amin bombay hc order granting bail

8/10/2019 Amin Bombay HC Order Granting Bail

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Tilak

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL BAIL APPLICATION NO.1770 OF 2012

DR.NARENDRA K. AMIN ... APPLICANT

Versus

UNION OF INDIA, THROUGH CBI

AND ANOTHER ... RESPONDENTS

Mr.Ram Jethmalani, Sr. Advocate with Mr.Mahesh Jethmalani,Advocate i/b Mr.Pranav Badheka, Ms.Chaitra Pawar, Mr.NileshTribhuvan and Jagdish Ramani, Advocates for the applicant.

Mr.H.S.VenegavkarAdvocate with Mr.Rajesh Desai and AbhishekArora, Advocates for the respondent no.1 CBI.

CORAM : ABHAY M. THIPSAY, J.

ORDER RESERVED : 20thFEBRUARY 2013.

ORDER PRONOUNCED: 5th MARCH 2013.

ORAL ORDER:-

1 The applicant a policeman, who was working as Dy.

Superintendent of Police, City Crime Branch, Ahmedabad at the

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material time is the Accused no.12 in the case arising out of

R.C.No.BS1/S/2010/0004 dated 1 February 2010 registered with

CBI Police Station, Mumbai. There are totally 19 accused in the

said case. The allegation against the applicant and the other

accused is that they have committed offences punishable under

section 120B of the IPC read with sections 365 IPC, 368 IPC, 302

IPC and 201 of the IPC.

2 The case of the Investigating Agency is, in brief, that

the Police Officials of Anti Terrorist Squad (ATS) Gujarat and

Special Task Force (STF) Rajasthan, entered into a criminal

conspiracy to abduct one Sohrabuddin Shaikh (deceased) from

Andhra Pradesh in order to kill him. That the said Sohrabuddin

Shaikh, who had some criminal background, was attempting to

extort monies from some businessmen, who had approached

political leaders for their protection, and it was thereafter planned

that Sohrabuddin should be got killed. It was planned that he

should be shown as having died in an encounter with the police.

Pursuant to this conspiracy, the police officials from Rajasthan and

Gujarat abducted Sohrabuddin, his wife Kausarbi and one more

person from Andhra Pradesh. Sohrabuddin, Kausarbi and the said

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other person were confined at a farm house near Ahmedabad for

sometime, and later on, Sohrabuddin was killed by the police. As

pre-planned, it was projected as if he had been killed in an

encounter with the police. Preparation had already been made for

lodging of a false First Information Report to the effect that

Sohrabuddin had come to Ahmedabad for killing a prominent

political leader, and that Sohrabuddin was to do this with the co-

operation and help of Pakistan Based Intelligence Agency ISI, and

Terrorist OutfitLaskar-e-Toyeba. A story was cooked up that since

the police were in receipt of this information, they had kept a watch

at a particular point on the road by which Sohrabuddin, as per the

information received, was to come. That, when Sohrabuddin came

to the said place on a motorcycle, he was asked to stop by the

police, but he did not respond to the said call and opened fire on

police. The police officers fired in retaliation, and in this firing,

Sohrabuddin fell down on being hit by the bullets fired by the

police.

3 A report to this effect viz. that a person who had come

to kill a prominent political leader with the co-operation of the

Pakistan Based Intelligence Agency etc., was killed in an encounter

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with the police, was registered with the Anti Terrorist Squad (ATS),

Gujarat in respect of offences punishable under sections 120B IPC,

121 IPC, 121A IPC, 122 IPC, 307 IPC, 186 IPC, 24 of the IPC, vide

C.R.No.5 of 2005 of ATS Police Station. The said case was

investigated into by Accused no.4 Mukeshbhai Parmar, working as

Dy.Superintendent of Poice, ATS Gujarat, at the material time, who

filed an abated Summary Report.

4 One Rubabuddin brother of the deceased

Sohrabuddin addressed a letter to the Hon'ble the Chief Justice

of India alleging that Sohrabuddin was in reality abducted from

Andhra Pradesh and killed by Gujarat Police, and that

Sohrabuddin's wife Kausarbi was also missing.

