Bombay High Court
Javed Sajed Patel vs Shaikh Naser S/O. Shaikh Abdul ... on 4 July, 2022
Bench: S. G. Mehare
1 ABA.753-2022+1.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
ANTICIPATORY BAIL APPLICATION NO.753 OF 2022
SHAIKH NASER S/O SHAIKH ABDUL WAHED PATEL
VERSUS
THE STATE OF MAHARASHTRA
WITH
CRIMINAL APPLICATION NO.2025 OF 2022
IN ABA NO.753 OF 2022
JAVED S/O SAJED PATEL
VERSUS
SHAIKH NASER S/O SHAIKH ABDUL AND ANOTHER
...
Advocate for Applicant : Mr. V. D. Sapkal (Senior Counsel) i/b
Mr. S. S. Kazi.
APP for Respondent-State : Mr. G. O. Wattamwar.
Advocate for Applicant in application to assist APP : Mr. Govind
A. Kulkarni.
...
CORAM : S. G. MEHARE, J.
RESERVED ON : 23.06.2022
PRONOUNCED ON : 04.07.2022
ORDER:-
1. Heard the learned senior counsel Mr. Sapkal for the
Applicant and the learned APP along with Mr. Kulkarni
assisting the learned APP for the respondent-State at length.
2. The Applicant is an Advocate is arraigned as an accused
in Crime No.28 of 2022 for the offences punishable under
Sections 302, 143, 147, 148 and 149 of the I.P.C. It has been
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alleged that on 15.01.2022, at about 9.00 p.m., the deceased
left home to attend the birthday ceremony of his friend on a
bullet. His phone was replying as switched off. Therefore, the
first informant went to search for him. He found him in front
of a pan shop smoking cigarettes. At that time, all accused
rushed to the deceased. One co-accused Taleb Sultan Chaus
stabbed the deceased with a knife, and the other co-accused
have also stabbed him and beat him with kicks and blows. The
applicant was one of the accused amongst them. He was seen
on the scene of the occurrence and stabbed the deceased. The
deceased succumbed to the injuries caused to him by the
accused.
3. The learned senior counsel would submit that one
Shaikh Yunus Shaikh Sikandar Patel and his brother Shaikh
Zakir assaulted the accused with the intent to kill him. In the
said attack, the applicant suffered serious injuries. He lodged a
report, and F.I.R. bearing No.273 of 2020 was registered
against them on 01.08.2020 for the offences punishable under
Sections 307, 120-B, 427, 323, 504, 143, 147, 148 and 149 of
the I.P.C. The accused in the said crime were released on bail
by the Sessions Court. The applicant has moved an application
for cancellation of bail before the High Court. However, those
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accused had threatened the wife of the applicant and tried to
pressure him to withdraw the application for cancellation of
bail. They had also threatened the applicant that if he would
not take the cancellation of his bail application back, then they
have the next plan of acid attack. A report of that incident was
also lodged. On the said report, N.C. was registered against
them. He also argued that said person, namely Shaikh Younus,
with some anti-social elements, had assaulted the applicant
and tried to take his life thrice. Therefore, an offence under
Section 307 of the I.P.C. was registered against them. On
30.11.2021, the applicant gave one representation to the
Commissioner of Police, stating that the said persons were
pressurizing him to withdraw the application for cancellation
of bail.
4. Learned senior counsel Mr. Sapkal would further argue
that the applicant has been falsely implicated in the crime. At
the time of the alleged incident, he was in his home along with
his family members. He sent various messages through
Whatsapp to the Commissioner of Police expressing
apprehension of implicating him in a false crime, as threats
were given to him. His father made an application on
20.01.2022 addressed to the Commissioner of Police to collect
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the data from the C.C.T.V. camera at the time of the alleged
murder. But neither the Commissioner of Police nor the
Investigation Officer took care and collected the evidence
showing that he was not present on the spot of the incident
and has been falsely implicated in the crime. The President of
the District Bar Association and other advocates also requested
the Commissioner of Police to conduct the proper inquiry. The
Commissioner of Police was informed that the applicant was
falsely implicated. The Commissioner of Police assured them
that he would personally look into the matter and see that
innocents may not be arrested.
