Umaben W/O. Girish Namdar and anr. Vs. State of Gujarat and ors. - Court Judgment

Excerpt:
- - according to the petitioner umaben, precisely for this reason only that she was constrained to file an application for cancellation of the bail before the learned city sessions court on 20th april, 1994 which came to be allowed by cancelling the bail to rajhesh @raju. under the circumstances, according to the petitioners, they being genuinely interested and aggrieved party they are the best persons to effectively oppose the bail application preferred by the accused by putting all the real and correct facts to assist the court. ! but then, there is indeed no special reason for this court to straightway mechanically assume that the prosecuting agency will not discharge its elementary duty of opposing the bail application in such serious cases at the time of hearing before this court and other court and thereby there will not be desired care to protect the interest of the petitioners more particularly when nothing is alleged and urged against the investigating agency as not discharging its duty efficiently or is partial to the accused for whatever reasons! the investigating officer, under the circumstances, in his turn, ordinarily in order to oppose the bail application, posts the concerned public prosecutor with all update necessary facts including the serious apprehensions of danger to the life, limb and liberty like eliminating the prosecuting witnesses as alleged in this petition. state of gujarat, reported in 1993(1) glh 789: (1993(1) glr 523) in serious cases like murder, dowry-death, decoity, robbery, rape, atrocity on the scheduled castes and scheduled tribes, etc. still however, in the overall interest of justice, in a given case, looking to the gravity and seriousness of the offence, and the bitter enmity involved between the accused and the prosecution witnesses where the prosecution witnesses on the one hand apprehending danger to their life, limbs and liberty, and in the same breath, on the other hand, alleging the investigation to be unfair, mala fide and partial, if the court feels satisfied that over and above the say of the investigating officer, in the overall interest of justice, it is also necessary to hear the aggrieved party then in that case, the concerned court would and should order the informant or any other aggrieved witness to be joined as a party and ask the investigating officer to keep him/them present before the court. this sort of the extreme care and vigilance which by itself speaks of the efficiency of the investigating officer is invariably must because no person accused of serious crime where the punishment is for life would ever ordinarily like to willingly suffer that punishment and for that purpose to avoid the same, he would do anything and everything possible under the sun to get out of the heavy odds and ordeals, and accordingly, easiest way is to cut the prosecution case at its grass-root either by winning over and or failing which wiping off the prosecution witnesses by any hook and crook method! so far, the picture is not that bad wherein the court has lost confidence in the investigating agency. anyway, it is indeed good that the petitioner by filing this petition has given an opportunity to highlight the aspect and provide some guidelines in some genuine case where the court may not fail to notice and help meeting with the grievance made by the aggrieved citizen. criminal applications fail and are dismissed accordingly.k.j. vaidya, j.1. apprehending immediate danger to their respective life, limb and liberty at the hands of rajesh @ raju chandulal gandhi and others, the respondent-accused herein, two petitioners, viz., umaben w/o of girish ambalal and rakesh pravinchandra kinariwala, by these two miscellaneous criminal applications under section 482 of the criminal procedure code, 1973, have moved this court inter alia praying for the immediate relief / direction, namely: (i) that whenever any bail application is filed by the respondent-accused and any of his co-accused, they be specifically directed to join both of them (petitioners) as party to the said proceedings alongwith the state of gujarat and (ii) accordingly, the office of high court (criminal branch) on respondent-accused filing bail application be directed to inform the petitioners about the same at their cost, so as to enable them in the first instance to know that accused have moved for the bail and therefore, to be on guard, and in the second instance, to adequately assist the hon'ble court and thereby to oppose the bail application. in substance, these two petitions are more or less in nature of 'caveat' proceedings. there is an express provision regarding the 'caveat' under section 148-a of the civil procedure code, 1908 which is quite unknown to the criminal procedure code, 1973, and in that view of the matter, these two petitions requires in-depth consideration.2. to briefly narrate the few relevant facts leading to filing of these two petition, in the first instance, according to the petitioner umaben, widow of girish ambalal gandhi, her husband on 26th november, 1992 gave a complaint at the astodiya police station, ahmedabad for the alleged offences punishable under sections 307, 452 of the indian penal code and under section 25(1) of the arm act against rajesh @ raju chandulal gandhi, the respondent herein. this came to be registered as i-c.r. no. 284 of 1992 and thereafter on the charge-sheet being filed before the court, the same came to be registered as