Judgment:
Anant S. Dave, J.
1. In this application, which is preferred by the State of Gujarat under Section 439(2) of the Code of Criminal Procedure, 1973, learned Judge (Coram : D.H. Waghela, J.) vide order dated 29.10.2007 issued Rule making it returnable on 2nd November, 2007. On 18th December, 2007, when another cognate matter being Criminal Misc. Application No. 12646 of 2007 of co-accused was listed for hearing, order dated 12.12.2007 passed by the apex court in Contempt Petition (Cri.) No. 8 of 2007 in Writ Petition (Cri.) No. 6 of 2007 was brought to the notice of this Court by the learned Counsel appearing for the parties where reference was made to Criminal Misc. Application Nos. 12646 of 2007 and 12644 of 2007 pending before this Court, the hearing of which was fixed on 18th and 20th December, 2007 respectively. Accordingly, on 18th December, 2007, oral order came to be passed in Criminal Misc. Application No. 12646 of 2007 by this Court by directing the Registry to list both the above cases together on 20th December, 2007, since this case was not on the board for hearing on 18.12.2007.
2. This application under Section 439(2) of the Criminal Procedure Code is filed by the State of Gujarat through the Investigating Officer, C.I.D. (Crime), Gandhinagar for cancellation of bail granted to respondent vide order dated 5.10.2007 passed by the learned Additional City and Sessions Judge, Ahmedabad in Criminal Misc. Application No. 3459 of 2007 qua FIR being CR No. I 5 of 2005 registered with ATS Police Station for the offences punishable under Sections 302, 364, 365, 368, 193, 197, 201, 120B, 420, 342 and 34 of the Indian Penal Code and under Section 25(1)(b)(a) and 27 of the Arms Act.
3. This application for cancellation of bail has genesis in FIR being CR No. I 5 of 2005 filed by one Abdul Rehman, a Police Officer, subordinate to the respondent 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, one Sohrabuddin, son of Anwaruddin Shaikh, resident of Zaraniya, Nagda, Madhya Pradesh, who was accused of offences punishable under Sections 120(b), 121, 121A, 122, 123, 307, 186, 224 of the Indian Penal Code, under Sections 25(1)(b) and Section 27A of the Arms Act and under Section 135(1) of the Bombay Police Act. In the above FIR it is alleged that the above accused (Sohrabuddin) was acting at the behest of ISI to spread the terror and to disturb the unity and integrity of the country and also entered into conspiracy by possessing arms and ammunition so as to kill one of the big leaders of the State of Gujarat and when asked to surrender by the police party, fired from his revolver and attempted to kill them.
4. Later on, Rubabuddin Shaikh, brother of Sohrabuddin, filed petition before the Hon'ble Supreme Court of India, which was registered as Writ Petition (Cri.) No. 6 of 2007. Pursuant to the directions issued from time to time, the Investigating Agency of the State of Gujarat has carried out investigation and it was found by the Investigating Agency that death of Sohrabuddin and subsequently reported death of Kausarbi, wife of Sohrabuddin, was a result of a fake encounter carried out by the then officers of the Anti-Terrorist Squad (for short 'ATS'), State of Gujarat and senior IPS officers of State of Gujarat and State of Rajasthan are involved in the fake encounter. All those officers were arrested and respondent-accused No. 3 is one of such senior IPS officer belonging to the State of Rajasthan.
5. During the course of investigation, preliminary inquiry being Inquiry No. 66 of 2006 was instituted by CID (Crime), Gujarat State, role of the respondent surfaced in the statement of one Ajay Parmar, Police Constable of ATS, Gujarat State. Considering the material which had come on record, the Director General of Police ordered further investigation under Section 173(8) of the Criminal Procedure Code on 6.3.2007. Accordingly the Metropolitan Magistrate was informed and the respondent therein was arraigned as accused. He was arrested on 24.4.2007, remanded to custody for 15 days and charge sheet was filed on 16.7.2007. The respondent preferred a regular bail application being Criminal Misc. Application No. 3459 of 2007 on 17.9.2007, which was allowed vide order dated 5.10.2007 by learned Additional City and Sessions Judge, Court No. 6, Ahmedabad.