5. In a nutshell, the arguments of the learned senior
counsel for the applicant the Commissioner of Police and
Investigation Officer did not pay hid to the request of the
applicant to collect the data from the C.C.T.V. camera from the
house of the applicant, showing that he was in his house at the
alleged time of the incident. The copies from the said C.C.T.V.
camera were also placed before the learned Sessions Judge.
The learned Sessions Judge has watched the C.C.T.V. footage
and observed that the accused is seen at home at the relevant
time. However, the C.C.T.V. footage was the personal footage of
the house of the applicant; therefore, at this stage, it is difficult
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to rely on the C.C.T.V. footage. It was a material piece of
evidence. It was the duty of the Investigation Officer to collect
the evidence from the accused to unearth the truth and protect
innocents from implicating in the crimes. He has also referred
to the various Whatsapp messages sent to the zonal A.C.P. as
well as the print of the C.C.T.V. footage. He also vehemently
argued that the distance between the house of the accused and
the alleged spot of the incident is around 5 to 6 k.m. Therefore,
it is impracticable to manage the time at the hands of the
applicant. Section 120-B of the I.P.C. would not attract in this
case. No notice under Section 160 of the Cr.P.C. is yet served to
the applicant to remain present for investigation. The
Investigation Officer is unfair. He has not done a fair
investigation but is bent on implicating the applicant in a false
crime. A person may lie, but the circumstances do not. The
applicant is never absconded or fled away. He also relied on
the case of Babubhai Vs. State of Gujarat and others, Criminal
Appeal No.1599 of 2010 (Arising out of S.L.P. (Criminal)
No.2077 of 2010) Supreme Court dated 26.08.2010 . It has
been observed in this case that the investigating agency should
be fair and conscious so as to rule out any possibility of
fabrication of evidence, and his impartial conduct must dispel
any suspicion as to it genuineness.
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6. The learned APP and learned counsel, Mr. kulkarni have
strongly opposed the application. They have vehemently
argued that this Court cannot direct the Investigation Officer to
collect the C.C.T.V. footage as proposed by the accused. Such a
direction is impermissible. Hon'ble Apex Court in Prashant
Dagajirao Patil Vs. Vaibhav @ Sonu Arun Pawar and another
etc. in Criminal Appeal Nos.55-56/2021 (Special Leave
Petition (Criminal) Nos.5038-5039 of 2020) dated 19.01.2021 .
In the said case, the High Court had directed the Investigating
Officer to examine the C.C.T.V. footage and submit a report
before this Court.
7. Against the above directions, the Hon'ble Apex Court
observed that when only the limited issue of grant of regular
bail to the accused is pending consideration before the High
Court, it was not appropriate for it to pass the aforesaid
directions, which will have a direct bearing upon the trial. As
against this argument, the learned senior counsel, Mr. Sapkal,
would argue that the applicant is not seeking direction to
examine the C.C.T.V. footage and submit the report before the
Court. The applicant is barely requesting the Investigating
Officer to collect the C.C.T.V. footage of the date of the incident
as a part of the investigation.
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8. The question to be answered is whether the
applicant/accused may insist on the Investigating Officer
collect the evidence available to him in relation to the incident,
and is it the duty of the Investigating Officer to consider the
evidence tendered to him by an accused ?
9. The direction to the Investigating Officer to collect the
evidence by the Court and supplying/providing the evidence by
the accused are two different and distinct issues. Undoubtedly
the investigation should be fair. The Investing Officer must
examine the entire evidence he collected or produced before
him to unearth the truth.
10. The Investigating Officer has produced a page of Chapter
V of the Maharashtra Police Manual. Rule 137 of the said
Manual reads thus;
"137. Investigation to be impartial and local.- (1) Police
enquiries should always be impartial. It is the duty of the Police
to do all they can to find out the truth. An investigating officer is
to aim at discovering the actual facts and arresting the real
offender. He ought not prematurely to commit himself to any
view of the facts for or against any person. He should consider
carefully any evidence tendered to him on behalf of an accused
person. He should not make up his mind to be influenced by
evidence only."