5 The Supreme Court of India directed the Gujarat

police to investigate into the matter, pursuant to which the matter

was inquired into, vide Preliminary Inquiry No.66 of 2006. On the

basis of the findings of the preliminary inquiry conducted,

investigation of the case was taken over by CID (Crimes) Gujarat.

After completion of investigation, the CID (Crimes) Gujarat Police

filed a charge-sheet on 16 January 2007 against 13 police officers

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i.e. Accused Nos.1 to 13, in the Court of Chief Metropolitan

Magistrate, Ahmedabad. The said Rubabuddin, was apparently not

satisfied with the inquiry that was going on, and had filed a Writ

Petition bearing No.6 of 2007 before the Supreme Court of India on

22 January 2007. By an order dated 12 January 2010 passed in the

said petition, Their Lordships of the Supreme Court of India

directed the CBI to investigate into the matter of the said fake

encounter of Sohrabuddin and the missing of his wife Smt.Kausarbi.

6 After investigation, the CBI collected some

further material and implicated some more persons, in addition to

the 13 accused against whom charge-sheet had been filed. These

newly added accused persons included Shri Amitbhai Shah, who

was then the Minister of State, in the Gujarat Government.

7 By an order dated 27 September 2012 passed in

Criminal Appeal No.1503 of 2012 with Transfer Petition (Criminal)

No.44 of 2011, Their Lordships of the Supreme Court of India

transferred the said case to Mumbai. After the transfer, the

applicant, by the present application, has approached this Court

praying for his release on bail.

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8 I have heard Mr.Ram Jethmalani, the learned Senior

Counsel for the applicant. I have heard Mr.H.S. Venegavkar, learned

counsel for the respondent no.1 CBI.

9 This application was heard and was being considered

along with application filed by a co-accused - Mukeshbhai Parmar

Accused no.4 and other accused. The application filed by the said

Mukeshbhai Parmar Accused no.1 has been rejected be me.

(Criminal Bail Application No.1670 of 2012). So far as the

applicant is concerned, however, it was thought that his prayer for

bail could be decided in a proper and more satisfactory manner only

after ascertaining the correctness of the contentions raised about his

bad health, as that was a strong ground canvassed in support of

bail. A report with respect to the health condition of the applicant,

who has been hospitalized was therefore, called from the Civil

Hospital, Ahmedabad, which has been duly received now.

10 Mr.Ram Jethmalani, the learned Senior Counsel

submitted that there is no material against the applicant to show his

involvement in the alleged offences. He submitted that there is

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absolutely nothing to show that the applicant was involved in the

conspiracy to kill Sohrabuddin. Mr.Jethmalani pointed out that the

conspiracy to murder Sohrabuddin was allegedly hatched by the

police officers from the ATS Gujarat and STF Rajasthan, and that

the applicant was notworking with the ATS Gujarat. He submitted

that the only material against the applicant is that he was presentat

the time when the dead body of Kausarbi was cremated. He

submitted that, at best, the applicant can be said to have destroyed

the evidence of the commission of an offence, and cannot be

connected with the murder of Sohrabuddin - or even Kausarbi - or

with the conspiracy to murder Sohrabuddin and/or Kausarbi. He

also pointed out that the applicant is in custody for a period of more

than five years, and is presently suffering from serious health

problems. He also reminded the Court that the only primary

considerations, at this stage, would be whether the release of the

applicant on bail is likely to affect the investigation and/or the trial

to be held, and whether he would be available to face the trial. He

submitted that there is absolutely no possibility of the applicant

absconding, or not making himself available for the trial,

particularly in view of his ill health, and that considering all these

aspects, the applicant deserves to be released on bail.

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11 Mr.Venegavkar, learned counsel for the Respondent

no.1, on the other hand, submitted that the applicant was involved

not only in disposing of the dead body of Kausarbi, but also in the

murder of Kausarbi. He submitted that there is sufficient material

to show his involvement in the alleged offences. He submitted that

the applicant, at the material point of time, was in telephonic

contact with Amitbhai Shah, who was at the material time a Home

Minister of Gujarat who is also an accused in this case (Accused

No.16). He also submitted that the applicant was initially granted

bail by the Court of Sessions, but the bail was cancelled by the High

Court of Gujarat, and this cancellation was upheld by Their

Lordships of the Supreme Court of India. According to him,

therefore, there being no change in the circumstances, a

reconsideration of the matter was not necessary at all.