6. While enlarging the respondent herein on regular bail in exercise of power under Section 439 of the Criminal Procedure Code, learned Additional City and Sessions Judge, relied on various circumstances, more particularly, in 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 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.
7. After recording submission of learned Counsel appearing for the parties, the learned Judge noticed that the incident was of a known hardcore criminal who was associated with terrorist activities and wanted in many cases and about 25 different FIRs for various offences were registered against him in Gujarat, Rajasthan, Maharashtra and Madhya Pradesh. Learned Judge further referred to allegations of conspiracy against respondent herein and other co-accused. The learned Judge also found that evidence against the respondent-accused, as per the charge sheet, reveal the presence of the respondent, as stated by one Shri Nathubha Jadeja on 26.4.2007. As per letter dated 7.5.2005 of I.O., Shri Nathubha Jadeja is shown as accused. However, later on, Smt. Gita Johri, I.G.P. has declared in her affidavit before the learned Chief Metropolitan Magistrate that Shri Nathubha is witness and on 25.5.2007 Shri Nathubha stated in his affidavit before the Chief Metropolitan Magistrate that his statement dated 26.4.2007 was recorded under duress. Other statements of driver-Puranmal Prabhudayal Mina only indicate that the respondent-accused herein had come along with other Police Officers from Udaipur to Ahmedabad on 24.11.2005. He states that he was not present at the time of encounter and he had no personal knowledge. Another statement of Shri Bhailal K. Rathod do not specifically indicate the presence of the respondent herein though he was present at the place of encounter. According to learned Judge, these statements leave room for doubt about the involvement of the respondent-accused. At the same time, learned Judge observed that truthfulness of allegations levelled against the respondent and satisfaction of the ingredients of various sections applied are subject matter of appreciation of evidence and it can be considered at the time of trial. According to learned Judge, prima facie, committing of heinous crime punishable with death or life imprisonment, sufficient evidence did not surface against the respondent herein. Considering the factor of possibility of tampering with evidence, the learned Judge thought it fit that when charge sheet is submitted, by imposing strict conditions, the above aspect can be taken care of. The learned Judge after discussing the credentials of the accused-Sohrabuddin against whom as many as 25 FIRs are lodged and considering the remarkable service record of the respondent herein, observed that police officer like the respondent herein should not be allowed to be harassed and humiliated unless strong prima facie evidence or material for committing serious offence, is found. Learned Judge also relied on the decision in the case of Jayendra Saraswathi Swamigal v. State of Tamil Nadu reported in : 2005CriLJ883 and after imposing various conditions, including not to leave the territory of Rajasthan without permission of the court, accused-respondent came to be enlarged on bail.
8. The above considerations weighed with the learned Judge are sharply assailed by learned APP for applicant-State of Gujarat by urging strenuous submissions to the extent that the very approach of the learned Judge of weighing evidence even prima facie is contrary to law laid down by the apex court and the same is erroneous and based on presumptions and exercise of power under Section 439 of the Criminal Procedure Code ought not have exercised by the learned Judge in favour of the respondent.
9. Shri A.Y. Kogje, learned APP, appearing for applicant-State of Gujarat submits that role of the respondent surfaced when Sohrabuddin, a wanted accused, involved in an offence registered with Hathipole Police Station, Udaipur, which was under his jurisdiction. The respondent contacted Ahmedabad Police to trace out Sohrabuddin. When Sohrabuddin was apprehended, information was given to the respondent and therefore, respondent herein informed his superior officers to send a team to Ahmedabad. The respondent herein was the leader of that team and before any formal order could be passed forming a team, the weapons were procured from the Kotwali. Upon his arrival in Ahmedabad, he had coordinated and participated in the fake encounter along with ATS officers of State of Gujarat. Thus, according to learned APP, it is a clear case of well thought conspiracy attracting ingredients of Section 120B of the Indian Penal Code.
10. It was next submitted by learned APP that the whole case is based on circumstantial evidence and from the charge sheet, needle of suspicion exist towards the respondent herein also and the circumstantial evidence is in the form of statement of witnesses, which indicate that the respondent on receipt of information about apprehending Sohrabuddin on 23.11.2005, formed a team of police officers to visit Ahmedabad, procured weapons for the operation, reached Ahmedabad, met ATS officers and participated in the encounter on 26.11.2005, are sufficient enough to attract the ingredients of Sections for the alleged offence. According to learned APP, learned Judge misread the above circumstantial evidence with chain of events linked with each other while granting regular bail to the respondent.
