Samirbhai Ishwarbhai Gandhi vs State Of Gujarat
2024 Latest Caselaw 585 Guj

Gujarat High Court

Samirbhai Ishwarbhai Gandhi vs State Of Gujarat on 23 January, 2024

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R/CR.MA/15184/2023                             CAV JUDGMENT DATED: 23/01/2024

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (FOR SUCCESSIVE REGULAR BAIL -
           AFTER CHARGESHEET) NO. 15184 of 2023

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE DIVYESH A. JOSHI                             Sd/-

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1    Whether Reporters of Local Papers may be allowed                No
     to see the judgment ?

2    To be referred to the Reporter or not ?                         No

3    Whether their Lordships wish to see the fair copy               No
     of the judgment ?

4    Whether this case involves a substantial question               No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                     SAMIRBHAI ISHWARBHAI GANDHI
                                 Versus
                          STATE OF GUJARAT
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Appearance:
MR BHAVIK R SAMANI(8339) for the Applicant(s) No. 1
MR. DHAWAN JAYSWAL, LD. APP for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
                     Date : 23/01/2024
                     CAV JUDGMENT

1. The present successive 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-66 of 2016 registered with the Rajkot 'B' Division Police Station, Rajkot City of the offence punishable under Sections 302, 365, 342 and 120(B) of the IPC.

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2. In nut shell the case of the prosecution is that the first information report came to be lodge against total four accused persons including two police personnel. The accused No.1 is the partner of Rajmoti Mill and the present applicant-accused is working as the Manager of the said Rajmoti Mill. The deceased who happens to be the brother-in-law of the complainant, namely, Dineshbhai Maganbhai Dakshini was working as the Manager at the depot of the Ahmeabad Branch of Rajmoti Mill. It is the case of the prosecution that the accused No.1 and the present applicant-accused hatched a criminal conspiracy and as a part of the said conspiracy, the present applicant-accused along with the other co-accused came to Ahmedabad from Rajkot and abducted the deceased from his house in the presence of the wife of the deceased and other witnesses and forcibly took him to Rajkot. The motive behind the said abduction was to forcibly make the deceased confess that he had misappropriated the funds of the company worth Rs.65 to 70 Lakh. It is alleged that slaps were administered to the deceased in the presence of his wife. It is also alleged that thereafter they took the deceased at Rajkot and kept him in the room of a building owned by Rajmoti Industries, where under the instructions of accused No.1, namely, Samir Madhukanth Shah, the present applicant- accused had beaten up the deceased with the baseball bat to forcibly accept that he has defrauded the funds of the company. When the deceased denied to do so, he was then taken to the Bedipara Police Station where also the present applicant-accused along with his employer Samir Shah and other police personnel had beaten up the deceased with the

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stick as well as kicks and fist blows. Thereafter, the deceased was told to make a call to his wife from the police station and ask her to make arrangements of the funds. It is alleged that due to such brutal beating, the deceased fell unconscious and, therefore, he was taken to the hospital where the applicant- accused along with his aides told the doctor that the deceased has become unconscious for some unknown reasons. However, the concerned medical officer after examining the deceased, declared him as dead. Hence, the impugned FIR.

3. Learned advocate Mr. Bhavik Samani appearing for the applicant has submitted that the applicant-accused was arrested on 03.03.2016 and he is in jail ever since. Learned advocate Mr. Samani has also submitted that the investigation has already been completed and charge-sheet has also been filed. Learned advocate Mr. Samani has submitted that the allegation against the present applicant-accused is that the deceased was beaten to death by the present applicant- accused. Learned advocate Mr. Samani has further submitted that as per the case of the prosecution, the alleged incident took place during the period between 28.02.2016 and 01.03.2016 for which the first information report came to be lodged on 02.03.2016. Learned advocate Mr. Samani has also submitted that the first information report has been filed against total four persons including two police personnel. It is submitted that the deceased was died in the police custody. It is more so submitted that as per the case of the prosecution, the deceased siphoned away the funds of the company of the accused No.1 worth Rs.65 to 70 Lakh. The present applicant-

