The Gujarat High Court Order Cancelling The Bail Of Mayaben Surendrabhai Kodnani

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION No. 1943 of 2009
With
CRIMINAL MISC.APPLICATION No. 1959 of 2009
With
CRIMINAL MISC.APPLICATION No. 1961 of 2009
With
CRIMINAL MISC.APPLICATION No. 2015 of 2009
In CRIMINAL MISC.APPLICATION No. 1943 of 2009
With
CRIMINAL MISC.APPLICATION No. 2109 of 2009
In CRIMINAL MISC.APPLICATION No. 1959 of 2009
With
CRIMINAL MISC.APPLICATION No. 2018 of 2009
In CRIMINAL MISC.APPLICATION No. 1961 of 2009

For Approval and Signature:
HONOURABLE MR.JUSTICE D.H.WAGHELA Sd/—

1. Whether Reporters of Local Papers may be allowed to see the judgment ?
2. To be referred to the Reporter or not ?
3. Whether their Lordships wish to see the fair copy of the judgment ?
4. Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5. Whether it is to be circulated to the civil judge ? 

1 & 2 YES; 3 to 5 NO

STATE OF GUJARAT - Applicant

Versus

MAYABEN SURENDRABHAI KODNANI & ANOTHER Respondents

Appearance :

MR JM PANCHAL SPECIAL PUBLIC PROSECUTOR with MR UA TRIVEDI ADDL PUBLIC PROSECUTOR for Petitioner
MESSRS SV RAJU, YN OZA and MR MAHESH JETHMALANI, Senior Advocates, with MR MITESH R AMIN for Respondents DR MUKUL SINHA with MR SH IYER for Applicants in Cr.M.A.Nos.2015,2109 and 2018 of 2009 

CORAM :
HONOURABLE MR.JUSTICE D.H.WAGHELA

Date : 27/03/2009

CAV JUDGMENT

1. These petitions are preferred by the State for cancellation of anticipatory bail granted by the Sessions Court, Ahmedabad to two respondents in two riot-related criminal cases in which total 106 persons were killed, many injured and three persons were missing who are now declared to be dead. The facts and the cases being interconnected and the contentions and the legal issues being common, all the three cases were argued and heard together and they are disposed by this common judgment.

2. In Criminal Misc. Application No.1943 of 2009, the respondent is granted anticipatory bail by the impugned order dated 05.02.2009 mainly on the grounds that the respondent was implicated in the offence only on the basis of the statements indicating her presence in the mob and incitement as also for the reasons that she was a woman who was not even alleged to have attempted to tamper with the evidence and grant of bail was not likely to hamper the investigation. In the second case against the same respondent, bail is granted on similar grounds with the additional ground of parity with other co-accused persons who were released on regular bail even though they were alleged to have possessed weapons at the time of the offences. These two original criminal cases are notoriously known as "Naroda Patia" and "Naroda Gaon" cases, respectively registered as C.R.No.100 of 2002 and C.R.No.98 of 2002. The third petition against another respondent is related to the latter Naroda Gaon case in which the respondent is granted anticipatory bail on the grounds that his name has first figured six years after the incident, that other accused persons holding weapons in the same incident have been released on regular bail, that he does not have a criminal record, that he has not attempted to tamper with any evidence and he is not likely to commit offences.

3. Challenging the above orders, on affidavit of Deputy Superintendent of Police, Special Investigation Team (SIT), Riot Cases, it is contended that, by virtue of the statements of several witnesses recorded during the investigation by SIT, involvement of the respondents was proved from the inception and they were alleged to be leading the mob due to which their role could be distinguished from other accused persons. That, the respondent in Criminal Misc. Applications No.1943 of 2009 and 1959 of 2009 is presently a Minister of State and, therefore, there were ample chances of tampering of witnesses and evidence. That, learned Sessions Judge has not properly considered the evidence and, without looking to the seriousness of the offences of which investigation was going on, exercised the discretion on irrelevant and untenable grounds. That, according to one of the statements of witnesses, the respondent was alleged to have fired from her pistol and was also alleged to have distributed swords to the mob. It is averred that learned Sessions Judge has ignored in the impugned judgment the relevant considerations of gravity of the offences, probability of tampering of the prosecution witnesses as also wider interest of the society and impact of such orders. It is also submitted that the SIT was diligently investigating serious offences pursuant to the orders of the Apex Court and even alibis put forward by the respondents were investigated and thereafter it was prima facie found that the respondents were involved in the acts of spreading communal riots resulting into mass murder, destruction of property of a large number of people and other offences. On the other hand, the respondents were not fully co-operating with the investigating agency and they were making themselves unavailable when required. It is also averred that, even as early as in March 2002, applications were made from relief camps by the victims naming the respondents. It is clearly averred in the petitions that, according to the original FIRs dated 28.2.2002, Gujarat Bandh was declared on 28.2.2002 by Vishwa Hindu Parishad pursuant to carnage in a railway coach at Godhra on 27.2.2002 and communal riots were spread in the entire State of Gujarat, including Ahmedabad City. Properties belonging to Muslim community were damaged, looted and set on fire by mobs of thousands of people of Hindu community and many persons, including females and children, were killed. It is alleged in the FIRs lodged by Police Inspectors that the mobs were headed and instigated by the leaders of VHP and BJP. In the FIRs lodged against only five of named VHP and BJP workers with unnamed members of the mob consisting of thousands of persons, offences punishable under sections 143, 147, 148, 149, 436, 395, 302 of IPC and section 135 of Bombay Police Act were registered and several successive charge-sheets for heinous offences against many other persons were already filed.