11. Shri Kogje, learned APP, next submitted that the respondent herein was present at the place of offence on 26.11.2005 as per the statement of two different witnesses viz. Bhailal Rathod and Nathubha Jadeja and close reading of statements of both the above witnesses, no inconsistency or contradiction is found at the stage of grant of bail and according to Shri Kogje, that aspect has to be looked into exclusively by the Trial Court at the time of appreciating the evidence on record.
12. Shri Kogje, learned APP, further submits that as per the statement recorded by Shri Nathubha Jadeja on 26.4.2007, the presence of the respondent is shown at the place of encounter, which is sufficient enough to deny any relief under Section 439 of the Criminal Procedure Code. It is next contended that the learned Judge further failed to appreciate the fact that there is sufficient evidence on record to falsify the story of fake encounter as narrated in CR No. I 5 of 2005 by one of the co-accused police officer of Rajasthan and creation of the above FIR itself amounts to misuse of power by the respondent herein so as to misguide the investigating agency, though such incident as narrated in the above FIR never took place.
13. Shri Kogje, learned APP, further submits that even retraction of statement of Nathubha dated 25.5.2007 is to be viewed from the affidavit filed by Mrs. Gita Johri, I.G.P. CID (Crime) on 25.4.2007. Even otherwise, according to learned APP, evidentiary value of the retracted statement can only be looked into by the Trial Court at the stage of considering the case of the accused under Section 439 of the Code of Criminal Procedure. It is further contended that the respondent herein is highly responsible police officer and is in a position to influence the witnesses directly or indirectly and therefore also discretion was not required to be exercised in favour of the accused.
14. It is further contended that comparison of characteristics of Sohrabuddin, who was killed in fake encounter, against whom more than 25 FIRs were registered and meritorious service and noble intention of the respondent herein was wholly unwarranted. In drawing the comparison of above nature, according to Shri A.Y. Kogje, the learned Judge has side tracked the main issue about gravity of offence and involvement of high ranking Police Officers in commission of the alleged crime. That certain observations and remarks while granting regular bail to the respondent-accused, may be even of prima facie nature has bearing on the merit of the case and according to Shri Kogje, discussion on the merit of the statements of witnesses, was unwarranted.
15. Shri A.Y. Kogje, learned APP, has mainly relied on the following decisions:
i. : 2005CriLJ4149 State through C.B.I. v. Amarmani Tripathi
ii. AIR 2006 SCW 4339 : Anil Kumar Tulsiyani v. State of U.P.
iii. : 2005CriLJ1721 Panchanan Mishra v. Digambar Mishra
iv. : 2002CriLJ1849 Ram Govind Upadhyay v. Sudarshan Singh
v. : 2001CriLJ2566 Puran v. Rambilas
vi. : 2004CriLJ1796 Kalyan Chandra Sarkar v. Rajesh Ranjan Alias Pappu Yadav
16. Shri Kogje, lastly submits that considering the overall aspects of the matter, bail granted in exercise of power under Section 439 of the Criminal Procedure Code by the learned Additional City and Sessions Judge needs to be cancelled and direction be issued to the respondent to surrender forthwith.
17. Shri P.M. Thakkar, learned Senior Advocate, appearing for the respondent, submits that learned Sessions Judge has rightly observed that statement of Nathubha Jadeja cannot be taken into consideration that it was recorded under duress and threat. The above witness Nathubha Jadeja had no personal knowledge and had not seen the incident in question. Learned Senior Advocate further submits that there are inconsistencies in the statements of Nathubha Jadeja, which were recorded on 26.4.2007 and no overt act alleged against the respondent since gun shots were fired by accused Nos. 5, 7, 8 and 9 only.