12 I have carefully considered the matter.

13 I have gone through the police report/charge-sheet and

the documents accompanying the same, which have been referred

to by the learned counsel for the parties.

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14 There can be no doubt that there is sufficient material

in the police report and the accompanying documents to indicate

that indeed the police officials of ATS Gujarat and STF Rajasthan

had entered into a criminal conspiracy to abduct the said

Sohrabuddin Shaikh from Andhra Pradesh in order to kill him.

There is also sufficient material to indicate that Sohrabuddin and

his wife were abducted, brought to Gujarat, kept confined at a farm

house near Ahmedabad for some time. There is also material to

indicate that arrangements for procuring the farm house had

already been made, and as such, the killing was clearly preplanned.

What was to be shown in the records after Sohrabuddin would be

killed had also been, apparently, preplanned and as planned a false

First Information Report vide C.R.No.5 of 2005, was registered.

However, what is the allegation against the applicant, and what is

the material by which it is supported, must be examined, in the

context of the prayer for bail.

15 It is a fact that the applicant does not seem to be

involved in the abduction of Sohrabuddin and Kausarbi from

Andhra Pradesh. There is no material to show that he was aware of

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the conspiracy to kill Sohrabuddin. There is also no material to

show that the applicant took part in killing Sohrabuddin, or was

present at the scene of the offence when Sohrabuddin was killed.

Since this is conceded rather this is not the allegation against the

applicant at all I do not find it necessary to discuss this aspect of

the matter any further. The applicant is alleged to be involved in

the killing of Kausarbi. Kausarbi's dead body was cremated in

village Illol. According to the Investigating Agency, the dead body

of Kausarbi was carried to the place where it was cremated in a jeep

of ATS in which co-accused Choube (Acucsed No.6) and the

applicant were sitting.

16 Mr.Jethmalani, the learned Senior Counsel submitted

that what was actually told to Sohrabuddin and Kausarbi, and what

was the representation made to them on the basis of which they

were being brought from Andhra Pradesh, is not clear from the

investigation that has been carried out. He also submitted that

initially there was no conspiracy of murdering Kausarbi, and in fact,

it is because of the insistence of Kausarbi that she would accompany

her husband that she was brought to Gujarat. He submitted that

there is absolutely nothing to show that when, and in what manner,

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and by whom, Kausarbi was killed. Indeed, there is substance in

this contention which, in fact, has not been controverted by the

learned counsel for the CBI.

17 There is nothing to show that the applicant was aware

of the conspiracy to kill Sohrabuddin before he was brought at

Ahmedabad from Andhra Pradesh. There is nothing to indicate that

he had taken any part in the detention of Sohrabuddin and Kausarbi

at the farm house, and in fact, fake encounter of Sohrabuddin

which took place as planned. In fact, at the cost of repetition, it

may be emphasized that, that is not the allegation at all against the

applicant. A perusal of the police report which describes the roles

attributed to various accused persons, indicates that the applicant

came in picture only after the fake encounter of Sohrabuddin.

18 The case of the Investigating Agency is that Kausarbi

who was earlier kept in Disha farm house, was taken away by the

ATS Officers of Gujarat Police in a Fronti car to Arham farm. There

is a vague assertion in the charge-sheet that she was thereafter,

eliminated by the 'accused persons', and that her body was burnt in

the village 'Illol'.

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19 The only precise allegation against the applicant is that

he had brought the dead body of Kausarbi to the place where it was

eventually cremated. There is material to show that the dead body

of Kausarbi was brought in a jeep in which the applicant was also

sitting. The learned counsel for the Respondent no.1 specifically

pointed out in paragraph nos.28 and 29 of the police report/charge-

sheet for showing the role attributed to the applicant in the alleged

offences; and the perusal of the contents of these paragraphs

indicates that the only material against the applicant is that he was

sitting in the jeep in which the dead body of Kausarbi had been

kept. In fact, the learned counsel for the Respondent no.1 conceded

that except this, and the fact that he was in touch with the co-

accused Amitbhai Shah (Accused no.16), who was at the material

time, the Home Minister of Gujarat, there is no other material

against the applicant.

