Imran @ Immu Abdul Gaffar Dudala vs State Of Gujarat

Gujarat High Court

Imran @ Immu Abdul Gaffar Dudala vs State Of Gujarat on 18 December, 2023

Author: Ilesh J. Vora

Bench: Ilesh J. Vora

                                                                              NEUTRAL CITATION




     R/CR.MA/20448/2023                          ORDER DATED: 18/12/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (FOR SUCCESSIVE REGULAR BAIL -
           AFTER CHARGESHEET) NO. 20448 of 2023

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                    IMRAN @ IMMU ABDUL GAFFAR DUDALA
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR ANSHIN DESAI, SR. ADV WITH MR ABHIJEET J SINGH(12073) for the
Applicant(s) No. 1
MR KARMANYASINGH V RORE(10920) for the Applicant(s) No. 1
MR MITESH AMIN, PP WITH MS. MAITHILI MEHTA APP for the Respondent
No. 1
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 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                             Date : 18/12/2023

                              ORAL ORDER

1. By way of this successive bail application, the applicant - original accused no. 7 Imran @ Immu Abdul Gaffar Dudala is seeking regular bail under Section 439 of the Cr.P.C., in connection with the FIR being CR No. 11821030200568 of 2020 registered with Jhalod Police Station, Dist.: Dahod, for the offences punishable under Sections 302, 303, 120B and 201 of the Indian Penal Code. Pursuant to the FIR, the chargesheet and supplementary chargesheet came to be filed on 08.01.2021 and 22.03.2021 respectively and same has been culminated into Sessions Case Nos. 10 of 2021 and 49 of 2021.

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2. The applicant accused no. 7 was apprehended on 29.12.2020. The first bail application after chargesheet came to be rejected by the Sessions Court, Dahod, on 28.05.2021. The applicant accused approached this Court against the order of the Sessions Court. The said application came to be rejected by this Court on 23.05.2022. The applicant moved a Special Leave to Appeal (Cri.) No. 7342 of 2022 against the order of this Court. The Apex Court vide its order dated 04.05.2023 disposed of the Special Leave to Appeal reserving the liberty of renewing the prayer of the bail before the trial Court after expiry of 4 months and directed the trial Court to examine the material witnesses, which were 6 in numbers, disclosed by the Investigating Officer in his affidavit.

3. The applicant accused no. 7 after recording the evidence of 5 witnesses, as disclosed by the IO in the affidavit before the Apex Court and in view of the aforesaid liberty, moved an application seeking regular bail before the Sessions Court, Dahod. The Court concerned vide its order dated 16.09.2023, after hearing the parties, rejected the said application.

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4. In the aforesaid background facts, the applicant -

accused Imram is before this Court seeking his regular bail on the ground mentioned in the application.

5. This Court has heard learned Senior Counsel Mr. Anshin Desai assisted by Mr. K.V. Rore, learned counsel appearing for the applicant - accused and Mr. Mitesh Amin, learned Public Prosecutor assisted by Ms. Maithili Mehta, learned Additional Public Prosecutor for the respondent State.

6. Mr. Anshin Desai, learned Senior Counsel, assailing the order impugned passed by the Sessions Court, Dahod, has submitted that, the entire prosecution case is based on the circumstantial evidence. That, the prosecution failed to establish complete chain of evidence. That, the cause of death does not indicate the theory of death caused by accident, as report of PM failed to specify the said aspect. That, there is a delay in lodging the FIR. That, the applicant accused no. 7 arraigned as an accused on the basis of statement of co-accused. That, the disclosure statement made in the panchnama would hit by Sections 24 and 25 of the Evidence Act. That, there is no material against the accused to establish his involvement with the co-accused. That, nothing Page 3 of 12 Downloaded on : Tue Dec 19 20:45:28 IST 2023 NEUTRAL CITATION R/CR.MA/20448/2023 ORDER DATED: 18/12/2023 undefined incriminating seized or recovered at the behest of the applicant -accused. That, based on the CDR, he has been falsely involved by the investigation agency. That, the material witnesses cited before the Apex Court are turned hostile. That, the prosecution has arraigned the applicant accused with the aid of Section 120B of the Indian Penal Code, for which, nothing brought on record to establish the meeting of mind with the co-accused, so as to prove the element of criminal conspiracy.