18. Shri Thakkar, learned Senior Advocate, further submits that after grant of bail on 5.10.2007, later on police has also filed supplementary charge sheet on 10.12.2007 and there also nothing surfaced on record against the respondent herein. He further submits that even statement of Puranmal Mina, Driver of Rajasthan Police and Shri Bhailal Rathod, who is also Driver do not indicate that the respondent was present at the place of encounter. Shri Thakkar further submits that since the petitioner was arrested on 24.4.2007 and charge sheet was filed on 14.7.2007 and even during the period of remand of 15 days nothing is recovered or discovered from the respondent and the respondent herein remained in judicial custody for more than 5 months and considering the good service record of the respondent and considering the fact that there is no antecedent, no interference is called for by this Court in the order of bail granted to the respondent. Shri Thakkar, learned Senior Advocate, then submitted that in the retraction statement of Nathubha Jadeja, the present respondent had no role to play.
19. Shri Thakkar, learned Senior Advocate, further submits that case of bail simply cannot be judged on the basis of alleged sections and gravity of crime is to be ascertained in the backdrop of relevant material available during the course of investigation. Therefore, according to learned Counsel for the respondent when the gravity is to be judged from the facts in existence and not from extraneous considerations, in the present case, at the most, according to prosecution also the presence of the respondent is shown and nothing beyond that is there on record. When there is no overt act on the part of the respondent officer the order impugned does not require any interference. Shri Thakkar, further submits that the cases relied upon by learned APP have no application to the facts of this case inasmuch as in the case of Amarmani Tripathi (supra) where the apex court cancelled the bail was an extreme case of accused interfering the course of investigation and even directing the officer in-charge to change the Investigating Officer and administering threats to the complainant and other witnesses from time to time and no such circumstance exist in the present case and therefore bail granted to the respondent herein does not required to be cancelled.
20. Shri Thakkar, learned Senior Advocate, further submits that there is not an iota of material to bring the case of the respondent within the purview of Section 120B of the Indian Penal Code inasmuch as forming a team for investigating crime and apprehending the accused cannot be a base for canvassing theory of conspiracy and nothing is brought on record to substantiate the allegations about theory of conspiracy. Learned Senior Advocate further submits that statements of witnesses recorded after 2 years have no relevance, particularly, when the respondent officer had nothing to do with bringing of Sohrabuddin from Hyderabad to Ahmedabad by ATS officers. Therefore, according to Shri Thakkar, the charges levelled have no basis and order impugned does not deserve any interference by this Court. Shri Thakkar, relying on the decision of the apex court in the case of Jayendra Saraswathi Swamigal (supra) submits that if principle laid down in the above decision is applied, it is a case for correct application of principle of law for grant of bail and order passed by the learned Judge cannot be faulted with.
21. Shri Thakkar further submits that even if the case is taken to farthest, only presence of the respondent officer is noted by the witnesses and bare version of the FIR indicates that accused Nos. 5, 7, 8 and 9 had fired shots. Such eventuality considered by the learned Judge while granting bail cannot be said to be unusual or irrelevant consideration which deserves to be set right by this Court. He further submits that much hue and cry is made by the learned APP and the counsel appearing for the affected parties about comparison drawn by the learned Judge about registration of various offences vide different FIRs against Sohrabuddin and meritorious service record of the respondent officer cannot be said to be irrelevant. He further submits that it was one of the factors along with other facts and circumstances which may have weighed with the learned Judge and it cannot be said that the learned Judge has taken into consideration irrelevant facts and decided contrary to law. He further submits that since adequate care is taken by the learned Judge by imposing strict conditions and even about retraction statement of Shri Nathubha in the month of May, 2007, the respondent officer was in jail and nothing can be presumed against him for influencing Shri Nathubha and now the movement of respondent is restricted to State of Rajasthan only and he was ordered not to leave State of Rajasthan without seeking permission and even witnesses are out of the State of Rajasthan, therefore, it cannot be said that the respondent herein will influence the witnesses in any manner whatsoever during the course of the trial.