4. Learned Special Public Prosecutor Mr. J. M. Panchal, appearing for the petitioner-State, submitted that the investigation presently undertaken by the SIT was pursuant to the order dated 26.3.2008 of the Supreme Court in Writ Petition (Cri.) No.109 of 2003 and other allied matters wherein, inter alia, further investigation of two cases of Naroda Patia and Naroda Gaon was ordered. There was specific direction of the Supreme Court that the SIT shall not confine the investigation by recording statements of those who came forward to give his or her version and shall be free to make such enquiries and investigation as felt by it to be necessary. The State is directed to provide necessary infrastructure and resources for effective working of the SIT. It was pointed out from the order dated 26.3.2008 that, after hearing the parties and considering the sensitive nature of the cases, it was felt that appointment of a special investigation team was warranted; and even after statement of learned senior counsel appearing for the State that the State’s approach was fair and it was not interested in sheltering any culprit or guilty person, there was an agreement that there was need for a special investigation team. Therefore, the SIT having been assigned by the Supreme Court an important task in sensitive cases, it was not proper or in the interest of proper investigation that any accused person would be granted advance protection on the basis of irrelevant considerations.

4.1 It was submitted that the offences punishable under section 302 of IPC read with several other sections were being investigated under the supervision of highly experienced and senior members of the SIT and prima facie case of involvement of the respondents was already established, even as further investigation was continued and required. But the seriousness and gravity of mass murder with its impact on the society and continued prominence of the respondents could not have permitted any Court to exercise judicial discretion in their favour, particularly when the victims and the witnesses were still suffering and vulnerable to various influences. Learned counsel referred to statements of various witnesses to indicate the role ascribed to the respondents and the material suggesting clear attempts at intimidating and influencing witnesses, all of which was not given due weightage in the impugned judgments. He further submitted that a detailed discussion of the material against the respondents, which is available as of now, must not be put to critical analysis and examination by the Court at this stage, as the investigation was underway. He further submitted that, in fact, custodial interrogation of several persons, including the respondents, was required for proper investigation and the Court ought to facilitate that task rather than hampering the investigation by offering an umbrella to the accused persons on the basis of delayed disclosure of their names and lapse of time, or likelihood of their co-operation.

4.2 Learned counsel relied upon judgment of three-Judge bench of the Supreme Court in Pokar Ram v. State of Rajasthan [(1985) 2 SCC 597] to submit that anticipatory bail, to some extent, intrudes in the sphere of investigation of crime and the court must be cautious and circumspect in exercising such power of a discretionary nature. Some very compelling circumstances must be made out for granting bail to a person accused of murder by firearm when the investigation is in progress. If the discretionary power to grant anticipatory bail were exercised sub-silentio as to reasons or on considerations irrelevant or not germane to the determination, such order could not be sustained and if such an order is allowed to stand, faith of public in administration of justice is likely to be shaken. Relying upon the order in Kiran Devi v. State of Rajasthan [1987 Supp. SCC 459], it was submitted that in a murder case, when investigation was still incomplete, anticipatory bail should not have been granted. With the observation that the proper course was to leave it to the trial Court to do the needful if and when the person concerned was arrested in light of the record available at that point of time, the order of the High Court granting anticipatory bail was set aside by the Apex Court.

