IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1649 OF 2012
(Arising out of S.L.P. (Criminal) No. 2450 of 2012
Pratapbhai Hamirbhai Solanki ... Appellant
Versus
State of Gujarat and another ...Respondents
J U D G M E N T
Dipak Misra, J.
Leave granted.
2. Grieved by the order of rejection of prayer for bail for offences
punishable under Sections 302, 201 and 120-B of the Indian Penal Code, 1860
(for short ‘the IPC’) and under Sections 25(1)(b) and 27 of the Arms Act,
1959 in Criminal Misc. Application No. 9576 of 2011 dated 26.7.2011 by the
High Court of Gujarat at Ahmedabad, the appellant, accused No. 4, has
preferred the present appeal by special leave under Article 136 of the
Constitution.
3. The appellant was arraigned as an accused in crime/F.I.R. No.
163/2010 for the aforesaid offences and the investigation was conducted by
the CID (Crime), Ahmedabad. The prosecution case, in brief, is that an FIR
was registered against two persons on 20th of July, 2010 about 8.40 pm.
They came on a Bajaj motorcycle having registration No. GJ-1-DQ-2482. At
the corner of “Satyamev Complex-I”, Opposite Gujarat High Court at S.G.
Highway, they fired at one Amitbhai Bhikhabhai Jethwa from their country
made revolver on the left part of his back and caused injuries to which he
succumbed and they immediately disappeared from the scene of occurrence.
After the criminal law was set in motion, the investigating agency
commenced investigation and after completion, placed the charge-sheet
before the competent court.
4. During pendency of investigation, an application was filed before the
learned Session Judge for grant of bail contending, inter alia, that the
name of the appellant was not found in the FIR; that he had no nexus with
the commission of crime; that the case of the prosecution that he had
conspired for murder of the deceased who was an RTI activist was absolutely
incredulous inasmuch as the allegations against the appellant were totally
vague and, in fact, had been deliberately made to destroy his unblemished
public image, for he had been in public life for so many years; that the
material brought on record in no way implicated the appellant in the crime
in question and, therefore, he was entitled to bail. The learned trial
Judge, analysing the material on record, declined to enlarge the appellant
on bail. Be it noted, after the charge-sheet was filed the doors of the
learned trial Judge were again knocked at but the same did not meet with
success.
5. As the factual narration would exposit, the accused-appellant filed
Criminal Miscellaneous Application No. 2847 on 30th March, 2011 before the
High Court for grant of bail, but the same was withdrawn. Thereafter, the
appellant filed Criminal Misc. Application No. 7505 of 2011 seeking
temporary bail on the ground that his wife had suffered from acute gynaec
problem and she needed to undergo surgery for Fibroid in the Uterus and
regard being had to the said assertion the High Court granted temporary
bail for a period of 21 days.
6. As is manifest from the material brought on record, the informant,
after completing his duty about 8.00 p.m., was returning to his house on a
motorcycle. He went to “Satyamev Complex” with his friend, Bhupatisinh,
for the purpose of having tea and then they heard a gun shot sound and they
rushed to the place where the firing took place. They found that one Bajaj
motorcycle No. GJ-1-DQ-2482, one country made pistol and a plastic bag were
lying on the road. They also saw a white colour Maruti Gypsy. The
informant, who was a constable, informed his superior inspector on his
mobile phone and gathered information from the public around. They were
informed that two persons after firing drove towards Viswas City Road. The
emergency ambulance was called for and the staff after examining the
injured person declared him dead. The advocate present there identified
the deceased to be Amitkumar Jethwa, an RTI activist. In course of
investigation, the appellant was arrested on 7.9.2010.