22. Shri Thakkar, learned Senior Advocate appearing for respondent relied on various decisions of the apex court and this Court. Shri Thakkar, relying on the decision of the apex court in the case of Mohan Singh v. Union Territory, Chandigarh reported in : 1978CriLJ844 submits that refusal of bail is not an indirect process of punishing an accused person before he is convicted. Shri Thakkar, relying on the decision in the case of Bhagirathsinh Jadeja v. State of Gujarat reported in : 1984CriLJ160 submits that after grant of bail no condition is violated by the respondent herein and very cogent and overwhelming circumstances are necessary for cancellation of the bail. Shri Thakkar, further relying on the decision in the case of Daulatram v. State of Haryana reported in 1995 SCC (Cri.) 237 submits that case in hand do not fall in the criteria of cogent and overwhelming circumstances for cancellation of bail since there is no interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. Shri Thakkar has also relied on the following decisions of the apex court:
i. Subhendu Mishra v. Subratkumar Mishra reported in : 1999CriLJ4063
ii. Ram Charan v. State of M.P. Reported in 2004(13) SCC 617
iii. Nityanand Rai v. State of Bihar reported in : 2005CriLJ2187
23. Shri A.Y. Kogje, learned APP, relying on affidavit in rejoinder reiterated his submissions and submits that the statements of Nathubha Jadeja forms one of the change in the circumstance and the role of the respondent in misusing the Government machinery for subverting the course of justice.
24. Shri M.C. Bhatt, learned Counsel appearing for the original complainant-Rubabuddin vehemently submitted that the respondent being a police officer, a protector and duty bound to prevent the crime himself is involved in a grave offence itself is sufficient to deny bail to the respondent. Shri Bhatt further submits that the order of learned Judge granting bail is illegal per se inasmuch as irrelevant considerations have weighed in the form of antecedents of victim-Sohrabuddin and registration of 25 FIRs against him and orderly action of respondent as police officer in preventing the crime against the society and subjecting such offices to humiliation and harassment. Shri Bhatt further submits that the respondent herein is involved in heinous crime and comparison of prima facie in nature while granting bail is thoroughly unwarranted and the present case is required to be appreciated from that angle. Shri Bhatt further submits that Sohrabuddin is a victim of crime committed by respondent-officer and, therefore also above comparison ought not have been made while hearing the case of the prosecution about the theory of conspiracy on the basis of material on record. Shri Bhatt further submits that retraction of statement of Nathubha Jadeja can be adjudged at the stage of trial and not at the stage of bail.
25. Shri M.C. Bhatt, learned Counsel for the original complainant-Rubabuddin, adopts other arguments of Shri A.Y. Kogje, learned APP for applicant-State of Gujarat.
26. Heard learned Counsel for the parties and perused the record of the case, including charge sheet and other papers, which form part of charge sheet. What is challenged in this petition is applicability of the settled principles of law while enlarging respondent officer on bail under Section 439 of the Criminal Procedure Code. In short, this Court is called upon to consider the above aspects in exercise of power under Section 439(2) of the Criminal Procedure Code.
27. Taking into consideration the overall facts and circumstances of the case, I am of the opinion that the following aspects of the matter are not appreciated by the learned Judge in proper perspective:
a. There is a bar as per the law laid down by the apex court to enlarge the accused involved in serious offences and more particularly the accused involved in the offence under Section 302 read with Section 120B of the Indian Penal Code.
b. Misuse of power in an illegal manner by the accused-police officer and the role attributed to him of entering into conspiracy, forming a team for investigation of alleged crime in the backdrop of office order dated 24.11.2005 and Roznama of a team member Shri Abdul Rehman and statement of driver-Shri Puranmal dated 20.5.2007. Though there was no official intimation by ATS, Ahmedabad about bringing Sohrabuddin to Ahmedabad, they made it appear official word Ssecrete information and the team came to Ahmedabad itself is a part of conspiracy.
c. Even perusal of Section 439(1) and 439(2) and Section 437 of the Code, reveal special powers conferred upon High Court and Sessions Court with regard to grant and cancellation of bail. At the same time, what is provided under Section 437 of the Code will have to be kept in mind by the court concerned while exercising power under Section 439(1) as well as 439(2) of the Code of Criminal Procedure.
d. When the encounter took place on 26.11.2006 where presence of the respondent officer is established by the statement of witnesses and creation of false record of secrete information as stated above, likelihood of presence of Sohrabuddin in Ahmedabad, coupled with facts of registration of FIR through his team member and Roznama dated 26.11.2005 of Shri Abdul Rehman.
e. Retraction of the statement of Shri Nathubha or any other statement by any other person is to be considered at the stage of Trial as laid down by the apex court in case of State Through C.B.I. v. Amarmani Tripathi reported in : 2005CriLJ4149 .
f. Irrelevant comparison about lodgment of 25 FIRs for various serious offences against Sohrabuddin and meritorious service of the respondent-Officer by the learned Judge amounts to extraneous consideration.
