can be taken into account. Another significant factor which was highlighted by the State before the High Court was that an FIR allegedly was filed to divert attention from the fake encounter. The same was not lodged by the Gujarat Police. The accused was the leader of the Rajasthan te ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