sessions case no. 285 of 1993. after the said offences came to be registered against him, accused - rajesh @ raju preferred a bail application, the same being miscellaneous criminal application no. 2646 of 1992 in the court of learned city sessions judge at ahmedabad, which was allowed and he was ordered to be released on bail. further, according to the petitioner thereafter accused rajesh entering into the conspiracy with two other accused persons, namely, sachin @ pavan mukesh gandhi and kumar @ duniya rajnikant gandhi murdered girish a. gandhi (the informant in i-c.r. no. 284 of 1992; astodiya police station); on 7th february, 1983, and as a result of which the second petitioner, namely; rakesh pravinbhai kinariwalla filed a complaint for the alleged offence against the said accused persons under sections 302, 120(b), 452, 506(2) of the indian penal code; under section 25(1)(b) of the arms act and under section 135 of the bombay police act, 1951, which came to be registered as i-c.r. no. 49 of 1993 at vatva police station. according to the petitioners, accused rajesh @ raju having ex facie already once misused the liberty granted in his favour when released on bail by the city sessions court, and that too to the serious most extent of committing murder of girish namdar a complainant in a case against them and further since the fact that he is a habitual offender, they have the reasonable apprehension that if under one pretext or the other they (accused) manage themselves to obtain even the temporary bail even for some days, and for that purpose even for few hours, then in that case they (petitioners) also in turn would not be spared and liquidated in order to smoothen their acquittal before the court! according to the petitioner umaben, precisely for this reason only that she was constrained to file an application for cancellation of the bail before the learned city sessions court on 20th april, 1994 which came to be allowed by cancelling the bail to rajhesh @ raju. according to the petitioner, it is very likely that rajesh @ raju with ulterior motive to wipe off the prosecution evidence and for that purpose going even to the extent of fabricating any false evidence may apply for a bail, even a temporary bail to remain at large, for few days or for few hours, and if the same is unfortunately granted then the life of both the petitioners and their family members will be put into great danger!! further, according to the petitioner umaben looking to the recent background of the pitch enmity and grudge bore against them by the said accused, more particularly when girish namdar, her husband is already done to death by accused persons when on bail they have a more than reasonable apprehension that they also in the course of time soon meet the same fate and liquidated by the accused-party as they are the star prosecution witness on the basis of which the prosecution can successfully prove its case beyond doubt resulting into conviction and life sentence and accordingly, after their liquidation and in absence of them, no convincing evidence will remain against the accused on the basis of which any order of conviction and sentence could ever be recorded! under the circumstances, according to the petitioners, they being genuinely interested and aggrieved party they are the best persons to effectively oppose the bail application preferred by the accused by putting all the real and correct facts to assist the court. it is with this background, and with this dire necessity to get protected themselves from an assault on life by the respondent-accused anywhere, anytime that the petitioners have been constrained to file these two petitions inter alia praying for directing the accused to join them as parties in event of the bail application filed by them and that the same may not be disposed off without hearing them.3. now it is indeed not difficult for the court in the facts and circumstances of the case to imagine and appreciate the alleged apprehension, anxiety and the resultant mounting nervous tension on two petitioners regarding immediate danger to their lives, limbs and liberty and accordingly with a view to see that such an unfortunate eventuality may not befall upon them, the concerned court entertaining the bail applications of the accused in future is properly assisted by the present petitioner!! but then, there is indeed no special reason for this court to straightway mechanically assume that the prosecuting agency will not discharge its elementary duty of opposing the bail application in such serious cases at the time of hearing before this court and other court and thereby there will not be desired care to protect the interest of the petitioners more particularly when nothing is alleged and urged against the investigating agency as not discharging its duty efficiently or is partial to the accused for whatever reasons!! may be, in a given case, sometimes due to some remissness on the part of the concerned investigating officer and public prosecutor the courts are not properly assisted by and as a result of which accused lightly get away on bail. but ordinarily speaking, such casualty happens once a while and not always!! further still, whenever accused files bail application before the court a notice is always issued upon the state making it returnable on a particular day, the day on which the learned public prosecutor in charge of the case, on the basis of the police papers and instructions passed on to him by the investigating officer makes submissions before the court