20 Mr.Ram Jethmalani, in this regard, submitted that the

telephonic contacts between the co-accused Amitbhai Shah and the

applicant cannot be construed as a circumstance implicating the

applicant, at all. He submitted that, at the material time, there was

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a case of kidnapping and in connection with that case, the applicant

had to speak on a number of occasions with Amitbhai Shah, who

was then, the Home Minister. He pointed out that there was no

material to indicate as to what were the conversations.

21 Mr.Jethmalani, the learned Senior Counsel contended

that the reliability of the only material against the applicant i.e.

that the applicant had travelled in the same vehicle in which the

dead body of Kausarbi was brought to the place of cremation is

doubtful even at this stage. He pointed out that there are a number

of discrepancies in the material collected during investigation in

that regard.

22 I decline to go deeper into the matter at this stage for

making an attempt to judge the prima facie acceptability or

reliability of the material against the applicant. However, even after

taking the material as it is, there are some glaring aspects of the

matter, which cannot be overlooked. There is no material in the

charge-sheet to indicate by whom, when and in what manner

Kausarbi ws actually killed. At which place the body of Kausarbi

was put in the jeep, is also not revealed. At which place the

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applicant boarded the said jeep, is also not revealed. It has been

conceded that the investigation that has been carried out does not

throw any light on these aspects. Therefore, the question is

whether in the absence of any light being thrown on these aspects,

and only from the fact that the applicant had brought the dead

body of Kausarbi along with him to the place where Kausarbi was

cremated, an inference that the applicant was concerned with, and

involved in the murder of Kausarbi can,prima facie,be drawn. This

seems to be doubtful, keeping in mind that the applicant was not a

party to the original conspiracy that was hatched between the police

officials of ATS Gujarat and the police officials of the STF Rajasthan.

When the case of the Investigating Agency is seen as a whole, the

murder of Kausarbi was not initially planned. Kausarbi insisted on

accompanying her husband Sohrabuddin, and that is how she was

brought to Ahmedabad. She was killed as perhaps, there was no

other alternative after the killing of Sohrabuddin as Kausarbi could

have been a witness to what had happened. If the applicant was

not taken in confidence with respect to the killing of Sohrabuddin,

the likelihood of his having been taken in confidence before killing

Kausarbi, cannot be readily presumed. The possibility of the

applicant's help having been taken (only) for the disposal of

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Kausarbi's body, cannot altogether be ruled out in the facts and

circumstances, but even on the basis that the applicant was involved

in the conspiracy to murder Kausarbi, his role in the matter cannot

be treated to be on par with those who were parties to the initial

conspiracy of kidnapping and murdering Sohrabuddin. Even

according to the learned counsel for the Respondent no.1, the

applicant was a part of what is called by him as 'Stage-3 conspiracy '.

23 The role of the applicant is of a lesser gravity when

compared to that attributed to the some other accused, including

the Accused no.4 whose Bail Application has been rejected by me.

24 The applicant is also not keeping good health. It may

be recalled that to ascertain the seriousness of the ailments from

which he is said to be suffering, and to verify the claims made in

that regard, by an order dated 20 February 2014, a report was

called for, from the Chief Medical Officer of the Civil Hospital,

Ahmedabad where the applicant is presently lodged. The report

that has been received shows that the applicant has been

hospitalized since 20 March 2012. From 20 March 2012 to 28

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September 2012, he was admitted as an indoor patient at CIMS

Hospital, Ahmedabad, and thereafter, he is being treated as indoor

patient at the Civil Hospital Ahmedabad. The Summary Report of

the health condition of the applicant as mentioned in the said report

is as under:-

Patient is suffering from Severe

obstructive sleep apnea (OSA) syndrome,

Diabetes Kellitus type II, Hypertension,

Bicuspid Aortic Valve, Left frozen

shoulder, Right sided sciatica, cervical

spondylosis with Morbid Obesity.