7. Thereafter, as the factual matrix is uncurtained, the appellant
preferred bail application under Section 439 of the Code of Criminal
Procedure, 1973 forming the subject-matter of Crl. Application No. 9576 of
2011. It was urged before the High Court that the appellant, for no
justifiable reasons, had remained in custody since 7.9.2010 and the charge-
sheet had been filed under Sections 302, 201 and 120-B of the IPC solely on
the basis of the statement of Abhesinh Kesarsinh Zala, a Peon serving in
the office of the appellant. It was also canvassed that there was no iota
of material to rope him in the crime and a maladroit effort had been made
to demolish his political career and demolish his social image.
8. It was further urged that the first application for bail having been
withdrawn, there was no bar to entertain and dispose of second bail
application on merits in favour of the accused-appellant; that the
appellant is a childhood friend of accused, Bahadursinh Vadher, a police
constable, having business of mines and he is engaged in the business of
mobile towers and had held the post of the ex-President of Kodinar Nagar
Palika and Vice-President at the time of incident and had been roped in
such a crime solely on the base that the accused-Bahadursinh had met him at
his office in Kodinar where allegedly a conspiracy was hatched to eliminate
the deceased, which was sans substance; that as far as theory of conspiracy
is concerned, nothing had been remotely brought on record to justify the
allegations; and that the charge-sheet had been filed; and, therefore, he
was entitled to be enlarged on bail. It was propounded that a singular
telephonic call from the mobile the voice of which was not recorded, could
not form the fulcrum of the prosecution to book the appellant in the crime
and further the case has been fabricated with the sole intention to
systematically smother the liberty of a law abiding individual.
9. The application for bail was resisted by the learned counsel for the
prosecution on the ground that the deceased was the President of Gir Nature
Youth Club, an NGO and also Editor of a magazine “Around the Nature” and an
active RTI activist. He had found the appellant to be involved in number
of illegal activities and had exposed him in number of ways as a
consequence of which he had hatched the conspiracy with the accused No. 1
which ultimately resulted in hiring of accused No. 2 as a contract killer
on payment of Rs.11 lakhs to eliminate him. The learned counsel also
contended that there were various call details and contacts made by the
accused, particularly, with accused No. 2 who had absconded; that fake SIM
cards were provided by the appellant to hide their identity; that the
appellant had criminal antecedents; that no leniency should be shown
despite the plea advanced as regards the social reputation; that the factum
of conspiracy is quite complex and the prosecution had been able to gather
the connecting materials which would go a long way to show involvement of
the appellant and hence, it was not a fit case where discretion for grant
of bail should be exercised.
10. The learned single Judge, considering the rival submissions advanced
at the Bar came to hold that the conspiracy between the accused No. 4 and
the accused No. 1 was obvious from the number of visits of accused No. 1 to
the office of accused No. 4; that there was conversation between the
accused No. 4, the appellant herein, and the sharp-shooter, a person who
had absconded and that itself prima facie showed the involvement of the
accused-appellant. The High Court taking note of all the aspects including
the gravity of the offence declined to admit the appellant to bail.
11. We have heard Mr. Mukul Rohatgi, learned senior counsel for the
appellant, Ms. Hemantika Wahi, learned counsel for the State of Gujarat and
Ms. Kamini Jaiswal and Mr. Mohit D. Ram, learned counsel for respondent No.
2.
12. Mr. Rohatgi, learned senior counsel for the appellant, accused No. 4,
has submitted that the reliance on the statement of the peon who had only
mentioned that accused No. 1 Bahadursinh, was a frequent visitor to the
office of the appellant, but he had not been able to hear any conversation
because of glass doors, makes the impugned orders sensitively unsustainable
as such kind of statement does not render any assistance to the prosecution
case. He would further submit that the allegation that the appellant
provided the finance in hiring the contract killer has no semblance of
truth inasmuch as it is manifest from the statement of Amarsinh, the
brother of Bahadursinh, that he had given rupees nine lakhs in cash to his
brother for purchase of land in Kodinar area and thus, the appellant had no
involvement with the alleged financing. It is his submission that the
voice in the mobile phone was not recorded and only a singular call was
made by the accused No. 2 and such a stray incident cannot even suggest in
the remotest manner any kind of conspiracy and, therefore, regard being had
to the period of incarceration, he should be enlarged on bail.
