R/CR.

MA/3298/2013

ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 3298 of 2013
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OMPRAKASH @ OMI JAGDISH....Applicant(s) Versus STATE OF GUJARAT....Respondent(s)

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Appearance:
MR JM PANCHAL WITH MS.RENU R.SINGH, ADVOCATE for the Applicant(s) No. 1 MR HA JOSHI FOR M/S THAKKAR ASSOC., ADVOCATE for the Respondent(s) No. 1 MR KP RAVAL APP for the Respondent(s) No. 1

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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED

Date : 22/03/2013 ORAL ORDER

1.

The present application is filed by the applicants under Section

439 of the Code of Criminal Procedure, 1973, for enlarging them on regular bail in connection with the offence being CR No. I - 135 of 2009 registered with Anand Police Station, Anand, for the offence u/s. 302, 307 read with 34 I.P. Code and u/s. 25(1)(b)(a), 27(1) and 29 of the Arms Act and u/s. 135 of the Bombay Police Act. 2. This is successive bail application. Earlier, present applicant has

filed application being Criminal Misc. Application No.13630 of 2011, which was withdrawn on 14.10.2011. Now, again the application is preferred by the applicant for releasing him on regular bail. 3. Learned senior advocate Mr. J.M. Panchal with learned advocate

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Ms. Renu Singh for the applicant submitted that the applicant is an innocent person and has been wrongly implicated in the commission of the offence. The applicant is in jail since more than one year and 4 months. The applicant had not killed or fired upon the deceased. Other co-accused have been released on bail and therefore, on the parity ground, the applicant may be released on bail by imposing suitable conditions. This is a successive bail application. There is no direct evidence which links the applicant in the commission of the offence and therefore, the applicant may be enlarged on bail. 4. Learned advocates for the applicant submitted that the original

complainant was sitting in the office of one Pradipbhai Shah, who is share broker and doing business in share and is also Director of Charotar Education Society. The deceased Alpesh was the Chairman of the said society since about 7 months and he was having his office at B.S. Chambers, Ground Floor, and on the 4 th Floor, he was residing. It is alleged. The complainant came to the office of Mineshbhai in B.S. Chambers, where Mukesha Sakariya, Shewtabhai, Jayeshbhai Arvindbhai Patel and Mineshbhai were present and they all came out after watching IPL match. On the outside of Chamber, Nimesh was along with others were standing and talking and at that time, at about 7:15 p.m., a person standing beside Alpeshbhai fired a short on lift ear from behind and therefore, said Alpeshbhai fell down and three other persons were present with the said person and they ran away. 5. Learned advocates for the applicant further submitted that co-

accused has been released by the Honble Supreme Court on bail, though he was conspirator. He referred the order passed in SLP (Cri.) No. 9551 of 2012 passed by the Honble Supreme Court, which reads as under :

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In our considered view, since the co-accused have already been released on bail, the Appellant is also entitled to same relief on grounds of parity. Therefore, we direct that the Appellant be released on bail subject to the subject to the satisfaction of the Trial Court. 6. Learned advocates for the applicat submitted that the considering

the parity ground, the applicant may be released on bail. 7. It is further submitted by the learned advocates for the applicants

that looking to the charge-sheet, the role of the applicant is not attributed, but simply the applicant was present at the scene of offence. He read the Section 34 of the Indian Penal Code and submitted that as per the ingredients of Section 34, simply presence is not considered, but the role in the commission of the offence is required to be taken into consideration. They also submitted that one co-accused namely Madhusinh Devisinh Sesodiya was released by this Court vide order dated 1.12.2010 passed in Criminal Misc. Application No.11550 of 2010. They further submitted that the applicant of the said application, was simply present at the place of incident and as per the say of the prosecution, he is conspirator, even though he has been released on bail. Therefore, the role of that applicant and present applicant is similar and therefore, the applicants case may be considered same footing by applying the said ratio in the Criminal Misc. Application No.11550 of 2010. They read Identification Panchnama. They further submitted that the present applicant is in jail since long period i.e. from 1.7.2009. The applicant was taken by the police to the area of residence, where the witnesses are residing and panchnama was drawn there and identification parade was carried out there and only one witness has identified. He further submitted that only on the statement of that
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witness, the role on the part of the present applicant cannot be considered and that witness has not canvassed the role of the present applicant in the commission of the offence. They further submitted that there is no recovery or discovery is made from the present applicant. From the charge-sheet, at last column, it appears that the role of the present applicant is shown as he has fired. The names witnesses are shown as complainant, Vinodbhai, Brijesh, Kinjal (injured), Dharmesh, Ketan etc. They further submitted that the names are also stated in the case of other co-accused and even then, they have been released on bail. Therefore, parity ground is requried to be considered so far present application is concerned. 8. As per their submission, the aspect of conspiracy is concerned,