For treatment of severe obstructive

sleep apnoea the gold standard treatment is

long term use of C-PAP (continuous positive

airway pressure) machine with humidifier

and Nasal Mask during sleep. On records

from C-PAP Machine, daily Sleep time (TST)

Remains variable (1.40 to 9.33 hours) and

daily AH1 remains in the range of 0.2 to

2.4 with average AH1 1.0. The Auto C-PAP

mean pressure required pressure for less

than or equal to 90% of time is 12.9 cm of

H2O.

For other Medical illness he is on

Anti diabetic drugs, anti hypertension

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drugs, other symptomatic drugs,

physiotherapy and cardiac rehabilitation by

physiotherapist.

25 Mr.Venegavkar, learned counsel for the CBI conceded

that the applicant is alleged to be involved in the matter only with

respect to the killing of Kausarbi, and not with the earlier part

thereof viz. of bringing Sohrabuddin from Andhra Pradesh, killing

him and lodging of a false First Information Report to show the

death as having occurred in an encounter with the police. He also

conceded that the applicant is suffering from serious ailments, and

is hospitalized since a period of about one year. His contention is

that the applicant is being treated properly in the Civil Hospital and

not that the applicant is suffering from serious health problems

requiring hospitalization.

26 The main thrust of the arguments advanced by Shri

Venegavkar while opposing the bail application is on the fact that

the bail granted to the applicant by the Special Court previously,

was cancelled by the High Court of Gujarat and that the

cancellation of the bail was upheld by the Supreme Court of India.

He has placed much reliance on the observations made by the High

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Court of Gujarat in Criminal Misc. Application No.12646 of 2007

decided on 25 January 2008, whereby the bail granted to the

applicant by the Sessions Court, was cancelled.

27 I have gone through the observations made by the

learned Single Judge of the Gujarat High Court in the said order,

which were emphasized by Mr.Venegavkar. I am unable to accept

that the circumstances, as were existing at that time, have not

changed at all.

28 In the first place, the investigation was at a crucial

stage at that time, which is a factor which much weighed with the

High Court of Gujarat in cancelling the bail granted to the

applicant. Now, the matter has been investigated by different

agencies and it is conceded before me that the investigation is

almost complete. This itself is a major change in the circumstances

justifying a re-look at the matter.

29 Secondly, the health condition of the applicant seems to

have much deteriorated since 20 March 2012 as evidenced from the

fact that he has been continuously hospitalized since then. Serious

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ill-health is also a relevant circumstance while considering the

question of grant of bail.

30 Thirdly, that order was passed in January 2008 i.e.

more than five years back. The applicant previously was released

on Anticipatory Bail, and as such, had not been, sufficiently or

satisfactorily interrogated by that time. It is nobody's case now that

the applicant is required to be interrogated any further.

31 The contention of Mr.Venegavkar that delay in holding

the trial and the length of the pre-trial detention is not a relevant

consideration for bail, cannot be accepted. Though by itself, it may

not be sufficient to justify the release on bail in case of serious

offences, that it is an extremely relevant consideration, cannot be

doubted.

32 I am, therefore, unable to accept the contention of

Mr.Venegavkar, the learned counsel for the CBI that the High Court

of Gujarat having cancelled the bail granted to the applicant

previously, the question of grant of bail to him, at this stage, cannot

be considered by this Court, as that would amount to

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reconsideration of the same issues dealt with by the High Court of

Gujarat at that time, which, according to him, is not permissible.

33 Considering (i)the role attributed to the applicant in

the alleged offences, as per the charge-sheet itself, (ii) the nature of

material by which it is supported, and (iii) that the applicant is in

custody for a period of more than five years, as also the fact that

(iv) he appears to be suffering from serious ailments and has been

hospitalized on 20 March 2012, I think it fit to release him on bail.

34 Application is allowed.

35 Applicant is ordered to be released on bail in the sum

of Rs.30,000/- with one surety in like amount.

36 At this stage, on oral prayer of Mr.Venegavkar, the

learned counsel for the CBI, it is directed that this order shall not

take effect for a period of two weeks from today.

(A.M.THIPSAY, J)

amin bombay hc order granting bail

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