13. Ms. Hemantika Wahi, learned counsel for the State of Gujarat,
resisting the application for grant of bail, submitted that the conspiracy
is always hatched in secrecy and there are series of circumstances from
which the involvement of the accused-appellant is evincible and, that
apart, the material on record would reveal that the appellant was in
constant connection with the accused No. 1, who was facing a lot of
disadvantage because of the pro-active crusade undertaken against his
illegal activities by the deceased, an RTI activist, by filing PILs. It is
also urged by her that the deceased had been able to expose the involvement
of the appellant in many an illegal operations and, therefore, the High
Court has correctly declined to entertain the prayer for bail.
14. Ms. Kamini Jaiswal and Mr. Mohit D. Ram, learned counsel for the
respondent No. 2, the father of the deceased, have supported the stand of
the State.
15. At this juncture, we may refer with profit to certain authorities
which lay down the considerations that should weigh with the Court in
granting bail in non-bailable offences. This Court in State v. Capt.
Jagjit Singh[1] and Gurcharan Singh v. State (Delhi Admn.)[2] has held that
the nature and seriousness of the offence; the character of the evidence;
circumstances which are peculiar to the accused; a reasonable possibility
of the presence of the accused not being secured at the trial; reasonable
apprehension of witnesses being tampered with; the larger interest of the
public or the State and other similar factors which may be relevant in the
facts and circumstances of the case are to be considered. The said
principles have been reiterated in Jayendra Saraswathi Swamigal v. State of
T.N.[3]
16. In Prahlad Singh Bhati v. NCT, Delhi and Another[4], this Court has
culled out the principles to be kept in mind while granting or refusing
bail. In that context, the two-Judge Bench has stated that while granting
the bail, the court has to keep in mind the nature of accusations, the
nature of evidence in support thereof, the severity of the punishment which
conviction will entail, the character, behaviour, means and standing of the
accused, circumstances which are peculiar to the accused, reasonable
possibility of securing the presence of the accused at the trial,
reasonable apprehension of the witnesses being tampered with, the larger
interests of the public or State and similar other considerations. It has
also to be kept in mind that for the purposes of granting the bail the
legislature has used the words “reasonable grounds for believing” instead
of “the evidence” which means the court dealing with the grant of bail can
only satisfy it as to whether there is a genuine case against the accused
and that the prosecution will be able to produce prima facie evidence in
support of the charge. It is not expected, at this stage, to have the
evidence establishing the guilt of the accused beyond reasonable doubt.
17. In State of U.P. through C.B.I. v. Amarmani Tripathi[5], while
emphasizing on the relevant factors which are to be taken into
consideration, this Court has expressed thus: -
“While a vague allegation that the accused may tamper with the
evidence or witnesses may not be a ground to refuse bail, if the
accused is of such character that his mere presence at large would
intimidate the witnesses or if there is material to show that he
will use his liberty to subvert justice or tamper with the evidence,
then bail will be refused.”
In the said case, the Bench has also observed as follows: -
“Therefore, the general rule that this Court will not ordinarily
interfere in matters relating to bail, is subject to exceptions
where there are special circumstances and when the basic
requirements for grant of bail are completely ignored by the High
Court.”
18. Recently, in Ash Mohammad v. Shiv Raj Singh @ Lalla Babu & Anr.[6],
this Court while dealing with individual liberty and cry of the society for
justice has opined as under: -
“It is also to be kept in mind that individual liberty cannot be
accentuated to such an extent or elevated to such a high pedestal
which would bring in anarchy or disorder in the society. The
prospect of greater justice requires that law and order should
prevail in a civilized milieu. True it is, there can be no
arithmetical formula for fixing the parameters in precise
exactitude but the adjudication should express not only
application of mind but also exercise of jurisdiction on accepted
and established norms. Law and order in a society protect the
established precepts and see to it that contagious crimes do not
become epidemic. In an organized society the concept of liberty
basically requires citizens to be responsible and not to disturb
the tranquility and safety which every well-meaning person
desires.”