opposing the bail application. the investigating officer, under the circumstances, in his turn, ordinarily in order to oppose the bail application, posts the concerned public prosecutor with all update necessary facts including the serious apprehensions of danger to the life, limb and liberty like eliminating the prosecuting witnesses as alleged in this petition. not only that but by now by virtue to the decision of this court rendered in the case of thakore laxmanji and anr. v. state of gujarat, reported in 1993(1) glh 789: (1993(1) glr 523) in serious cases like murder, dowry-death, decoity, robbery, rape, atrocity on the scheduled castes and scheduled tribes, etc. etc. wherein accused file bail application, all the concerned public prosecutors are specifically directed to file a detailed affidavit of the investigating officer on the various specimen counts as set out in detail in the said judgment, with a view to see that the court deciding the bail application is not left out being properly assisted with the relevant material having a direct bearing on the prosecution case and witnesses before him. in fact, the said judgment takes ample care wherein the investigating officer unless he is not honest to himself and/or for whatever reasons the learned public prosecutor incharge of the bail application does not take the desired care for whatever other various reasons and fails to file affidavit-in-reply of the investigating officer to oppose the bail application to the greatest detriment and prejudice to the prosecution. but this hardly happens as this court hopes and trusts hopefully believing that all the criminal courts in the state conscious of the decision of this court rendered in case of thakore laxmanji and anr. v. state of gujarat (supra) are not that irresponsible enough in deciding any bail application without first of all taking on record the affidavit of the concerned investigating officer!! in this view of the matter, this court prima facie do not feel it necessary at all to mechanically make complainant/informant a necessary party in each and every case whenever bail application is filed by the accused. in fact, strictly speaking there is no such special right as prayed for by the petitioner engrafted in the code. still however, in the overall interest of justice, in a given case, looking to the gravity and seriousness of the offence, and the bitter enmity involved between the accused and the prosecution witnesses where the prosecution witnesses on the one hand apprehending danger to their life, limbs and liberty, and in the same breath, on the other hand, alleging the investigation to be unfair, mala fide and partial, if the court feels satisfied that over and above the say of the investigating officer, in the overall interest of justice, it is also necessary to hear the aggrieved party then in that case, the concerned court would and should order the informant or any other aggrieved witness to be joined as a party and ask the investigating officer to keep him/them present before the court. but this is only the discretion of the court and no right as such of the complainant/informant or any prosecution witness/es which is required to be sparingly exercised when the ends of justice so warrant! of course, in every bail application whenever notice is issued to the state, the investigating officer is summoned by the concerned public prosecutor for the instructions. at that time, it would ordinarily be the duty of the said investigating officer to be posted with the latest up-to-date fact-situation consisting firstly of the factual particulars of the alleged offence and links connecting the accused with the alleged crime, secondly, in case if court feels there is no prima facie case, and therefore, inclined to release the accused on bail, whether he was likely to jump the bail, thirdly, whether there is any direct or indirect threat to the life, limb or liberty of the witnesses with a view to intimidate and in turn to win them over, under threat, pressure or liquidate them for further weakening the prosecution case. for this purpose, it is always the duty of the concerned investigating officer to place on record, the most material facts; such as:(i) criminal antecedents of the accused; if any.(ii) names and addresses of those prosecution witnesses, whose evidence is sought to be tampered with and in process threatened of the dire consequences.(iii) previous history between the accused and the deceased/injured prosecution witnesses, on the otherside.(iv) the possibility of the accused abusing his/their liberty by putting in danger the life, limb and liberty of the prosecution witness(es), and(v) to immediately move appropriate court for cancellation of bail moment the concerned investigating officer has a material before him and reason to believe that the accused have abused their liberty.4. in fact, before the investigating officer places his instructions on the above lines on the table of the learned public prosecutor to oppose the bail application, in order that the same accords with to be up-do-date for the purpose, he would certainly see that the complainant side is contacted afresh and taken in full confidence in order just to see and reassure himself that nothing important is missed to be brought to the notice of the concerned court at the time of hearing of the bail application, which in absence of care on behalf of the concerned police officer may unguardedly result into threats given by the accused being executed putting in jeopardy the life and/or