Subhash @ Nati vs State Govt. Of Nct Of Delhi
2010 Latest Caselaw 1865 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                  Judgment reserved on: 06.04.2010
%                 Judgment delivered on: 09.04.2010

+                         BAIL APPLN. NO.431/2010


       SUBHASH @ NATI                                       ..... Petitioner
                               Through:   Mr. R.S. Malik, Advocate

                      versus


       STATE GOVT. OF NCT OF DELHI               ..... Respondent
                      Through:  Mr. Manoj Ohri, APP for the State
                                with Insp. Rakesh, P.S. Darya Ganj.



CORAM:

HON'BLE MR. JUSTICE VIPIN SANGHI

1.     Whether the Reporters of local papers may                   No
       be allowed to see the judgment?

2.     To be referred to Reporter or not?                          No

3.     Whether the judgment should be reported                     No
       in the Digest?


                                  JUDGMENT

VIPIN SANGHI, J.

1. The present application has been filed by the applicant

under Section 439 of the Cr.P.C. to seek regular bail. The applicant has

been in incarceration since 10.08.2004 in connection with the trial of

case bearing FIR No.99/2004 registered under Section 302/120B IPC

read with Sections 25/27/54/59 of the Arms Act, P.S. Darya Ganj, SC

No.90/09, pending in the Court of Ms. Shailender Kaur, Additional

Sessions Judge-FTC (Central), Tis Hazari Courts, Delhi titled "State v.

Mahender Kumar Nigam & Ors."

2. The case of the prosecution is that Mahender Nigam and

deceased Yogesh Sharma were doing property construction business

jointly. Mahender Nigam was allegedly owing about Rs.6 Crores to the

deceased. It is alleged that in order to avoid making payment, accused

Mahender Nigam hatched a conspiracy along with the applicant and

other co accused to eliminate Yogesh Sharma, and in pursuance

thereof one Javed and Abrar were hired to kill the deceased. The

conspiracy was given effect to by Javed who shot at the deceased and

at that time Abrar was accompanying him by driving the motorcycle on

which Javed was sitting.

3. The police has filed a chargesheet against the accused

persons including the applicant. The applicant and the other accused

are being tried for offences punishable under Sections 302/120B IPC

and under Sections 25/27/54/59 of the Arms Act. The applicant has

stated that he was granted interim bail vide order dated 22.01.2005

passed by the then Sessions Judge, and after the expiry of the period

of bail the applicant surrendered before the Court. He states that most

of the prosecution witnesses have already been examined in the case.

However, no evidence has come on record to connect him in the

alleged conspiracy to murder Yogesh Sharma. He submits that

another co accused Rakesh Kumar has been admitted to bail by this

Court vide order dated 16.02.2010 passed in Bail Application

No.1777/2009. He further submits that the role assigned to the

applicant is identical or lesser in extent to that of co accused Rakesh

Kumar. For this purpose, he relies on the contents of the charge sheet.

He further states that the mobile no. which is attributed to him is

registered in the name of one Ramesh Gopal, who has not been

examined. Learned counsel for the applicant has placed reliance on

Nanha s/o Nabhan Kha V. State of U.P., 1993 CRI.L. J.938 to

submit that since the case of the applicant is similar, if not identical, to

that of Rakesh, who has been bailed out, consistency should be

maintained by the court and the applicant should be released on bail.

4. On the other hand, the learned APP has opposed by

submitting that a specific role had been assigned to the applicant; that

the case of the applicant is materially different from that of Rakesh

who has been granted bail by this Court.

5. He submits that a recording of the conversation of the

applicant with the accused Mahender Kumar Nigam, which is being

duly made shows his involvement in the crime. He further argues that

the applicant had even refused to give a sample of his voice which

establishes his involvement in the crime.

6. The learned APP submits that considering the seriousness

of the charge against the applicant, merely because he has been under

incarceration since 10.8.2004, does not entitle him to seek bail. In

support of his submission, the learned APP has placed reliance on the

judgment of the Supreme Court in Kalyan Chandra Sarkar V.

Rajesh Ranjan Alias Pappu Yadav and Another, (2004) 7 SCC 528.

The learned APP has also submitted that the trial is more or less over

and most of the witnesses already stand examined. He submits that

there are in all about 70 prosecution witnesses in the case. He further

submits that the conduct of the applicant in the past has not been

good. He was absconding and only after proceedings to declare him a

proclaimed offender were undertaken, he surrendered before the

Court.

7. In his rejoinder, learned counsel for the applicant has

submitted that the prosecution has not examined the various persons

whose names have cropped up in the alleged telephonic conversation

recorded by the police between the applicant and Mahender Kumar

Nigam. He further submits that the tape recording was not sealed

immediately upon its being made. He therefore submits that the said

tape recording of the alleged conversation is of no avail.

8. The case against the applicant is founded upon

circumstantial evidence. The role assigned to him is that he has acted

as the link between Mahender Kumar Nigam and one Nadeem, who

had, in turn, facilitated the engagement of the alleged contract killers.

The further role assigned to him is that he is said to have delivered the

money for the killing and to have received the information about the

killing and to have passed on the same to Mahender Kumar Nigam.

9. The role allegedly played by the applicant would have to

be assessed on the basis of the evidence already led by the

prosecution or that may be led hereinafter. At this stage, this Court is

not required to assess, even prima facie, the guilt of the applicant. The

veracity and the evidenciary value of the tape-recorded mobile phone

conversation would also have to be assessed by the trial court. On a

perusal of the charge-sheet it appears that the role assigned to the

applicant is similar to that assigned to Rakesh who has since been

released on bail.

10. Considering the fact that the prosecution has more or less

completed the leading of its evidence, there is little or no possibility of

the petitioner tampering with the evidence or influencing the trial. The

judgment of Supreme Court in Kalyan Chandra Sarkar (supra) is not

applicable in the facts of this case. Coupled with this is the fact that

the petitioner has remained in incarceration since 10.08.2004.

Therefore, in my view, the petitioner is entitled to grant of bail. That

would also be in consonance with the view taken by the Allahabad High

Court in Nanha (supra).

11. Accordingly the present application is allowed. The

petitioner is admitted to bail on his furnishing a personal bond in the

sum of Rs.25,000/- with one surety in the like amount to the

satisfaction of the trial Court, subject to the condition that the

petitioner shall not leave the territorial jurisdiction of NCT of Delhi.

Petitioner will not contact the prosecution witnesses. He will make

himself available during trial or as and when called by the trial Court.

The application stands disposed of.

(VIPIN SANGHI) JUDGE

APRIL 09, 2010 as/rsk