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accused was working as the manager in the company of the accused No.1 and, therefore, under the instructions of the accused No.1, the present applicant-accused along with other co-accused came to Ahmedabad from Rajkot and abducted the deceased and took the deceased at Rajkot where he was kept in one room of the premises owned by Rajmoti Company where he was brutally beaten up by the present applicant- accused with the baseball bat. Learned advocate Mr. Samani has also submitted that it is the case of the prosecution that after keeping the deceased at the premises of the company and beating him up mercilessly, the deceased was taken to the police station where also he was beaten up by the police as well as by the present applicant-accused along with his aides. Thereafter, the deceased succumbed to the injuries in the police custody. Learned advocate Mr. Samani has submitted that the present applicant-accused is in custody since 2016. The trial has already been commenced and number of witnesses have been examined. During the course of the trial, the present applicant-accused turned as an approver and consented to give full and true disclosure of the whole of the circumstances relating to the offence and about the involvement of the other culprits. Accordingly, the applicant- accused has also been made approver in the case, and was tendered pardon by the concerned Sessions Court, which he voluntarily accepted. Thereafter, he had been examined as a prosecution witness wherein the applicant-accused fully supported the case of the prosecution. A detailed cross- examination of the applicant-accused had also been carried out by the learned advocate for the defense. Learned advocate

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Mr. Samani has submitted that, therefore, since the applicant has already been tendered pardon by the Court, he is entitled to be released on bail. It is further submitted that in the backdrop of the above stated facts and circumstances, now keeping the present applicant-accused behind the bar would amount to a gross miscarriage of justice as the trial would take considerable long period of time since the police witnesses as well as the defense witnesses are yet to be examined. Under the circumstances, learned advocate Mr. Samani prays that the applicant may be enlarged on bail on any suitable terms and conditions.

4. On the other hand, this application has been vehemently opposed by learned APP Mr. Dhawan Jayswal looking to the nature and gravity of the offence. Learned APP Mr. Jayswal has further submitted that the role of the present applicant- accused is clearly spelt out from the compilation of the police papers. It is submitted that the name of the present applicant- accused is there in the first information report from the very beginning. Learned APP Mr. Jaywal has also submitted that the present applicant-accused is the person who abducted the deceased from his house at Ahmedabad and took him to Rajkot where the deceased was mercilessly beaten by the present applicant-accused with the baseball bat. The deceased was then taken at the concerned police station where also he was brutally beaten by the present applicant-accused and some police personnel and due to such assault, he died in the police station. Learned APP has further submitted that upon inquiry being made, he has come to know that the trial is in

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progress and except the Investigating Officer, all the prosecuting witnesses have already been examined and the trial is at it fag end. Learned APP Mr. Jayswal has submitted that considering the role attributed to the applicant-accused, this is a fit case wherein discretionary power of this Court is not required to be exercised in favour of the applicant- accused.

5. Having heard learned counsels for both the sides and upon going through the record, I find that the relevant provisions of the Cr.P.C. are required to be taken into consideration in this case. Section 306 of the Cr.P.C., relates to tender of pardon to an accomplice, relevant portion of which reads as follows:-

"306. Tender of pardon to accomplice.--(1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial, may tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof.

(2) This section applies to--

1. any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952).

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2. any offence punishable with imprisonment which may extend to seven years or with a more severe sentence.

(3) Every Magistrate who tenders a pardon under sub- section (1) shall record--

(a) his reasons for so doing;

(b) whether the tender was or was not accepted by the person to whom it was made, and shall, on application made by the accused, furnish him with a copy of such record free of cost.

(4) Every person accepting a tender of pardon made under sub-section (1)-

(a) shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any;

(b) shall, unless he is already on bail, be detained in custody until the termination of the trial.

(5) xxxxxxxxxx "

6. A plain reading of Section 306 of the Cr.P.C., reveals that it lays down the procedure to be followed while tendering the pardon when the case is pending in the original Court of trial, i.e., the Court of the Chief Judicial Magistrate or a Metropolitan Magistrate or the Magistrate of first class, as the case may be. It also clearly states that the person accepting the tender of pardon, if in custody, shall be detained in custody, until the termination of the trial. It also states that the said section applies to the cases where the offence is exclusively triable by the Court of Sessions or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952) or to any offence punishable with imprisonment which

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may extend to seven years or with a more severe sentence.