g. Ignoring other material about statement of Shri Gurdayal Singh, driver of ATS recorded under Section 164 of the Criminal Procedure Code since in fact Sohrabuddin was illegally apprehended at Tindola in Karnataka by ATS team and brought to Ahmedabad. The above fact is corroborated by other witnesses also, including bus driver, conductor and other passengers and also about illegal detention of Sohrabuddin at some private farm in Ahmedabad.
h. Likelihood of influencing the witnesses and tampering of the evidence at high ranking officers like respondent herein and imposition of condition about restricting movement of the officer in the State Rajasthan only was not sufficient and arena of influencing witnesses by such high ranking officer is possible by using different modes of communication.
i. Submission of periodical reports before the apex court about status of investigation by the investigating agency and even subsequent event about murder of Kausarbi, wife of Sohrabuddin and investigation is at a very crucial stage, therefore, the respondent officer was not to be enlarged on bail.
28. If the order of the learned Judge is perused, the material/evidence collected by the investigating agency is analyzed for arriving at satisfaction of prima facie nature about the involvement of the accused in the alleged offence at the stage of bail transgressed parameters laid down by the apex court in the decisions of Amarmani Tripathi and Panchanan Mishra (supra). There cannot be straight jacket formula for appreciating the evidence of prima facie in nature at the stage of bail, but the court has to carefully see that 'Plimsoll line' so that merit of the case for both prosecution as well as defence remain unaffected and the same can be appreciated by the Trial Court. The concerned court has to assign reasons for grant or refusing bail so that the appellate forum can look into the legality and validity and justification for passing such order.
29. So far as decisions relied upon by the learned Counsel for the respondent-accused are concerned, there is no dispute about the proposition laid down by the apex court. However, I am of the opinion that those decisions are based on the facts and circumstances of those cases and the same are not applicable to the facts of the present case. So far as the case of The State through the Delhi Administration v. Sanjay Gandhi reported in : 1978CriLJ952 is concerned, it is in the backdrop of the allegation that accused tampered with prosecution case and finding of the High Court in this regard and powers to cancel bail again where the apex court held that 'The Supreme Court will interfere if the High Court has rejected incontrovertible evidence on hypertechnical considerations and if two view of the evidence were reasonably possible and the High Court had taken one view, the Supreme Court would decline to interfere therewith in appeal under Article 136 of the Constitution'. So far as proposition laid down in case of Gurcharan Singh and Ors. v. State (Delhi Administration) reported in AIR 1978 SC 179, there cannot be any dispute about it which reiterates powers of High Court under Section 439 for cancellation of bail. In case of Bhagirathsinh Judeja v. State of Gujarat reported in : 1984CriLJ160 , where while cancelling earlier order of grant of bail, learned Judge was impressed by some of the irrelevant considerations about what could have been the approach of the Trial Judge in grant of bail, as produced in para 5 of the said order. In case of Aslam Babalal Desai v. State of Maharashtra reported in : 1992CriLJ3712 where bail granted for not completing investigation within prescribed time and cancellation on ground of subsequent filing of charge sheet was held not permissible. In case of Dolatram and Ors. v. State of Haryana reported in 1995 SCC (Cri.) 237 where the apex court has concerned with factors to be considered at the time of rejection of bail in non-bailable offence and cancellation bail already granted to be considered and dealt with on different basis where very cogent and overwhelming circumstances were considered necessary for cancellation of bail. In case of Mahant Chand Nath Yogi v. State of Haryana reported in : 2003CriLJ76 High Court had failed to consider the discretion between rejection of bail in a non-bailable case in initial stage and the cancellation of bail already granted. In case of Nityanand Rai v. State of Bihar reported in : 2005CriLJ2187 where the order of cancellation of bail was found unsustainable where consideration was that by mis-using the power and position as MLA the appellant therein might interfere with trial or influence the witnesses'. In case of Raj Kumar Jain v. Kundan Jain reported in : 2004CriLJ3342 , apex court held that delay in lodging the complaint itself creates a doubt as to authenticity of the complaint and merely High Court erred in cancelling the bail by merely accepting the allegation made in the application for cancellation. In case of Samarendra Nath Bhattacharjee v. State of West Bengal reported in : 2004CriLJ4215 the apex court found the approach of the High Court