19. We are absolutely conscious that liberty is a greatly cherished value
in the life of an individual, and no one would like to barter it for all
the tea in China, but it is obligatory on the part of court to scan and
scrutinize, though briefly, as regards the prima facie case, the
seriousness and gravity of the crime and the potentiality of the accused to
tamper with the evidence apart from other aspects before the restriction on
liberty is lifted on imposition of certain conditions.
20. The submission of Mr. Rohtagi is that there is total absence of
material to connect the appellant with the crime in question but due to
maladroit endeavour of the prosecution he has been falsely implicated. The
learned senior counsel would emphatically urge that certain visits by a
friend of accused No. 1, a singular telephone call and filing of a public
interest litigation where the appellant is not involved cannot form the
foundation of a prima facie case relating to conspiracy.
21. At this stage, it is useful to recapitulate the view this Court has
expressed pertaining to criminal conspiracy. In Damodar v. State of
Rajasthan[7], a two-Judge Bench after referring to the decision in Kehar
Singh v. State (Delhi Admn.)[8], State of Maharashtra v. Somnath Thapa[9],
has stated thus: -
“The most important ingredient of the offence being the agreement
between two or more persons to do an illegal act. In a case where
criminal conspiracy is alleged, the court must inquire whether the
two persons are independently pursuing the same end or they have
come together to pursue the unlawful object. The former does not
render them conspirators but the latter does. For the offence of
conspiracy some kind of physical manifestation of agreement is
required to be established. The express agreement need not be
proved. The evidence as to the transmission of thoughts sharing the
unlawful act is not sufficient. A conspiracy is a continuing
offence which continues to subsist till it is executed or rescinded
or frustrated by choice of necessity. During its subsistence
whenever any one of the conspirators does an act or series of acts,
he would be held guilty under Section 120-B of the Indian Penal
Code.”
22. In Ram Narayan Popli v. Central Bureau of Investigation[10], while
dealing with the conspiracy the majority opinion laid down that the
elements of a criminal conspiracy have been stated to be: (a) an object to
be accomplished, (b) a plan or scheme embodying means to accomplish that
object, (c) an agreement or understanding between two or more of the
accused persons whereby, they become definitely committed to cooperate for
the accomplishment of the object by the means embodied in the agreement, or
by any effectual means, and (d) in the jurisdiction where the statute
required an overt act. It has been further opined that the essence of a
criminal conspiracy is the unlawful combination and ordinarily the offence
is complete when the combination is framed. No overt act need be done in
furtherance of the conspiracy, and that the object of the combination need
not be accomplished, in order to constitute an indictable offence. Law
making conspiracy a crime is designed to curb immoderate power to do
mischief which is gained by a combination of the means. The encouragement
and support which co-conspirators give to one another rendering enterprises
possible which, if left to individual effort, would have been impossible,
furnish the ground for visiting conspirators and abettors with condign
punishment. The conspiracy is held to be continued and renewed as to all
its members wherever and whenever any member of the conspiracy acts in
furtherance of the common design. The two-Judge Bench proceeded to state
that for an offence punishable under Section 120-B, the prosecution need
not necessarily prove that the perpetrators expressly agree to do or cause
to be done illegal act; the agreement may be proved by necessary
implication. Offence of criminal conspiracy has its foundation in an
agreement to commit an offence. A conspiracy consists not merely in the
intention of two or more, but in the agreement of two or more to do an
unlawful act by unlawful means.
