REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRL.) No.4010 of 2011
Jetha Bhaya Odedara ...Petitioner
Versus
Ganga Maldebhai Odedara and Anr. ...
Respondents
J U D G M E N T
T.S. THAKUR, J.
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1. The High Court of Gujarat at Ahmedabad has by its
order dated 13th September, 2010 allowed Criminal Misc. --
Application No.9119/2010 and enlarged the respondent,
Ganga Maldebhai Odedara on bail under Section 439 of
Code of Criminal Procedure. The present Special Leave
Petition has been filed by the complainant assailing the said
order.
2. Briefly stated, the prosecution case is that 14th
January, 2007, being Makar Sankranti Day, the
complainant-Jetha Bhaya Odedara, the petitioner before us,
was sitting at the house of one Abha Arjan, along with
Navgan Arasi, Rama Arasi Jadeja, Suresh Sanghan Odedara
and a few ladies of the house, named, Aarsi Munja, Maliben
and Puriben. At around 8.00 p.m. one Ramde Rajsi
Odedara, one of the accused persons is alleged to have
come to the place where the complainant was sitting and
started using abusive language. He was asked not to do so,
thereupon he left the place only to return a few minutes
later with accused Punja Ram, Lakha Ram, Devsi Rama,
Vikram Keshu Odedara, Gangu Ranmal, Vikram Devsi
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Odedara, Ramde Rajsi Odedara and the respondent and
some others armed with knives and a pistol which the --
respondent was allegedly carrying with him. The accused
persons started abusing and assaulting the complainant
and others who were sitting with him resulting in knife
injuries to Vikram Keshu, Navgan Arasi, Rama Arasi and
Puriben. Respondent Ganga Maldebhai Odedara is alleged
to have fired multiple rounds from the pistol in the air
exhorting his companions to kill the complainant and others
with him. Navgan Arasi died in the hospital on account of
the injuries sustained by him leading to the registration of
FIR No. I Cr.No.4/2007 in the Kirti Mandir Police Station,
Porbandar City against the respondent and his companions
for offences punishable under Sections 302, 307, 324, 147,
148, 149, 323, 504, 507 (2) of IPC read with Section 25(1)
of the Arms Act and Section 135 of the Bombay Police Act.
With the death of the deceased, Navgan Arasi, in due
course the investigation was completed and a charge sheet
for the offences mentioned above filed before the Sessions
Judge, Porbandar, who made over the case to Fast Track
Court, Porbandar for trial and disposal in accordance with
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law.
3. An application, being Crl. Misc. Application No.3/2010
was then filed by the respondent before the trial Court for
grant of bail which was opposed by the prosecution and
eventually dismissed by its order dated 11th February, 2010.
The trial Court was of the view that no case for the grant of
bail to the respondent-applicant had in the facts and
circumstances of the case been made out particularly in
view of the fact that the respondent was involved in several
criminal cases apart from the one in which he was seeking
bail. The trial Court was also of the view that the
respondent was a member of the gang operating in
Porbandar area and that he had absconded for a month
before he was arrested. It was also of the view that the
role played by the respondent and his association with the
other accused persons was likely to affect the smooth
conduct of the trial.
4. Aggrieved by the order passed by the trial Court the
respondent filed Criminal Misc. Application No.9119/2010
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before the High Court of Gujarat at Ahmedabad which
application as noticed earlier, was allowed by the High --
Court in terms of the impugned order in this petition. The
High Court has without scrutinizing and appreciating the
evidence in detail come to the conclusion that the
respondent had made out a case for grant of bail. The High
Court also noticed the fact that no injury was caused with
the help of the firearm which the respondent was allegedly
carrying with him. The High Court accordingly allowed the
application subject to the condition that the respondent
shall not take undue advantage of his liberty, tamper with
or pressurize the witnesses and that he shall maintain law
and order and mark his presence before the concerned
police station once in a month. He was also directed to
surrender his passport and not to enter Porbandar Taluka
limits for a period of six months. The present special leave
petition assails the correctness of the above order.
5. We have heard learned counsel for the parties at some
length. We have also gone through the record. While the
petitioner-complainant has described the respondent and
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other accused persons as a desperate gang active in
Porbandar area and involved in commission of several --
offences, the respondent has in the counter affidavit filed
by him made a similar allegation giving particulars of the
cases registered against the petitioner and some of the
witnesses. In para 4 of the counter affidavit the
respondent has stated thus:
"4. xxxxxxxxx
I state that the complainants' side is a well recognised
Gang, properly known as `Arjun Gang' and `God Mother
Gang'. Prosecution witness-Abha Arjan, who is the
brother of the deceased is the real son of Arjan Munja
Jadeja. Arjan Munja Jadega is the real brother of
deceased Sarman Munja Jadeja who was a well known
history sitter of Porbandar. After death of Sarman
Munja, Santokben Jadeja, properly known as `God
Mother' took the charge of Gang and it was known as
God Mother Gang. Series of offences have been
registered against `Arjun Gang' and `God Mother Gang'.