while cancelling the bail was of like deciding the appeal. In case of Ramcharan v. State of M.P. Reported in (2006)1 SCC 511, the apex court held that Sin the absence of any supervening circumstances which might warrant recalling of the order which granted bail, suo motu cancellation of bail by the High Court merely on the ground that the bail order was passed on some misapprehension of factual position, held not sustainable'. In case of Rizwan Akbar Hussain Saiyed v. Mehmood Hussain and Anr. Reported in 2007(7) Scale 337 is concerned, the apex court held that 'cancellation of bail should not be done in a routine manner' in the backdrop of fact that the appellant had not shown his appearance. However, in the same judgment the apex court observed that 'the Court granting bail acted on irrelevant materials or there was non-application of mind, order for cancellation of bail can be made. So far as the case of Jayendra Saraswathi Swamigal (supra) is concerned, the apex court has not finally opined about applicability of Section 10, while considering the above case for grant of bail, as observed in para 12 of the above judgment. It was further noticed that even telephonic conversation which Shri Sankararaman had with witness, do not relate to the cause of his death or as to any of the circumstance of the prosecution which resulted in his death and therefore, it was not within the purview of Section 32(1) of the Evidence Act. It is to be noted that parameters for grant of bail laid are down in the case of State v. Cap. Jagjit Singh reported in : [1962]3SCR622 came to be reiterated.
30. Therefore, all the above decisions were in the backdrop of the facts and circumstances of the case concerned and therefore straightaway the same cannot be made applicable.
31. I am of the considered opinion that the respondent officer herein is charged with serious offence under Section 302 read with Section 120B of the Indian Penal Code and while enlarging the respondent officer on bail, the leaned Judge ought to have kept in mind seriousness of offences, punishment prescribed for such offence and involvement of the accused of high ranking officer where allegations were of misuse of power and machinery of law in registering false FIR. It was not relevant or germane to the facts of the case to undertake exercise even for a prima facie case about characteristics of Sohrabuddin and his involvement in various offences of serious nature and lodgment of 25 FIRs and meritorious service of respondent officer while granting bail. The basic issue before the learned Judge was nature of allegations levelled against respondent accused, involvement in the serious offences and likelihood of influencing witnesses at the stage of trial and even free and fair investigation which is yet not over and material in the form of statements of the witnesses which prima facie establishes presence of respondent accused at the scene of offence etc.
32. Considering the above aspects of the matter, this Court is of the opinion that as per law laid down in the cases of Daulatram (supra), Amarmani Tripathi (supra), Panchanan Mishra (supra), Ram Govind (supra), K.C. Sarkar (supra) and retraction of statement of witnesses and other aspects about contradiction, veracity, truthfulness or otherwise can be gone into at the stage of trial and any reliance upon such statements for grant of bail is unwarranted coupled with the fact about comparison of characteristics of a person killed in a fake encounter and one of the accused whose presence is established at the place of offences and insufficiency of conditions imposed and likelihood of tampering with evidence or witnesses by misusing the liberty and any further discussion on evidence may prejudice the case of prosecution as well as the defence.
33. Hence, for the reasons recorded hereinabove, this Criminal Misc. Application is liable to be allowed and accordingly the same is allowed. The order dated 5.10.2007 passed by the learned Additional City and Sessions Judge, Ahmedabad in Criminal Misc. Application No. 3459 of 2007 is hereby quashed and set aside. Rule is made absolute. Bail bonds of the respondent-Dinesh M.N. is hereby cancelled and he is directed to surrender to the custody forthwith, failing which the State authorities shall take effective steps to take the respondent in custody. However, it is made clear that the learned Trial Judge shall not be influenced with the observations made in this order as the same are made for the purpose of deciding the present Misc. Criminal Application only.
34. At this stage, learned Counsel for the respondent prays that this order may be stayed for a reasonable period so as to enable him to approach higher forum. The said request is objected by learned Counsel for the complainant-Rubabuddin and learned APP for the State. However, considering the facts and circumstances of the case and since the respondent is on bail pursuant to the order dated 5.10.2007 passed by the learned Additional Sessions Judge, City and Sessions Court, Ahmedabad, I deem it just and proper to stay this order for a period of four weeks from today.