limb and/or liberty of the concerned prosecution witnesses, by assisting the court while deciding the case in question. in fact, while filing the reply-affidavit the concerned investigating officer, must specifically give the latest date, time and place of contacting the most material prosecution witness, for verifying whether if they had indeed received any threats; direct or indirect, to their lives, limbs and liberty from accused persons. this sort of the extreme care and vigilance which by itself speaks of the efficiency of the investigating officer is invariably must because no person accused of serious crime where the punishment is for life would ever ordinarily like to willingly suffer that punishment and for that purpose to avoid the same, he would do anything and everything possible under the sun to get out of the heavy odds and ordeals, and accordingly, easiest way is to cut the prosecution case at its grass-root either by winning over and or failing which wiping off the prosecution witnesses by any hook and crook method!! once this ordinary possibility is not capable of being ruled out, it is indeed at once quite desirable that the concerned investigating officer till the trial is over should maintain constant touch with the prosecution witnesses so as to take care of the prosecution case and also of the life and limb of prosecution witnesses. of course in serious cases, where punishment is for life, it is ordinarily presumed that by virtue of the instinct of self-preservation, accused would not spare any efforts to win-over the witnesses against them at any cost and accordingly, therefore, depending upon the alleged gravity and seriousness of the offence even in absence of any material alleging tampering with prosecution evidence coming on the record, the court has also the direction to reject the bail application on the said count! in the present case also, if the petitioner has some apprehensions, they should pass on their alleged apprehensions unless illiterate, if possible, in writing by making an application to the investigating officer and to the commissioner of police to make it as a part of the investigation record, so as to bring it to the notice of the learned public prosecutor incharge of the case who in turn is further duty bound to bring it to the notice of concerned court entertaining the bail application of the accused! in fact ordinarily, whenever such bail application of the accused is filed before the court, immediately on the receipt of the same, the concerned investigating officer should take care to at once contact the informant and/or any other important prosecution witnesses in order to keep himself fully abreast with up-do-date latest facts centering around and attending to the prosecution case so as to enable the learned p.p. to make full and true latest account/background of the case before the court!!5. thus, taking into consideration the overall picture, ordinarily it is indeed not necessary that the accused should make the complainant/informant a party in his bail application, however, if at the time of hearing the bail application, the complainant side comes to know that such bail application is filed and it desires to say something special to bring it to the special notice of the court then in that case, it is always open to appear as a party in person or engage a lawyer for that purpose to appraise the concerned learned p.p. in charge of the case with whatever latest instructions they want to pass on to the court for consideration but that is altogether a different thing. so far, the picture is not that bad wherein the court has lost confidence in the investigating agency. if in future, if the court feels that the desired assistance is not forthcoming and something is kept back from coming on the record from the prosecuting agency, then in that case, the court may either on the request being made by the complainant/prosecution witnesses or of its own join the informant as a party to bail proceeding!! no doubt unlike 'caveat' proceedings under section 148-a of the civil procedure code, there is no likewise provision in the criminal procedure code, but then at the same time depending upon the facts and circumstances of that particular case, if the ends of justice so warrants then to safeguard the interest of aggrieved, by exercising even extraordinary powers under section 482 of the code, the bail application may not be decided without taking on record the grievance of real aggrieved party!!bearing in mind the aforesaid discussion, in absence of any thing further shown by the petitioners against the concerned investigating officer that it will not take due care of its alleged apprehensions at the hands of the respondent-accused, there is indeed nothing which could be done by this court to grant the prayer. anyway, it is indeed good that the petitioner by filing this petition has given an opportunity to highlight the aspect and provide some guidelines in some genuine case where the court may not fail to notice and help meeting with the grievance made by the aggrieved citizen.6. in the result, these two misc. criminal applications fail and are dismissed accordingly. the learned a.p.p. is directed to forward a copy of this judgment to the director general of police, gujarat state, to circulate contents of this judgment to all the investigating officers with a view to ensure that they get the latest information from the complainant informant while opposing the bail applications of the accused through the learned public prosecutors.