there must be some evidence to show that there was an agreement between co-conspirators. 9. Mr. Raval, learned APP also submitted that from the statement of

witnesses and charge-sheet papers, it is prima facie established that the present applicant has played active role in the commission and therefore, the applicant may be considered as one of co-conspirator and there was common intention to kill the deceased. He read the contents of panchnama scene of offence and submitted that the presence and role of the applicant is clearly established as per the provisions of Section 27 of the evidence Act. Even his presence at the place of offence is enough so far the role on the part of the applicant is concerned. He further submitted that the present applicant is involved in serious offence and therefore, he may not be released on bail. One of accused namely Harjni in other cognate FIR, threatened to the witnesses. He further submitted the police papers, this is a case of criminal conspiracy, therefore, considering the nature of offence and manner in which the offence is
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committed as well as quantum of punishment, the discretion may not be exercised in favour of the applicant. 10. Learned advocate Mr. Joshi for Thakkar Associates, who is

appearing on behalf of the complainant with the prosecution. No doubt, the prosecution lawyer can only assist the Public Prosecutor even though looking to the seriousness of the offence, he has right to oppose the said bail application on behalf of the complainant and/or witness. He submitted that this successive bail application of the applicant and there is no change in the circumstances, shown by the applicant, for which the application is required to be considered for bail purpose. He submitted that the present applicant is sharp shooter and also conspirator. He read the contents of identification panchnama and submitted that empty cartridge and live cartridge were also recovered. He drew the attention of this Court to the factual aspect of this matter. He read the statements of five witnesses and submitted that the from the statements, it is prima facie established that the present applicant has actively participated in the commission of alleged offence. He further submitted that the present applicant is strong headed person and as per the charge-sheet, which are filed against other co-accused and that evidence is collected by the Investigating Officer and from the evidence of the prosecution witness, it is clearly established that present applicant has fired and therefore, parity may not be considered as considered for co-accused. He submitted that considering the role attributed to the applicant and considering the statements of the witnesses and allegations levelled against the applicant as well as seriousness of the offences, in which the applicant is involved, the application may not be allowed. He also submitted that if the applicant is released on bail, there is a chance of tampering with the evidence.

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11.

Learned senior advocate Mr. Panchal has relied on the decision in

the case of Vijender Vs. State of Delhi reported in 1997 Supreme Court Cases (Cri) 857 and submitted that in the said case, it has been observed by the Honble Supreme Court that under Section 27, if information given by the accused leads to the discovery of a fact which is the direct outcome of such information then only it would be evidence but when the fact has already been discovered evidence could not be lead in respect thereof. Therefore, he submitted that statement of the witness is not sufficient to prove the allegation against the accused and as per his submission, role on the part of the accused is required to be proved. Here, only presence on the part of the accused applicant is established, but merely presence is not sufficient to prove the accusation against the applicant. He further relied on decision in the case of Maulana Mohammed Amir Rashadi Vs. State of Uttar Pradsh and Another reported in (2012) 2 Supreme Court Cases 382 and submitted that the Honble Supreme Court has released the co-accused on bail. He further relied on (1) 2007 (4) SCC 145, (2) 2007(4) SCC 247, (3) 2005 (7) SCC 226, (4) 1993 Cril. L.J. 938, (5) 1992 Cri. L.J. 1371 and submitted that considering the decisions as stated above, the present applicant may be released by considering the ground of parity as co-accused have been released on bail. He also submitted that co-accused has been released by the Honble Supreme Court as stated hereinabove, therefore, it can be said that there is change of circumstances. 12. Learned advocate Mr. Joshi has filed affidavit-in-reply on behalf of

the original complainant and read the statement of witnesses. He further submitted that the witnesses were threatened by the co-accused and due to fear, the witnesses could not identify the accused. He further submitted that no change of circumstance is established by the applicant by way of this application. He relied on decisions in the cases of Kalyan
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Chandra Sarkar Vs. Rajesh Ranjan Alias Pappu Yadav and Another reported in 2005, Supreme Court Cases 42 in , (b) Chandrakant Meghjibhai Daki V. State of Gujarat reported in 2008 (2) GLR 1146 (c) State of T.N. Vs. S.A. Raja reported in (2005) 8 Supreme Court Cases 380 (d) State of Maharashtra Vs. reported in Captain Buddikota Subha Rao 1989 Supp (2) Supreme Court Cases 605 (e) Lababu