7. Thus, from the aforesaid provision, it appears that section 306(4) stipulates that unless the pardoned person is already out on bail, he or she shall be detained in custody till the termination of the trial. The object, purpose and intention behind the provision is not to punish him for having agreed to give evidence for the state, but to protect him from the wrath of the co-accused, since he has chosen to expose their deeds and has thrown himself open to attack by the co-accused.

8. Now let me recapitulate the facts of the present case.

The applicant-accused was working as the manager in the company of the accused No.1. The accused No.1 as alleged is rich and influential person having good political connections. The deceased was also working as the manager at the Ahmedabad branch of Rajmoti Industries. It appears from the materials on record that the sole motive behind the killing of the brother-in-law of the complainant was to forcibly make him confess that he has misappropriated the funds of the company worth Rs.65 to 70 Lakh. The present applicant-accused, along with his aides, came all the way from Rajkot to Ahmedabad and abducted the deceased from his house in the presence of his wife. They took the deceased at Rajkot in the Scorpio Car of the accused No.1 and kept him in the room of the premises owned by Rajmoti Industries where the deceased was mercilessly beaten by the present applicant-accused with the baseball bat. It is alleged that thereafter as the deceased denied to confess anything, he was taken to the concerned police station by the accused persons where also the deceased

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was brutally beaten by the present applicant-accused as well as by the police personnel. Therefore, two police personnel have also been arraigned as the accused. Upon perusal of the case papers, it appears that the present applicant-accused is the person who has played a lead role in the entire episode. His role seems to be like a contract killer, who under the instructions of somebody, kidnapped and killed a person for which he might have gained some monetary or professional benefit. Serious allegations have been levelled against the applicant-accused in the FIR as well as in the charge-sheet that he has committed a gruesome murder of the brother-in-law of the complainant. The deceased was abducted by the present applicant-accused and his aides in the presence of his wife for some financial disputes. Be that as it may, if there was any financial dispute between the deceased and the accused persons, they would have initiated appropriate legal proceedings against the deceased. However, they chosen to act as the goons and killed the deceased. It was a planned conspiracy and the present applicant-accused was the kingpin of the said conspiracy. The present applicant-accused along with other co-accused had beaten the deceased to the extent that he could not survive and succumbed to the injuries. It is true that during the course of trial, the applicant-accused has turned as an approver, but looking to the role attribute to the applicant-accused, the same does not lower the burden of guilt of the applicant-accused. The courts should be more cautious and careful while granting pardon to the accused. It should not be granted as a general practice but the same should be looking to the role of the accused to whom it is sought for.

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Moreover, in the present case, the trial is at the progressive stage and, therefore, this Court has to keep in mind the aspect of tampering of the evidence. As alleged, the co-accused is a rich and influential person and, therefore, after turning to be an approver, it is also endanger to the life of the present applicant-accused if he is set at liberty.

9. As on date, there is a charge-sheet on record. I would not like to go into the evidence forming part of the charge-sheet. It is now for the trial Court to proceed with the recording of the evidence. The guilt or the innocence of the accused will be now determined by the trial Court on conclusion of the trial.

10. It is an admitted position of fact that except the evidence of the Investigating Officer, all the prosecuting witnesses have already been examined and after completion of the deposition of the Prosecuting Agency, the matter would be reached at the stage of recording of further statement of the accused and, thereafter, matter will be only two stages away, i.e, arguments and judgment. Therefore, considering the above stated factual aspects, I am not inclined to exercise discretion in favour of the applicant-accused.

11. For the foregoing reasons, this application fails and is hereby rejected. Rule is discharged. However, it is clarified that the Trial Court shall conclude the trial within an outer limit of six months without being influenced, in any manner, by any of the observations made in this order which has been necessitated only for deciding the present application.

(DIVYESH A. JOSHI,J) VAHID