23. In the said case it has been highlighted that in the case of
conspiracy there cannot be any direct evidence. The ingredients of offence
are that there should be an agreement between persons who are alleged to
conspire and the said agreement should be for doing an illegal act or for
doing by illegal means an act which itself may not be illegal. Therefore,
the essence of criminal conspiracy is an agreement to do an illegal act and
such an agreement can be proved either by direct evidence or by
circumstantial evidence or by both, and it is a matter of common experience
that direct evidence to prove conspiracy is rarely available. Therefore,
the circumstances proved before, during and after the occurrence have to be
considered to decide about the complicity of the accused.
24. The present factual matrix is required to be tested on the aforesaid
touchstone of law. There is no denial of the fact that the deceased was an
RTI activist and extremely keen in exposing certain matters which pertain
to illegal mining and many other such arenas. It is not in dispute that
the deceased was murdered about 8.30 p.m. on the Public Road just opposite
the High Court and near the corner of “Satyamev Complex-I” where situates
the office of Bar Council of Gujarat. The appellant is a dealer in mobile
phones and there is some material on record that he had handed over mobile
phones to his friend who is a police constable and owns mines; and that a
call has been traced from the mobile of the contract killer to the
appellant. Mr. Rohtagi would argue with vehemence that the aforesaid
circumstances are sketchy and the prosecution has tried to rope the
appellant in conspiracy basically on the ground that he had provided the
finance but the said story does collapse like a pack of cards inasmuch as
the accused No. 1 had taken a substantial sum from his brother towards his
share in the profit from the family property. It is also borne out on
record that the appellant is an influential man in the society and he
claims to be a friend of a constable and has urged that as a friend he was
visiting his office and nothing has been stated to have been heard by the
office peon. It is argued with immense emphasis that the sketchy
connection does not make out a prima facie case against the appellant and
further there is no material to infer that he would tamper with evidence or
would not make himself available for trial.
25. Ordinarily, we would have proceeded to express our opinion on the
basis of analysis of the material available on record but, a pregnant one,
after order was reserved, Ms. Arora, learned counsel appearing for
respondent No. 2 filed an order dated 25.9.2002 passed by the Division
Bench of the High Court of Gujarat in Special Criminal Application No. 1925
of 2010. On a perusal of the said order, it is luculent that the High
Court after referring to its number of earlier orders and surveying the
scenario in entirety has passed the following order:-
“13. As discussed in detail in paragraphs 6, 7 and 9 herein,
investigation into the murder of the petitioner’s son does not
appear to have been carried out in conformity with the legal
provisions discussed in paragraph 11 and the control exercised
by one police officer of a very high rank, all throughout and
even after the orders for further investigation by this Court,
provides sufficient ground to conclude that the investigation
was controlled and the line of investigation was determined and
supervised so as to put to naught the allegations made and the
suspicion raised by the acquaintances and family members of the
deceased. As discussed in detail earlier in paragraph 9, the
investigation would hardly inspire confidence not only in the
minds of the bereaved and aggrieved family members, but even
general public on taking an objective view of the matter. On
the other hand, the deceased having been an active RTI activist,
so-many people whose vested interests may have been affected by
his applications under the RTI Act, could have a motive to
contribute into his killing. Therefore, a perfunctory
investigation on the basis of statements of the accused persons
themselves may not unearth the whole truth and meet the ends of
justice. Therefore, it is imperative that proper and
comprehensive investigation is undertaken by an agency which is
not under the control of the State Government.
14. The Right to Information Act, 2005 declared in its Preamble
that, whereas the Constitution of India has established
democratic Republic and democracy requires an informed citizenry
and transparency of information which are vital to its
functioning and also to contain corruption and to hold
Governments and their instrumentalities accountable to the
governed; and to preserve the paramountcy of the democratic
ideal, that it was enacted. The Constitutional powers conferred
upon the highest judicial institution in the State to entertain
public interest litigation and issue necessary direction was
also a step forward in enforcing the fundamental rights of the
citizens and ensuring the rule of law. These progressive steps
cannot be allowed to be nullified and no one should face a
threat to his life when he approaches a court of law to exercise
his right of access to justice. In such milieu, murder of a
petitioner in a PIL and an RTI activist, in front of the High
Court, could be read as a clear message to the concerned
citizens that they may have to pay by their lives, if they
insist upon using the tools placed in their hands by law and
approach the Court for redressal of public grievance against
some individuals. The commission of murder, in the facts of the
present case, amounted to an affront to the judicial system and
a challenge to implementation of an Act of Parliament, with
national repercussions and has to be viewed seriously.