7. Mr. Desai, learned Senior Counsel has further submitted that, the chargesheet against the applicant came to be filed in the year 2021. In the chargesheet, 127 witnesses in support of the prosecution case have been cited. Out of 127, 13 witnesses having been examined by the court concerned, which includes 5 material witnesses, which were cited before the Apex Court by way of affidavit and considering the deposition of the material witnesses, prima-facie, nothing brought on record against the applicant to establish the alleged conspiracy to kill the deceased. Referring the charegesheet case papers and evidence of the witnesses already examined, learned counsel Mr. Desai has submitted that, according to case of the prosecution, the applicant had given a contract to Page 4 of 12 Downloaded on : Tue Dec 19 20:45:28 IST 2023 NEUTRAL CITATION R/CR.MA/20448/2023 ORDER DATED: 18/12/2023 undefined one Irfan Pada for killing Hiren Patel. In order to substantiate said allegation, nothing come on record that, the applicant was involved in the said contract killing. That, the Investigating Agency was unable to seize the alleged picked-up vehicle (Dalu) nor arrested the driver of the vehicle and there is no evidence that, before the alleged incident, the applicant has done reiki to enable the accused no. 3 to execute the crime. That, so far charge under Section 120B of the Indian Penal Code is concerned, the prosecution has miserably failed to establish the prior making of mind of the applicant and co-accused and thus, the prosecution miserably failed to establish the involvement of the applicant accused by chain of circumstances as referred above.

8. Mr. Desai, learned Senior Counsel has further submitted that the learned Sessions Court ought to have considered the direction of the Apex Court in its true prospective. The Sessions Court in a mechanical and casual manner, without assigning sufficient reasons rejected the application. The Special PP incharge of the case before the trial Court, did not mention that over and above 6 witnesses still material witnesses are yet to be examined and on this ground alone, the order impugned is not sustainable in law, and same has been passed Page 5 of 12 Downloaded on : Tue Dec 19 20:45:28 IST 2023 NEUTRAL CITATION R/CR.MA/20448/2023 ORDER DATED: 18/12/2023 undefined against the sound and settled principles of bail, observed by the Apex Court in its various judgments.

9. Lastly, he has submitted that, the applicant is permanent residence of village Dahod and Court may impose any strict condition, which may deem it fit and proper and there is no likelihood to conclude the trial in near future and considering the role attributed to present applicant and evidence in support of the charge and long period of his incarceration, as an under trial prisoner, case is made out to enlarge him on bail.

10. On the other hand, countering to the submissions, learned Public Prosecutor Mr. Mitesh Amin has opposed the grant of bail to the applicant. Referring the contents of the additional affidavit filed by Assistant Superintendent of Police, Dahod Division, at page- 117 of this bail application, to contend that it is no doubt true that, names of 6 important witnesses were being disclosed before the Apex Court and at the same time, in para-5 of the said affidavit, right was reserved to examine additional important witnesses. In that view of the matter, Mr. Amin, submitted that, the arguments advanced by the accused after examination of 6 witnesses, the prosecution cannot examine the other witnesses, Page 6 of 12 Downloaded on : Tue Dec 19 20:45:28 IST 2023 NEUTRAL CITATION R/CR.MA/20448/2023 ORDER DATED: 18/12/2023 undefined who are important and material for the fair trial, is misconceived. Mr. Amin, has received the instructions from the Special Public Prosecutor, in- charge of the trial and the same is part of the record. Relying on the letter of the Special P.P., he submitted that, there are large number of material witnesses, who are yet to be examined.

11. Mr. Mitesh Amin, the learned Public Prosecutor has submitted that, this Court vide order dated 23.05.2022, had rejected the bail application of the applicant - accused on merits. The arguments advanced by the accused herein had been dealt with by this Court while rejecting the earlier bail application and thus, therefore, the offence alleged is grave and serious and there are chances of witnesses being influenced, if the bail is granted.

12. Lastly, Mr. Mitesh Amin, learned PP submitted that, when there is a prima-facie case, that the applicant accused being a part of the alleged conspiracy had actively participated in the offence and his involvement is established, in that case, no case is made out to exercise judicial discretion.

13. The brief facts of the prosecution case would necessary to refer before adverting to the Page 7 of 12 Downloaded on : Tue Dec 19 20:45:28 IST 2023 NEUTRAL CITATION R/CR.MA/20448/2023 ORDER DATED: 18/12/2023 undefined contentions raised by respective parties.

