Kirpalsing Jungbahabursing ChhabarA. Vs. State of Gujarat and anr. - Court Judgment

Excerpt:
[p. sathasivam ; h.l. gokhale, j.j.] - the indian penal code, 1860 section 302 - punishment for murder -- sunil yadav s/o musafir yadav was instituted. sunil yadav was instituted. on 29.04.1997, about 5:30 a.m., at nawada sadar hospital, si anil kumar gupta recorded the statement of sunil yadav s/o musafir yadav and on the basis of his statement fir no 12/97 was registered with govindpur p.s under sections 147, 148, 149, 323, 324, 307, 447 ipc against upendra yadav, rambalak yadav, basudev yadav, anil yadav, manager yadav, ganuari yadav, damodar yadav, suresh yadav, umesh yadav, muni yadav and naresh yadav. the charge-sheet bearing no. 12/97 was submitted in fir no. 11/97 p.s. govindpur, on 30.06.1997 against brahamdeo yadav, sunil yadav, darogi mahto, maho yadav, paro mahto, kuldeep.....1. this is an application preferred under sec.439 of the code of criminal ["the code" for short] by the applicant who has been arrested in connection with fir bearing cr no. i-100 of 2002 registered with naroda police station for the offences punishable under secs. 143, 147, 148, 149, 302, 307, 332, 324, 325, 326, 295, 295a, 201, 395, 396, 397, 398, 435, 436, 427, 376, 120b, 186, 188, 153a[a][b] and 153[a-1] part ii of indian penal code read with sec. 135[1] of the bombay police act.2. mr. n.d. nanavaty, learned senior advocate appearing with mr. mausam yagnik, learned advocate for the applicant, submitted that the applicant has been falsely implicated in the alleged commission of offence. the trial in the matter has commenced and out of 600 witnesses, 192 witnesses have already been.....

Judgment:
1. This is an application preferred under Sec.439 of the Code of Criminal ["the Code" for short] by the applicant who has been arrested in connection with FIR bearing CR No. I-100 of 2002 registered with Naroda Police Station for the offences punishable under Secs. 143, 147, 148, 149, 302, 307, 332, 324, 325, 326, 295, 295A, 201, 395, 396, 397, 398, 435, 436, 427, 376, 120B, 186, 188, 153A[a][b] and 153[A-1] Part II of Indian Penal Code read with Sec. 135[1] of the Bombay Police Act.

2. Mr. N.D. Nanavaty, learned Senior Advocate appearing with Mr. Mausam Yagnik, learned advocate for the applicant, submitted that the applicant has been falsely implicated in the alleged commission of offence. The trial in the matter has commenced and out of 600 witnesses, 192 witnesses have already been examined by the prosecution. One witness, namely, Aminaben Abbasbhai Belim, in her statement dated 30.5.2008 has mentioned the name of the applicant as assistant of Mayaben Kodnani who accompanied her in white car. The witness has stated in her statement that Mayaben Kodnani was indicating the area where people of Muslim community were residing. She was also giving instructions to destroy the entire area having Muslim population. Learned Sr. Advocate, thereafter, placed reliance on the statement of another witness, namely, Mohamad Shafi Allabaksh Mansuri which was recorded on 2.6.2008, wherein, name of the applicant is mentioned as one of the persons who accompanied Bipin Autowala, Guddu Chhara and Suresh Langado Chhara, who belonged to the group of Mayaben Kodnani. The witness has stated that the above persons went towards the Masjid area where they pelted stones and damaged properties of the Muslim community. Learned counsel submitted that Aminaben Abbasbhai Belim has been examined vide exh. 425 in Sessions Case No. 235 of 2009, wherein, in paras-10 and 11, she has deposed that at the material point of time, one white car had come from Natraj Hotel towards Noorani Masjid. When the car stopped near Noorani Masjid, Mayaben Kodnani and one assistant who accompanied her, got down from the car. Thereafter, Mayaben was talking with several persons who had assembled near the Masjid. She was also showing the place which was to be destroyed. Save and except the aforesaid narration of the applicant, there is nothing in the deposition of this witness to indicate the involvement of the applicant in the commission of crime. Likewise, Mohamad Shafi Allabaksh Mansuri is examined vide exh. 1108 in Sessions Case No. 235 of 2009. In his testimony he also mentions about the presence of the present applicant at the time when the properties of the Muslim community were being damaged near Noorani Masjid. Thus, nothing turns out from the deposition of these two witnesses so as to indicate involvement of the applicant in the commission of offence. Learned counsel submitted that even the co-accused who had withdrawn the petition had filed a successive bail application and was granted bail by the co-ordinate Bench of this Court vide order dated 19.11.2010 passed in Criminal Misc. Application No. 8658 of 2010 and, therefore, applying the same analogy and parity, the applicant also deserves to be enlarged on bail. Learned counsel also placed reliance on the orders passed by the co-ordinate Bench of this Court by which other accused Bipin Panchal, Suresh @ Suresh Langado and Mukesh Guddu Jivanlal Chhara are released on bail. It is, therefore, submitted that considering the aforesaid aspect, it is a fit case to enlarge the applicant on bail even though the applicant has filed successive bail application. Learned counsel submitted that after the reasoned order passed by this Court, substantial change has taken place in the Sessions Case before the learned Sessions Court, wherein, even in the depositions of the witnesses, nothing turns out against the present applicant so as to keep him for indefinite period in incarceration. Thus, learned counsel submitted that the prayer as set out in the application to enlarge the applicant on bail be granted.

