Rinku Rampal Dhiman (Mistry) (Chande) vs State Of Gujarat

Divyesh A. Joshi, J

Rule. Learned APP waives service of notice of rule for respondent – State of Gujarat.

The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with the FIR being C.R. No.I-170/2016 registered with the Gandhidham ‘B’ Division Police Station for the offence punishable under Sections 302, 307, 120(B), 34 and 212 of the Indian Penal Code, under Sections 25(1)BA and 27(2) of the Arms Act and under Section 135 of the Gujarat Police Act.

Learned advocate for the applicant submitted that the so-called incident has taken place on 01.08.2016, for which, the FIR has been lodged on the very next day i.e. on 02.08.2016 and the applicant has been arrested in connection with the same on 23.02.2023 and since then, he is in judicial custody. Learned advocate submitted that now the investigation is completed and after submission of the chargesheet, the present application is preferred. Learned advocate submitted that FIR has been lodged against accused, Afroz Ansari and two unknown persons and after registration of the FIR, the investigation was carried out and at the end of investigation, the chargesheet came to be filed against the said accused, Afroz Ansari. Learned advocate submitted that it is the case of the prosecution that the accused, Afroz Ansari has given contract of killing of his boss to the sharp-shooters and as a part of said contract, the accused, Alimohamad Ansari and the present applicant had come to Gandhidham and on reaching there, they have made recce of the deceased and on the day of alleged incident, the present applicant and the co-accused Alimohamad Ansari had gone to the place of occurrence on the motorbike and at that point of time, the applicant was sitting as pillion rider, however, the co-accused, Alimohamad Ansari had fired upon the deceased, as a result of which, the deceased died on the spot. Learned advocate submitted that as per the case of the prosecution, the present applicant has been shown as pillion rider along with the main accused and he had gone along with the main accused, except this, there is no role attributed to him. Learned advocate submitted that the co-accused, Alimohamad Ansari, who had fired upon the deceased, has been considered by the Coordinate Bench of this Court.

Learned advocate submitted that the alleged incident has occurred in the year 2016 and recently in the month of February, 2023, the applicant has been arrested and, thereafter, chargesheet against him has been filed before the concerned court and at the time of filing chargesheet, the prosecution has come with specific case that the present applicant is also involved in the commission of crime and he had also fired upon the deceased, however, there is no recovery or discovery of muddamal Gun at the instance of the present applicant – accused, however, the applicant – accused has been identified by the witnesses, who were present along with the deceased at the time of commission of crime. Learned advocate, therefore, submitted that thus the prosecution has come with two different stories i.e. first at the time of registration of the FIR, it is alleged that the applicant was pillion rider and did not fire upon the deceased and at the time of filing charge-sheet, it is alleged that the applicant and the accused, Alimohamad Ansari both had fired upon the deceased and during the course of investigation, only one Gun is recovered by the IO. Learned advocate further submitted that as stated above, the co-accused, Ali Ansari has been considered by the Coordinate Bench of this Court and for the sake of arguments without admitting that if the case of the prosecution is believed to be true, in that event, it can be said that the role of the present applicant can be said to be at par with the said accused, Ali Ansari, who has been considered by the Coordinate Bench of this Court and, hence, the case of the applicant may be considered.

Learned advocate further submitted that main accused, Afroz Ansari, who was caught at initial stage by the IO has not been considered by the Court at the relevant point of time and he was in jail and against him, trial was proceeded further and at the end of trial, an order of conviction has been passed against him, which has been assailed by him before this Court by filing appeal, wherein, he was granted bail pending said appeal, however because of violation of condition, an application for cancellation of bail was preferred, which was allowed and ultimately, he was taken into custody and as on date, he is in jail.

Learned advocate further submitted that during the course of investigation, the concerned IO has recorded the statements of number of witnesses, more particularly, statement of one Mukesh Parmar, wherein the said witness has categorically stated that at the time of incident, one fatty person was found available at the place of occurrence and he had fired upon the deceased, however, the applicant is not fatty person and the said fact is also found out from the statements of other witnesses. Learned advocate submitted that every time, the prosecution has come with different story just to involve the present applicant in the aforesaid commission of crime. Learned advocate submitted that there was one antecedent against the present applicant – accused, wherein the present applicant – accused has been acquitted by the concerned court and thus as such, there is no antecedent against the applicant. It is, therefore, urged that considering the nature of the offence, the applicant may be enlarged on regular bail by imposing suitable conditions.