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11. The above provision is explicit that the Investigating
Officer must receive the evidence tendered on behalf of the
accused. However, the Investigating Officer did not collect the
C.C.T.V. footage from the house of the accused though he
requested to collect it. In his reply dated 23.06.2022, he
explained that from time to time, Police went to the house of
the accused, but his house was locked. He has disappeared and
did not co-operate in the investigation. Therefore, he could not
enter his home and verify whether there was a C.C.T.V. camera.
On 15.03.2022, again, Police went to his house. At that time,
his wife was present. She told them that the accused did not
turn up home from 15.01.2022. She does not know where he
is. He made an inquiry about the passwords of the C.C.T.V.
camera. She replied that she did not know the passwords.
Therefore, they could not see and seize the C.C.T.V. camera.
The house search was taken, and a panchnama was drawn.
The defence of the accused that at the time of the incident, he
was in his home is concocted. There is a great possibility of
tampering with the C.C.T.V. footage to flee away from a serious
crime. Therefore, also the C.C.T.V. footage was not seized from
his house.
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12. The provision of the Maharashtra Police Manual supra is
clear that the accused may tender the evidence to the
Investigating Officer. Collecting the evidence by the
Investigating Officer and tendering the evidence on behalf of
the accused are two distinct things. The accused may tender
the evidence to disprove the charges under section 315 of
Cr.P.C. It is not a mere duty of the Investigating Officer to
bolster up the prosecution case with such evidence as may
enable the Court to record the conviction but to bring out the
truth. To bring out the truth, the Investigating Officer has to
evaluate the evidence collected by him and tendered to him.
Even the Court has no control over the investigation of
cognizable offences. Then how the accused can ask the
Investigating Officer to collect the evidence. Clause 137 of the
Maharashtra Police Manual speaks about tendering of the
evidence on behalf of the accused. On tendering such evidence,
the Investigating Officer has powers to examine the veracity of
the said evidence. The accused or his relative did not tender
the C.C.T.V. footage to the Investigating Officer, but instead of
tendering the C.C.T.V. footage, they insisted the Investigating
Officer visit their home and collect the C.C.T.V. footage from
their home. The electronic evidence may be tampered with
various devices available in the market. Therefore, until the
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Investigating Officer tests the veracity of such evidence, such
evidence cannot be received directly without tendering it to the
Investigating Officer, and the accused cannot insist the
Investigating Officer collect the evidence as requested by the
applicant. However, the accused has the liberty to tender such
evidence before the Investigating Officer. However, where the
evidence is tendered on behalf of the accused, it must be
received in the investigation. Bare receiving such evidence is
not sufficient. The Investigating Officer has to consider such
evidence carefully. Obviously, such evidence should be part of
the investigation papers and the charge sheet if filed against
the accused, tendering the evidence on his behalf. The purpose
behind the provision appears to have a fair opportunity for the
accused to give the evidence that may have a bearing on the
alleged offence and the incident. Merely tendering the
evidence on behalf of the accused does not bind the
Investigating Officer to accept the evidence as gospel truth. He
has the power to examine the veracity of such evidence.
13. From the submissions made by the learned senior
counsel Mr. Sapkal, it appears that the applicant has come with
the defence of alibi. The question is whether such a defence
can be considered at the stage of hearing the bail application.
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14. Section 11 deals with the doctrine of a plea of alibi. In
order to prove the alibi, such facts must be established by
reasonably conclusive evidence, and it must, when established,
accord a reasonable presumption or inference as to the matter
in dispute. The evidence of the alibi should be inconsistent
with any fact in issue or relevant fact. The fact of the presence
of the accused elsewhere is essentially inconsistent with the
presence at the place and time of the alleged incident. The
Hon'ble Apex Court, in the case of Mukesh and another Vs.
State of N.C.T. of Delhi and others A.I.R. 2017 Supreme Court
2161 has observed that the plea of "alibi" has to be weighed
against the positive evidence led by the prosecution i.e. not
only the substantive evidence of the witness and dying
declarations but also against the scientific evidence viz. the
D.N.A. analysis, fingerprint analysis and by bite marks analysis,
the accuracy of which is scientifically acclaimed. It is well
settled that the plea of alibi must be proved with absolute
certainty so as to completely exclude the possibility of the
presence of the person concerned at the place of the
occurrence.
