VIPUL SHITAL PRASAD AGRAWAL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS petition under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 has been filed for quashing and setting aside the judgment and order dated 7-10-2011 passed in Cri.Misc.Appln.No.44 of 2011 by the learned Judicial Magistrate (First Class), Danta, whereby application filed by the petitioner for default bail in connection with offence registered as I.C.R.No.115 of 2006 with Ambaji Police Station was rejected and for releasing the applicant on default bail.

(2.) IT may be stated that in the aforesaid case, charge sheet has been filed by the Gujarat State Police before the trial court wherein committal order was also passed. However, Smt.Narmada Bai, mother of the deceased Tulsiram Prajapati, preferred writ petition before the Hon'ble Apex Court being Writ Petition (Criminal) No.115 of 2007 praying to direct the Central Bureau of Investigation to register a first information report and investigate into the fake encounter killing of her son and submit its report and also praying for compensation for killing of her son in the said fake encounter. The Hon'ble Apex Court disposed of the matter vide judgment and order dated 8-4-2011 directing the Police Authorities of the Gujarat State to hand over all the records of the present case to the CBI and to investigate all aspects of the case relating to the killing of Tulsiram Prajapati and file a report to the concerned court/special court having jurisdiction within a period of six months from the date of taking over of the investigation from the State Police Authorities. According to the applicant, though the said period of six months has already been over, CBI has not filed the charge sheet on completion of investigation and hence, the present petition seeking default bail.

(3.) LEARNED Special Public Prosecutor, Mr.Ejaz Khan with learned advocate, Mr.Y.N.Ravani for the respondent No.2 and LEARNED Addl. Public Prosecutor, Ms.Krina Calla for the respondent No.1 have submitted that in the present case, CID Crime, Gujarat Police, after collecting documentary as well as oral evidence during the course of investigation, has filed the charge sheet on 30-7-2010 against seven accused persons including the present applicant. Thereafter, two supplementary charge sheets were also filed on 31-7-2010 and 3-11-2010 and the Hon'ble Court has taken cognizance and case was committed to the Court of 5th (Ad-hoc) Addl. Sessions Judge, Palanpur, and the case is pending for trial. However, since mother of deceased Tulsiram Prajapati was not satisfied with the investigation conducted by Gujarat police, she approached the Hon'ble Supreme Court wherein investigation was handed over to CBI and now CBI, Special Crime Branch, Mumbai, has registered a case being RC.BS-1/2011/S/0003 on 29-4-2011 under Secs.120B read with Secs.341, 342, 364, 365, 368, 302 of IPC. According to them, registering of FIR by CBI is for initiation of investigation by CBI, however, it cannot be said that applicant has not been charge sheeted entitling him to bail under Sec.167(2) proviso of Cr.P.C. It is further submitted that the applicant has not been arrested by CBI and therefore also, the applicant is not entitled for default bail. According to them, the applicant is a high ranked police officer and is involved in the fake encounter and, therefore, considering the gravity and nature of offence, this Hon'ble Court may not exercise its discretion. It is also stated that looking to the position of the applicant as a high ranked police officer, there are all chances of he misusing the bail. They have also relied on many decisions. Some of them are as under :