14. According to case of the prosecution, criminal conspiracy alleged to have been formed to commit the murder of Hiren Patel, resident of city Jhalod, Dist.: Dahod. The accused have had hatched the criminal conspiracy to kill the deceased and in furtherance to said criminal conspiracy, the contract killing was given to accused no. 3 Irfan Pada to accused No. 4 Ajay Kalal and present applicant no. 7 Imran Gudala, by accused no. 8 Amit Katara, who had a political animosity with the deceased and accordingly, when deceased was on his morning walk, he was killed by speeding pick-up vehicle, so that, entire episode seen as an accident. So far role attributable to present applicant is concerned, he along with accused no. 4 went to meet accused Irfan Pada, 3 days prior to the alleged incident to conspire and plan to kill the deceased and had conducted reiki of the deceased and passed on said information to the accused Irfan Pada and on the day of incident, he along with Ajay Kalal, met the Irfan Pada and he was constantly in touch with the accused on his mobile phone. In other words, the applicant had actively participated in the offence, so as to execute the alleged conspiracy.

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15. Having heard the learned counsel for the respective parties and on perusal of the material placed on record, this Court is of the considered view that, considering the seriousness and gravity of the offence and the evidence in support of the charge, this Court is not inclined to exercise its judicial discretion in favour of the applicant.

16. The right to file a successive bail application was reserved by the Apex Court, as before the Apex Court, names of 6 material witnesses, who were not examined, had been mentioned in the affidavit filed by the Investigating Agency. However, upon close scrutiny of the affidavit filed before the Apex Court, the Investigating Agency did not give up their right to examine the other witnesses. On the contrary right was reserved to examine necessary material witnesses. The list of other witnesses submitted by the Special P.P in-charge of the case, would show that, the large number of material witnesses are yet to be examined. Thus, as a matter of course, the applicant accused cannot claim the discretionary relief of bail on the ground that, out of 6 witnesses, 5 witnesses have already been examined and his case may be considered.

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17. The next contention is that, in view of number of witnesses, the trial will not conclude in a reasonable time and thus, in view of long incarceration of the applicant, his case may be considered. In the case of delay in trial, there are no hard and fast rules regarding grant and/or refusal of bail, as each case has to be considered on its own merits. It is settled position of law that while claiming the fundamental rights enshrined under Article 21, the court has to strike balance between the right of individual liberty and the interest of the society, as no right is absolute and reasonable restrictions can be placed on them. The basic rule is that, where there is a undue delay in trial of the case and accused has not contributed to the delay, then, he is entitled to be released on bail. However, mere a fact that, the accused has undergone certain period, by itself would not entitle him to enlarge on bail. In the facts of present case, considering the period undergone by the accused, it cannot be said that, there is inordinate delay or undue delay in the trial. In the facts of the present case, the progress of the trial is satisfactory and thus, the plea of bail on the basis of his long incarceration cannot be accepted.

18. The another ground raised is that, there is no sufficient material or evidence to link the applicant -

NEUTRAL CITATION R/CR.MA/20448/2023 ORDER DATED: 18/12/2023 undefined accused in the alleged offence. On the factual aspect, the issue as raised in para- 6 of this order, in support of granting bail, cannot be considered at this stage as it has to be considered at the time of trial by the court concerned and thus, when the matter is at the stage of recording the evidence, this Court do not deem it fit to discuss at length the arguments canvassed by the accused, as it may cause prejudice the right of either prosecution or the accused. It needs to be noted that, most of the contentions raised in para-6 of this order, had been dealt with by this Court while rejecting the earlier bail application.

19. It has been vehemently submitted that, the Sessions Court concerned has mechanically and in casual manner disposed of the bail application. The Sessions Court while rejecting the bail application, in para-4 of the order, has observed that, ...."In the case on hand, this Court has examined 12 witnesses and yet more than 100 witnesses are yet to be examined by this Court, out of time, some are material witnesses, hence, it is too early to say that the prosecution has failed to establish the chain of circumstances and the applicant is a local resident of Jhalod Taluka and if he is enlarged on bail, the possibilities of terming or hampering with the case of prosecution cannot be ruled out."

NEUTRAL CITATION R/CR.MA/20448/2023 ORDER DATED: 18/12/2023 undefined In view of the observations made by the Sessions Court concerned, it cannot be said that, the bail application has been rejected mechanically and in casual manner and without assigning sufficient reasons.

20. For the reasons recorded hereinabove, and taking into consideration the peculiar facts and circumstances of the present case, nature of allegations, gravity of offence, role attributable to the accused, this Court is not inclined to release the applicant on bail.

21. Resultantly, the application stands dismissed.

(ILESH J. VORA,J) P.S. JOSHI Page 12 of 12 Downloaded on : Tue Dec 19 20:45:28 IST 2023