3. Mr. J.M. Panchal, learned Special Public Prosecutor, appearing on behalf of the opponent no.1-State, while opposing the bail application submitted that this Court, vide order dated 27.4.2010 passed in Criminal Misc. Application No. 12759 of 2009 has rejected the application for bail preferred by the present applicant. It is submitted that the matter was heard at length and after considering the merits of the case and statements of witnesses as well as gravity of offence in which the applicant has been involved, prayer for releasing the applicant on bail was turned down. Learned Spl. PP submitted that there is no change in the circumstances which would warrant interference by this Court while exercising powers under Sec.439 of the Code and, therefore, the application has no merit and the same deserves to be rejected.

4. Mr. Ajaykumar Choksi, learned advocate appearing on behalf of the respondent no.2-Special Investigating Team [SIT] also reiterated the submissions canvassed by Mr. Panchal, learned Special Public Prosecutor, and submitted that the trial in the Sessions Case is going on day-to-day basis. The prosecution has examined 192 witnesses till today and this being successive bail application preferred by the applicant and as there is no substantial change in the circumstances which would warrant interference by this Court, the application deserves to be rejected. Learned advocate placed reliance on the judgments of the apex Court, in the case of State of Maharashtra v. Captain Buddhikota Subha Rao [AIR 1989 SC 2292] and Arvind Shivlal Soni v. State of Gujarat & Anr. [1997 [1] GLR 92] in support of the submission that when there is no change in the circumstances which would warrant interference in a successive bail application, the application deserves to be rejected.

5. I have heard Mr. N.D. Nanavaty, learned Senior Advocate appearing with Mr. Mausam Yagnik, learned advocate for the applicant, Mr. J.M. Panchal, learned Special Public Prosecutor appearing on behalf of opponent no.1-State and Mr. Ajay Kumar Choksi with Mr. A.G. Memon, learned advocates appearing on behalf of opponent no.2-SIT, at length and in great detail. The applicant is facing charge for the offence punishable under Secs. 143, 147, 148, 149, 302, 307, 332, 324, 325, 326, 295, 295A, 201, 395, 396, 397, 398, 435, 436, 427, 376, 120B, 186, 188, 153A[a][b] and 153[A-1] Part II of Indian Penal Code read with Sec. 135[1] of the Bombay Police Act. It is pertinent to note that the first application for bail was preferred by the applicant being Criminal Misc. Application No. 12759 of 2009 and by order dated 27.4.2010, the application was rejected on merits after considering the submissions of the learned counsel for the applicant. Sessions Case No. 235 of 2009 is proceeding on day-to-day basis and as on today, the prosecution has examined approximately 192 witnesses. Learned counsel for the applicant has placed heavy reliance on the depositions adduced by Aminaben Abbasbhai Belim vide exh. 425 and Mohamad Shafi Allabaksh Mansuri vide exh. 1108 in order to indicate that there is no direct involvement of the applicant in the alleged commission of offence and nothing turns out from the depositions of the witnesses who are examined so far by the prosecution in order to indicate direct involvement of the applicant in the commission of offence. While, on the other hand, learned counsel for the opponent-State has placed reliance on the deposition of Mohamad Shafi Allabaksh Mansuri in support of the submission that the applicant was identified by this witness during the course of his deposition and, therefore, involvement of the applicant in the alleged commission of offence is established. It is also strenuously contended by the learned counsel appearing on behalf of the applicant that co-ordinate Bench of this Court vide order dated 19.11.2010 passed in Criminal Misc. Application No. 8658 of 2010 has exercised powers under Sec.439 of the Code in a successive bail application, after the withdrawal of the first application for bail and the said successive bail application was granted by co-ordinate Bench of this Court. I have considered the aforesaid aspect as well as the fact that other co-accused are also enlarged on bail by the co-ordinate Bench of this Court. The applicant had earlier preferred Criminal Misc. Application No. 12759 of 2009 for bail and this Court vide order dated 27.4.2010 passed therein, rejected the application for bail after hearing the submissions of the learned counsel of both the sides at length and the present application is preferred very recently by the applicant claiming parity with other co-accused who are enlarged on bail by co-ordinate Bench of this Court. Sessions Case No. 235 of 2009 is already proceeding before the Sessions Court on day-to-day basis and the prosecution has examined 192 witnesses as on today. However, considering the aforesaid aspect as well as the role attributed to the applicant and the manner in which the alleged offence is committed by the applicant, no interference, in my considered view, is called for in the successive bail application preferred by the applicant as there is no change, much less substantial change in the circumstances which would warrant interference by this Court under Sec.439 of the Code.

6. For the foregoing reasons, there is no merit in the application and, therefore, the same is rejected. Rule is discharged.