Shivnathprasad Kushvah Vs. State of Gujarat reported in 2009(0) GLHEL-HC 223011 (f) 2009(6) SCC 316 and 1997 SCC (Cri.) 857 and submitted that merely parity ground is not required to be considered while deciding the bail application of the accused. He submitted that this Court has considered the provisions of Section 10 of the Evidence Act while considering the case of the applicant so far as bail is concerned. He submitted that this is a case of criminal conspiracy, wherein the applicant is involved and therefore, the applicant may not be granted bail. He submitted that as per the panchnama under Section 27 of the Evidence Act, which is carried out and no statement made by the present applicant in which that place of offence is disclosed by him that the statement can be covered within the means of Section 10 of the Evidence Act. He stated that identification parade is reflected that the present applicant was present at the place of offence and he fired and therefore, deceased died. 13. Heard learned Advocates for parties. I have also perused the

papers produced before me. From the perusal of the charge-sheet papers, there are statements of five witnesses and also report of ballistic export and panchnama of recovery and discovery and prima facie it appears that from the possession of the present applicant, nothing is recovered by way of discovery or recovery and the firm arms are recovered from the other accused. The positive report of the ballistic expert is also annexed with the charge-sheet. I have perused the order
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passed by the Honble Supreme Court in SLP (Cri.) No.9551 of 2012 on 11.1.2013, wherein, the co-accused has been released by consdiering the aspect that the co-accused have been released and therefore, parity ground is considered by the Honble Supreme Court. It is true that this is successive bail application, but recently the Honble Supreme Court has released the co-accused as stated above. I have minutely perused the papers submitted before me and it prima facie appears from the record that at the time of offence, the applicant was present and therefore, he is shown accused by the witnesses, but no overt act is established. At this stage of bail, this Court is not entering into merits of the case, but looking to the record, now, at this stage, it appears that the applicant was present at the scene of offence. So far as Section 120(B) and 302 of the Indian Penal Code, the ingredients of criminal conspiracy are required to be established, as there must be some agreement between the co-conspirator. Even there is no recovery or discovery from the possession of the applicant made by the police. As per the submission of learned advocate Mr. Joshi, the witnesses were threatened by one coaccused namely Harjani in other case, but it is not applicable to the present applicant, as he has not threatened the witnesses. The allegation of the prosecution that the witnesses have not attained the identification parade due to fear and there was sufficient time to arrange test identification parade, but the prosecution has not carried out test identification parade without such fear. In this case, there is change of circumstances and when co-accused are released on bail, the case of the applicant is required to be considered in his favour. One of driver, who was conspirator, released on bail. Therefore, I am of the opinion that the present applicant is required to be released on bail. 14. Having heard the learned Counsel for both the sides and looking

to the peculiar facts and circumstances of the case, statement of the

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witnesses, I am inclined to grant bail to the applicant. 15. Considering the above, this Application is allowed. The applicant

is ordered to be released on bail in connection with CR No. I - 135 of 2009 registered with Anand Town Police Station, Anand, for the offences alleged against him in this application on executing a Bond of Rs.25,000/- (Rupees twenty five thousand only) with one solvent surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall a) not take undue advantage of his liberty or abuse his liberty; b) not to try to tamper or pressurize the prosecution witnesses or complainant in any manner; c) maintain law and order and shall cooperate the Investigating Officers; d) not act in a manner injurious to the interest of the prosecution; e) not leave the State of Gujarat without the prior permission of the concerned Sessions Judge. f) mark his presence before the concerned Police Station twice i.e. on 1st and 15th day of every English calender month till the trial against him is completed. g) Not to enter into the area of Anand Town Police Station except for the purpose of attending the Court, without prior permission of the concerned Court. h) furnish the address of his residence to the I.O. and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court; i) surrender his passport, if any, to the lower Court within a week. If breach of any of the above conditions is committed, the concerned Sessions Judge will be free to issue warrant or take
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appropriate action in the matter. Bail before the lower Court having jurisdiction to try the case. It would be open to the trial Court concerned to give time to furnish the solvency certificate if prayed for. Rule is made absolute. Direct service is permitted today.

(Z.K.SAIYED, J.)
YNVYAS

At this stage, learned advocate Mr. Joshi submitted that this order may be stayed for a period of one month. He cited a decision in the case of Laljibhai Popatbhai reported in 1988 (2) GLR 114. Learned advocate Mr. Singh opposed the submission of the learned advocate Mr. Joshi and submitted that the co-accused has been released on bail by the Honble Supreme Court. Looking to the facts and circumstances of the case and reasons recorded as above and when there is change of circumstance is established, then it is not necessary to stay this order. Hence, request is rejected.

(Z.K.SAIYED, J.)
YNVYAS

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