15. The Applicant has come up with the case that at the time
and date of the alleged incident, he was watching T.V. in his
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home, and his presence was recorded on the C.C.T.V. camera.
We have already discussed tendering such evidence with the
Investigating Officer. Section 103 of the Indian Evidence Act
provides that the burden of proof as to any particular facts lies
on the person who wishes the Court to believe in its existence
unless it is provided by any law that the proof of that fact shall
lie on any particular person. Section 11 of the Evidence Act
raises no doubt that the burden to prove the alibi is on the
applicant/accused. He has to produce the evidence to weigh
against the positive evidence led by the prosecution. Herein the
case, the F.I.R. is lodged by the brother of the accused, who
was the eyewitness. He has specifically alleged the role played
by the applicant. The truthfulness of the electronic evidence is
subject to various tests.
16. Under Section 233 of the Code of Criminal Procedure,
where the accused is not acquitted under section 232, the
Court shall call the accused to enter upon his defence and
adduce any evidence he may in his support. He may request
the Court to issue summons to any witness. Another provision
is Section 315 of Cr.P.C. that provides that the accused may
give evidence on oath in disproof of charges made against him
or any person charged together with him at the same trial.
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Such opportunity is available to the accused after his
statement, if any, is recorded under Section 313 of Cr.P.C.
Section 169 Cr.P.C. enables the Officer-in-charge of the police
station to release the accused when there is not sufficient
evidence on his executing a bond to appear when required
before a Magistrate. Reading the above provisions of Cr.P.C.
together, it is explicit that the accused has the opportunity to
disprove the charges against him at different stages of trial and
investigation. Further reading clause 137 of the Maharashtra
Police Manual gives one more opportunity to disprove the
allegations against him. However, it is subject to the
satisfaction of the veracity of the Investigating Officer. Though
the various stages have been incorporated in Cr.P.C. and the
Maharashtra Police Manual, there appears no bar to raising a
plea of alibi at the time of anticipatory bail.
17. The law is also settled that the plea of alibi has to be
established on the basis of cogent and convincing material,
which is usually considered at the time of trial. An equal
opportunity should be made available to the prosecution to
rebut the evidence submitted by the accused by way of the plea
of alibi.
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18. The learned counsel assisting the learned APP placed
reliance on Prashant Singh Rajput Vs. State of Madhya Pradesh
and another 2021 S.C.C. Online S.C. 919 . Referring to the
judgment, the learned APP would submit that while granting
anticipatory bail, the Court has to consider the nature of the
offence, the role of the person, and the likelihood of his
influencing the course of the investigation, or tampering with
the evidence (including intimidating the witnesses), the
likelihood of fleeing from justice. The gravity of the offences
should also be borne in mind by the Court while considering
the application for anticipatory bail. It has also been added by
the learned APP that the applicant is a practising lawyer and
belongs to the political party. He has a good influence and is
likely to tamper with the prosecution witnesses.
19. The Court has to consider the material before it.
Considering the papers of investigation produced before the
Court, besides the serious offence of committing murder is
registered against the applicant. There are eyewitnesses, and
direct evidence of stabbing with a knife has been levelled
against him by the eyewitnesses. Therefore, the recovery of the
weapon and other evidence is necessary in the crime.
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20. I have gone through the entire papers filed by the
applicant and the investigation papers. The applicant has also
made a representation to the Commissioner of Police through
the members of the District Bar Association. It is alleged that
he has political connections. Therefore the possibility of
tampering with the evidence, including intimidating witnesses,
cannot be ruled out. As far as the role played by him is
concerned, the first informant has specifically stated that the
applicant stabbed the injured with a knife. Considering factual
aspects and the law laid down by the Hon'ble Apex Court as
regards anticipatory bail, this Court is of the view that the
applicant cannot be released on anticipatory bail. Hence, the
application stands dismissed.
21. Criminal Application No.2025 of 2022 to assist the APP
is allowed and accordingly disposed of.
22. Learned counsel for the applicant would pray for interim
protection for four (4) weeks. No interim protection was
granted to the applicant earlier. The offence is serious and
there are no grounds to grant him protection as prayed. Hence,
his request is declined.
(S. G. MEHARE., J.)
...
vmk/-