Learned APP for the respondent-State has opposed grant of regular bail looking to the nature and gravity of the offence. It is submitted that the role of the present applicant is clearly spelt out from the papers of the chargesheet. Learned APP submitted that the applicant is a sharp-shooter and the accused no.1 has hatched conspiracy to eliminate his earlier boss and as a part of said conspiracy, a contract of killing was given to the applicant. Learned APP submitted that the alleged incident is of the year 2016 but the applicant has been arrested recently in the month of February, 2023 and during all these days, he has evaded his arrest. Learned APP submitted that the applicant is basically belonging to different State and there are all possible chances that once he is enlarged on bail then, he would flee away and ultimately trial will get delayed. Learned APP submitted that at the time of incident, other persons were sitting along with the deceased in the Car and after the arrest, the applicant was identified by those persons and he has actively participated in the commission of crime and he has fired upon the deceased along with another co-accused, Alimohamad Ansari. Learned APP submitted that so far as the main accused, Afroz Ansari is concerned, he was throughout in jail till his conviction and the order of conviction has been challenged by him before this Court by filing appeal, wherein earlier bail was granted, however on account of violation of conditions, an application for cancellation of bail was preferred, which was allowed and, hence, he was taken into custody and as on day, he is in jail. Learned APP, therefore urged that considering the above factual aspects, the present application may not be entertained.

I have heard the learned advocates appearing on behalf of the respective parties and perused the papers of the investigation and considered the allegations levelled against the applicant and the role played by the applicant. It is found out from the record that the present application is preferred after submission of the chargesheet and now the investigation is completed and the applicant is in jail since 23.02.2023. It is found out from the record that there are two stories put forward by the prosecution i.e. first at the time of registration of offence and second at the time of filing chargesheet against the applicant. There is no recovery or discovery at the instance of the present applicant – accused. It is found out that against main accused, Afroz Ansari, trial has been concluded and an order of conviction is passed, which is assailed before this Court by filing appeal, which is pending for its final adjudication. I have also considered the role attributed to the present applicant and the role attributed to the co-accused, Alimohamad Ansari, who has been considered by the Coordinate Bench of this Court and the said accused is attributed more role than the present applicant – accused. The observations made by the Coordinate Bench of this Court while passing order in case of co-accused, Alimohamad Ansari read as under,

“(a) applicant is in jail since 15.08.2019;

(b) investigation is over and charge-sheet is filed;

(c) it is submitted by learned advocate for the applicant that applicant has been implicated on the basis of the statement of the co-accused;

(d) it is further submitted that in the statement given by one Sanju @ Sanjiv Batla which was recorded on 13.08.2016, he has not disclosed about the so-called conspiracy with regard to the present applicant and the co-accused;

(e) it is further submitted that after a period of almost three years when another statement of the said witness has been recorded on 22.08.2019, he has disclosed about the alleged conspiracy made by the present applicant with the co-accused;

(f) it is further submitted that co-accused Mohammad Rafiq Lal Mohammad Bara has been enlarged on bail by this Court vide order dated 17.12.2019. Copy of the said order is placed on record at page 67.

(g) it is further submitted that the main accused, who has been named in the FIR, i.e. Afroz Sarkudin Ansari has been convicted by the concerned trial Court. However, the said accused has filed an appeal along with an application for suspension of sentence. The Division Bench of this Court, vide order dated 01.07.2019, has suspended the sentence of the said accused and thereby enlarged him on bail pending the appeal. Copy of the said order is placed on record at page 56.

(h) it is further submitted that except the statement of the co-accused, there is no other legal evidence in the papers of the charge-sheet against the applicant;

(i) it is further submitted that witness Sanju @ Sanjiv Batla was not examined by the prosecution during the course of the trial which was conducted against Afroz Sarkudin Ansari;

(j) on the other hand, learned APP has vehemently opposed this application. However, learned APP is not in a position to controvert the aforesaid submissions canvassed by learned advocate Mr. Nanavati for the applicant on the basis of the papers of the charge-sheet

(k) I have considered the submissions canvassed by the learned advocate for the applicant. I have also perused the material placed on record and considered the role attributed to the applicant;”

Therefore considering the above factual aspects as also considering the role attributed to the present applicant at the time of commission of crime and on the ground of principle of law of parity, the present application deserves to be allowed.

This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra v. Central Bureau of Investigation, reported in [2012] 1 SCC 40 as well as in case of Satender Kumar Antil v. Central Bureau of Investigation & Anr. reported in (2022) 10 SCC 51.

In the facts and circumstances of the case and considering the nature of the allegations made against the applicant in the FIR, without discussing the evidence in detail, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.

Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with the FIR being C.R. No.I-170/2016 registered with the Gandhidham ‘B’ Division Police Station on executing a personal bond of Rs.15,000/- (Rupees Fifteen Thousand only) with one 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 liberty or misuse liberty;

[b] not act in a manner injuries to the interest of the prosecution;

[c] surrender passport, if any, to the lower court within a week;

[d] not leave the State of Gujarat without prior permission of the Sessions Judge concerned;

[e] mark presence before the concerned Police Station on alternate Monday of every English calendar month for a period of six months between 11:00 a.m. and 2:00 p.m.;

[f] furnish the present address of residence to the Investigating Officer 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;

The authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the concerned Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law.

At the trial, the trial Court shall not be influenced by the observations of preliminary nature qua the evidence at this stage made by this Court while enlarging the applicant on bail.

Rule is made absolute to the aforesaid extent. Direct service is permitted.