4.3 Decision of the Apex Court in Satish Jaggi v. State of Chhattisgarh [(2008) 1 SCC (Cri.) 660] was pressed into service for the following observations, even in case of regular bail:

"12. Normally, if the offence is non-bailable also, bail can be granted if the facts and circumstances so demand. We have already observed that in granting bail in non-bailable offence, the primary consideration is the gravity and the nature of the offence. A reading of the order of the learned Chief Justice shows that the nature and the gravity of the offence and its impact on the democratic fabric of the society was not at all considered. We are more concerned with the observations and findings recorded by the learned Chief Justice on the credibility and the evidential value of the witnesses at the stage of granting bail. By making such observations and findings, the learned Chief Justice has virtually acquitted the accused of all the criminal charges leveled against him even before the trial. The trial is in progress and if such findings are allowed to stand it would seriously prejudice the prosecution case. At the stage of granting of bail, the court can only go into the question of the prima facie case established for granting bail. It cannot go into the question of credibility and reliability of the witnesses put up by the prosecution. The question of credibility and reliability of prosecution witnesses can only be tested during the trial."

Recent judgment of the Apex Court in Gobarbhai Naranbhai Singala v. State of Gujarat [2008 (3) GLR 2192] was relied upon for the following propositions even in a case of bail during trial which was pending since four years:

"24. This court in Amarmani Tripathi (2005 (8) SCC 21) had held that while considering the application for bail, what is required to be looked is (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail.

"25. In Panchanan Mishra v. Digambar Mishra [2005 (3) SCC 143], the Court while considering the question of cancellation of bail, observed:

"13. ....The object underlying the cancellation of bail is to protect the fair trial and secure justice being done to the society by preventing the accused who is set at liberty by the bail order from tampering with the evidence in the heinous crime.....It hardly requires to be stated that once a person is released on bail in serious criminal cases where the punishment is quite stringent and deterrent, the accused in order to get away from the clutches of the same indulge in various activities like tampering with the prosecution witnesses, threatening the family members of the deceased victim and also create problems of law and order situation."

"26. We are of the view that the High Court has completely ignored the general principles for grant of bail in a heinous crime of commission of murder in which the sentence, if convicted, is death or life imprisonment. "

4.4 Recent judgment of the Supreme Court in State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain [(2008) 1 SCC (Cri.) 176] was relied upon for the following observations made therein:

"23. So far as the fact that the respondents have not been named in the first information report is concerned, suffice it to say that the first information report may not be encyclopaedic.

24. ... ... ...

"25. Out of the eight respondents, five are police officers, two are politicians and one is owner of a hotel. It is not in dispute that after having come to learn that their names had been taken by the prosecutrix in her supplementary statement, they had been absconding for a long time. It is not necessary for us to record their respective period of abscondance. We may furthermore notice that the respondents had not scrupulously complied with the conditions imposed upon them. Admittedly, at least on four occasions, some of them were not present.

"26. ... ... ...

"27. There cannot be any direct proof that the respondents have been tampering with evidence, but that question will have to be considered by the appropriate authority at the appropriate stage.

"30. A case of this nature should be allowed to be fully investigated. Once a criminal case is set in motion by lodging an information in regard to the commission of the offence in terms of section 154 of Cr.P.C., it may not always be held to be imperative that all the accused persons must be named in the first information report. It has not been denied nor disputed that the prosecutrix does not bear any animosity against the respondents. There is no reason for her to falsely implicate them. It is also not a case that she did so at the behest of some other person, who may be inimically disposed towards the respondents. The prosecution has disclosed the manner in which she was being taken from place to place which finds some corroboration from the testimonies of the other witnesses and, thus, we can safely arrive at a conclusion that at least at this stage her evidence should not be rejected outrightly.

"31. Parameters for grant of anticipatory bail in such a serious offence, being under sections 376, 376 (2)(g) IPC, in our opinion, are required to be satisfied. (See e.g. D.K.Ganesh Babu v. P.T.Manokaran - (2007) 4 SCC 434).

4.5 Dwelling on the issue of necessity of custodial interrogation, learned counsel relied upon judgment of the Supreme Court in State (CBI) v. Anil Sharma [(1997) 7 SCC 187] and emphasized:

"6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under section 438 of the Code. In a case like this, effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders.

"8. .....At any rate, the learned single Judge ought not to have side-stepped the apprehension expressed by the CBI (that the respondent would influence the witnesses) as one which can be made against all accused persons in all cases. The apprehension was quite reasonable when considering the high position which the respondent held and in the nature of accusation relating to a period during which he held such office."

4.6 As for the ground of parity, learned counsel Mr.Panchal relied upon following observations made by this Court in Dineshkumar Vasudev Nayak v. State of Gujarat [2003 (2) GLH 274]:

"4.