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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)