Therefore, it is of utmost importance that the case on hand is
thoroughly investigated and properly prosecuted by independent
and competent officers, so as to inspire confidence and reaffirm
faith of the people in rule of law.
15. In the facts and for the reasons discussed hereinabove,
while concluding that the investigation into murder of the son
of the petitioner was far from fair, independent, bona fide or
prompt, this Court refrain from even remotely suggesting that
the investigating agency should or should not have taken a
particular line of investigation or apprehended any person,
except in accordance with law. It is clarified that the
observations made herein are only for the limited purpose of
deciding whether further investigation was required to be handed
over to CBI, and they shall not be construed as expression of an
opinion on any particular aspect of the investigation carried
out so far. However, in view of the peculiar facts and
circumstances, following the ratio of several judgments of the
Apex Court discussed hereinabove and in the interest of justice
and to instill confidence in the investigation into a serious
case having far reaching implications that we order that further
investigation into I-C.R.No. 163 of 2010 shall be transferred to
the Central Bureau of Investigation (CBI), with the direction
that the CBI shall immediately undertake an independent further
investigation, and all the officers and authorities under the
State Government shall co-operate in such investigation so as to
facilitate submission of report of investigation by the CBI as
early as practicable and preferably within a period of six
months. The police authorities of the State are directed to
hand over the records of the present case to the CBI authorities
within ten days and thereafter the CBI shall take up
comprehensive investigation in all matters related to the
offence and report thereof shall be submitted to the Court of
competent jurisdiction and, in the meantime, further proceeding
pursuant to the charge-sheets submitted by respondent No. 5
shall remain stayed.”
26. On a perusal of the aforesaid order, it is demonstrable that the High
Court has expressed its dissatisfaction with regard to the investigation
conducted by the investigating agency. It has called it perfunctory.
After ascribing reasons, it has directed the C.B.I. to expeditiously
undertake further investigation. We may hasten to add that the legal
propriety of the said order is not the subject matter of challenge in the
present appeal. It has only been brought to our notice that C.B.I. has
been directed to conduct a comprehensive investigation. Needless to state,
it is open to the appellant to challenge the legal substantiality of the
said order. But for the present, suffice it to say, as there is a
direction for fresh investigation, it should be inapposite to enlarge the
appellant on bail. We may add that in case the order for reinvestigation
is annulled by this Court, it would be open for the appellant to file a
fresh application for bail before the competent Court. If the order of the
High Court withstands scrutiny, after the C.B.I. submits its report,
liberty is granted to the appellant to move the appropriate court for grant
of bail. We may clarify that though we have narrated the facts, adverted
to parameters for grant of bail under Section 439 of the Code, dwelled upon
the view of this Court relating to criminal conspiracy and noted the
submissions of the learned counsel for the parties, we have not expressed
our final opinion on entitlement of the appellant to be released on bail or
not because of the subsequent development i.e. direction by the High Court
for comprehensive investigation by the C.B.I.
27. The appeal, is accordingly, disposed of.
……………………………….J.
[K. S. Radhakrishnan]
……………………………….J.
[Dipak Misra]
New Delhi;
October 12, 2012.
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[1] (1962) 3 SCR 622
[2] (1978) 1 SCC 118
[3] (2005) 2 SCC 13
[4] (2001) 4 SCC 280
[5] (2005) 8 SCC 21
[6] JT 2012 (9) SC 155
[7] (2004) 12 SCC 336
[8] (1988) 3 SCC 609
[9] (1996) 4 SCC 659
[10] (2003) 3 SCC 641
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