Abha Arjan is the nephew of Santokben Jadeja. Abha
Arjan Jadeja is involved in series of offences stated
herein below:
ABHA ARJAN JADEJA
C.R. No. Offence U/s. Police
Station
II-3068/2001 25 (1B) A, etc. of Arms Act Madhavpur
II-101/1995 25 (1B) A, etc. of Arms Act Kutiyana
II-28/1995 25 (1B) A, etc. of Arms Act Kutiyana
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II-33/1990 504, 506(2), etc. of IPC Kamlabaug
I-193/1997 302, 120-B of IPC and Sec. Kamlabaug
25 (1B) of Arms Act
I-170/1994 307, 302 etc. of IPC Kamlabaug
II-30/1990 506(2), 114, etc. of IPC Kamlabaug
II-54/1997 25 (1B) (A), 25 (1) (D) of Ranavav
Arms Act
II-3/1994 25 (1B) (A), 25 (1) (D) of Ranavav
the Arms Act
I-20/1990 367, 147, 325, etc. of IPC Kutiyana
and 25 (1) A of the Arms
Act
I-91/1990 147, 148, 149, 323, 324 of Kirti Mandir
IPC
I say and submit that the complainants' side is a
well recognized Gang, properly known as `Arjun Gang'
and `God Mother Gang'. Prosecution witnesses viz.
Jetha Bhaya, Suresh Sangan Odedra, Keshu Chana
Kudechha, Bhima Rama Bhutiya, Prakash Punja
Kadechha, Rama Arshi, Amit Nebha Bhutiya are the
members of `Arjun Gang' and `God Mother Gang'. All
these prosecution witnesses are involved in series of
offences stated herein below:
JETHA BHAYA ODEDRA-COMPLAIANT
C.R. No. Offence U/s. Police
Station
I-44/1995 302 of IPC Udhyognagar
I-177/1994 307, 147, 148, 149 etc. of Kamlabaug
IPC
SURESH SANGAN ODEDRA
C.R. No. Offence U/s. Police Station
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II-79/1993 135-B of B.P. Act Kamlabaug
I-189/1993 302 of IPC Kamlabaug
I-24/2001 323, 324 etc. of IPC Kamlabaug
II-20/1992 110, 117, 135 of B.P. Act Kamlabaug
II-61/1995 122-C of B.P. Act Kirti Mandir
BHIMA RAMA BHUTIYA
-
C.R. No. Offence U/s. Police Station
III- /1991 66B & 65E of Prohibition Act Kirti Mandir
I-101/1991 323, 324, 325, 114 of IPC and Kirti Mandir
Section 135 of B.P. Act.
III-5132/2003 66(1)B and 65(1)E of Prohibition Kirti Mandir
Act
I-44/1993 279, 337, 338 of IPC and 177, Udhyognagar
184, etc. M.V. Act
I-252/1991 302 of IPC and 25(1) of Arms Kamlabaug
Act and 135 of B.P. Act
I-30/1993 302 of IPC Madhavpur
I-46/1993 147, 325, 149, etc. of IPC Madhavpur
III-18/1992 66-B, 65E of the Prohibition Act Madhavpur
II-28/1995 25 (1) B-A of Arms Act Kutiyana
II-3003/2001 142 of B.P. Act Madhavpur
I-49/2001 447, 323, 506 (2), etc. of IPC Udhyognagar
III-5085/2000 66-B, 66EE of Prohibition Act Madhavpur
I-54/2000 66-B, 65Ee of Prohibition Act Madhavpur
II-3054/2000 142 of B.P. Act Madhavpur
I-17/1994 143, 506 (2) of IPC Madhavpur
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PRAKASH PUNJA KUCHHADIYA
C.R. No. Offence U/s. Police Station
II-97/2007 135 of B.P. Act Kirti Mandir
II-3025/2002 135 of B.P. Act Kirti Mandir
III-5275/2002 66-1-B, 85(1-3) of Prohibition Kirti Mandir
Act
III-5052/1999 66-1-B, 85(1-3) of Prohibition Kirti Mandir
Act
I-102/2001 279, 337 of IPC and 337, 184, Kirti Mandir
177 of M.V. Act
RAMA ARSHI JADEJA
C.R. No. Offence U/s. Police Station
II-96/2007 135 of B.P. Act Kirti Mandir
AMIT NEBHA BHUTIYA
C.R. No. Offence U/s. Police Station
III-5019/1999 66(1) B of Prohibition Act Kirti Mandir
6. The petitioner has not filed any rejoinder to the
counter affidavit filed on behalf of the respondent. If the
allegations made in the special leave petition and those
made in the counter affidavit are correct, the incident
appears to have been the result of a gang war between
`Kotda Gang' of which the respondent is said to be a
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member and `Arjun Gang' of which the complainant-
petitioner and some of the witnesses are said to be active
members. It is true that while no one including a gangster
has any right to take law into his own hands or to criminally
assault any other gangster operating in any area or any one
else for that matter, the fact that two gangs appear to be at
war with each other and involved in commission of several
offences, makes it imperative that the rival versions
presented before the Court in connection with the incident
in question are examined carefully and with added
circumspection. Having said that we need to note that the
bail order was passed as early as on 11th February, 2010
i.e. nearly two years back. It is not the case of the
complainant that the respondent has during this period
either tried to tamper with the evidence or committed any
other act that may affect the fairness of the trial. Equally
significant is the fact that there was no gunshot injury to
either the complainant or the deceased or any other person
involved in the incident. In the circumstances and keeping
in view the fact that the prosecution shall be free to apply
for cancellation of bail should the respondent fail to comply
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with any of the conditions imposed upon him by the High
Court in the order under challenge, we are not inclined to
interfere with the order granting bail at this stage.
7. The special leave petition is dismissed with these
observations. We make it clear that nothing said by us in
this order shall prejudice either the prosecution or the
defence. The observations made by us are relevant only
for the disposal of the petition and will not be taken to be
the expression of any opinion on the merits of the case
pending before the court below.
...................................J.
(CYRIAC JOSEPH)
...................................J.
(T.S. THAKUR)
New Delhi
December 16, 2011
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